Digital Economy Bill (HC Bill 45)

Digital Economy BillPage 80

82 Commencement

(1) The following come into force on the day on which this Act is passed—

(a) section 75;

(b) sections 81, 83 and 84;

(c) 5this section.

(2) The following come into force at the end of the period of two months beginning
with the day on which this Act is passed—

(a) section 1;

(b) section 2;

(c) 10section 3;

(d) section 7;

(e) sections 10 to 14;

(f) sections 69 to 73;

(g) section 77.

(3) 15Section 76 comes into force on 1 June 2020.

(4) Part 5, except sections 38 and 39, comes into force on whatever day the
Secretary of State or the Minister for the Cabinet Office appoints by regulations
made by statutory instrument.

(5) The other provisions of this Act come into force on whatever day the Secretary
20of State appoints by regulations made by statutory instrument.

(6) Different days may be appointed for different purposes.

83 Extent

(1) This Act extends to England and Wales, Scotland and Northern Ireland, subject
to the following provisions of this section.

(2) 25Sections 30 and 31 extend to England and Wales and Scotland only.

(3) In section 38—

(a) subsections (4) and (5) (and, so far as it relates to them, subsection (2))
of the new section 19AB inserted in the Registration Service Act 1953
extend to England and Wales, Scotland and Northern Ireland, but

(b) 30subject to that, the amendments and repeals made to that Act extend to
England and Wales only.

(4) Section 47 of the Registered Designs Act 1949 (application to Isle of Man)
applies to section 27 as it applies to that Act.

(5) An amendment of the following enactments made by this Act may be extended
35to any of the Channel Islands or the Isle of Man under the relevant extending
power—

(a) Part 1 of the Copyright, Designs and Patents Act 1988;

(b) the Broadcasting Act 1990;

(c) the Broadcasting Act 1996;

(d) 40the Communications Act 2003;

(e) the Wireless Telegraphy Act 2006.

(6) “Relevant extending power” means—

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(a) in relation to amendments of Part 1 of the Copyright, Designs and
Patents Act 1988, section 157(2) of that Act;

(b) in relation to amendments of the Broadcasting Act 1990, section 204(6)
of that Act;

(c) 5in relation to amendments of the Broadcasting Act 1996, section 150(4)
of that Act;

(d) in relation to amendments of the Communications Act 2003, section
411(6) of that Act;

(e) in relation to amendments of the Wireless Telegraphy Act 2006, section
10118(3) of that Act.

(7) The power conferred by section 157(2)(c) of the Copyright, Designs and Patents
Act 1988 (power to extend to British overseas territories) is exercisable in
relation to any amendment made by this Act to Part 1 of that Act.

(8) Her Majesty may by Order in Council extend sections 15 to 25, with such
15modifications as appear to Her Majesty in Council to be appropriate, to any of
the Channel Islands or to the Isle of Man.

(9) The power to make an Order in Council under subsection (8) includes power—

(a) to make different provision for different cases (including different
provision in respect of different areas);

(b) 20to make provision subject to such exemptions and exceptions as Her
Majesty in Council thinks fit; and

(c) to make such incidental, supplemental, consequential and transitional
provision as Her Majesty in Council thinks fit.

84 Short title

25This Act may be cited as the Digital Economy Act 2016.

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SCHEDULES

Section 4

SCHEDULE 1 The electronic communications code

This is the Schedule to be inserted before Schedule 4 to the Communications
5Act 2003—

Section 106

“Schedule 3A The electronic communications code

Part 1 Key concepts

Introductory

1 (1) 10This Part defines some key concepts used in this code.

(2) For definitions of other terms used in this code, see—

(a) paragraph 90 (meaning of “the court”).

(b) paragraph 101 (meaning of “occupier”),

(c) paragraph 104 (general interpretation),

(d) 15section 32 (meaning of electronic communications
networks and services), and

(e) section 405 (general interpretation).

The operator

2 In this code “operator” means—

(a) 20where this code is applied in any person’s case by a
direction under section 106, that person, and

(b) where this code applies by virtue of section 106(3)(b), the
Secretary of State or (as the case may be) the Northern
Ireland department in question.

25The code rights

3 For the purposes of this code a “code right”, in relation to an
operator and any land, is a right for the statutory purposes—

(a) to install and keep electronic communications apparatus
on, under or over the land,

(b) 30to inspect, maintain, adjust, alter, repair, upgrade or
operate electronic communications apparatus which is on,
under or over the land,

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(c) to carry out any works on the land for or in connection
with the installation, maintenance, adjustment, alteration,
repair, upgrading or operation of electronic
communications apparatus,

(d) 5to enter the land to inspect, maintain, adjust, alter, repair,
upgrade or operate any electronic communications
apparatus which is on, under or over the land or
elsewhere,

(e) to connect to a power supply,

(f) 10to interfere with or obstruct a means of access to or from
the land (whether or not any electronic communications
apparatus is on, under or over the land), or

(g) to lop or cut back, or require another person to lop or cut
back, any tree or other vegetation that interferes or will or
15may interfere with electronic communications apparatus.

The statutory purposes

4 In this code “the statutory purposes”, in relation to an operator,
means—

(a) the purposes of providing the operator’s network, or

(b) 20the purposes of providing an infrastructure system.

Electronic communications apparatus, lines and structures

5 (1) In this code “electronic communications apparatus” means—

(a) apparatus designed or adapted for use in connection with
the provision of an electronic communications network,

(b) 25apparatus designed or adapted for a use which consists of
or includes the sending or receiving of communications or
other signals that are transmitted by means of an electronic
communications network,

(c) lines, and

(d) 30other structures or things designed or adapted for use in
connection with the provision of an electronic
communications network.

(2) References to the installation of electronic communications
apparatus are to be construed accordingly.

(3) 35In this code—

  • “line” means any wire, cable, tube, pipe or similar thing
    (including its casing or coating) which is designed or
    adapted for use in connection with the provision of any
    electronic communications network or electronic
    40communications service;

  • “structure” includes a building only if the sole purpose of that
    building is to enclose other electronic communications
    apparatus.

The operator’s network

6 45In this code “network” in relation to an operator means—

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(a) if the operator falls within paragraph 2(a), so much of any
electronic communications network or infrastructure
system provided by the operator as is not excluded from
the application of the code under section 106(5), and

(b) 5if the operator falls within paragraph 2(b), the electronic
communications network which the Secretary of State or
the Northern Ireland department is providing or
proposing to provide.

Infrastructure system

7 (1) 10In this code “infrastructure system” means a system of
infrastructure provided so as to be available for use by providers
of electronic communications networks for the purposes of the
provision by them of their networks.

(2) References in this code to provision of an infrastructure system
15include references to establishing or maintaining such a system.

Part 2 Conferral of code rights and their exercise

Introductory

8 This Part of this code makes provision about—

(a) 20the conferral of code rights,

(b) the persons who are bound by code rights, and

(c) the exercise of code rights.

Who may confer code rights?

9 A code right in respect of land may only be conferred on an
25operator by an agreement between the occupier of the land and
the operator.

Who else is bound by code rights?

10 (1) This paragraph applies if, in accordance with this Part, a code right
is conferred on an operator in respect of land by a person (“O”)
30who is the occupier of the land when the code right is conferred.

(2) If O has an interest in the land when the code right is conferred,
the code right also binds—

(a) the successors in title to that interest,

(b) a person with an interest in the land that is created after the
35right is conferred and is derived (directly or indirectly) out
of—

(i) O’s interest, or

(ii) the interest of a successor in title to O’s interest, and

(c) any other person at any time in occupation of the land
40whose right to occupation was granted by—

(i) O, at a time when O was bound by the code right,
or

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(ii) a person within paragraph (a) or (b).

(3) A successor in title who is bound by a code right by virtue of sub-
paragraph (2)(a) is to be treated as a party to the agreement by
which O conferred the right.

(4) 5The code right also binds any other person with an interest in the
land who has agreed to be bound by it.

(5) If such a person (“P”) agrees to be bound by the code right, the
code right also binds—

(a) the successors in title to P’s interest,

(b) 10a person with an interest in the land that is created after P
agrees to be bound and is derived (directly or indirectly)
out of—

(i) P’s interest, or

(ii) the interest of a successor in title to P’s interest, and

(c) 15any other person at any time in occupation of the land
whose right to occupation was granted by—

(i) P, at a time when P was bound by the code right, or

(ii) a person within paragraph (a) or (b).

(6) A successor in title who is bound by a code right by virtue of sub-
20paragraph (5)(a) is to be treated as a party to the agreement by
which P agreed to be bound by the right.

Requirements for agreements

11 (1) An agreement under this Part—

(a) must be in writing,

(b) 25must be signed by or on behalf of the parties to it,

(c) must state for how long the code right is exercisable, and

(d) must state the period of notice (if any) required to
terminate the agreement.

(2) Sub-paragraph (1)(a) and (b) also applies to the variation of an
30agreement under this Part.

(3) The agreement as varied must still comply with sub-paragraph
(1)(c) and (d).

Exercise of code rights

12 (1) A code right is exercisable only in accordance with the terms
35subject to which it is conferred.

(2) Anything done by an operator in the exercise of a code right
conferred under this Part in relation to any land is to be treated as
done in the exercise of a statutory power.

(3) Sub-paragraph (2) does not apply against a person who—

(a) 40is the owner of the freehold estate in the land or the lessee
of the land, and

(b) is not for the time being bound by the code right.

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(4) Sub-paragraph (2) does not apply against a person who has the
benefit of a covenant or agreement entered into as respects the
land, if—

(a) the covenant or agreement was entered into under a
5enactment, and

(b) by virtue of the enactment, it binds or will bind persons
who derive title or otherwise claim—

(i) under the covenantor, or

(ii) under a party to the agreement.

(5) 10In the application of sub-paragraph (3) to Scotland the reference to
a person who is the owner of the freehold estate in the land is to be
read as a reference to a person who is the owner of the land.

Access to land

13 (1) This paragraph applies to an operator by whom any of the
15following rights is exercisable in relation to land—

(a) a code right within paragraph (a) to (e) or (g) of paragraph
3;

(b) a right under Part 8 (street works rights);

(c) a right under Part 9 (tidal water rights);

(d) 20a right under paragraph 70 (power to fly lines).

(2) The operator may not exercise the right so as to interfere with or
obstruct any means of access to or from any other land unless, in
accordance with this code, the occupier of the other land has
conferred or is otherwise bound by a code right within paragraph
25(f) of paragraph 3.

(3) The reference in sub-paragraph (2) to a means of access to or from
land includes a means of access to or from land that is provided for
use in emergencies.

(4) This paragraph does not require a person to whom sub-paragraph
30(5) applies to agree to the exercise of any code right on land other
than the land mentioned in that sub-paragraph.

(5) This sub-paragraph applies to a person who is the occupier of, or
owns an interest in, land which is—

(a) a street in England and Wales or Northern Ireland,

(b) 35a road in Scotland, or

(c) tidal water or lands within the meaning of Part 9 of this
code.

Part 3 Assignment of code rights, and upgrading and sharing of apparatus

40Introductory

14 This Part of this code makes provision for—

(a) operators to assign agreements under Part 2,

(b) operators to upgrade electronic communications
apparatus to which such an agreement relates, and

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(c) operators to share the use of any such electronic
communications apparatus.

Assignment of code rights

15 (1) Any agreement under Part 2 of this code is void to the extent
5that—

(a) it prevents or limits assignment of the agreement to
another operator, or

(b) it makes assignment of the agreement subject to conditions
to be met by the operator (including a condition requiring
10the payment of money).

(2) In its application to England and Wales or Northern Ireland sub-
paragraph (1) does not apply to the following terms of an
agreement under Part 2 of this code—

(a) terms in a lease which require the operator to enter into an
15authorised guarantee agreement within the meaning of the
Landlord and Tenant (Covenants) Act 1995 (see sections 16
and 28 of that Act) or (in Northern Ireland) a similar
agreement;

(b) terms in an agreement other than a lease which have a
20similar effect to terms within paragraph (a).

(3) If an operator (“the assignor”) assigns an agreement under Part 2
of this code to another operator (“the assignee”), the assignee is
from the date of the assignment bound by the terms of the
agreement.

(4) 25The assignor is not liable for any breach of a term of the agreement
that occurs after the assignment if (and only if), before the breach
took place, the assignor or the assignee gave a notice in writing to
the other party to the agreement which—

(a) identified the assignee, and

(b) 30provided a contact address for the assignee.

(5) Sub-paragraph (4) is subject to the terms of any authorised
guarantee agreement or similar agreement entered into by the
assignor as mentioned in sub-paragraph (2).

(6) In the application of this paragraph to Scotland references to
35assignment of an agreement are to be read as references to
assignation of an agreement.

(7) Nothing in the Landlord and Tenant Amendment (Ireland) Act
1860 applies in relation to an agreement under Part 2 of this code
so as to—

(a) 40prevent or limit assignment of the agreement to another
operator, or

(b) relieve the assignor from liability for any breach of a term
of the agreement that occurs after the assignment.

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Power for operator to upgrade or share apparatus

16 (1) An operator (“the main operator”) who has entered into an
agreement under Part 2 of this code may, if the conditions in sub-
paragraphs (2) and (3) are met—

(a) 5upgrade the electronic communications apparatus to
which the agreement relates, or

(b) share the use of such electronic communications apparatus
with another operator.

(2) The first condition is that any changes as a result of the upgrading
10or sharing to the electronic communications apparatus to which
the agreement relates have no adverse impact, or no more than a
minimal adverse impact, on its appearance.

(3) The second condition is that the upgrading or sharing imposes no
additional burden on the other party to the agreement.

(4) 15For the purposes of sub-paragraph (3) an additional burden
includes anything that—

(a) has an additional adverse effect on the other party’s
enjoyment of the land, or

(b) causes additional loss, damage or expense to that party.

(5) 20Any agreement under Part 2 of this code is void to the extent
that—

(a) it prevents or limits the upgrading or sharing, in a case
where the conditions in sub-paragraphs (2) and (3) are met,
of the electronic communications apparatus to which the
25agreement relates, or

(b) it makes upgrading or sharing of such apparatus subject to
conditions to be met by the operator (including a condition
requiring the payment of money).

(6) References in this paragraph to sharing electronic
30communications apparatus include carrying out works to the
apparatus to enable such sharing to take place.

Effect of agreements enabling sharing between operators and others

17 (1) This paragraph applies where—

(a) this code has been applied by a direction under section 106
35in a person’s case,

(b) this code expressly or impliedly imposes a limitation on
the use to which electronic communications apparatus
installed by that person may be put or on the purposes for
which it may be used, and

(c) 40that person is a party to a relevant agreement or becomes a
party to an agreement which (after the person has become
a party to it) is a relevant agreement.

(2) The limitation does not preclude—

(a) the doing of anything in relation to that apparatus, or

(b) 45its use for particular purposes,

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to the extent that the doing of that thing, or the use of the
apparatus for those purposes, is in pursuance of the relevant
agreement.

(3) This paragraph is not to be construed, in relation to a person who
5is entitled or authorised by or under a relevant agreement to share
the use of apparatus installed by another party to the agreement,
as affecting any consent requirement imposed (whether by an
agreement, an enactment or otherwise) on that person.

(4) In this paragraph—

  • 10“consent requirement”, in relation to a person, means a
    requirement for the person to obtain consent or permission
    to or in connection with—

    (a)

    the installation by the person of apparatus, or

    (b)

    the doing by the person of any other thing in relation
    15to apparatus the use of which the person is entitled or
    authorised to share;

  • “relevant agreement” means an agreement in relation to
    electronic communications apparatus which—

    (a)

    relates to the sharing by different parties to the
    20agreement of the use of that apparatus, and

    (b)

    is an agreement that satisfies the requirements of sub-
    paragraph (5).

(5) An agreement satisfies the requirements of this sub-paragraph
if—

(a) 25every party to the agreement is a person in whose case this
code applies by virtue of a direction under section 106, or

(b) one or more of the parties to the agreement is a person in
whose case this code so applies and every other party to
the agreement is a qualifying person.

(6) 30A person is a qualifying person for the purposes of sub-paragraph
(5) if the person is either—

(a) a person who provides an electronic communications
network without being a person in whose case this code
applies, or

(b) 35a designated provider of an electronic communications
service consisting in the distribution of a programme
service by means of an electronic communications
network.

(7) In sub-paragraph (6)

  • 40“designated” means designated by regulations made by the
    Secretary of State;

  • “programme service” has the same meaning as in the
    Broadcasting Act 1990.