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 consequences aren’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.
ISPA 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,”
“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,”
“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.