Digital Economy Bill: Lib Dems scupper Clause 17, but come up with a new idea

April 2010


In the UK controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than Parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying: “The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court.” A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright. The amendment (120A) was then re-amended to include provisions to make anyone applying for an injunction responsible for both parties costs should the application fail, an obligation on content owners to warn ISPs and any alleged infringing site of the action, an appeals procedure and a need to provide evidence to the court of allegedly infringed copyrights.

Whilst the DEB has now passed the Lords, the amendment was not successful as peers worried about such a late and controversial amendment, although is likely to be re-introduced on the House of Commons where it is though both the Government and conservative party supporters will push the bill through and that it was ‘unlikely to face major scrutiny’.. If eventually successful, it is a double whammy for ISPs as the High Court’s new powers would be available to the content industries alongside the proposed new ‘Three Strikes’ provisions. It remains unclear whether the new powers could be used against sites (rather than ISPs) such as Oink! or The Pirate Bay which do not host any infringing content themselves but provide links to infringing content – although if widely drafted the amendment would potentially bring in a the concept of ‘authorising infringement’ into UK law. Tim Clement-Jones explained the motive behind the amendment thus “I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the internet but we are responding to genuine concerns”.

The blog world was up in arms with widespread rumours that if passed content owners could easily misuse the new powers especially against video-sharing sites like YouTube, who do host infringing content uploaded by users – until they are made aware of its presence on their platform and take it down.

Open Rights Group director Jim Killock told reporters: “This would open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive ‘copyright attacks’ that could shut them down, just by the threat of action. This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action. The expense and the threat are enough to create a ‘chilling effect'”. As the bill wa debated in the Lords, Lord Puttnam said that the Bill was being rushed through parliament without sufficient scrutiny, and that legislators were subject to an “extraordinary degree of lobbying” from copyright holders. As details of the Bill’s progress were revealed, one peer Merlin Hay, remarked “it’s a complete and absolute abuse of parliamentary process – I’m not sure why we sit and debate at all” and Killock expressed renewed concern about the injunctions clause, and the failure of the Lords to amend the provision to address the issues raised by the web sector telling reporters “Our elected MPs will spend a whole two hours on this bill before they disappear back to constituencies to ask for our vote, meanwhile, a ‘rump parliament’ made up of retiring MPs and party whips will pass it – with no actual debate”. On the injunctions clause he continued: “This [clause] would open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive ‘copyright attacks’ that could shut them down, just by the threat of action”.
Elsewhere around the world the same issues troubled other countries. In Canada a MP is launching two bills. The first one is to set up an iPod levy and the second to clarify the laws on private copying and ‘fair use’. Democrat MP Charlie Angus (Ex member of rock band Grevious Angels) admits that he doesn’t expect his bill to be successful, but rather his aim is more to pressure the country’s Conservative government to schedule some time to consider copyright issues.

In Spain court in Barcelona has rejected a complaint made by the country’s main collecting society SGAE against a Spanish BitTorrent tracker and search service called, which provides links to all sorts of illegal content. The judge said that linking to unlicensed content did not, in itself, constitute copyright infringement (and seeMusic Law Updates March 2010) and see Twentieth Century Fox Film Corporation and others v Newzbin Ltdbelow.

In Sweden a date has been set for the appeal of The Pirate Bay Four, the four men who founded and funded the rogue BitTorrent tracker and file-sharing search engine. The four men were found guilty in a combined civil and criminal case just under a year ago, and ordered to pay damages and serve a year in jail. But, with an appeal pending, no money has changed hands, none of the four have served any jail time and The Pirate Bay is still operating. Their case is now due to be heard by the appeal court in Stockholm on 28 September 2010.

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