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8.8.0.2.

61Status: Law In Force

Digital Economy Act 2010 c. 24 OFCOM reports
This version in force from: June 8, 2010 to present (version 1 of 1)

1 OFCOM reports on infrastructure, internet domain names etc
(1) In Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and services), after section 134 insert—

“ Reports on infrastructure etc 134A OFCOM reports on infrastructure etc
(1) OFCOM must prepare reports in accordance with subsections (2) and (3) and each report must deal with— (a) the electronic communications networks matters listed in section 134B(1), and (b) the electronic communications services matters listed in section 134B(2). (2) The first report must— (a) relate to the position on a day specified in the report which falls within the period of 12 months beginning with the day on which this section comes into force, and (b) be sent to the Secretary of State by OFCOM not more than 2 months after the specified day. (3) A further report must— (a) be prepared for each relevant period, and (b) be sent to the Secretary of State by OFCOM as soon as practicable after the end of the relevant period. (4) “ Relevant period” means— (a) the period of 3 years beginning with the day specified in the first report, and (b) each subsequent period of 3 years beginning with the end of the previous period. (5) Where there is a significant change in connection with a matter listed in section 134B(1) or (2) and OFCOM consider that the change should be brought to the attention of the Secretary of State, OFCOM must—

(a) prepare a report on the change, and (b) send it to the Secretary of State as soon as practicable. (6) For the purposes of subsection (5), a change is significant if OFCOM consider that it has, or is likely to have, a significant adverse impact on— (a) persons carrying on business in the United Kingdom or a part of the United Kingdom, or (b) the general public in the United Kingdom or a part of the United Kingdom. (7) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it. (8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

134B Networks and services matters
(1) For the purposes of section 134A, the electronic communications networks matters are— (a) the different types of electronic communications network provided in the United Kingdom (“ UK networks” ), (b) the geographic coverage of the different UK networks, (c) the proportion of the population covered by the different UK networks, (d) the extent to which UK networks share infrastructure, (e) the capacity of the different UK networks, (f) the extent to which the providers of the different UK networks allow other communications providers to use their networks to provide services, (g) the amount of time for which the different UK networks are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability, (h) the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency, and (i) the standard of the different UK networks in comparison with electronic communications networks provided in a range of other countries, having regard, in particular, to their coverage and capacity.

(2) For the purposes of section 134A, the electronic communications services matters are— (a) the use of the electromagnetic spectrum for wireless telegraphy in the United Kingdom, (b) the different types of electronic communications service provided in the United Kingdom (“ UK services” ), (c) the geographic coverage of the different UK services, (d) the proportion of the population covered by the different UK services, (e) the amount of time for which the different UK services are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability, (f) the preparations made by providers of UK services for responding to an emergency, including preparations for restoring normal operation of UK services disrupted by the emergency, and (g) the standard of the different UK services in comparison with electronic communications services provided in a range of other countries. (3) The preparations referred to in subsections (1)(h) and (2)(f) include— (a) the steps taken to assess the risks of different types of emergency occurring, (b) the steps taken to reduce or remove those risks, and (c) the testing of proposed responses to different types of emergency. (4) In a report under section 134A, OFCOM are required to include only information about, and analysis of, such networks, services and providers as they consider appropriate. (5) In this section “ emergency” means an event or situation that seriously disrupts a UK network or UK service.

Reports on internet domain names 134C OFCOM reports on internet domain names
(1) OFCOM must, if requested to do so by the Secretary of State— (a) prepare a report on matters specified by the Secretary of State relating to internet domain names, and (b) send the report to the Secretary of State as soon as practicable. (2) The specified matters may, in particular, include matters relating to— (a) the allocation and registration of internet domain names, and (b) the misuse of internet domain names. (3) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the

attention of persons who, in their opinion, are likely to have an interest in it. (4) OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.” (2) In section 135(3) of that Act (information required for purposes of Chapter 1 functions), after paragraph (ib) insert— “ (ic) preparing a report under section 134A; (id) preparing a report under section 134C;” .
Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland

Annotation
Section 1 Introduction
The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ Clause 2: OFCOM reports on infrastructure, internet domain names etc. “ 25. This clause inserts three new sections into the 2003 Act which will require OFCOM to report to the Secretary of State on the state of the UK’ s communications infrastructure and services. “ 26. New section 134A requires OFCOM to produce an initial report in the first year after the provision comes into force, followed by subsequent reports at three[-]yearly intervals. It also requires that should OFCOM become aware of a marked change with a significant impact on business or the public, in any of the reporting areas, and which they consider should be brought to the attention of the Secretary of State, they should write a further report. OFCOM must publish each report under new section 134A as soon as practicable after they send it to the Secretary of State. “ 27. New section 134B sets out in detail the subject matter to be covered by the reports on infrastructure. The initial report and the three-yearly reports will consist of a survey of: • The different types of electronic communications network and service in the UK; • Geographic and population coverage of those networks and services; • Downtime, and measures in place to maintain or improve availability; • Emergency planning; and

• A comparison between UK networks and services and equivalent networks and services provided in a range of other countries. “ 28. Additionally, in relation to UK networks, the reports will cover infrastructure sharing (for example, where two or more mobile operators pool their network of masts and both offer services across them), capacity (the amount of data that networks and parts of networks are able to carry and the rate at which they can carry it) and wholesale arrangements (the extent to which one operator can buy capacity on another operator’ s network and then sell it on to retail customers). In relation to services, they will also cover the use of the electromagnetic spectrum. “ 29. The clause also inserts a new section 134C into the 2003 Act which requires OFCOM to report on matters specified by the Secretary of State relating to internet domain names when requested to do so. These matters might include the management and distribution of internet domain names by registries and the misuse of domain names or the use of unfair practices by registries, end-users of domain names or their agents (known as registrars). “ 30. The reporting duty would, for example, enable the Secretary of State to ask OFCOM to report on the activities of internet domain registries based in the UK (and their registrars and end-users) in circumstances where the Secretary of State believes that the operation of those registries (or the activities of their registrars or end users) could adversely affect, or has already adversely affected, the reputation or operation of the UK’ s internet economy and/or the interests of consumers or the public in the UK. OFCOM are required to publish these reports. “ 31. In addition, the clause amends section 135 of the 2003 Act to enable OFCOM to use their existing information gathering powers to require communications providers and others to supply the information which they will need to write their reports. Those powers are subject to the restrictions in section 137 on the imposition of information requirements, which means, in particular, that a demand for information must be proportionate to the use for which the information is to be put. Penalties for contravention of the information requirements may be imposed under section 139.” Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords the Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Davies of Oldham) said as follows: “ The matters to be covered in the reports are already outlined in subsections (1)(a) and (1)(b), but I want to make clear beyond doubt that those specific network and service matters are to be covered in the initial and subsequent biennial reports, to which we have just referred. I am grateful to the noble Lord, Lord Lucas, for his suggested amendment. It helpfully drew to our attention the fact that, as drafted, there was indeed ambiguity as to whether each report would cover all the matters in subsections (1)(a) and 1(b). However, we have difficulties with the amendment. I would like to have stood at the Box and accepted it. I am sure that that would have pleased him as much is me. However, his amendment

187 (January 6. It requires that. for example. “ I might add that while we were looking at the drafting of the clause. Disclosure could prejudice network security issues. should Ofcom become aware of a marked change which has a significant impact on business or the public in any of the reporting areas and which it considers should be brought to the attention of the Secretary of State. since much of the information will be commercially confidential. we believe that the information that Ofcom would obtain will be exempt under Section 44 of the Freedom of Information Act. This is because it is information relating to a particular business. recognised. “ Your Lordships will no doubt appreciate that the persons or organisations from which information will be gathered are likely to be very sensitive to disclosure.clarified the situation only in respect of the initial report. We have not been prescriptive as to when these reports will be prepared.” (Hansard. In theory. as originally drafted. as the noble Lord. HYPERLINK "http://www.parliament. Because of commercial confidentiality. we became aware that.716. I mentioned earlier that it is our intention to set out in a note for your Lordships how we expect this reporting process to work . Lord Lucas.publications. new Section 134A requires subsequent reports to relate to a ‘ relevant period’ . we do not believe that these reports should be made available to the public. which is subject to the prohibitions in Section 393 of the Communications Act 2003. for having already improved the Bill-or at least having obliged the Government to make the necessary improvements. One such report is where there is a significant change in connection with the matters listed in new Section 134B(1) or (2). that could allow gaps to occur in the provision of reports. the Government will get advance warning of this from the regulator and.uk/pa/ld200910/ldhansrd/text/1001060008.htm"col. we have tabled the two amendments and trust that they will provide clarity on the extent of each report and that there must be a report every two years. will be able to consider whether any action is needed.) Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords the Minister for Postal Affairs and Employment Relations (Lord Young of Norwood Green) said as follows: “ My Lords. it should write a further report as soon as practicable. Clause 2 amends the Communications Act by inserting new sections requiring Ofcom to report to the Secretary of State at regular intervals on the UK’ s communications infrastructure and services. However. Lord Howard. This will ensure that. detailed in both the initial and biennial reports. but does not expressly require there to be a subsequent period for each relevant period. “ For the reasons stated. I assure the noble Lord that we propose to publish an account of the broad information on the overall state of health of the UK’ s communications infrastructure. Because of that possible anomaly. as appropriate. and we feel that it is necessary to make the clarification in respect of all subsequent reports as well. 2010). if there are developing problems or constraints on the UK’ s infrastructure. HL Vol. I am extremely grateful to the noble Lord.

and (d) set out OFCOM's conclusions on the current state of material included in media services.196 (January 6.716 . 2010 to present (version 1 of 1) 2 OFCOM reports on media content After section 264 of the Communications Act 2003 insert— “ 264A OFCOM reports: wider review and reporting obligations (1) When carrying out a review under section 264 for a period. whatever changes appear to OFCOM to have occurred. and comment on. OFCOM must also carry out a review of the extent to which material included in media services during that period (taken together over the period as a whole) contributed towards the fulfilment of the public service objectives. (3) “ The public service objectives” are the objectives set out in paragraphs (b) to (j) of section 264(6) (as modified by subsection (4)). 24 OFCOM reports This version in force from: June 8. in the manner in which those objectives are fulfilled.htm"col. during that period.parliament. (b) specify. whatever changes appear to OFCOM to have occurred. (2) Every report under section 264 must— (a) include a report on the matters found on the review under this section.” (Hansard.in practice in a number of areas. HL Vol.uk/pa/ld200910/ldhansrd/text/1001060009. in the extent to which the public service objectives have been fulfilled. and (b) references to programmes were to material included in such services. HYPERLINK "http://www. 2010). (4) Paragraphs (b) to (j) of section 264(6) have effect for the purposes of subsection (3) as if— (a) references to the relevant television services were to media services. during the period to which the report relates. . and comment on.publications.) © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. (c) specify. I will ensure that that note includes our expectation that the conclusions of these reports will be made public wherever possible.

“ 33. Under new section 264A. namely the BBC. The public service remit involves the provision of a balanced diversity of high quality content.co. (b) on-demand programme services.westlaw. OFCOM will be required to consider the wider delivery of public service media content on other platforms. Channel 4.(5) In this section— “ material” does not include advertisements. examples of public service media content would include content that reflects. This clause extends the scope of OFCOM’ s reviewing and reporting obligations beyond television. According to these objectives. and review the extent to which such content contributes towards the fulfilment of the public service objectives defined in section 264(6)(b) to (j). and (c) other services provided by means of the internet where there is a person who exercises editorial control over the material included in the service. Paragraphs (b) to (j) of section HYPERLINK "http://login.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=IA1595B50E45211DA8D70A0E70A78ED65"264(6) of the 2003 Act provide detailed public service objectives underpinning this remit. (6) The services that are to be taken for the purposes of this section to be available to members of the public include any service which— (a) is available for reception by members of the public (within the meaning of section 361).” . or (b) is available for use by members of the public (within the meaning of section 368R(4)). S4C and providers of Channel 3 and Channel 5. “ media services” means any of the following services that are available to members of the public in all or part of the United Kingdom— (a) television and radio services. such as the internet and on-demand programme services.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 2 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 32. Section 264 of the 2003 Act requires OFCOM to report at least every five years on the fulfilment of the public service remit for television by public service broadcasters. supports and stimulates cultural activity in the United Kingdom. and content that facilitates fair and well informed debates on news and current affairs. which meets the needs and interests of different audiences in the United Kingdom.

© 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. (2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “ initial obligations code” ) allows the owner to do so. 24 Online infringement of copyright This version in force from: June 8. (5) A notification under subsection (4) must be sent to the subscriber within . or (b) a subscriber to an internet access service has allowed another person to use the service. (d) is sent to the internet service provider within the period of 1 month beginning with the day on which the evidence was gathered. and (e) complies with any other requirement of the initial obligations code. 2010 to present (version 1 of 1) 3 Obligation to notify subscribers of reported infringements After section 124 of the Communications Act 2003 insert— “ Online infringement of copyright: obligations of internet service providers 124A Obligation to infringement reports notify subscribers of copyright (1) This section applies if it appears to a copyright owner that— (a) a subscriber to an internet access service has infringed the owner's copyright by means of the service. (3) A “ copyright infringement report” is a report that— (a) states that there appears to have been an infringement of the owner's copyright. (b) includes a description of the apparent infringement. (4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so. (c) includes evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered. and that other person has infringed the owner's copyright by means of the service.

(g) advice. (f) information about copyright and its purpose. (h) advice. (b) the name of the copyright owner who made the report. in relation to a subscriber. (c) a statement that. (6) A notification under subsection (4) must include— (a) a statement that the notification is sent under this section in response to a copyright infringement report. about steps that a subscriber can take to protect an internet access service from unauthorised use. following such a disclosure.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland . (d) evidence of the apparent infringement that shows the subscriber's IP address and the time at which the evidence was gathered. include in particular— (a) a statement that information about the apparent infringement may be kept by the internet service provider. and (d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4). (7) For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances. whether in general or in a particular case. (b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber. the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement. means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).the period of 1 month beginning with the day on which the provider receives the report. (9) In this section “ notify” . or information enabling the subscriber to obtain advice. a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures. (e) information about subscriber appeals and the grounds on which they may be made. (c) a description of the apparent infringement. or information enabling the subscriber to obtain advice. and (i) anything else that the initial obligations code requires the notification to include. (8) The things that may be required under subsection (6)(i). about how to obtain lawful access to copyright works.

“ 45. Therefore. The notification from the ISP must inform the subscriber that the account appears to have been used to infringe copyright. To help ensure that the subscriber is made aware that their account appears to have been used to breach copyright. at present they do not have the ability to match this information to the broadband subscriber to whom that IP address was allocated at that precise time. To do so would breach data protection and privacy law. This information is only held by the subscriber’ s ISP. The section of the 2003 Act that is inserted by this clause (section 124A) sets out an obligation for ISPs to notify subscribers of copyright infringement reports (‘ CIRs’ ) received about them from copyright owners. Copyright owners are currently able to go on-line. “ 46. for example.” . section 124A imposes an initial obligation on the ISP. “ 47. domestic subscribers. They can then seek to download a copy of that material and in doing so capture information about the source including the IP address along with a date and time stamp. the ISP is unable to pass this information on to the copyright owner without a court order. direct the consumer towards legal sources of content. However. and the procedures that ISPs must follow when sending subscriber notifications. the copyright owner relies on the ISP’ s ability to match the IP address to the name and address of the subscriber concerned. However. look for material to which they hold the copyright and identify unauthorised sources for that material. the procedures that copyright owners must comply with when making CIRs. and small and medium business. in relevant cases. taking into account that different protection will be suitable for different subscribers such as. include information about subscriber appeals and the grounds on which they may be made. and between when a CIR is received and when a notification is sent to the subscriber. provide evidence of the apparent infringement. to notify the subscriber if the ISP receives a CIR from a copyright owner. It describes what CIRs and notifications to subscribers must contain. libraries. It also requires ISPs to make available advice on protecting internet access services from unauthorised use. such as a statement that information about the apparent infringement may be kept and disclosed to the copyright owner in certain circumstances. There are maximum time limits of one month between when an infringement is detected and a CIR sent to an ISP.Annotation Section 3 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 44. and provide other information. give the name of the copyright owner who has provided the report. The code may require the notification to include other material as well. Further apparent infringements using the subscriber’ s account may result in additional notifications.

made about speculative allegations-in other words. “ New subsection (3) in Clause 4 already expressly recognises that the infringement described in a copyright infringement report is.uk/pa/cm200910/cmhansrd/cm100406/ debtext/100406-0007. Others propose a change of the wording to require the trigger leading to the creation of a CIR to be that in the ‘ reasonable opinion’ of the copyright holder an infringement of their rights has occurred on that internet account. and indeed with the point that the noble Lord. We expect that those initial measures will be effective and anticipate that. I certainly concur with the points that the noble Lord. made in relation to the standard of evidence and not presuming this is an open-and-shut case. on receipt of such letters.) .) Pepper v Hart Note (see General Note: Pepper v Hart): Introducing the Second Reading of the Bill for this Act in the House of Commons the Secretary of State for Culture. col. Clause 4 sets out the requirements that must be met to produce a copyright infringement report.” (Hansard. Lord Clement-Jones. 2010). “ I recognise that the apparent infringements are not tested and proved to court standards. “ Some of these amendments seek to change the name of these reports from copyright infringement reports to copyright infringement allegation reports.” (Hansard. There is research and real-world experience to back that up. Equally I think that the copyright infringement reports amount to more than mere allegation.parliament.Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords the Minister for Postal Affairs and Employment Relations (Lord Young of Norwood Green) said as follows: “ My Lords. rather than it merely ‘ appearing to them’ that an infringement has occurred. Lord De Mauley.839 HYPERLINK "http://www. as the noble Lord. Copyright owners will be able to apply for a court order to access the names and addresses of alleged serious infringers and take targeted legal action. clearly it is of the utmost importance that the standards of evidence surrounding the identification of both the infringement and the IP address of the infringing account should be as high as possible. and to record the number of notifications with which each subscriber is associated. reminds us. Media and Sport (Mr Ben Bradshaw) said as follows: “ The Bill introduces obligations on internet service providers-the ISPs-to send letters to subscribers who are linked to an alleged infringement. These reports are the mechanism by which the copyright owner brings specific apparent infringements of their copyright via a particular IP address-and I stress ‘ apparent’ -at a particular point in time to the attention of the relevant internet service provider.441 (January 12. It will not be possible at the time the copyright infringement report is made to be able to declare with legal certainty that an infringement has occurred or that the IP address in the reports was responsible. HL Vol. col. Lord De Mauley. HL Vol. Given this.716. the vast majority of subscribers will seek legal alternatives.publications.508. what is important is the standard of proof and evidence.htm"(April 6. 2010). only ‘ apparent’ .

and (b) an initial obligations code requires the internet service provider to provide it. but (b) does not enable any subscriber to be identified. inserted by clause 5. 24 Online infringement of copyright This version in force from: June 8.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 4 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 48.© 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. ISPs will have to keep a record of the number of CIRs linked to each subscriber along with a record of which copyright owner sent the report. 2010 to present (version 1 of 1) 4 Obligation to provide infringement lists to copyright owners After section 124A of the Communications Act 2003 insert— “ 124B Obligation to provide copyright infringement lists to copyright owners (1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if— (a) the owner requests the list for that period. (2) A “ copyright infringement list” is a list that— (a) sets out. (3) A subscriber is a “ relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code. which of the copyright infringement reports made by the owner to the provider relate to the subscriber. in relation to each relevant subscriber. an ISP may be required to provide a copyright owner with relevant parts of those records on . Under section 124B of the 2003 Act.

parliament. but in an anonymised form so as to ensure compliance with data protection legislation. 2010 to present (version 1 of 1) . A copyright infringement report represents a single breach of copyright at a moment in time. However.839 HYPERLINK "http://www.” (Hansard. including the number of CIRs made (see clause 8). “ 49. The code must set the threshold for determining who is a relevant subscriber who may be the subject of a copyright infringement list that the ISP provides to a copyright owner. The threshold may be set by reference to any matter.” Pepper v Hart Note (see General Note: Pepper v Hart): Introducing the Second Reading of the Bill for this Act in the House of Commons the Secretary of State for Culture. it would not include any personal information about subscriber 936. In order to get this personal data.htm"(April 6.uk/pa/cm200910/cmhansrd/cm100406/ debtext/100406-0007. Copyright owners will be able to apply for a court order to access the names and addresses of alleged serious infringers and take targeted legal action.508. 24 Online infringement of copyright This version in force from: April 8. We expect that those initial measures will be effective and anticipate that.request (‘ copyright infringement lists’ ). HL Vol. There is research and real-world experience to back that up. 2010). the copyright owner would need a court order. At present. For example. copyright infringement lists provided by ISPs are intended to make legal action a more attractive and effective tool for copyright owners to use in respect of their copyright. the high costs involved in legal action deter copyright owners from enforcing their rights. the vast majority of subscribers will seek legal alternatives. “ 50. By allowing copyright owners to target only the most serious repeat infringers. and to record the number of notifications with which each subscriber is associated.) © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. col. Media and Sport (Mr Ben Bradshaw) said as follows: “ The Bill introduces obligations on internet service providers-the ISPs-to send letters to subscribers who are linked to an alleged infringement. Because of this. the list would allow the copyright owner to identify subscriber 936 as someone against whom legal action may be appropriate. on receipt of such letters. a copyright owner has no way of knowing whether the subscriber behind that CIR habitually infringes copyright online or whether the CIR represents a curious individual trying file-sharing for the first and only time. The lists would be made available to copyright owners on request in an anonymised form. while a list might (for example) identify subscriber 936 as being linked to the most CIRs.publications.

(6) OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E. rights and obligations do not apply in relation to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code. provide that— (a) except as provided by the code. for the purpose mentioned in . and (b) if the threshold is reached. at any time. they may by order approve it. and (b) payment in advance of a contribution towards meeting costs incurred by the provider. in particular. and (b) that it would be appropriate for them to approve the code for that purpose. rights or obligations apply with effect from the date when it is reached or from a later time. (8) OFCOM must keep an approved code under review. in particular. with effect from the date given in the order. (7) Not more than one approved code may have effect at a time. (5) The provision mentioned in subsection (3)(a) may also. (2) If it appears to OFCOM— (a) that a code has been made by any person for the purpose of regulating the initial obligations. (4) The provision mentioned in subsection (3)(a) may. specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding— (a) the number of copyright infringement reports that the owner may make to the provider within a particular period. (9) OFCOM may by order. (3) The provision that may be contained in a code and approved under this section includes provision that— (a) specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case. (b) requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met.5 Approval of code about the initial obligations After section 124B of the Communications Act 2003 insert— “ 124C Approval of code about the initial obligations (1) The obligations of internet service providers under sections 124A and 124B are the “ initial obligations” .

six months). the standard of evidence that the copyright owner must meet before an ISP must send a notification. Clause 6 inserts new section 124C in the 2003 Act. The process by which infringements are detected. and the routes of appeal for consumers are all issues of detail that section 124C would require the code to deal with. copyright owners and consumers) will contribute to the development of an industry code. Without these criteria. Other criteria that an approved industry code may specify include setting in advance the number of CIRs the ISPs will be expected to process in a given period (say. (11) An order made by OFCOM under this section approving a code or modification must set out the code or modification. with effect from the date given in the order. The obligations provided for in new sections 124A and 124B would not have effect until there was a complementary code in force that had been approved or made by OFCOM. the format of CIRs. (10) The consent of the Secretary of State is required for the approval of a code or the modification of an approved code.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 5 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 51. and must do so if the code ceases to meet the criteria set out in section 124E. . This section sets out the requirements for OFCOM’ s approval of a code regulating matters in connection with the initial obligations. “ 53. (12) Section 403 applies to the power of OFCOM to make an order under this section.subsection (2)— (a) approve modifications that have been made to an approved code. or (b) withdraw their approval from an approved code. “ 52. (13) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament. there would be no obligation for copyright owners to provide infringement information in a standard format and no protection for ISPs in the event that copyright owners set extremely high levels of expected CIRs. The government hopes that all stakeholders (ISPs.

this exemption would not be a one-off exercise and the qualifying period would be a rolling one (for example. This is on the basis that it would be disproportionate (in cost terms) to require an ISP to incur significant costs to counter a problem that does not exist to any significant degree on its network. Under section 124C and section 124E (which is inserted by clause 8). OFCOM would also need to satisfy themselves that the code was objectively justifiable. based on the number of CIRs an ISP receives in a set period of time. the mobile networks would fall under the threshold. ISPs would need to ensure online infringement of copyright remained at a low level or else face the prospect of passing the qualifying threshold. The government also envisages that any approved code would also set out the time a copyright owner has to submit a CIR (so that a CIR must relate to a recent infringement) and the time the ISP has to act on the CIR and send a notification to the subscriber (for example. “ 56. The proposal is therefore for the code to set out qualifying threshold criteria. possibly. The government’ s intention is for the obligations to fall on all ISPs except those who are demonstrated to have a very low level of online infringement. proportionate and transparent. “ 57. 2010 to present (version 1 of 1) 6 Initial obligations code by OFCOM in the absence of an approved code After section 124C of the Communications Act 2003 insert— “ 124D Initial obligations code by OFCOM in the absence of an approved code (1) For any period when sections 124A and 124B are in force but for which . 5 working days) within the outer limits of one month set by the legislation. However. OFCOM’ s approval would be needed before it could come into force and the Secretary of State would need to consent to the approval. ISPs would have to comply with the obligations and to continue to do so even if the number of CIRs later fell below the threshold. OFCOM would have to carry out consultation. In order to ensure that the code covered all the necessary areas and to a sufficient standard.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. “ 55.“ 54. Before approving a code. ‘ x’ number of CIRs received in a rolling 3 month period). 24 Online infringement of copyright This version in force from: April 8. Once in scope. The government anticipates that most small and medium (‘ SME’ ) ISPs and.

(8) The consent of the Secretary of State is required for the making or . and (h) make other provision for the purpose of regulating the initial obligations. or to do both. to make awards of compensation. for the purpose of determining subscriber appeals. with the capacity to make its own rules and establish its own procedures. (g) make other provision for the enforcement of such awards and directions. (7) OFCOM must— (a) keep a code under this section under review. (6) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E. any awards or directions made by the person. (e) establish a body corporate. (d) make other provision for the enforcement of such awards and directions. any awards or directions made under the code. in exercising such jurisdiction. (c) provide for OFCOM to enforce.there is no approved initial obligations code under OFCOM must by order make a code for the purpose of regulating the initial obligations. (5) A code under this section may also— (a) confer jurisdiction with respect to any matter (other than jurisdiction to determine appeals by subscribers) on OFCOM themselves. (f) provide for a person with the function of determining subscriber appeals to enforce. or to participate in the enforcement of. (b) provide for OFCOM. and (b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124E. (3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2) (b). or to participate in the enforcement of. or (b) such longer period as the Secretary of State may specify by notice to OFCOM. to direct the reimbursement of costs. (2) OFCOM may but need not make a code under subsection (1) for a time before the end of— (a) the period of six months beginning with the day on which sections 124A and 124B come into force. (4) A code under this section may do any of the things mentioned in section 124C(3) to (5).

” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. the consent of the Secretary of State would be required for the making of the code. 24 Online infringement of copyright This version in force from: April 8. if appropriate. (b) that it makes the required provision about the notification of subscribers (see subsections (3) and (4)).” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 6 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 58. (10) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament. The new section provides for the making by OFCOM of a code regulating the initial obligations if there is no industry code. if that does not happen. and. The government hopes industry can devise a satisfactory code which OFCOM approves. Clause 7 inserts new section 124D in the 2003 Act. It is possible that stakeholders may be able to reach agreement on parts of the code. include as part of OFCOM’ s code. which OFCOM can then consider.amendment by OFCOM of a code under this section. OFCOM must develop a code themselves for adoption by order. However. Again. 2010 to present (version 1 of 1) 7 Contents of initial obligations code After section 124D of the Communications Act 2003 insert— “ 124E Contents of initial obligations code (1) The criteria referred to in sections 124C(6) and 124D(6) are— (a) that the code makes the required provision about copyright infringement reports (see subsection (2)). (9) Section 403 applies to the power of OFCOM to make an order under this section. .

(5) The threshold applying in accordance with subsection (1)(c) may. and (c) the required form of the report. in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports— (a) requirements as to the means by which the provider identifies the subscriber. (k) that those provisions are proportionate to what they are intended to achieve. they are transparent. (h) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K). contents and means of the notification in each case. and (l) that. be set by reference to any matter. subject to subsection (6). (4) The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification. in relation to what those provisions are intended to achieve. (j) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons. (g) that the requirements concerning administration and enforcement are met in relation to the code (see subsections (7) and (8)). (b) which of the reports the provider must notify the subscriber of. (i) that the provisions of the code are objectively justifiable in relation to the matters to which it relates. (e) that it limits the time for which they may keep that information. (d) that it makes provision about how internet service providers are to keep information about subscribers. including in particular one or more of— .(c) that it sets the threshold applying for the purposes of determining who is a relevant subscriber within the meaning of section 124B(3) (see subsections (5) and (6)). (2) The required provision about copyright infringement reports is provision that specifies— (a) requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report. (3) The required provision about the notification of subscribers is provision that specifies. (f) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M. (b) the standard of evidence that must be included. and (c) requirements as to the form.

(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's failure to comply with the code or the copyright infringement provisions. (7) The requirements concerning administration and enforcement are— (a) that OFCOM have. and a copyright infringement list provided under section 124B must not take into account any such report. and (c) the time of the apparent infringements to which they relate. under the code. and (b) relates to an act or omission in relation to an initial obligation or an initial obligations code. including the function of resolving owner-provider disputes. of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2). (b) the time within which the reports are made. (6) The threshold applying in accordance with subsection (1)(c) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date. and (c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners. to a person specified in the code.(a) the number of copyright infringement reports. in particular— (a) provision for the payment. (b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code. (9) In this section “ owner-provider dispute” means a dispute that— (a) is between persons who are copyright owners or internet service providers. (8) The provision mentioned in subsection (7) may include. the functions of administering and enforcing it.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 7 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: .

“ 60. This sets out what the code underpinning the initial obligations (whether an industry code or OFCOM’ s own code) must contain. The code must set out the process by which the initial obligations will operate and the procedures that copyright owners and ISPs must follow in relation to them. The code must also take into account circumstances whereby injunctions as specified under clause 18 may be brought. inserted by clause 14). The reason for including the underpinning material in a code. evidence and standards of evidence required in a CIR and the required format and content of a notification letter sent to a subscriber. 2010 to present (version 1 of 1) 9 Obligations preparation to limit internet access: assessment and After section 124F of the Communications Act 2003 insert— “ 124G Obligations to limit internet access: assessment and preparation (1) The Secretary of State may direct OFCOM to— (a) assess whether one or more technical obligations should be imposed on internet service providers.“ 59. .” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. rather than directly in the 2003 Act. It must provide for OFCOM to administer the code and to enforce it in the event of a failure to comply with the code. The code must also set the threshold applying for the purposes of determining who is a ‘ relevant subscriber’ under section 124B (and may therefore be the subject of a copyright infringement list). CIRs which are more than 12 months old must not be taken into account to determine whether the threshold is met and a copyright infringement list under s134B must not take into account any such CIR. and it must meet the requirements concerning subscriber appeals (as set out in new section 124K of the 2003 Act. is that it is likely to be detailed and to have to be adapted and refined over time. “ 62. Clause 8 inserts new section 124E in the 2003 Act. It must not permit any CIR more than 12 months old to be taken into account for the purposes of a notification. (b) take steps to prepare for the obligations. It must set out the criteria. “ 61. 24 Online infringement of copyright This version in force from: June 8.

internet service providers. (3) A “ technical measure” is a measure that— (a) limits the speed or other capacity of the service provided to a subscriber. (5) The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include. owners. is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet. or (d) limits the service provided to a subscriber in another way. (7) The Secretary of State must lay before Parliament any direction under this section. or limits such use. in relation to an internet service provider. in relation to the provider of the service and one or more copyright owners. (c) suspends the service provided to a subscriber.(c) provide a report on the assessment or steps to the Secretary of State. (9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000. (2) A “ technical obligation” . within the meaning of section 124B(3). are likely to have an interest in it. (b) an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service. and (b) in such manner as they consider appropriate for bringing it to the attention of persons who. (6) Internet service providers and copyright owners must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section. (4) A subscriber to an internet access service is “ relevant” if the subscriber is a relevant subscriber. in particular— (a) consultation of copyright subscribers or any other person. and (c) steps to prepare a proposed technical obligations code. in their opinion. (8) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation . (b) prevents a subscriber from using the service to gain access to particular material.

new section 124H gives the Secretary of State the power to introduce further obligations. 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. The government’ s aim is for the initial obligations in new sections 124A and 124B to significantly reduce online infringement of copyright.westlaw. 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. As my noble friends on the government Front Bench have said many times in our consideration of the Bill thus far. Therefore we have in Clauses 10 to 13 a reserve power to introduce technical obligations. OFCOM may be required to carry out a consultation or assess the likely efficacy of different kinds of technical measure.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=I5FACCF40E42311DAA7CF8F68F6EE57AB"2000. OFCOM will have to publish their reports under this section but may exclude information they consider they could refuse to disclose under the Freedom of Information Act HYPERLINK "http://login.co. In particular. inserted by clause 10.Section 9 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 65. Technology used for the purposes of online infringement of copyright is changing fast and it is not possible at this stage to know which technical measures would be effective. New section 124G of the 2003 Act. 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 . in case the initial obligations prove not as effective as expected. the Government believe that the initial obligations set out in Clauses 4 to 8 should result in a significant reduction in online copyright infringement.” Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords Lord Faulkner of Worcester said as follows: “ It might be helpful if I start by saying why we have included the possibility of technical obligations in the Bill. “ 67. “ 66. “ However. to stem the flood of online copyright infringement if the initial obligations do not work. However. should it be necessary to do so. confers a power on the Secretary of State to direct OFCOM to assess whether ISPs should be obliged to take technical measures against certain subscribers. should that prove appropriate. we also recognise the strength of the argument that has been put to us that these initial obligations may not be sufficient. and to report back to the Secretary of State. or direct OFCOM to take steps to prepare for technical obligations. OFCOM would be required to set out supporting provision in a technical obligations code under section 124I (which is inserted by clause 12).

716. 2010).) Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords the Minister for Postal Affairs and Employment Relations (Lord Young of Norwood Green) said as follows: “ My Lords.1302 (January 26. “ Imposing technical obligations is something a Secretary of State would decide only if he were sure it was the only way to deal with the problem of online copyright infringement and if the initial obligations have failed to deliver the expected results. 2010 to present (version 1 of 1) 10 Obligations to limit internet access After section 124G of the Communications Act 2003 insert— “ 124H Obligations to limit internet access . col. HL Vol. HL Vol. col. if so. I stress that because we are all committed to ensuring that the initial obligations have an opportunity to deliver the expected results before we think about technical measures. to require Ofcom to assess the need for technical obligations generally and the likely efficacy of particular technical obligations on particular types of networks.imposition of those obligations such as preparing a technical obligations code.1068 (January 20.” (Hansard. The Secretary of State might want an assessment of whether any measure is needed and. 24 Online infringement of copyright This version in force from: June 8. Clause 10 allows the Secretary of State to require Ofcom to prepare in advance against the need for technical obligations.) © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. An assessment of whether technical obligations should be imposed will be informed by consultation of relevant groups. which is the right one before asking for a code to be drawn up.” (Hansard. This suggests that it is not sensible to make all of paragraphs (a) to (c) a requirement in relation to every direction that the Secretary of State might make under new subsection (1) of new Section 124G of the Communications Act 2003 in Clause 10. and to require Ofcom to develop a code of practice to underpin any such technical obligations.716. 2010). including consumers-there is an explicit assurance on that-which in this context includes subscribers. “ It may well be desirable for those powers to be used one at a time rather than in parallel. This would make sense since the detail of the code is likely to be heavily influenced by the nature of the measure.

the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6). and (b) any recommendations of a committee of either House of Parliament charged with reporting on the draft order. (7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“ the 60-day period” ). (5) No order is to be made under this section unless— (a) the Secretary of State has complied with subsections (6) to (10). and (b) taking into account that assessment. the Secretary of State considers it appropriate to make the order. (9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications). (b) the steps to be taken as part of the measure and when they are to be taken. and (b) sets it out in the form of a draft order. (8) In preparing a draft order under this section to give effect to the proposal.(1) The Secretary of State may by order impose a technical obligation on internet service providers if— (a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers. reports prepared by OFCOM under section 124F. the Secretary of State must lay before Parliament a document that— (a) explains the proposal. (6) If the Secretary of State proposes to make an order under this section. the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period— (a) any representations. (3) An order under this section must specify the date from which the technical obligation is to have effect. and (b) a draft of the order has been laid before Parliament and approved by a resolution of each House. and any other matter that appears to the Secretary of State to be relevant. . (4) The order may also specify— (a) the criteria for taking the technical measure concerned against a subscriber. (2) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force. the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications). or provide for it to be specified.

or in combination with. 24 Online infringement of copyright This version in force from: June 8. This power can only be used if the initial obligations code has been in force for at least 12 months.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. 2010 to present (version 1 of 1) 11 Code by OFCOM about obligations to limit internet access After section 124H of the Communications Act 2003 insert— “ 124I Code by OFCOM about obligations to limit internet access (1) For any period during which there are one or more technical obligations in force under section 124H. any initial obligations code under section 124D.(10) In calculating the 60-day period. “ 69. A technical measure may only be applied against a ‘ relevant subscriber’ . New section 124H of the 2003 Act is inserted by clause 11 and gives the Secretary of State power to order ISPs to impose technical measures on internet access service subscribers meeting certain criteria. no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 10 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 68. (2) The code may be made separately from. and OFCOM have assessed whether technical obligations should be imposed on ISPs. The order would be subject to the draft affirmative procedure. OFCOM must by order make a technical obligations code for the purpose of regulating those obligations. . that is a subscriber who has been linked to sufficient CIRs to make them eligible for inclusion in a copyright infringement list.

” © 2010 Sweet & Maxwell Status: Law In Force . and (b) make other provision for the purpose of regulating the technical obligations. (8) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.(3) A code under this section may— (a) do any of the things mentioned in section 124C(3) to (5) or section 124D(5)(a) to (g). (5) OFCOM must— (a) keep a code under this section under review.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 11 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 70. inserted by clause 12. It also provides that the Secretary of State’ s approval of the code is required before it can be made. OFCOM will be under an obligation to adopt (by order) a code underpinning the technical obligations. (6) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section. and specifies that the statutory instrument containing the OFCOM order is subject to the draft affirmative Parliamentary procedure. (7) Section 403 applies to the power of OFCOM to make an order under this section. (4) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124J. and (b) by order make any amendment of it that is necessary to ensure that while it is in force it continues to meet the criteria set out in section 124J. “ 71. This is provided for in new section 124I of the 2003 Act. If the Secretary of State makes an order under section 124H requiring ISPs to take technical measures against subscribers. Section 124I sets out the procedure for the making by OFCOM of the code on technical obligations.

(d) that it makes any other provision that the Secretary of State requires it to make. the functions of administering and enforcing it. (e) that the provisions of the code are objectively justifiable in relation to the matters to which it relates. and (c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners. in relation to what those provisions are intended to achieve. (3) The provision made concerning enforcement and related matters may also (unless the Secretary of State requires otherwise) include. under the code. in particular— . (c) that it makes any provision about contributions towards meeting costs that is required to be included by an order under section 124M. (2) The requirements concerning enforcement and related matters are— (a) that OFCOM have.Digital Economy Act 2010 c. they are transparent. 24 Online infringement of copyright This version in force from: June 8. (b) that the requirements concerning subscriber appeals are met in relation to the code (see section 124K). (b) that there are adequate arrangements under the code for OFCOM to obtain any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code. 2010 to present (version 1 of 1) 12 Contents of code about obligations to limit internet access After section 124I of the Communications Act 2003 insert— “ 124J Contents of code about obligations to limit internet access (1) The criteria referred to in section 124I(4) are— (a) that the requirements concerning enforcement and related matters are met in relation to the code (see subsections (2) and (3)). (g) that those provisions are proportionate to what they are intended to achieve. and (h) that. including the function of resolving owner-provider disputes. (f) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons.

for example. “ 73. and (b) relates to an act or omission in relation to a technical obligation or a technical obligations code. Thus the code must. and set out the dispute mechanism in the event of disagreement between an ISP and a copyright owner. 24 Online infringement of copyright This version in force from: June 8. 2010 to present (version 1 of 1) . Section 124J sets out a list of matters which are to be included in the technical obligations code. and the information that would have to be sent to a subscriber facing such a measure. include provision in relation to enforcement and meet the requirements concerning subscriber appeals (as set out in new section 124K. (4) In this section “ owner-provider dispute” means a dispute that— (a) is between persons who are copyright owners or internet service providers. to a person specified in the code. It would also address how any costs might be apportioned. of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2). Clause 13 inserts new section 124J in the 2003 Act.(a) provision for the payment. and OFCOM may set up a body for that purpose.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. The government envisages that the code would also set out the process by which a technical measure would be taken. The person hearing appeals from subscribers must be independent. (b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's infringement or error in relation to the code or the copyright infringement provisions.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 12 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 72. inserted by clause 14).

and (b) for the purposes of section 124J(1)(b). if there is more than one such report. a further right of appeal to the First-tier Tribunal. as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done (or. in the case of a technical obligations code. (3) The code must provide for the grounds of appeal (so far as an appeal relates to. and (d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers. a copyright infringement report) to include the following— (a) that the apparent infringement to which the report relates was not an infringement of copyright. . (b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement. under the code. and (b) the report relates to the subscriber's IP address at the time of that infringement. (5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that. copyright owners and the subscriber concerned. or to anything done by reference to.13 Subscriber appeals After section 124J of the Communications Act 2003 insert— “ 124K Subscriber appeals (1) The requirements concerning subscriber appeals are— (a) for the purposes of section 124E(1)(h). (c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers. copyright owners and OFCOM. as respects each of them)— (a) the apparent infringement was an infringement of copyright. the requirements of subsections (2) to (8). the requirements of subsections (2) to (11). has the function of determining subscriber appeals. (4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code. (b) that there is a person who. (2) The requirements of this subsection are— (a) that the code confers on subscribers the right to bring a subscriber appeal and.

to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber. to OFCOM. (c) to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure. unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings. the appeal must be determined in favour of the subscriber if the subscriber shows that— (a) the act constituting the apparent infringement to which the report relates was not done by the subscriber. where a ground mentioned in subsection (3) is relied on. (ii) to require the measure not to be taken or to be withdrawn. (b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission. the code must make provision— .(6) The code must provide that. or any matter relating to that decision. and (d) to remit the decision whether to confirm the technical measure. (8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful. and (b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service. (10) In the case of a technical obligations code. (9) In the case of a technical obligations code. the powers of the person determining subscriber appeals must include power— (a) on an appeal in relation to a technical measure or proposed technical measure— (i) to confirm the measure. (7) The powers of the person determining subscriber appeals must include power— (a) to secure so far as practicable that a subscriber is not prejudiced for the purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is determined in favour of the subscriber. (b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power. (iii) to substitute any other technical measure that the internet service provider has power to take. and (c) where the appeal is determined in favour of the subscriber.

the code must ensure that no technical measure is imposed . including in cases where the appeal is unsuccessful but there are exceptional circumstances. (b) giving the First-tier Tribunal. Clause 14 inserts new section 124K in the 2003 Act. in relation to an appeal to it. the codes must allow compensation to be paid to the subscriber and also any reasonable costs. the person hearing subscriber appeals must be able to confirm. The code must also provide for an appeal from the first appeal body’ s decision to a First-tier Tribunal. Finally. (11) In the case of a technical obligations code. In the event of technical measures being introduced. A subscriber appeal must also succeed where the subscriber shows that the infringement was not carried out by the subscriber and that the subscriber had taken reasonable steps to prevent an infringement.(a) enabling a determination of a subscriber appeal to be appealed to the First-tier Tribunal. “ 76. wrong in law or unreasonable. overturn or modify the imposition of a technical measure. the code must include provision to secure that a technical measure is not taken against a subscriber until— (a) the period for bringing a subscriber appeal. It requires that the initial obligations code and any technical obligations code provide a route for appeals and sets out grounds for appeal. “ 75. the powers mentioned in subsections (7) and (9). and (c) in relation to recovery of costs awarded by the Tribunal. including on grounds that it was based on an error of fact. “ 77. or any further appeal to the First-tier Tribunal.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 13 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 74. and (b) any such subscriber appeal or further appeal has been determined. in relation to the proposed measure has ended (or the subscriber has waived the right to appeal). Section 124K sets out how the mechanism for subscriber appeals will work. that there has been an infringement of copyright and that this has been correctly linked to the subscriber’ s internet account. in relation to each relevant CIR. Where an appeal is successful. abandoned or otherwise disposed of. It also requires that the codes must provide for an appeal to succeed unless the copyright owner or ISP shows.

or the time limit for appeals has expired. (5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House. (b) any steps taken by the provider or owner towards complying with the obligations contraventions of which have been notified to the provider or owner under section 94 (as applied). and (b) proportionate to the contravention in respect of which it is imposed. or a contravention of an obligation under section 124G(6). (3) In making that determination OFCOM must have regard to— (a) any representations made to them by the internet service provider or copyright owner on whom the penalty is imposed. (4) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (2).” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland . or the subscriber has decided not to proceed further with an appeal.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. as they apply in relation to a contravention of a condition set out under section 45. 24 Online infringement of copyright This version in force from: June 8. 2010 to present (version 1 of 1) 14 Enforcement of obligations After section 124K of the Communications Act 2003 insert— “ 124L Enforcement of obligations (1) Sections 94 to 96 apply in relation to a contravention of an initial obligation or a technical obligation.000 as OFCOM determine to be— (a) appropriate. and (c) any steps taken by the provider or owner for remedying the consequences of those contraventions.until the appeals process has been exhausted. (2) The amount of the penalty imposed under section 96 as applied by this section is to be such amount not exceeding £250.

Section 124L sets out the penalties which may be imposed on an ISP for the contravention of the initial obligations or obligations to impose technical measures. (2) Any provision specified under subsection (1) must relate to payment of contributions by one or more of the following only— (a) copyright owners. 24 Online infringement of copyright This version in force from: April 8. (b) internet service providers. or of the obligation to provide assistance to OFCOM under section 124G. in particular— (a) payment by a copyright owner of a contribution towards the costs . 2010 to present (version 1 of 1) 15 Sharing of costs After section 124L of the Communications Act 2003 insert— “ 124M Sharing of costs (1) The Secretary of State may by order specify provision that must be included in an initial obligations code or a technical obligations code about payment of contributions towards costs incurred under the copyright infringement provisions. the Secretary of State has a power to increase this amount by order.000. “ 79. Clause 15 inserts new section 124L in the 2003 Act. the subscriber.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. (c) in relation to a subscriber appeal or a further appeal by a subscriber to the First-tier Tribunal. (3) Provision specified under subsection (1) may relate to. The order would be subject to the affirmative resolution Parliamentary procedure.Annotation Section 14 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 78. However. The maximum penalty is specified as the sum of £250.

These will include the cost to ISPs of processing copyright infringement reports and issuing subscriber notifications. confers a power on the Secretary of State to specify by order provision which must be included in the codes and which sets out how costs are to be apportioned between copyright owners. OFCOM’ s costs in approving or preparing the codes. “ 82.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 15 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 80. This must be done through the affirmative resolution Parliamentary procedure. (4) Provision specified under subsection (1) may include. expected costs or contributions must be calculated. and the funding of any subscriber appeals to an independent appeals body or the First-tier Tribunal.that an internet service provider incurs. “ 81. New section 124M of the 2003 Act. The purpose of the section is to help ensure that the parties carry out their obligations in an efficient and effective manner and that both ISPs and copyright owners have economic incentives to take action to reduce online infringement of copyright through commercial agreements. the cost of enforcing them. in particular— (a) provision about costs incurred before the provision is included in an initial obligations code or a technical obligations code. (d) other provision about when and how contributions must be paid. the costs to ISPs associated with the imposition of any technical measures. The costs are those incurred under the copyright infringement provisions. in the case of subscriber appeals. (5) No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House. ISPs and. The government believes that most of the costs of subscriber appeals to an independent person determining appeals or to the First-tier Tribunal . the subscriber concerned. (b) provision for payment in advance of expected costs (and for reimbursement of overpayments where the costs incurred are less than expected). (c) provision about how costs. (b) payment by a copyright owner or internet service provider of a contribution towards the costs that OFCOM incur. The initial obligations and any later technical obligations will give rise to costs. inserted by clause 16.

It will be paid for by industry through a flat-rate fee that copyright owners will pay. They will also have to pay a flat fee to an ISP for each notification that the ISP has to process. in practice. it is an area where it is not realistic to expect the different industry parties to agree. be virtually impossible to police and could lead to endless disputes. Before the Horsemen of the Apocalypse ride in with somewhat melodramatic comparisons with the poll tax. which might have made reaching agreement on the code an intractable problem. We are quite clear that the bulk of the cost should apply to the copyright owners. However. col. I stress that in this working assumption ISPs would meet the remaining 25 per cent of those costs. I suggest that the amendment would.1342 (January 26. This just is not practical. The draft statutory instrument with which we provided your Lordships set out our working assumption that copyright owners should meet 75 per cent of the costs-both those incurred by ISPs in complying with the initial obligations and the other costs that will arise for Ofcom and in relation to the appeals processes.” (Hansard. while leaving internet service providers-I stress this-with a strong incentive to ensure that they keep their costs to the lowest effective level. “ I shall spend some time on how this will be paid for. It will also provide ISPs with incentives to minimise the number of notifications that they receive either through commercial content deals or by taking voluntary action to limit file-sharing on their network. The apportionment of costs is. not surprisingly. Placing part of the costs on ISPs should ensure that the systems that they put in place to comply with these obligations are both effective-in other words. delivered rapidly-and cost-efficient. Both copyright owners and internet service providers are adamant that their view of who should pay is the right one and there is little common ground between them. so that a subscriber does not face significant costs in making an appeal. which will be set in a way that incentivises both copyright owners and ISPs to keep the process efficient and cost-effective. HL Vol. It is only right that copyright owners should bear the cost of infringement identification and any court action that they choose to take. “ We have already discussed in Committee Amendments 200 to 206 and the principle of cost sharing.” Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Lords the Minister for Postal Affairs and Employment Relations (Lord Young of Norwood Green) said as follows: “ My Lords. “ Finally. It is not appropriate for the Government to dictate how any of the industry parties should cover their costs or to prohibit any particular route.should be funded by industry. rather than leave it as a matter for the code. We have been clear that in our view the bulk of the cost should be met by the copyright owners as the main beneficiaries of the process. HYPERLINK . That is why we decided to include the sharing of costs as part of the Bill. let me address the point about seeking to prevent internet service providers from passing costs on to their subscribers. one of the most contentious parts of the process for industry. it is worth setting out why Clause 15 is part of the Bill.716. the fee will be set at such a level that it will not cover all the ISP’ s costs.

“ initial obligations” has the meaning given in section 124C(1). “ copyright infringement list” has the meaning given in section 124B(2)."http://www.) © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. “ copyright infringement report” 124A(3). (b) consists entirely or mainly of the provision of access to the internet. 2010 to present (version 1 of 1) 16 Interpretation and consequential provision (1) After section 124M of the Communications Act 2003 insert— “ 124N Interpretation In sections 124A to 124M and this section— “ apparent infringement” . 24 Online infringement of copyright This version in force from: April 8. “ copyright work” has the same meaning as in Part 1 of the Copyright. “ internet access service” that— means an electronic communications service means sections 124A to 124M and has the meaning given in section (a) is provided to a subscriber. or (b) someone authorised by that person to act on the person's behalf. “ initial obligations code” has the meaning given in section 124A(2).parliament. “ copyright owner” means— (a) a copyright owner within the meaning of Part 1 of the Copyright.uk/pa/ld200910/ldhansrd/text/1001260008. Designs and Patents Act 1988 (see section 1(2) of that Act).htm"2010). “ copyright infringement provisions” this section. in relation to a copyright infringement report. and (c) includes the allocation of an IP address or IP addresses to the .publications. means the infringement of copyright that the report states appears to have taken place. Designs and Patents Act 1988 (see section 173 of that Act).

(ii) notification under section 124A(4).” . means a person who— (a) receives the service under an agreement between the person and the provider of the service. “ subscriber” . “ technical measure” has the meaning given in section 124G(3). “ subscriber appeal” means— (a) in relation to an initial obligations code. an appeal by a subscriber on grounds specified in the code in relation to— (i) the making of a copyright infringement report. after paragraph (i) insert— “ (ia) preparing a report under section 124F. or (ii) any other act or omission in relation to a technical obligation or a technical obligations code. (3) In Schedule 8 to that Act (decisions not subject to appeal to the Competition Appeal Tribunal). an appeal by a subscriber on grounds specified in the code in relation to— (i) the proposed taking of a technical measure. means a person who provides an internet “ IP address” means an internet protocol address. “ technical obligation” has the meaning given in section 124G(2). (ib) carrying out an assessment. (iii) the inclusion or proposed inclusion of an entry in a copyright infringement list. in relation to an internet access service.subscriber to enable that access. or (iv) any other act or omission in relation to an initial obligation or an initial obligations code.” (2) In section 135(3) of that Act (information required for purposes of Chapter 1 functions). “ internet service provider” access service. taking steps or providing a report under section 124G. “ technical obligations code” means a code in force under section 124I. and (b) does not receive it as a communications provider. after paragraph 9 insert— “ 9A A decision relating to any of sections 124A to 124N or to anything done . (b) in relation to a technical obligations code.

(b) a location at which a substantial amount of material has been. is being or is likely to be used for or in connection with an activity that infringes copyright. © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c.under them. 24 Online infringement of copyright This version in force from: June 8. and (c) making the regulations would not prejudice national security or the prevention or detection of crime. is being or is likely to be obtained in infringement of copyright.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 16 Introduction This section inserts a section into the Communications Act 2003 providing definitions for the sections inserted by earlier sections of this Act. (b) making the regulations is a proportionate way to address that effect. (3) The Secretary of State may not make regulations under this section unless satisfied that— (a) the use of the internet for activities that infringe copyright is having a serious adverse effect on businesses or consumers. or . 2010 to present (version 1 of 1) 17 Power to make provision about injunctions preventing access to locations on the internet (1) The Secretary of State may by regulations make provision about the granting by a court of a blocking injunction in respect of a location on the internet which the court is satisfied has been. (2) “ Blocking injunction” means an injunction that requires a service provider to prevent its service being used to gain access to the location. (4) The regulations must provide that a court may not grant an injunction unless satisfied that the location is— (a) a location from which a substantial amount of material has been. is being or is likely to be made available in infringement of copyright.

(c) any representations made by a Minister of the Crown. (5) The regulations must provide that. (c) provide that a court may not make an order for costs against the service provider. transitory or saving provision. transitional. or is not. in particular— (a) make provision about when a location is. (b) provide that notice of an application for an injunction may be given to operators of a location by being published in accordance with the regulations. to prevent infringement of copyright in the qualifying material. (6) The regulations must provide that a court may not grant an injunction unless notice of the application for the injunction has been given. . (11) A statutory instrument containing regulations under this section may consequential. (8) The regulations may— (a) modify Chapter 6 of Part 1 of the Copyright. (10) Regulations under this section must be made by statutory instrument. in such form and by such means as is specified in the regulations. is being or is likely to be used to facilitate access to a location within paragraph (a) or (b).(c) a location which has been. or by an operator of the location. (d) whether the injunction would be likely to have a disproportionate effect on any person's legitimate interests. (d) make different provision for different purposes. supplementary. the court must take account of— (a) any evidence presented of steps taken by the service provider. (9) Regulations under this section may not include provision in respect of proceedings before a court in England and Wales without the consent of the Lord Chancellor. and (e) make incidental. and (b) operators of the location. in determining whether to grant an injunction. or by a licensee of copyright in the qualifying material. to— (a) the service provider. to facilitate lawful access to the qualifying material. Designs and Patents Act 1988. and (b) make consequential provision modifying Acts and subordinate legislation. to be treated as being used to facilitate access to another location. (7) The regulations may. and (e) the importance of freedom of expression. (b) any evidence presented of steps taken by the copyright owner.

“ injunction” means interdict. (12) In this section— “ copyright owner” has the same meaning as in Part 1 of the Copyright. “ modify” includes amend.co. repeal or revoke. in relation to an injunction. and (b) a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Designs and HYPERLINK "http://login. “ subordinate legislation” has the same meaning as in the Interpretation Act 1978. Designs and HYPERLINK "http://login. means a person who has editorial control over material available at the location. “ operator” .uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=I5FF6D090E42311DAA7CF8F68F6EE57AB"Patents Act 1988. in relation to a location on the internet. (13) In the application of this section to Scotland— “ costs” means expenses.westlaw.not be made unless— (a) the Secretary of State has complied with section 18.westlaw. means the material taken into account by the court for the purposes of provision made under subsection (4). “ Minister of the Crown” has the same meaning as in the Ministers of the Crown Act 1975. “ qualifying material” . Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 17 Introduction This section was substituted in the House of Commons during the passage of the Bill for this Act. the text of which was inserted in another place on a joint initiative of the Conservatives and Liberal Democrats.co. New clauses 1 and 2 contain amended provisions. Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Commons the Parliamentary Under-Secretary of State for Business.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=I5FF6D090E42311DAA7CF8F68F6EE57AB"Patents Act 1988. “ service provider” has the same meaning as in section 97A of the Copyright. Innovation and Skills (Mr Stephen Timms) said as follows: “ We want to remove clause 18. and I hope I can persuade the .

HC Vol. but adds safeguards to ensure that the position of internet intermediaries and citizens are properly protected. The Secretary of State must consider the proportionality of the regulations and the evidence that they are necessary to deal with infringement that is having a serious adverse effect. “ The new clause we propose does the job of dealing with online infringement other than unlawful file sharing.) Subsection (1) See General Note: Secretary of State. but ensure proper consideration. We have also set out why we think the text in new clauses 1 and 2 would have the same benefits. see also General Note: Minister of the See General Note: Proportionality.” (Hansard. We can also ensure that any security law enforcement concerns are properly taken on board.18. which is what we are providing for. our view is that the costs should be borne. “ In addition. the court from which an order was being sought would need to consider carefully legitimate uses and users affected by any order. it does not immediately fall foul of the technical standards directive. which is dealt with by earlier parts of the Bill. which was inserted by the other place.(12). for fear of bearing costs-although we also need to ensure that ISPs are not allowed to flout a decision of the court. as the existing text would.Committee that our approach is the right way to proceed. “ We have set out why we did not think that the clause 18. see subs. “ There will be proper opportunities to consult on the measure and for Parliament to consider it via the now famous super-affirmative procedure. as a power to introduce regulations. Subsection (5) Minister of the Crown — Crown. Subsection (7) See General Note: Statutory Instruments: Different Provision for . Regulations — for procedure see subss. col. Essentially. Satisfied — see General Note: Levels of Certainty.(10) and (11) and s. We want to ensure that the safeguards are properly considered and that ISPs do not have an incentive to block sites purely on the basis of an allegation.508. 2010. with any recommendations having to be taken into account. would work and our concerns about introducing such provisions in such a way and at such a time. should such regulations be introduced. We certainly do not want the clause to be used to restrict freedom of speech. including full consultation and proper safeguards. not by the ISPs. The key benefits of the amended approach are that. but by those seeking a court order. it is enforceable. as well as have due regard to freedom of expression.1135 (April 7.

Subsection (10) See General Note: Statutory Instruments. See General Note: Lord Chancellor. See General Note: Statutory Instruments: Ancillary Provision. Subsection (8) See General Note: Henry VIII Provision. the Secretary of State . Subsection (11) See General Note: Statutory Instruments: Draft Affirmative Procedure. Subsection (9) See General Note: England and Wales. (b) the persons that the Secretary of State thinks likely to be affected by the regulations (or persons who represent such persons).Different Purposes. following the consultation under subsection (1). Subsection (12) See General Note: Repeal. See General Note: Consequential Amendments. 24 Online infringement of copyright This version in force from: June 8. (2) If. and (c) such other persons as the Secretary of State thinks fit. 2010 to present (version 1 of 1) 18 Consultation and Parliamentary scrutiny (1) Before making regulations under section 17 the Secretary of State must consult— (a) the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland. See General Note: Transitional Provision. © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c.

Pepper v Hart Note (see General Note: Pepper v Hart): In Committee on the Bill for this Act in the House of Commons the Parliamentary Under-Secretary of State for Business. (4) In preparing draft regulations under section 17 to give effect to the proposal. the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (2).proposes to make regulations under section 17. and I hope I can persuade the Committee that our approach is the right way to proceed. (6) In calculating the 60-day period. and (b) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations. (b) explains the reasons why the Secretary of State is satisfied in relation to the matters listed in section 17(3)(a) to (c). the Secretary of State must have regard to any of the following that are made with regard to the draft regulations during the 60-day period — (a) any representations. the Secretary of State must lay before Parliament a document that— (a) explains the proposal and sets it out in the form of draft regulations. the Secretary of State may not lay before Parliament a draft statutory instrument containing regulations to give effect to the proposal (with or without modifications). no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days. New clauses 1 and 2 contain amended provisions. . the text of which was inserted in another place on a joint initiative of the Conservatives and Liberal Democrats. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 18 Introduction This section was substituted in the House of Commons during the passage of the Bill for this Act. (5) When laying before Parliament a draft statutory instrument containing regulations to give effect to the proposal (with or without modifications). (3) During the period of 60 days beginning with the day on which the document was laid under subsection (2) (“ the 60-day period” ). Innovation and Skills (Mr Stephen Timms) said as follows: “ We want to remove clause 18. and (c) contains a summary of any representations made during the consultation under subsection (1).

it does not immediately fall foul of the technical standards directive. 24 Powers in relation to internet domain registries . as well as have due regard to freedom of expression. See General Note: Consultation. “ There will be proper opportunities to consult on the measure and for Parliament to consider it via the now famous super-affirmative procedure. but ensure proper consideration. our view is that the costs should be borne. Essentially. with any recommendations having to be taken into account. as the existing text would. but adds safeguards to ensure that the position of internet intermediaries and citizens are properly protected. HC Vol. The key benefits of the amended approach are that. including full consultation and proper safeguards. © 2010 Sweet & Maxwell Status: Not Yet In Force Digital Economy Act 2010 c.1135 (April 7. as a power to introduce regulations.” (Hansard. 2010). We can also ensure that any security law enforcement concerns are properly taken on board. it is enforceable. See General Note: Lord Chief Justice of Northern Ireland. We want to ensure that the safeguards are properly considered and that ISPs do not have an incentive to block sites purely on the basis of an allegation.508. but by those seeking a court order.) Subsection (1) See General Note: Secretary of State. would work and our concerns about introducing such provisions in such a way and at such a time.“ We have set out why we did not think that the clause 18. The Secretary of State must consider the proportionality of the regulations and the evidence that they are necessary to deal with infringement that is having a serious adverse effect. We have also set out why we think the text in new clauses 1 and 2 would have the same benefits. which was inserted by the other place. “ In addition. which is dealt with by earlier parts of the Bill. not by the ISPs. col. the court from which an order was being sought would need to consider carefully legitimate uses and users affected by any order. See General Note: Court of Session. “ The new clause we propose does the job of dealing with online infringement other than unlawful file sharing. which is what we are providing for. should such regulations be introduced. We certainly do not want the clause to be used to restrict freedom of speech. for fear of bearing costs-although we also need to ensure that ISPs are not allowed to flout a decision of the court.

(4) A relevant failure is serious. “ qualifying internet domain registry” means a relevant body that— . if it has adversely affected or is likely adversely to affect— (a) the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom. or (b) the arrangements made by the registry for dealing with complaints in connection with internet domain names do not comply with prescribed requirements. (7) In this section and sections 124P to 124R— “ end-user” . (2) The Secretary of State must notify the internet domain registry. (3) There is a relevant failure in relation to a qualifying internet domain registry if— (a) the registry. (6) Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate. specifying the failure and a period during which the registry has the opportunity to make representations to the Secretary of State. (5) In subsection (3) “ prescribed” means prescribed by regulations made by the Secretary of State.This version in force from: date to be appointed (version 1 of 1) 19 Powers in relation to internet domain registries After section 124N of the Communications Act 2003 insert— “ Powers in relation to internet domain registries 124O Notification of failure in relation to internet domain registry (1) This section applies where the Secretary of State— (a) is satisfied that a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place. and (b) wishes to exercise the powers under section 124P or 124R. means a person who has been or wants to be allocated an internet domain name that is or would be included in the register maintained by the registry. engages in prescribed practices that are unfair or involve the misuse of internet domain names. for the purposes of this section. or (b) the interests of consumers or members of the public in the United Kingdom or a part of the United Kingdom. in relation to a qualifying internet domain registry. or any of its registrars or end-users.

agents of end-users) have been . in relation to a qualifying internet domain registry. “ second level internet domain” means an internet domain indicated by the last two elements of an internet domain name. in the opinion of the Secretary of State. means a person authorised by the registry to act on behalf of end-users in connection with the registration of internet domain names. This clause amends the Communications Act 2003 (‘ the 2003 Act’ ) by inserting a new section 124O. its end-users (that is. The section applies where the Secretary of State wishes to use the new powers set out in clauses 20 and 21 and is satisfied that there has been a serious failure of a registry because: • The registry itself. to believe that the domain and its sub-domains are connected with the United Kingdom or a part of the United Kingdom. or a class of such users. “ third level internet domain” means an internet domain indicated by the last three elements of an internet domain name. owners of or applicants for domain names) or registrars (that is.(a) maintains a relevant register of internet domain names. “ registrar” .” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 19 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 91. and (b) operates a computer program or server that forms part of the system that enables the names included in the register to be used to access internet protocol addresses or other information by means of the internet. the last element of its name is likely to cause users of the internet. (8) An internet domain is “ UK-related” if. “ relevant body” means a company formed and registered under the Companies Act 2006 or a limited liability partnership. “ top level internet domain” means an internet domain indicated by the last element of an internet domain name. “ relevant register of internet domain names” means a register of— (a) the names of second level internet domains that form part of the same UK-related top level internet domain. or (b) the names of third level internet domains that form part of the same UK-related second level internet domain.

spamming. the Secretary of State must notify the registry specifying the failure and a period within which the registry may make representations to the Secretary of State. In practice. the Secretary of State may (if he considers it appropriate in the circumstances) require OFCOM to prepare a report on the allocation. drop-catching (that is. or pressure sales tactics. perhaps using them for phishing (a form of internet fraud). 24 Powers in relation to internet domain registries This version in force from: date to be appointed (version 1 of 1) . or • The registry’ s arrangements for dealing with complaints in connection with domain names do not comply with requirements prescribed in regulations made by the Secretary of State.” © 2010 Sweet & Maxwell Status: Not Yet In Force Digital Economy Act 2010 c. “ 93. The Secretary of State is required to consult before making regulations prescribing the unfair practices and misuse of domain names or the requirements in relation to arrangements for dealing with complaints. “ 94. waiting until the expiry date for an existing registered domain name. distributing malware or spyware. “ 96. registering domain names which are of economic value to other people and then charging those people high prices to buy them or use them for their own purposes). “ 92. “ 95.engaging in practices prescribed in regulations made by the Secretary of State which are unfair or which involve the misuse of internet domain names. or the interests of consumers or the public in the UK. The section provides that such a failure will be serious where it has adversely affected or is likely adversely to affect the reputation or availability of electronic communications networks or services provided in the UK. registration and/or misuse of internet domain names by UK-based registries under section 134C (inserted by clause 2(1)) before exercising his powers. which are computer viruses. Where the section applies. snatching it and then charging the previous owner to buy it back). intentionally misleading the public into believing there is a connection between the domain name owner and other organisations (or that another organisation owns or authorises the use of the domain name). Possible examples of unfair practices would be cyber-squatting (that is. Possible examples of the misuse of internet domain names would be registering intentionally misleading domain names.

discharge all or part of the order. (b) the period allowed for making representations has expired. (9) The Secretary of State must send a copy of an order made under this section to the registry as soon as practicable after it is made. or (b) the rights of a receiver appointed by a person other than the Secretary of State.20 Appointment of manager of internet domain registry (1) After section 124O of the Communications Act 2003 insert— “ 124P Appointment of manager of internet domain registry (1) This section applies where— (a) the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure. and (c) the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure. (7) The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms). (2) The Secretary of State may by order appoint a manager in respect of the property and affairs of the internet domain registry for the purpose of securing that the registry takes the steps described in subsection (1)(c). (11) In subsection (6)— “ administrative receiver” means an administrative receiver within the . administrator. and (b) if appropriate. “ receiver” includes a manager (other than a manager appointed by the registry) and a person who is appointed as both receiver and manager. (4) The appointment of the manager does not affect— (a) a right of a person to appoint a receiver of the registry's property. provisional liquidator or liquidator of the registry. (8) When discharging an order under this section. (3) The person appointed may be anyone whom the Secretary of State thinks appropriate. (5) The Secretary of State must— (a) keep the order under review. (10) In subsection (4). (6) The Secretary of State must discharge the order on the appointment of a person to act as administrative receiver. the Secretary of State may make savings and transitional provision.

the manager acts as the registry's agent. (b) in Scotland. and (b) provide for one or more of the registry's directors to be prevented from exercising any of those functions. after sub-paragraph (ii) insert— “ (iia) an order under section 124P. (5) The Secretary of State may apply to the court for directions in relation to any matter arising in connection with the functions or powers of the manager (and the costs of the application are to be paid by the registry). 124Q Functions of manager etc (1) An order under section 124P may make provision about the functions to be exercised by. (8) Where the registry is a limited liability partnership. the manager. (4) In carrying out the functions conferred by the order.I. and (c) in Northern Ireland. “ administrator” means a person appointed to manage the affairs. 1989/2405 (N.” (2) In section 192(1)(d) of that Act (appeals against decisions of the Secretary of State). and (b) provision for the remuneration to be payable from the property of the registry. (3) In section 402(1) of that Act (powers of the Secretary of State to make orders and regulations). 19)). the High Court.meaning of section 251 of the Insolvency Act 1986 or Article 5(1) of the Insolvency (Northern Ireland) Order 1989 (S. (3) The order may make provision about the remuneration of the manager.I. (2) The order may. the Court of Session or the sheriff. the High Court or a county court. and the powers of. business and property of the registry under Schedule B1 to that Act or Schedule B1 to that Order. including in particular— (a) provision for the amount of the remuneration to be determined by the Secretary of State. after “ “ conferred by” ” insert “ “ section 124P and” . (7) In this section “ the court” means— (a) in England and Wales.” . in particular— (a) provide for the manager to have such of the functions of the registry's directors as are specified in the order (including functions exercisable only by a particular director or class of directors). this section applies as if references to a director of the registry were references to a member of the limited liability partnership. (6) On an application under subsection (5) the court may give such directions or make such orders as it thinks fit.

The Secretary of State may also provide for the remuneration of the manager.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=IA087B370E45211DA8D70A0E70A78ED65"124P(4) provides that the appointment does not affect the rights of any third party to appoint a receiver or manager. section 124P(6) provides that if certain office holders under insolvency legislation are appointed in respect of the registry. New section 124Q makes provision about the powers and functions of the manager so appointed.westlaw. section HYPERLINK "http://login. This might be done in order to counter obstruction of the manager by a registry or its officers. “ 99. “ 98. the Secretary of State may provide for the manager to take over any or all specified functions of the directors in order to ensure that the registry remedies the failure. If the Secretary of State has served a notice under new section 124O. and may also prevent the registry’ s directors from carrying out those functions (subsection (2)). For similar reasons. if necessary.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=IA087B370E45211DA8D70A0E70A78ED65"124P(5)).co. make a further order in the same or similar terms. “ 100. In particular. The Secretary of State must also keep the order under review and discharge it if appropriate. since disobeying the court’ s directions would amount to contempt. This clause amends the 2003 Act by inserting new sections 124P and 124Q.”.westlaw. The order has a time limit of two years but the Secretary of State can. Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 20 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 97. the period allowed for making representations has expired and the Secretary of State is satisfied that the registry has not taken appropriate steps to remedy the failure or its consequences. which may be payable by the registry itself (subsection (3)). In order to ensure that this power does not affect the rights of third parties or the insolvency process. Section 124Q(8) applies all the provisions to limited liability partnerships as if the references to a director were to a member of the . Section 124Q(5) to (7) allow the Secretary of State to seek directions from a court in connection with the manager’ s functions. for example if the registry has remedied the failure (section HYPERLINK "http://login. the Secretary of State may appoint a manager in respect of the property and affairs of the registry to secure that appropriate steps are taken to remedy the failure.co. the Secretary of State must discharge the order appointing a manager. or the rights of any receiver or manager appointed by a third party.

(4) An order under this section may contain only such provision as the court considers appropriate for securing that the registry remedies the failure specified in the notification under section 124O. in the case of a company. or any specified alterations. of its constitution without the leave of the court. Subsection (2) of clause 20 inserts a reference to an order under section 124P into section 192(1)(d) of the 2003 Act. and (b) requiring the registry not to make any alterations. the articles of association and. the limited liability . 24 Powers in relation to internet domain registries This version in force from: date to be appointed (version 1 of 1) 21 Application to court to alter constitution of internet domain registry After section 124Q of the Communications Act 2003 insert— “ 124R Application to court to alter constitution of internet domain registry (1) This section applies where— (a) the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure. (5) In this section— “ constitution” means. and (c) the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure. in the case of a limited liability partnership. The effect of this is that the registry has a right of appeal on both the facts and the law to the Competition Appeal Tribunal (and thence to the Court of Appeal on a point of law) in respect of a decision to appoint a manager. (3) The court may make an order— (a) making alterations of the registry's constitution.” © 2010 Sweet & Maxwell Status: Not Yet In Force Digital Economy Act 2010 c.limited liability partnership. (2) The Secretary of State may apply to the court (as defined in section 124Q) for an order under this section. (b) the period allowed for making representations has expired. “ 101.

it means the limited liability partnership agreement (as defined). The court may only make an order if the court considers it is appropriate in order to secure that the registry remedies the failure specified in the section 124O notification.partnership agreement. determining— (a) the mutual rights and duties of the members. the constitution means the articles of association. The provision only applies where the Secretary of State has served a notice under new section 124O. 24 Copyright and performers' property rights: penalties This version in force from: June 8. “ 104. This clause amends the 2003 Act by inserting a new section 124R.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. whether express or implied. and in the case of a limited liability partnership.” Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 21 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 102. Section 124R(5) provides that. between the members of a limited liability partnership. and (b) their rights and duties in relation to the partnership. and between the partnership and the members of the partnership. The Secretary of State may exercise his power under this section to apply to court to alter the constitution and the power under new section 124P to appoint a manager concurrently (if he considers it appropriate). in the case of a company. This gives the Secretary of State the power to apply to the court for an order to alter the constitution of a registry and to limit the registry’ s ability to amend its constitution itself without the leave of the court. “ limited liability partnership agreement” means the agreement or agreements. the period allowed for making representations has expired and the Secretary of State is satisfied that the registry has not taken the appropriate steps to remedy the failure. 2010 to present . “ 103.

Section HYPERLINK "http://login. dealing with or using illicit recordings) in subsections (5)(a) and (5A)(a) for “ “ the statutory maximum” ” substitute “ “ £50. (3) In section 198 (criminal liability for making. The Gowers Review of intellectual property recommended that the penalties under section 107 of the 1988 Act for online copyright infringement should be matched with those that apply for physical infringement. The clause increases the maximum fine that may be imposed for these offences to £50. by increasing the maximum prison sentence.” © 2010 Sweet & Maxwell Status: Law In Force Digital Economy Act 2010 c. distributing or making available an illicit recording under section 198(5) or 198(5A) from the statutory maximum to £50.uk/maf/wluk/ext/app/document?crumbaction=reset&docguid=I6E2A7F90E44B11DA8D70A0E70A78ED65"107 of the 1988 Act currently restricts fines awarded on summary conviction for criminal infringement of copyright under section 107(4)(a) and 107(4A)(a) to the statutory maximum.000” ” .) in subsections (4)(a) and (4A)(a) for “ “ the statutory maximum” ” substitute “ “ £50.000. 2010 to present (version 1 of 1) . Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 42 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 211. (2) In section 107 (criminal liability for making or dealing with infringing articles etc. 24 General This version in force from: June 8. importing.000” ” .000 in England and Wales and £10.000 in Scotland. which is £5.westlaw.000. Designs and Patents Act 1988 is amended as follows.co.(version 1 of 1) 42 Increase of penalties relating to infringing articles or illicit recordings (1) The Copyright. It also increases the maximum fine on summary conviction for making.

Crown Copyright material is reproduced with the permission of the Controller of HMSO and the Queen’ s Printer for Scotland Annotation Section 44 Introduction The Government’ s Explanatory Notes to the Bill for this Act (see General Note: Explanatory Notes) say as follows: “ 228. (2) The regulations may— (a) make different provision for different purposes. transitory or saving provision in connection with the amendments to various enactments made by the Bill. “ subordinate legislation” has the same meaning as in the Interpretation Act 1978. and (c) where they are made in connection with an amendment made by section 28 or by a provision listed in section 47(3). modify a provision of an Act passed. before the day on which that amendment comes into force. in order to give proper effect to the provisions made by the Bill. repeal or revoke. (3) A statutory instrument containing regulations under this section that amend or repeal a provision of an Act may not be made unless a draft of the instrument has been laid before. each House of Parliament. supplementary. This clause gives the Secretary of State the power to make incidental. consequential. (b) modify an Act passed before or in the same Session as this Act or subordinate legislation made before this Act is passed. and approved by a resolution of. transitional. consequential. Certain necessary consequential amendments have already been identified and are included in the Bill. transitional.44 Power to make consequential provision etc (1) The Secretary of State may by regulations made by statutory instrument make incidental. or subordinate legislation made. This power allows any further amendments to be made. (5) In this section— “ modify” includes amend. supplementary. transitory or saving provision in connection with the amendments made by this Act. where necessary. (4) Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.” Subsection (1) .

See General Note: Secretary of State. See General Note: Statutory Instruments: Ancillary Provision. Subsection (3) See General Note: Statutory Instruments: Draft Affirmative Procedure. See General Note: Consequential Amendments. See General Note: Statutory Instruments. See General Note: Transitional Provision. Subsection (2) See General Note: Statutory Instruments: Different Provision for Different Purposes. See General Note: Henry VIII Provision. © 2010 Sweet & Maxwell . Subsection (4) See General Note: Statutory Instruments: Negative Resolution. Subsection (5) See General Note: Repeal.