The Digital Economy Bill, currently at the report stage in the Lords has caused concern, as Lib Dem peers Lord Razzall and Lord Clement-Jones are seeking an amendment to allow site blocking for copyright infringement.
Earlier this week, Open Rights Group posted an appeal for people to write to the peers, asking them to drop the amendment.
Here, Lord Tim Clement-Jones sets out his response:
The Digital Economy Bill, as currently drafted, only deals with a certain type of copyright infringement, namely peer-to-peer file sharing. Around 35% of all online copyright infringement takes place on non peer-to-peer sites and services. Particular threats concern “cyberlockers” which are hosted abroad.
There are websites which consistently infringe copyright, many of them based outside the UK in countries such as Russia and beyond the jurisdiction of the UK courts. Many of these websites refuse to stop supplying access to illegal content.
It is a result of this situation that the Liberal Democrats have tabled an amendment in the Lords which has the support of the Conservatives that enables the High Court to grant an injunction requiring Internet Service Providers to block access to sites.
The amendment (amendment 120A) has generated some concern on the internet in the last few days.
Amendment 120A makes an explicit reference to human rights implications being taken into consideration by the Courts whilst they consider the imposition of an injunction. Such a safeguard is paramount to our concerns.
The intention is also for the injunction to only be possible for sites where there is a substantial proportion of infringing material that is either hosted by that particular site or is accessed through the particular site in question.
The injunction will only be granted where copyright owners had first requested ISP’s to block access to the site and where they had also requested the site operator to stop providing access to the infringing material (either by removing the material itself or removing the ability to access the material).
There already exists a remedy under the Copyright, Designs and Patents Act (section 97A) which grants copyright owners a broad power to apply to the Court for an injunction. Therefore, all amendment 120A does is enhance this power by giving copyright owners a more clearly defined route.
Site blocking is not a new phenomenon, the most well-known being the recommended list of sites to block provided by the Internet Watch Foundation
Clause 17, the Government’s completely objectionable power to enable the Secretary of State to attempt to amend copyright law at any time is deleted by the joint Lib Dem and Conservative amendment.
Unlike Clause 17, amendment 120A depoliticises the process. The amendment will ensure any action will be heard before the High Court. The liberal principle of equality before the law remains intact allowing both sides to make their case before a judge, not by appeal to the Secretary of State.
Before making an injunction, under the amendment the Court has to have regard to whether the copyright owner has made reasonable efforts to facilitate legal access. This is designed to ensure that copyright owners continue to develop innovative ways of enabling their material to be accessed online legally, such as Spotify, before turning to legal action.
To conclude, the Lib Dems are not seeking to censor the internet but are responding to genuine concerns from the creative industries about providing a process whereby their material can be satisfactorily accessed legally.
UPDATE: There’s been a vigorous debate in the party since this post, including an open letter from 25+ Liberal Democrat Parliamentary candidates opposing the amendment. See the update here for more information.