Committee stage in the Lords
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Lord De MauleyConservative- Quote
- My Lords, this is a simple amendment to ensure proper parliamentary scrutiny of the reports. The Government have sensibly accepted many of the Delegated Powers and Regulatory Reform Committee’s recommendations and have improved the level of parliamentary control over the imposition of many of the orders in this part. It would therefore be sensible to ensure that Parliament has formal access to the reports necessary to inform its scrutiny. We have stopped short of suggesting that the interim reports should necessarily be laid before Parliament, as this might be too burdensome. We would, however, expect these to be published in other ways. It would be helpful therefore if the Minister could confirm the extent to which the Government intend that both the interim and full reports will be published. I beg to move.
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- My Lords, a report from Ofcom to the Secretary of State, while not being the only evidence that will be considered, will almost certainly play an important part in the process whereby the Secretary of State makes his decision on whether it is necessary and appropriate to introduce technical obligations. I agree that it is reasonable that one of the main planks of that decision should be made available to Parliament. It would be important to ensure that the Secretary of State should have the power not to disclose information which is commercially confidential or should not be disclosed for legitimate reasons. I feel sure that the noble Lord, Lord De Mauley, would recognise those factors. Broadly, we think that this is right, so I should like to thank the noble Lords, Lord Howard of Rising and Lord De Mauley, for tabling this constructive amendment and suggest that we take it away and consider it further.
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- Lord De MauleyConservative
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- My Lords, I thank the Minister for his response. I accept his point about confidential information. On the basis of his offer, I beg leave to withdraw the amendment.
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- Lord De MauleyConservative
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- My Lords, this deregulatory amendment seeks to allow the power for the Government to remove quickly and easily a regulatory burden that may very soon become unnecessary. The pressure that has led to the Government drafting in the three-monthly interim reports is understandable. There is a great deal of concern about how these provisions will impact on certain stakeholders and about their efficacy and so on. However, once the provisions have bedded in, it would surely be ridiculous to continue to produce such frequent reports on such a multitude of subjects as is laid out in subsection(4). The interim reports would become meaningless pieces of paper containing nothing of value and would serve no purpose but to keep public servants busy. I hope that the Minister will appreciate the intent behind the amendment. I beg to move.
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Lord Young of Norwood GreenLabour- Quote
- My Lords, I thank the noble Lord, Lord De Mauley. We believe that he has raised a very constructive point, which we will take away and consider further.
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- Lord De MauleyConservative
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- There is no end to the Minister’s generosity. On that basis, I beg leave to withdraw the amendment.
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Lord LucasConservative- Quote
- My Lords, the Minister has set a very encouraging trend and I fully expect to be the beneficiary of it. By way of aside, we have talked about the stage at which technical measures might become necessary. These amendments are alternatives. They are both designed to ensure that the regime set out in Clauses 4 to 9 has a chance to work before we tip ourselves into technical measures. I beg to move.
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The Earl of ErrollCrossbench- Quote
- My Lords, I support this amendment. There could be all sorts of delays or people might want to hasten things forward, particularly under pressure. One might find precipitate pressure because people believe that it is not working. As we have already established, we will not be working for a benchmark for what is good. Having a two-year period for things to bed in and to find out whether this provision is okay is sensible.
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Lord Howard of RisingConservative- Quote
- We on these Benches entirely agree with my noble friend’s concern that technical measures should not be imposed until there has been a proper assessment of the success or failure of the reports, letters and lists allowed under the previous clauses. We will come on in time to the question of what exactly these technical measures will cover. There seems no doubt that the Government’s intention in these provisions is to provide a backstop power in the event that notification letters and civil court proceedings do not have the hoped-for effect. We on these Benches are broadly happy with that progression although we have many specific concerns about the detail of the Government’s policy. However, we agree that if sending letters does not work then more serious steps will need to be considered to prevent widespread copyright infringement. However, this progression is not expressed in the Bill, and I think that a great deal more clarity is needed about the progression from reports under Clause 9, through the assessment under Clause 10, resulting in an order under Clause 11. A two-year period to allow Clauses 4 to 9 to be implemented and assessed seems sensible. If the Minister disagrees, perhaps he can give us an idea of how long he would be willing to wait before deciding that there was no improvement.
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Lord Clement-JonesLiberal Democrat- Quote
- I speak to Amendment 143, which is very much consonant with the points made earlier under this grouping though the timescale may be slightly different from that envisaged by the noble Lord, Lord Lucas. It seems to us that the Secretary of State should be able to direct Ofcom to undertake an assessment of technical measures only after its first progress report has been received by the Secretary of State. That implies a period of 12 months after the initial obligations code has been adopted. This will ensure that Ofcom undertakes an assessment of the potential imposition of the technical measures and reports on those to the Secretary of State before the Secretary of State can direct Ofcom to take steps in preparation for such measures. The next group will, I think, deal with that aspect. We seek to enshrine this intention by ensuring that the Secretary of State cannot direct Ofcom to assess technical measures before Ofcom’s first full report under new Section 124F is received by the Secretary of State. This would provide reassurance to all parties that they should commit to making stage 1—the technical obligations—effective and not lobby the Secretary of State to exercise his powers under new Section 124G within the first 12 months of the Bill’s provisions coming into effect. This would protect the Secretary of State from unhelpful lobbying, from which I am sure he would wish to be protected, and enable Ofcom to focus on assessing that first stage rather than on the last resort of technical measures. I think that we are all heading in the same direction. It would be extremely unfortunate if, by a side wind, these technical measures were brought into effect before a proper Ofcom assessment had been made. I very much hope that, in one form or another, the Minister will accede to this. I return again to the issue of public confidence—consumer confidence, subscriber confidence and ISP confidence.
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Lord WhittyLabour- Quote
- My Lords, with this amendment we come back to the real strategy here. I declare my interest as chair of Consumer Focus, and on this I speak exactly for it and its policy and not from my personal prejudices. Our preferred strategy is certainly to engage in stage 1. The points that I have been making up to this stage have sought to improve the transparency and accountability of stage 1—that is, that the notification should go out. We then move to stage 2 and the use of technical measures—that is, sanctions—with all the problems of due process which that involves. I will come on to that issue in later amendments. It is a very serious step. It is a step that needs to be taken in the light of all the evidence. A few amendments ago we were talking about what will be included in Ofcom’s reports, and most of us around the Chamber indicated that part of the assessment really needs to assess how effective we have been in developing legal means of file-sharing. That ought to be the objective of the Government, the industry and the right holders. If we are going to do that effectively, we need to pause to see whether stage 1 has worked and we need the facts as to how far the legal market has developed before we take the significant step in stage 2. In the impact assessment produced prior to the Bill, the Government indicated that they thought that 70 per cent of subscribers would desist on receipt of the first letter and that that would lead to a reduction of 55 per cent in the number of illegal downloads. The Government were being a little optimistic there for the reasons we have explored in terms of whether the subscriber actually gets the notification as distinct from the perpetrator. Nevertheless, if we take that figure, we have already dealt with something like half the problem. We then need to ensure that the vacuum that is created moves over to legal providers. There are all kinds of legal providers—Spotify, Skype, Sky Songs and others—operating in the field, some of which are more successful than others, and there will be new business models developed. We want to ensure that that happens in a relatively short period. If the strategy is to get to legal provision which is of a higher quality than individual attempts at file-sharing, which is provided at a reasonable cost and with a reasonable return to the rights holders, we ought to pause at that stage. Two years seems to me about right. I am not hung up on two years—there are some delays built into the process of the Bill in any case—but we certainly need a period of reflection before we move to stage 2. Putting it up front before we move into the second stage in Clause 10 would be a sensible thing to do. I therefore support the noble Lord, Lord Lucas, although I apologise that I was not here to hear him move the amendment.
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Lord Faulkner of WorcesterLabour- Quote
- I shall speak also to Amendments 141 to 143. All these amendments essentially prescribe a minimum period during which the Secretary of State could not require Ofcom to assess the need for and prepare to introduce technical obligations. It might be helpful if I start by saying why we have included the possibility of technical obligations in the Bill. As my noble friends on the government Front Bench have said many times in our consideration of the Bill thus far, the Government believe that the initial obligations set out in Clauses 4 to 8 should result in a significant reduction in online copyright infringement. We believe that they are reasonable and proportionate steps to take and that most people will respond positively when they become aware that their actions are not only unlawful but also visible to those who can take steps to seek redress. However, we also recognise the strength of the argument that has been put to us that these initial obligations may not be sufficient. Those industries that have suffered at the hands of mass online copyright infringement are rightly anxious that we should be sure that the Bill gives us all the tools required to solve the problem. Therefore we have in Clauses 10 to 13 a reserve power to introduce technical obligations, should it be necessary to do so, to stem the flood of online copyright infringement if the initial obligations do not work. Clause 10 gives the Secretary of State the power to require Ofcom to assess the need for technical obligations and to make preparations for the imposition of those obligations such as preparing a technical obligations code. The amendments would build in a delay to when these preparatory powers could be used. The noble Lord, Lord Lucas, feels that a period of two years for the operation of the initial obligations is necessary before even thinking about technical obligations. The noble Lord, Lord Clement-Jones, suggests that 12 months—the time when Ofcom must prepare a full progress report—would be sufficient. The noble Lord, Lord Howard of Rising, simply suggests that the Secretary of State must have regard to Ofcom’s progress reports, implying that at least two interim progress reports must have been delivered over a period of six months. However, we disagree with all these suggestions. Clause 10 is not about the imposition of technical obligations—that is covered in Clause 11, which we shall no doubt come to soon enough. Clause 10 is about preparation for technical obligations.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, perhaps I should conclude therefore—I am sure that the noble Lord, Lord Lucas, will have his own take on this—that the Government are proposing that Ofcom takes steps to assess how technical measures can be taken before there is any evidence of problems associated with the initial obligations code. That is the implication of what the Minister said. If that is the case, there is absolutely no confidence in the process.
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- Lord LucasConservative
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- There is no answer from the Minister because that is right. Presumably—
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- Lord Faulkner of WorcesterLabour
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- I am sorry. I was waiting for the noble Lord, Lord Lucas, to speak. The noble Lord, Lord Clement-Jones, is absolutely right: this is the view that we take. It is necessary to be ready from day one.
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- The Earl of ErrollCrossbench
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- We have heard much to the effect that it will be a slow process and that these drastic measures will not be introduced immediately. Amendments to previous clauses have been knocked down on the grounds that technical measures will not be introduced on day one or even in year one. It was implied that we were suggesting Armageddon in our amendments by saying that they would be introduced immediately. I think that the Minister has just told us that Armageddon is going to happen almost on day one.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, those of us who wish to see this Bill pass, subject to a number of amendments, find what the Minister has just said quite breathtaking. We will certainly have to consider our position on Report if the outcome is exactly as the noble Earl has said. We have heard all about softly-softly steps. I could draw parallels with preparing for war in 2002 without any UN resolutions, but that may be a slightly extreme example. The Minister is saying that there will be no evidence and that Ofcom will not have carried out a proper review, yet it will be asked by the Secretary of State to prepare these measures. That is breathtaking.
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- The Earl of ErrollCrossbench
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- My Lords, perhaps I may take advantage of Committee stage rules, because this is extremely important. We just knocked down a whole lot of amendments from the noble Lord, Lord Lucas, and alternative proposals by the noble Lord, Lord Clement-Jones, on the constitution of the tribunal. We were told that it was not important at that stage, because it was a very early stage of letter-writing and did not require the same level of provision. People are going to have to defend themselves from day one, if these technological measures come in. We will have to review what the Minister said in response to all those amendments before we get to Report.
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- Lord Faulkner of WorcesterLabour
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- For the convenience of the Committee, I repeat what I said at the very end of my remarks. This clause does not attempt to allow technical obligations to be introduced on day one, but it allows preparations for such an eventuality to be started straightaway so that, should that day come, we will be able to move quickly. I should have thought that that was common sense. It is not the desperate scenario to which the noble Lord, Lord Clement-Jones, referred.
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- Lord LucasConservative
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- My Lords, that was a very interesting exchange. As for the comparison that the noble Lord, Lord Clement-Jones, drew with 2002, I think that the Government have learnt their lesson, which is why they want to prepare for the occupation before they declare any public intention of a war. To take my cue from what the Minister said, we should clearly attack the words “at any time” in line 21 on page 13, which is where he wishes us to stick our delaying clauses—our “wait for two years” bits—although we are probably coming down to the formulation proposed by the noble Lord, Lord Clement-Jones, of this being done after the first report, rather than my two years. That is where this should bite. After listening to the Minister’s remarks, we should expect to receive a positive response. That would be consistent with everything that the Government have said about there being a real sequence here. In other words, we really are going to give the measures in the first part of this part of the Bill a try. That must mean running them for a year and having a report on them. It cannot be less than that. My second point is that the second to last word in line 36 on page 12 of the Bill should be “might”. There is no way that Ofcom can assess whether, “technical obligations should be imposed”, in the absence of evidence of what is going on. It can only assess whether they might be imposed. That was very much the sense of what the Minister said. If preparations are going to start straightaway, so that this armament is ready for use when Clause 11 triggers it, that I can understand. However, it requires a little bit of revision to Clause 10 to achieve that and a specific time limit in Clause 11 to match up with the Government’s rhetoric. I beg leave to withdraw the amendment.
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- Lord Clement-JonesLiberal Democrat
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- Having heard the last debate, I am not hopeful about these provisions. One needs to be rather more pessimistic about the Government’s intentions in this respect. Perhaps the technical measures will be introduced in rather more short order than was originally anticipated. Ministers have previously said, consistently, that technical measures would be a last resort and that a combination of notification, targeted legal action against repeated infringers, general education by rights holders and new legal services will be given adequate chance to make an impact before those technical measures are contemplated. It will be important for all relevant parties, whether they are subscribers, Ofcom, ISPs or rights holders, to work together co-operatively during what we might call stage one with the certainty that the Secretary of State is not going to consider technical measures until or unless the stage one-type activities under the initial obligations code have been pursued with full vigour. Given the likely high costs and unintended impact of technical measures on non-infringing traffic and innocent internet users—other people relying on a household’s internet access service, for instance, other than an alleged or proven infringer—the clause should empower the Secretary of State to direct Ofcom only to make an assessment of such measures rather than also taking steps to prepare for those obligations. The amendments seek to achieve just that. In the light of what the Minister has said, he will be extremely reluctant to give up those powers, but that is the logic of this: the assessment is made and then, on the basis of the assessment at a subsequent time, those preparations are made. I hope that just because my noble friend Lady Miller is not here today, the Minister will not omit to answer Amendments 145 and 147 in her name. I do not have speaking notes for them but they have a similar import, and I hope that the Minister will deal with them at the same time.
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- Lord Howard of RisingConservative
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- My Lords, the noble Lord makes an important point about the role that Ofcom should play in the recommendation and assessment of technical measures. As in so many parts of the Bill, there is confusion over the division of responsibility between Ofcom and the Secretary of State. As I understand the clause as it is drafted, Ofcom will have almost complete control over what technical measures should be assessed. I hope the Minister will correct me if I am mistaken. Will the Minister give us more detail on what exactly the Secretary of State will direct Ofcom to consider under Section 10? Will he specify the one or more technical measures that Ofcom is to look at, or will that interfere with Ofcom’s prerogative to decide what is worth the time? I am sorry to revert to the discussion that we had on the previous amendment, but this is a different point—only very marginally different, but it is worth making again. As both my noble friend Lord Lucas and the noble Lord, Lord Clement-Jones, have commented, directing Ofcom to prepare for the imposition of technical measures even before the assessment has been made—never mind the question of parliamentary scrutiny—is extraordinary. I cannot imagine a process more likely to make stakeholders feel railroaded into submitting to potentially enormously damaging measures. There is also concern on these Benches at the possibility that Ofcom might assess an obligation and later be directed to impose it, but without drawing up a report under new Section 124G(1)(c). As I understand it, the list is entirely flexible—each paragraph is independent of the others. The clause is extremely loosely drafted, and I recommend that the Minister look at it and at how it could be tightened up before we revisit it on Report.
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- Lord Young of Norwood GreenLabour
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- My Lords, we have already discussed this, or at least the purpose of Clause 10, at some length. The clause will allow a Secretary of State and Ofcom to be in a position to move quickly to introduce technical obligations, should that prove necessary. Looking at the noble Lord, Lord Clement-Jones, I cannot help feeling somehow that he was probably a member of the Boy Scouts. He has not denied that, so I am sure that he believes in the motto about being prepared. Just because we are prepared, though, does not mean that we are going to implement this. That is what we were implying; or, rather, that is the assumption that was drawn, despite all the assurances given by my noble friend Lord Faulkner.
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- Lord Howard of RisingConservative
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- My Lords—
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- Lord Young of Norwood GreenLabour
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- I wish you would not make me sit down.
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- Lord Howard of RisingConservative
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- I am giving the Minister a bit of a rest. I am grateful to him for giving way. I cannot remember what I was going to say now. If we introduce things like this—however much we, sitting here, may not intend to implement the measure in the wrong fashion—they will be abused sooner or later by somebody. It is no accident that old ladies who get up and read out lists of the Iraqi dead in front of the Cenotaph get arrested. That was not the intention when the Bill went through Parliament. The Minister knows that and so do I, but these things happen. I will return to this point again. I could give the Minister many other examples, but I do not want to waste too much time.
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- Lord Young of Norwood GreenLabour
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- Let me try to reassure the noble Lord. Preparations will not in any way short-circuit the requirements of Ofcom to collect the evidence and prepare the progress reports—all the things that were outlined previously. It might help if I elaborate on the sort of steps that we have in mind. In order to make an assessment of whether technical obligations should be imposed on internet service providers, Ofcom will need to consider all the various technical obligations that could be imposed, how effective they would be and what unintended and unwanted side effects they might have. Once a conclusion was reached about the best technical obligations, it would not be possible to bring such an obligation into effect until the requisite code had been drawn up and notified for a three-month period to the European Commission under the technical standards directive. Also, the relevant order would have to go through the proper procedures here and in another place. All that takes a considerable amount of time—time during which harm would continue to be done to our creative industries. However, it is right that it should take that amount of time. We stand by the assurances that we gave noble Lords that this is a graduated process. We are about prevention. The noble Lord, Lord Clement-Jones, shakes his head, but we have given our commitments. The graduated process has been defined in the Bill—from the first stage of action to the last letter of notification. All that will take place. The progress reports have to be made by Ofcom. We talked about the full progress reports and it was accepted that they would be necessary in the first year. None of that has been removed; it all remains in place. I am puzzled by the idea that, just because we investigate what preparations will be needed to introduce technical measures, which we have defined in this clause, it is all a fait accompli and implementation will just take place. That cannot happen. I reiterate what I said earlier: preparations taking place would not pre-empt any decision. No positive decision would have to be taken just because a code existed in draft form. However, that would allow for a swift imposition of technical measures if it were deemed necessary. That is the point that we are trying to make. I absolutely agree with all noble Lords who have expressed concern. We do not want to rush into technical measures. As the noble Lord, Lord Clement-Jones, said, it would be totally counterproductive and would totally undermine what we are trying to do. We said that we are serious about trying to change behaviour. That is still our main focus. We will review the situation after a period of time. We do not believe that it is necessary to state in the Bill whether that should be one year or two, but it would be at least a year. If, after that period and after a succession of progress reports, we find that there has been no real change in behaviour and that there is a need to introduce technical measures, we will then have the means to do it. There is no question of that preparation somehow being a device to short-circuit the assessment process. After all, we want to make sure that we get the technical obligations right, so we are using that preparation time wisely. It does not in any way undermine all the previous commitments. I do not believe that there is anything in the legislation that allows one to draw that conclusion. I understand the concern. There is no difference between us about the concern to ensure that, in changing behaviour, we get all the other points right first and do not rush into this. We absolutely accept those concerns. I hope that, in light of the explanation and assurances that I have given, the noble Lord will withdraw the amendment.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, I am afraid that the Minister’s reply has only served to emphasise the concerns that we all have about this part of the Bill. It is the darkest part of the Bill as far as we are concerned. The Minister is fully aware of all the controversy about technical measures. It is the part of the Bill that has caused most concern. The safeguards regarding when technical measures are contemplated and then put into effect are absolutely crucial to every other Bench, as well as to many Members on the government Benches. It is absolutely vital to get this right. The Minister has not been convincing, in respect of either when Ofcom is able to review these matters and recommend technical measures or when it starts preparing for those technical measures. The idea that Ofcom, well before the first report, could even start preparing for technical measures horrifies me. If we are going to talk about proper government process, we must talk about review by Ofcom. In its first progress report it should ask: has the education process worked? Has the initial obligations code worked in terms of notifications, and so on, as it did in Sweden? Or will we have a situation where the Secretary of State can simply click his fingers before any Ofcom report and say, “Right guys, we had the Act and went through it all but the MPA has flown over and expressed a lot of concern. Let’s go to it. Start the preparations: let’s get a technical obligations code drafted and we’ll put it all into effect”? That may be a dark scenario but it is the one that many people are painting. They believe that the kind of two-part structure that the Government have put into effect is for the purpose of show. They do not believe that this is a genuine undertaking by the Government genuinely to look at the evidence. Everything that the Minister has said on this group of amendments and the last has convinced me that the timing between the initial obligations code and the technical measures code is wafer thin. It could be a matter of months—not a year and not two years. It could all happen suddenly. It would be a major denial of the underlying purposes of the Bill and the good faith that needs to be demonstrated as part of it. I urge the Minister to think very carefully about this. If he genuinely wants the Bill to pass and not get lost in wash-up in the other place, he will have to demonstrate that these provisions are copper-bottomed in how they operate. I just give him that warning. In the mean time, I beg leave to withdraw the amendment.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, this amendment would be a fairly straightforward addition to the provisions of Clause 10. I expect that the Minister will tell me that what is says is implied in the duties that will be imposed on Ofcom. However, this is an extremely important matter in terms of public confidence. The Minister knows that we have had discussions about strangling and all the forms of TAS. Therefore, the types of technical measure and the way in which they could affect subscribers and consumers are extremely important. This amendment aptly adds a further duty to ensure that Ofcom would do the proper thing and illustrate the consequences of imposing technical measures. I beg to move.
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- Lord Howard of RisingConservative
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- My Lords, we on these Benches entirely agree with the noble Lord. This would be a sensible requirement to be inserted into any assessment under this clause.
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- The Earl of ErrollCrossbench
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- My Lords, I am not sure that the proposed positioning of this measure in the Bill is exactly correct. It might be better if it were inserted at the end of paragraph (a), but that is just a matter of grammar, English and positioning. In principle, this measure is exactly what I was talking about earlier—namely, that we must be careful to ensure that we do not do more damage to the Government’s plans for e-government, the country as a whole and the entire take-up of broadband. We must ensure that we look at the impact on subscribers as well. This is not just about protecting the position of the large rights holders; we must also look at the effect on the country and the citizen as a whole. That is our duty in Parliament.
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- Lord Faulkner of WorcesterLabour
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- My Lords, I am pleased to tell the noble Lord, Lord Clement-Jones, that I can offer him rather more sympathy on this amendment than perhaps he was expecting. It cannot, in our opinion, be anything other than entirely proper for an assessment of the impact of any technical obligations on individuals, copyright owners and internet service providers to have been carried out before such obligations are imposed. However, while we think that this amendment is absolutely right in its intent, we do not think that the legislation requires this specific addition to have that effect. As your Lordships will be aware, an amendment has been tabled in the name of my noble friend Lord Mandelson—we shall consider it in a moment—so that any technical obligations will be imposed by an order under the affirmative procedure. Any such order will as a matter of practice be accompanied by a full impact assessment, which will look at the impact on all possible affected parties, including those mentioned in the amendment—consumers, copyright owners and internet service providers. I hope therefore that the noble Lord will feel able to withdraw the amendment.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, all I can say is that I am deeply touched by the Minister’s sympathy. I very much look forward to seeing the fist that he makes of introducing the government amendments. I beg leave to withdraw the amendment.
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- Lord Faulkner of WorcesterLabour
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- My Lords, Amendments 148A, 155A, 177B and 206A have been tabled by my noble friend Lord Mandelson in response to the second report of the Delegated Powers and Regulatory Reform Committee. Amendment 178, tabled by the noble Lord, Lord Lucas, covers exactly the same ground as Amendment 177B. I shall start with Amendments 148A and 155A. The objective of the technical obligations, should they ever be required, is to apply technical measures against those subscribers who ignore the notifications sent to them and who either do not appeal against the notifications or have failed in their appeal. The Delegated Powers and Regulatory Reform Committee pointed out that there was no clear limit on the type of subscriber on whom technical measures may be imposed. Obviously, that is not the Government’s aim. We have been clear throughout that, should technical measures be necessary, they should be targeted at those subscribers who have repeatedly infringed copyright online, or allowed others to use their subscription to do so, and that they should be used only after several warnings. The amendments that we propose will put that right. They ensure that the technical measures will apply only to some or all relevant subscribers and they will tie the definition of what is meant by that to that used in subsection (3) in Clause 5, which describes subscribers who are liable to be added to a copyright infringement list. The Government are grateful to the Delegated Powers and Regulatory Reform Committee for pointing out this unintended consequence. I hope that noble Lords will agree that the amendments put the proportionality that was always intended back into this part of the Bill. I turn to Amendments 177B and 178. Amendment 177B was tabled by my noble friend in response to a recommendation from the Delegated Powers and Regulatory Reform Committee that any order by the Secretary of State imposing technical obligations should be subject to the affirmative procedure. The text currently requires that the negative procedure be used. The Government proposed that this was the correct option almost by definition because of the highly technical nature of the measures. However, the Delegated Powers and Regulatory Reform Committee took a different view and considered that the very technicality of such powers might increase rather than reduce the need for the affirmative procedure. We have always been clear about the seriousness of introducing technical obligations. It will not be done lightly. Therefore, in the light of the recommendation of the Delegated Powers and Regulatory Reform Committee, it is right for us to amend the Bill in order for the recommendation to be met. Amendment 178, tabled by the noble Lord, Lord Lucas, makes the same proposal in slightly different wording. In view of the amendment that we propose, I hope that he will be gracious enough to withdraw his amendment. I turn finally to Amendments 200A and 206A, which have been tabled by my noble friend Lord Mandelson. Amendment 200A is intended to clarify the candidates for making contributions towards the costs of the online infringement of copyright provisions. It makes it clear that this applies only to copyright owners and internet service providers, ensuring that the power is no broader than it needs to be. It also allows for the possibility that subscribers may be asked for a contribution towards the costs of the appeals process. Amendment 206A is in response to a recommendation by the Delegated Powers and Regulatory Reform Committee, which said that, if the split between the copyright owners and internet service providers on payment of the costs of the provisions was not specified in the Bill, the order on the sharing of costs should be subject to the affirmative, rather than the negative, procedure. As noble Lords know, we think that the Bill should set out the general principles but that the detail of how things should be done, including who should pay what, should be left to the statutory instrument, which will have the advantage of being fully consulted on. The statutory instrument at present has only working assumptions on the split, because to leave it entirely blank would be regarded as disingenuous. However, it is right that something as important as this should be considered more fully and slowly, giving all concerned ample opportunity to put forward their views and evidence. That being the case, we are happy to accept the recommendation of the Delegated Powers and Regulatory Reform Committee that the order on cost sharing should be subject to the affirmative procedure. On that basis, I beg to move the amendment.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, I will speak briefly. For some reason, Amendment 180 was not put in this group. However, the Government’s amendment fits the bill in introducing the affirmative procedure and I welcome it. For a change, and for a brief moment, the Minister is dispensing sweetness and light.
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- Lord De MauleyConservative
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- My Lords, this group contains an interesting collage of amendments from the Secretary of State. Perhaps I may start in the middle and work outwards. Government Amendment 177B is of course, as the Minister said, another Delegated Powers and Regulatory Reform Committee recommendation. As ever, we are glad to see that the Government have tabled it, no doubt prompted by Amendment 178 in the name of my noble friend Lord Lucas. Government Amendments 148A and 155A seem reasonably clear too. I think I understand that the purpose is to prevent the possibility of a technical measure falling on a subscriber who has never been the subject of an infringement report. I am a little concerned that only one report might be needed for the subscriber to take the necessary steps to protect his wireless connection and make him liable. Might I suggest to the Government that the threshold should be considerably higher? Perhaps three notification letters should be sent, with the implication that the subscriber is not responding to warnings. As drafted, could we not end up with a system where the three-letter process is watered down to one warning, followed immediately by a technical measure? I hope that the Minister can explain why my concerns are unfounded. Amendment 200A is, I fear, rather more worrying. Why are we suddenly talking about subscribers paying for the appeal in dispute resolution processes? So far, it has always been the responsibility of the ISPs and copyright owners to make sure that their allegations are accurate, and to bear the costs should they fail to do so. I do not see why it is suddenly suggested that subscribers must pay to clear their names if they have arrived at that situation through no fault of their own. Although we agree with Amendment 206A and thank the Minister for it, there are some quite serious issues to be answered here.
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Lord MaxtonLabour- Quote
- I am feeling rather confused by all this. It seems that, quite rightly, we are trying to bring about a system that does not penalise the subscriber. That might be me or it might be any other Member. If I receive a letter, I will probably say, “Fine, I have committed an offence. I am not going to carry on”. However, there must be a group of hard-faced, cynical people who, when they receive that first letter, knowing that they have already committed an offence, will say, “It is going to be another nine months to a year before my computer or internet service is finally switched off”—or decreased in speed or whatever the technical obligation is. If I cannot record or download every piece of music that I shall want to listen to for the rest of my life in those 12 months, then I am not very technically bright. I could then either put them all on to discs or, more particularly in the modern world, put them on to a site using cloud technology somewhere out there. Then, just before the Government or Ofcom impose this order on me, I say, “Oh, I’m very sorry. I didn’t mean it and I won’t do it again”, by which time I shall have all the material I want. It will be up there somewhere in the clouds, and what will the Government be able to do about it? The answer is: very little.
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- Lord Faulkner of WorcesterLabour
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- My Lords, first, I thank the noble Lord, Lord Clement-Jones, for his support for the amendments and for the outbreak of sweetness and light from the Liberal Democrat Benches. In respect of the point made by the noble Lord, Lord De Mauley, regarding the people at whom the technical measures will be targeted, I made it clear in my opening remarks that it will be only those who repeatedly infringe copyright online or allow others to use their subscription to do so. We are not putting an exact number into the Bill at this stage—we do not think that it is right to do that—but the provision is directed at repeat offenders. The question of consumers paying for appeals is something that we discussed in debate on earlier amendments in Committee. We do not want to make appeals expensive so that people are deterred from using them. Indeed, we have always made a point of saying that appeals must be accessible. There may also be merit in having a refundable fee which is set at a low enough level not to scare off subscribers but is high enough to deter purely mischievous appeals. Whether that is the road we go down will depend on the consultation that will need to be carried out on a statutory instrument on costs, a draft of which noble Lords have seen. But we think that it is right that the Bill should at least allow for that possibility while ensuring that subscribers do not pay for any of the other provisions. That is rightly placed as a responsibility for the industry participants. I beg to move. Amendment 148A agreed. Amendment 149 not moved. Amendment 150
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- Lord Clement-JonesLiberal Democrat
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- In the absence of my noble friend Lady Miller, I am moving Amendment 150 and will speak to Amendments 151 and 155. I do not have a speaking note but I believe that the essence is that there should be a rigorous, clear cost-benefit analysis of any technical measures, and that is what these amendments are designed to secure. I beg to move.
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- Lord LucasConservative
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- As a rider to the amendments, I am fascinated to know what sort of measures the Government propose to prevent a subscriber who is so challenged simply to change his ISP, or ceasing to subscribe to an ISP and getting the family subscription through his wife, teenage son, or whoever else it might be. That is such a simple way of avoiding these measures and I am sure that the Government must have thought of some way of dealing with it. I would be fascinated to know what it is.
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- The Earl of ErrollCrossbench
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- I thought that I would also investigate how the Government thought they would have a technical measure. The first of the amendments is about limiting the speed. Obviously they are trying to limit it to something that will stop or inhibit the downloading of music. But music files are not very big, so whatever you do will inhibit the use of the internet as a whole. You might as well cut them off. I am not quite sure about the purpose of this technical measure. It will not achieve very much except to make people very cross—and very cross with their ISPs and the Government. It may be that the Government are trying to leave a poison pill for a future Government, perhaps run by a different party, so that they fall foul of all this in about two years’ time. I should be interested to know the purpose of this technical measure.
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- Lord De MauleyConservative
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- The noble Lord, Lord Clement-Jones, and his colleague, the noble Baroness, Lady Miller, are right to probe by these amendments what sort of measures might be imposed. There seems to be some disagreement not only over what is a reasonable restriction to impose but over whether a measure can actually be implemented effectively and how much it would cost to do so. Can the Minister explain whether the list of possible measures is his assessment of what sort of steps are considered possible with the technology currently available, or has there been some measure of future proofing in this area? Is the list merely a reflection of what the Minister would like to be able to do if someone comes up with the necessary technology in the future? The drafting of the subsection is of concern because of the many areas that measures could eventually be targeted at. I hope that the Minister agrees with me that the primary, indeed the only, purpose of imposing a technical measure is to prevent ongoing copyright infringement. There should not be a deterrent or punitive element to these measures except as naturally arises from the primary purpose. Any measure taken deliberately against usage that does not relate to online copyright infringement should surely not be permitted by the Bill. If there is no technology capable of blocking access to file-sharing programs but the subscriber rarely uploads any material for any other purpose, I can understand preventing significant levels of uploading as a proportionate response to ongoing infringement. Similarly, if the only measure capable of being imposed is outright suspension, that should be considered.
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- Lord Young of Norwood GreenLabour
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- My Lords, I shall take these amendments together as they each have the effect of changing the scope of the technical measures that might be introduced by the Secretary of State. I do not believe that any of them would improve the effectiveness or fairness of the Bill. Removing the possibility of capping somebody’s bandwidth or restricting the speed at which their service runs, or preventing or limiting access to particular material, would be a significant loss in terms of the flexibility of response. Arguably, inconveniencing a subscriber while preserving their access to the information society is the sort of measure that should always be at least considered before resorting to account suspension. The noble Earl, Lord Erroll, asked why we would do that. Clearly, it would depend on the level of infringement. If the measure was considered to be a suitable deterrent, the subscriber would still be able to operate e-mails and various other features. We therefore believe that it has a part to play and is a valid measure that could be introduced. It is certainly one we ought to consider before moving to the last resort, having gone through all the other processes, which is account suspension. There is no desire in the first instance to be punitive, but perhaps I may remind the noble Lord, Lord De Mauley, that we are trying to prevent people ending up in court. It should be remembered that there is always the option of the copyright owner going to court. We are trying to move away from the position in which the courts are involved unnecessarily and are trying to persuade and educate. That is the basis behind these measures. The list is a reflection of what we would like to do. It is an illustrative list—that is the best I can say. It lists those measures that we expect to be the most useful and appropriate. Furthermore, removing subsection (3)(d) would restrict the measures available to just those listed. The current text makes it clear that it is an illustrative list, leaving room for future developments and changes that might render specific measures ineffective or inappropriate. I believe that such flexibility, recognising that tomorrow will not be the same as today, is an important element and should be retained. I hope that, in the light of those explanations, the noble Lord will feel able to withdraw the amendment.
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- Lord LucasConservative
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- My Lords, if the Minister does not feel able to answer my questions now, I will happily bring them back again on clause stand part, giving him time to contemplate them.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, on that note, I thank the Minister for his reply—
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- Lord Young of Norwood GreenLabour
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- I thank the noble Lord for giving way. I apologise—I missed a sheet of paper that had been handed to me and I want to take the opportunity of at least trying to respond to the noble Lord, Lord Lucas. We agree that changing an ISP is an option. We have no intention of creating a blacklist, but it is inconvenient, especially if they change too often. However, I believe that we need to come back to the noble Lord with a more detailed answer. To be honest, I do not think that that is sufficient.
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- Lord LucasConservative
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- It is a very helpful beginning, on the other hand, and I thank the noble Lord for it. Particularly inconvenient to people would be their inability to remove their domain name from the ISP they were currently with.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, I congratulate the Minister. Discretion is the better part of valour in that respect. To contest these technical issues with the noble Lord, Lord Lucas, at this time of day would be extremely inadvisable. That has saved us all a good deal of time. In responding on behalf of my noble friend, I will say that this has been a useful debate. There is a great deal of nervousness about the armoury available under the technical measures. We have had a debate about how those should be evaluated and prepared for. The noble Lord, Lord De Mauley, put it very well when he said that the primary reason is to prevent ongoing copyright infringement, not to act as a punishment. That principle should be very clear in our minds and that of Ofcom in due course. A number of noble Lords have questioned the efficacy of the technical measures; quite a number of people out there question their efficacy. The Minister did not really address those who have a view about whether there should be such a thing as a content-limiting measure. In order to do that, you have to know what the content is. For an ISP to do that instantly flips it over into a different role. That is a problem, and the Minister did not really address that aspect. This will continue to be an important area, and I do not think that we have quite got there, but no doubt we will continue these discussions at further stages. In the mean time, I beg leave to withdraw the amendment.
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- Lord LucasConservative
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- This brings us straight back to the last point that the noble Lord, Lord Clement-Jones, was addressing. Paragraph (b) prevents a subscriber from gaining access to particular material or limits such use. It has raised the question in many minds, including mine, of what exactly is being proposed here. Without really understanding what sort of measures the Government are proposing, my amendment is intended to ensure that they do not include something which amounts to reading the subscriber's traffic—in other words, reconstructing it so that you can see what the subscriber is downloading. That would amount to surveillance on a scale at which the RIP Act balked, and is not something that should be contemplated without a great deal of careful consideration, and certainly not in a procedure that is subject only to the affirmative resolution. I beg to move.
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- Lord MaxtonLabour
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- Does the noble Lord, Lord Lucas, imply from that that someone should not get into my e-mails, for instance, and read them as a result of what the Government propose? The problem with that, and the problem with legislating in this area, is that a lot of e-mails contain links. If I click on the link, I get into another website, but without knowing that the e-mail was there in the first place, how do you know whether the link was there? The ongoing implications are so enormous that I do not understand what the noble Lord is getting at.
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- It is getting at the process. If, as the Bill states, you are trying to limit, “gaining access to particular material”, the only way that you can tell whether someone is gaining access to that material is to read their traffic. That involves a complete loss of privacy, which is a considerable step. To my mind, as we had an entire Act on that subject and took it extremely carefully, we should not give the Government a blanket power to do that subject only to affirmative resolution. In terms of the technicalities, if I am downloading a file from the United States somewhere, that file may be going simultaneously through 20 or 30 different routes and be reconstructed only very close to me—a mile or two away. You have to go in for a level of technical surveillance that is available, under particular circumstances, to the security services, but should not be there to protect EMI.
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- Lord Howard of Rising Conservative
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- I hesitate even to get to my feet when caught between two people who know so much about what they are talking about as the noble Lord, Lord Maxton, and my noble friend Lord Lucas. However, these Benches strongly endorse retaining the privacy of people’s internet connections. It would be quite wrong for there to be untrammelled access, indeed, any access, to people’s internet connections unless it was extremely restricted.
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- The Earl of ErrollCrossbench
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- I entirely agree with the noble Lord, Lord Lucas. Looking into the content of people’s e-mails and other internet traffic was in Part 1 of RIPA and is subject to very special provisions and protections: it is open to the security services and the police under warrant. Part 2 gave access to the header material—in other words, to who you were communicating with—to more people. That is what the Home Office proposed looking at under the intercept modernisation programme, and there has been a lot of outcry about that. There were never any proposals under IMP—the intercept modernisation programme—that the Home Office, at an everyday level, should be allowed to look at the content of e-mails. There have been huge arguments about where the header stops and content starts. To start bypassing that in a Bill like this is hugely dangerous. This needs to be looked at in the context of the Regulation of Investigatory Powers Act. This is exactly the sort of thing that a lot of people, particularly the noble Baroness, Lady Miller of Chilthorne Domer, worried about when the Phorm technology was used for targeted advertising. Even though it used anonymising technology, because it was looking at the content of the transmission it caused huge concerns about whether it was legal. It is quite possible that this may conflict with other laws, and we ought to worry about that. How does an ISP restrict access to these websites? Normally, if you are trying to restrict access to a website, it is not your ISP that would do it, but the host of the website. It is not necessarily an ISP, but is a web hosting service. It would be asked to take the website down or restrict access, or you could even have the registry take it off the domain name service in order to make sure that people did not get access to it. You would not normally try to get an individual ISP to restrict access to particular internet sites. It would be technically difficult to do. I am not sure that what the Government propose is well worded. They should pay attention to the noble Lord, Lord Lucas.
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- Lord WhittyLabour
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- Without completely understanding all the technology that has been talked about in the past five minutes, I have become increasingly alarmed that the possibility of getting the ISP or anybody to look into the total traffic of our e-mail connections was even contemplated by the Government. I hope the Minister will deny that that is even conceivable as one of the technical measures. If not, the issues of privacy that were already alarming me and many other people are much larger than I first realised.
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- Lord Clement-JonesLiberal Democrat
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- The noble Lord, Lord Lucas, has emphasised and highlighted a point of particular concern about where being a conduit translates into policing content. That is the big issue, and the Government need carefully to consider the implications of this clause before they require ISPs to undertake that role.
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- Lord Young of Norwood GreenLabour
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- The list of measures in Clause 10(4) is intended to be an illustrative list of the sorts of technical measures that might be helpful in tackling online copyright infringement. The paragraph referred to in this amendment is meant to refer to the possibility of blocking access to particular types of traffic. I stress that it is certainly not to look at the contents of any of the subscriber’s traffic or to change the contents in any way. The amendment would simply prevent certain types of traffic—in this instance, those most likely to be carrying infringing peer-to-peer material—from being accessed. We know that you can block access to particular sites; it is certainly technically feasible. It may be worth my making the more general point to my noble friends Lord Whitty and Lord Maxton and the noble Earl, Lord Erroll, that any technical obligations imposed under the Bill would have to be operated in a way that was consistent with existing legislation, including the Data Protection Act and the Regulation of Investigatory Powers Act; so anything that would not be possible under those Acts will equally not be possible as a result of the Bill.
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- Lord MaxtonLabour
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- I am grateful to my noble friend for that point. I understand that it is quite possible to block a site when someone is taking something directly from a website, but is it possible to block in the same way a link on an e-mail that has been sent to someone? I occasionally get e-mails of this nature with a link to a particular website. To be honest, I do not know whether you can block that site by the means proposed by the Government without going into the original e-mail and finding out what that e-mail was.
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- Lord Young of Norwood GreenLabour
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- I cannot interpret the indications from the Box; it is like trying to interpret the bookmakers’ tic-tac on a race course. We will get back to my noble friend on that point. Why did I not say that anyway? It is such an easy life at the Dispatch Box. While I sympathise with the intentions behind the amendment, it is unnecessary to achieve the impact that the noble Lord is looking for. In the light of the debate, we will write to the noble Lord with an exploration of the technical points that were raised and an assurance about the contents issue.
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- Lord Howard of RisingConservative
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- I urge the Minister not to get too obsessed with the technical points and to remember the fundamental point: that people’s traffic cannot be looked at.
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- The Earl of ErrollCrossbench
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- I will try to be helpful to the Minister rather than difficult. One does not want unintended consequences. I have a feeling that Skype and other such voice over IP traffic is peer to peer. I am not sure how easy it is to distinguish between other peer-to-peer traffic in which music may be exchanged and Skype. I know that certain protocols, such as the SET protocol, may make it very easy to distinguish between the two, but we must be careful that we do not end up blocking people’s telephony when we are trying to stop them exchanging music. Voice over IP is becoming a more general way of telephoning and communicating, particularly among the young who cannot afford landlines.
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- Lord LucasConservative
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- What is even more alarming is that more and more people are using image over IP, so you can no longer answer your telephone in your bathrobe or less. You have to be very careful and rush for the make-up before you pick up Skype. With that horrible thought, I am very grateful for what the Minister has said—it is entirely satisfactory—and I beg leave to withdraw the amendment.
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- Lord LucasConservative
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- My Lords, Amendment 153 is a simple probing amendment to find out what the Government’s ideas are about how long these measures will last and how the prohibition will be lifted. Would it be for ever or would it be for three months and, if you misbehave, six months next time? What are the Government looking at? I beg to move.
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- Lord De MauleyConservative
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- My Lords, not for the first time my noble friend Lord Lucas has raised an important point. I agree that the length of time a measure can be imposed needs to be clarified. As far as I can see, there is no restriction on the period of time a subscriber’s account might be suspended, apparently rendering the power at the extreme the equivalent of completely cutting him off. It is understandable that there might need to be some level of flexibility when assessing what length of time is effective, but there should still be some indication in the Bill of a maximum time. There is surely also the possibility that without a time limit the measure may fall foul of other legislation.
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- Lord Clement-JonesLiberal Democrat
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- My Lords, it is interesting that in all the descriptions of technical measures temporary account suspension is referred to. But, of course, that is not what the Bill says. It has rather different language and the noble Lord, Lord Lucas, is right to probe this aspect.
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- Lord Faulkner of WorcesterLabour
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- My Lords, I am very happy to respond to the noble Lord, Lord Lucas, and to other noble Lords who have spoken on this amendment. Suspensions of accounts as a technical measure has been somewhat misrepresented in the media and more widely. In particular, terms such as account termination have been bandied about most misleadingly. Let us be clear: when we talk about suspension, that is precisely what we mean; namely, a temporary cessation of access to the internet as a measure which we hope will never need to be employed. If it needed to be employed, it would be on the basis of repeated warnings and with a proper appeals process. I am grateful to the noble Lord for his amendment, which emphasises that point, but I would maintain that the additional phrase is redundant. The noble Lord, Lord Lucas, is one of the most well read and literate Members of your Lordships' House. I am reluctant to quote from the Collins English Dictionary a definition of “suspension”. However, it states that suspension is, “an interruption or temporary revocation”. That is clear enough and, I believe, renders the amendment unnecessary. On that basis, I hope that the noble Lord will agree to withdraw it.
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- Lord LucasConservative
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- My Lords, I am grateful for that clarification and education, and I beg leave to withdraw the amendment.
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- Lord LucasConservative
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- My Lords, half the thought behind Amendment 154 leaps ahead to Clause 42. Under new Section 116B in Clause 42, the Government talk about copyright licensing agencies and the idea that material can become freely available, but that you have to pay the copyright licensing agency, as is the case with music performance. No one stops a person performing, but if they do perform, they have to pay a fee. Given the fact that someone is having a technical obligation imposed on them, it seems that they might choose to pay a fee to such an agency, which would go to relevant copyright holders. Terminating, suspending or limiting someone’s internet access just does someone harm. But if, for an equivalent harm, some good could be done at the same time, that seems to be a reasonable idea. I beg to move.
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- Lord De MauleyConservative
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- I was pleased to listen to my noble friend Lord Lucas’s explanation of his Amendment 154. I may be misunderstanding his intention, but we would have some concerns about using technical measures as a penalty, if that is what is intended. We feel, as I think we discussed earlier, that the purpose of technical measures should be to stop infringement rather than to punish a past offence, which I think should require proper proceedings.
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- The Earl of ErrollCrossbench
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- My Lords, I think that this is incredibly sensible. Lawyers tell me that downloading is not illegal but that illegal downloading is. This is a civil breach of copyright, which is a civil offence and not a criminal one. The usual remedy in civil cases is not to lock someone up but to make them pay compensation as a remedy for the civil harm done. We are not creating any criminal acts in this legislation and, if Clause 17 is passed, the Secretary of State will not be able to introduce any criminal acts in amendments to the legislation. So I think that this is a very sensible way of remedying the situation. It is a bit like pleading guilty. Rather than going through the huge expense of proceedings, the person who is alleged to have committed the offence provides a remedy for the wrong that they have done and it goes to the right place. It is a very positive, sensible and forward-thinking way of dealing with the situation without terminating a lot of people’s internet service. If they are caught red-handed, let them voluntarily—with a little bit of persuasion—provide a remedy to the people harmed. It is not going to the Government or giving anyone an incentive to do anything untoward. It is one of the most positive things that we could put into the Bill.
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Baroness Howe of IdlicoteCrossbench- Quote
- My Lords, having listened to all this for really quite a long time, I cannot help but say that I thoroughly agree with my noble friend Lord Erroll. This seems an ideal way of moving towards compensating the copyright holders for their creation. If we can speed up the process by which these downloads become lawful—which is the purpose of these provisions, as I understand them—by making people pay, without their feeling too hard done by, and in a fairly simple process, then good luck to us. This is a route leading us in the right direction.
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- Lord WhittyLabour
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- My Lords, I had not understood the implications of the noble Lord’s amendment when I read it. However, from a consumer point of view and an acceptability point of view, requiring people to pay a fee is a much more effective remedy than the disproportionate one of cutting off their internet access even for a limited time. I think that this would be seen as more equitable than the technical measures themselves. I therefore urge the Government to consider the amendment, whether or not in these exact words, as an alternative to the technical measures.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Lord Young of Norwood GreenLabour
- Quote
- My Lords, this amendment suggests that, alongside the sort of technical measures proposed, subscribers should have the option instead of paying an amount to a copyright collecting society. I understand why the noble Lord, Lord Lucas, with his fertile imagination, has come up with this proposal. Internet access is becoming increasingly important and it might be that, for some subscribers, the payment of financial compensation to those copyright owners who have suffered would be more acceptable than to have their internet access limited in some way. However, this is not something that we can consider. There are already many ways of accessing content legally and we hope and expect to see new legal content offerings emerge as infringement is reduced. Indeed, my noble friend Lord Whitty said that that was the way forward and in that respect—not in many, but in that—I agree with him. Anyone who is in a position where a technical measure might be invoked must already have had many notifications providing information on how to find legal services. We are not talking about an ingénue or innocent who has stumbled across the content. We are talking about someone who has had repeated attempts to help them. We have sent them one, two or possibly three letters, but they have continued committing the same offence. The amendment says, “That’s okay. You can continue to download illegally, but just pay a fine”. This goes against the whole purpose of what we are trying to do. We are all agreed that we are trying to change behaviour and take people away from illegal downloads. I stress that in order to conform to what the noble Earl, Lord Erroll, was reminding us about. The amendment suggests a sort of default legal option to download as much as you like for whatever level the fee might be set at. The unintended consequence of this is that it has the potential to be quite an unhelpful intervention in the market for legal content offerings. That is what we have all said that we are trying to encourage. In the interests of time, I am not going to go on any further. I know how much we are enjoying ourselves but, nevertheless, there comes a time when we should consider drawing matters to a close. I hope that, in the light of that helpful explanation, the noble Lord will consider withdrawing the amendment.
- Time
- 21:45
- Source
- View in Hansard ↗
- Speaker
- Lord LucasConservative
- Quote
- My Lords, I did not expect the amendment to appeal to the Front Benches. The noble Lord has misinterpreted what I am after. I was not suggesting that the amendment is a permission to continue downloading any more than limiting someone’s internet access is a permission to continue downloading. It is, as it were, a compensation for past sins, which you can pay for either by not being able to access the internet properly or by making a contribution. I suspect that I have concluded that the right way for copyright to move on the internet is towards the pattern used for sheet music—a matter not of control but of payment. This is reflected in what the Government propose in Clause 42, where they are clearly anticipating that kind of move to the point where the important thing is that the copyright holder gets paid, not that the copyright holder absolutely controls the timing and means by which the copyright material is acquired. We will have many opportunities to discuss Clause 42. For now I beg leave to withdraw the amendment.
- Time
- 22:00
- Source
- View in Hansard ↗