LibDems score copyright coup
Blocking by network address extended, after Lords hijack
Mandybill The LibDems' surprise amendment to strengthen UK courts' powers over digital copyright infringement passed late last night, despite Labour and Tory opposition, replacing the government's original, preferred proposal in the Digital Economy Bill.
Out goes the ability of the Minister to extend copyright legislation by statutory instrument - something earlier Ministers have already exercised, in practice. In comes the ability of the courts to block network addresses based on infringement notifications.
As we explained yesterday, the amendment adds to the existing takedown-and-notification regime by giving courts the power to block access by network address. There are ifs and buts: clauses defending human rights, and a strange one requiring the copyright holder to have attempted to make the material available - a stalking horse, perhaps, for compulsory confiscation of property.
The effect isn't clear. For example, would the Daily Telegraph have been able to publish the MPs expenses scandal without its website being blocked? The expenses are Crown Copyright.
The revamped Section 17 caught campaigners on the hop. The two LibDem peers who proposed it, Lords Clement Jones and Razzell, had been consistently ISP-friendly over seven readings in the Lords. The two were behind the cheeky amendment to ensure hardcore infringers could enjoy fifty free download sessions (50 letters) before they could be threatened with technical measures - something more likely to help the beleaguered Post Office, and printer ink cartridge vendors, rather than copyright holders.
Clement Jones justified the LibDems' revised Section 17 by saying it was a better response to changing infringementware than Mandelson's proposal. Only 35 per cent of infringement was via P2P, and new technologies such as Rapidshare were always popping up. He wrote:
There are websites which consistently infringe copyright, many of them based outside the UK in countries such as Russia and beyond the jurisdiction of the UK courts. Many of these websites refuse to stop supplying access to illegal content.
The intention is also for the injunction to only be possible for sites where there is a substantial proportion of infringing material that is either hosted by that particular site or is accessed through the particular site in question.
The injunction will only be granted where copyright owners had first requested ISPs to block access to the site and where they had also requested the site operator to stop providing access to the infringing material (either by removing the material itself or removing the ability to access the material).
There already exists a remedy under the Copyright, Designs and Patents Act (section 97A) which grants copyright owners a broad power to apply to the Court for an injunction. Therefore, all amendment 120A does is enhance this power by giving copyright owners a more clearly defined route.
He added that his amendment "depoliticises the process", by taking it out of the hands of a minister (and Parliament) and into the mitts of a judge.
ISPs said it was a significant addition of Courts' powers - that's something that hasn't been debated at all.
"The justification made yesterday when it was introduced was based on a number of misjudgements," ISPA's policy spokesman told us.
"In a number of areas there are notice-and-takedown procedures in many areas; it's only in child protection that there is network level blocking," he explained.
The one area where ISPs block by network access is child pornography, but there's a para-legal entity there to administer that.
"It's a unique type of material, hence the decision by industry as a whole to come together to create the IWF. Copyright infringement isn't even a criminal offence, it's a civil matter: the two aren't comparable," ISPA told us.
"We feel all the implications haven't been considered."
An aggressive timetable is being set for the Bill, we understand, giving it two Commons readings this month. ®
[To read the new amendment in full, see Page 2]
"Preventing access to specified online locations for the prevention of online copyright infringement In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
"97B Preventing access to specified online locations for the prevention of online copyright infringement
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—
(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c) whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(d) any issues of national security raised by the Secretary of State.
(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
(f) the importance of preserving human rights, including freedom of expression, and the right to property, and
(g) any other matters which appear to the Court to be relevant.
(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
(4) Where —
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken, the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
(5) In this section— "copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act, "infringing content" means content which is produced or made available in infringement of copyright, "online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible, "operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and "service provider" has the meaning given to it by section 97A(3) of this Act.
(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.
(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5).""