Lib Dems to oppose Mandelson copyright powers

The party has come out against giving the business secretary the power to change existing law, while Tory peers want to amend other parts of the Digital Economy Bill

The Liberal Democrats are to oppose a clause in the Digital Economy Bill that would let the business secretary amend copyright law without parliamentary debate.

Clause 17 of the bill, introduced on 20 November, gives the business secretary — at present, Lord Mandelson — the power to respond to new file-sharing technology by changing the Copyright, Design and Patents Act 1988 as he sees fit. In amendments published on Friday, Lord Razzall and Lord Clement-Jones gave notice of their intention to oppose the clause.

"We just don't think that the government should have the power to fiddle around with copyright law by order rather than by primary legislation," Clement-Jones, the Liberal Democrat spokesperson for culture, media and sport, told ZDNet UK on Tuesday. "Technology moves fast, fine, they can put in bills at short notice."

The second reading of the bill in the House of Lords on Wednesday 2 December prompted numerous proposed amendments, but Clause 17 was the only copyright-related clause to meet with firm rejection from a party.

Clement-Jones said Clause 17 was "a completely unsatisfactory way of doing legislation", adding that opposition to the clause was "the official line" of the Liberal Democrats. He also said that the party's lords will table "quite a few" further amendments to the bill before the House of Lords breaks up on 16 December.

"This is only the beginning, really," Clement-Jones said. "We're unhappy with quite a lot of other things."

The Digital Economy Bill has met with opposition from various sources, ranging from web giants such as Google and Yahoo to consumer rights groups and ISPs. Most of this dissent has focused on the copyright enforcement aspects of the bill, but the legislation has also sparked debate over its sections on game classification and the UK broadcast industry.

Peers from the opposition parties on Friday proposed a number of changes to all parts of the bill, including amendments to those clauses dealing with copyright enforcement.

The Liberal Democrats are not opposed in principle to technical measures such as disconnection, but they believe such measures should be introduced only after "considerable hoops" have been jumped through, Clement-Jones said.

"Each technical measure needs to have an impact assessment and needs to have an Ofcom report showing there is no other way of cutting back on copyright infringement by subscribers," Clement-Jones said.

"[Rights holders need to] demonstrate that it is that subscriber who has infringed. We want the burden of proof to be on the rights holders. In principle, we're not against technical measures because we believe that, in order to encourage innovation and creativity, we need to protect copyright," he added.

The two Liberal Democrat lords have also proposed changes to the text of the bill, as have Tory peers Lord Howard of Rising and Lord de Mauley. The proposed amendments acknowledge that third parties, rather than subscribers, may be responsible for copyright infringements. In addition, the amendments limit the business secretary's powers to impose technical measures, such as disconnection of broadband service, at his own discretion.

The two Tory peers have tabled amendments to Clause 4 of the bill, which concerns the sending of notifications to people suspected of unlawful file-sharing. One amendment calls for recognition of the possibility that "a third party other than the subscriber" is responsible for the infringement.

Another amendment from the Tory peers concerns Clause 5, which calls for the rights holder to send an infringement report...

...to the ISP. The peers want the report to exclude details of the suspected subscriber's IP address and of the time the evidence was gathered.

Lords Howard of Rising and de Mauley also want the notifications to explicitly tell suspected infringers that their service could be cut off, or other technical measures imposed, and to include information about protection against malware.

Clause 11 of the bill would let the business secretary impose technical measures that he considers appropriate, based on "an assessment carried out or steps taken by Ofcom... or any other consideration". The two Tory peers have proposed amending this to require both an assessment and Ofcom action to be carried out before technical measures are imposed. They also propose striking out the phrase "any other consideration" completely.

According to the bill, ISPs will only be forced to participate in a copyright crackdown on customers if a certain threshold of unlawful activity on their network is reached. Liberal Democrat peers Razzall and Lord Clement-Jones want to remove a provision in the bill that would make the resulting sanctions retrospective to a time before the threshold was reached.

The Conservative peers also want to remove a section that would amend the Communications Act 2003 to allow the establishment of a self-governing organisation, outside Ofcom, that would oversee the penalty process for copyright infringement.

In addition, they have proposed limiting the time ISPs are required to keep information on their subscribers to a year or less; the bill does not specify a term.

Another amendment from the Tory peers would mean the business secretary would not be able to decide how costs of the copyright crackdown are shared between rights holders and ISPs. The lords also want a provision inserted to make sure the costs are not "passed onto subscribers in the form of higher subscriptions".

Lords Howard of Rising and de Mauley also want an addition to the bill to indemnify subscribers "for any loss or damage resulting from the [rights] owner or [internet service] provider's failure to comply with the code, the copyright infringement provisions, or the Data Protection Act 1998".

According to the bill, Ofcom will have to provide annual reports to the business secretary that would show the level of copyright infringement. The two Conservative peers want the reports to indicate the levels of lawful access to copyrighted content, and for the reports to be laid before parliament, not just passed from Ofcom to the business secretary.

The next stage in the bill's progress will be a House of Lords committee debate on 6 January, 2010. If there is still opposition to the bill in the Lords following that debate, a vote will be held on the amendments.

De Mauley told ZDNet UK amendments are often proposed "to allow us to probe the government's detailed proposals and to get their responses onto the public record".

"Others are an attempt to nudge the government in the direction of better ways of drafting the legislation," he said. "We are still at a relatively early stage on all of this, and of course we are keen to listen to those directly affected and those involved in the industry about their specific concerns."

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