Government Puts Copyright Clause Back Into Digital Bill

The government has reinstated a controversial clause in the Digital Economy Bill, which gives ministers the power to alter copyright law, despite its removal by the House of Lords earlier this month. The decision makes it more likely that the Bill will pass into law without opposition, as part of the “wash-up” ahead of a general election.

Should government be able to amend copyright law?

It was originally argued that the power to amend the Copyright Act was necessary to enable the government to respond more efficiently to new methods of viewing and transmitting copyright material, and “future-proof” the legislation to combat digital piracy. According to the original “Clause 17”, these powers would be handled by “statutory instrument”, so could not be blocked by MPs or the Lords.

However, government ministers were forced to back down on the clause in January, following a barrage of complaints from ISPs, technology companies and opposition parties. Most notably, Lord Mandelson received a public letter from Google, Facebook, Yahoo and eBay, condemning the proposal.

“We believe the Bill’s Clause 17 opens the way for arbitrary measures,” the companies complained. “This power could be used, for example, to introduce additional technical measures or increase monitoring of user data, even where no illegal practice has taken place.”

Latest amendments give government new powers

On 3 March, the House of Lords finally dismissed Clause 17, replacing it with the arguably more draconian “Amendment 120A”. If approved, the amendment would allow copyright holders to ask courts for an injunction against any website accused of hosting a “substantial proportion” of material that infringes copyright. This could ultimately result in the offending site being forced offline.

“I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the Internet but we are responding to genuine concerns,” said Liberal Democrat peer Lord Clement-Jones. He also described the proposal as a “more proportionate, specific and appropriate” method of tackling copyright infringement.

The latest clause reinstates politicians’ power to amend copyright law. However, any amendments would require government to conduct a public consultation, before passing the statutory instrument and asking ISPs to block infringing sites.

Rights holders will have to persuade the secretary of state that the offending site is having a “serious adverse effect on businesses or consumers” and that preventing access to it “would not prejudice national security or the prevention or detection of crime”, the draft states. It goes on to specify that “a substantial amount of material has been, is being or is likely to be made available in infringement of copyright” on any site subject to an injunction.

Lord Mandelson has now written to his Conservative and Liberal Democrat counterparts, Jeremy Hunt and Don Foster, to explain the new proposals. The Conservatives have already expressed their support for the move, meaning the Bill will almost certainly be pushed through ahead of the election.

Growing opposition

However, the Liberal Democrats have made a stand – calling for the Digital Economy Bill to be scrapped and re-introduced in the next Parliament. “During the negotiation and discussion in the wash-up we will make it clear that we think that it isn’t a suitable way to deal with the issues remaining such as site blocking,” Liberal Democrat chief whip Paul Burstow told the Guardian newspaper. “We will put amendments down and make the case and hope that the government and the Conservatives will agree that it shouldn’t proceed at this stage.”

Meanwhile, digital rights activists, including the Open Rights Group and the UK Pirate Party, have been demonstrating outside Parliament against the Digital Economy Bill and encouraging people to write to their MPs in protest. The “Stop Disconnection” flashmob, organised by the Open Rights Group, is due to meet in a Central London location at 12.20pm on April Fools Day (1 April).

Yesterday it was reported that the Crown Prosecution Service (CPS) was forced to drop its charges against a teenage boy, who was charged in 2007 with illegally distributing copyrighted material. The charge was dropped due to lack of evidence.