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Mandelson backpedals on copyright law powers

The business secretary tables changes to the Digital Economy Bill in response to criticism about the scope it would give him to change copyright law
Written by David Meyer, Contributor

The government has proposed amendments to its own Digital Economy Bill that water down some of the more contentious aspects of the legislation.

The wide-ranging bill, currently being scrutinised by the House of Lords, is aimed partly at stemming the tide of unlawful file-sharing of copyrighted material on the internet. The amendments put forward on Tuesday by Lord Mandelson pull back on a provision to give the business secretary the power to change copyright law without consulting parliament.

This proposal has drawn the ire of Google, Facebook, eBay and Yahoo, who argue that it would allow the government to introduce "arbitrary measures" such as the "monitoring of user data even where no illegal practice has taken place".

Clause 17, the provision in question, is meant to allow the government to respond quickly to the development of new types of file-sharing technology. As it stands, the Digital Economy Bill would enable the use of a 'statutory instrument' to allow the business secretary to make law, avoiding the lengthy formal process used for bills.

Mandelson's amendments dilute the statutory instrument by introducing what is described as a 'super-affirmative procedure'. This calls for both houses of Parliament to give their approval to the business secretary's changes to law in the draft stage, while the more common type of secondary legislation enabled by statutory instrument passes by default, unless Parliament objects.

In addition, the amendments remove references to "technological developments" and make it clear that changes in copyright law must be aimed at preventing infringements that are having a "serious adverse effect" on businesses or consumers, and would have to be "proportionate" to addressing that effect.

Lord Clement-Jones, who along with fellow Liberal Democrat peer Lord Razzall has pledged to oppose Clause 17 in its entirety, said that he thought the amendments were "progress," but did not go far enough. The Liberal Democrats still intend to block the clause, he said.

"It's still process and not substance," Clement-Jones told ZDNet UK on Thursday. "They haven't changed the substance, in terms of what the clause deals with — they can still change copyright law, and that is too broad. If they want to address this, they've got to limit the scope of the clause… to the issue of illegal downloads from the internet."

Clement-Jones said the government had to be clearer about what legislative changes it thinks may be needed in the future. He also noted that the government had not previously been very responsive to technological changes, given that it is still unlawful for a consumer to rip a CD they have bought into MP3s for personal use.

"I do find this all rather strange," Clement-Jones said. "I'm all in favour of copyright protection, but we think there should be safeguards." Those safeguards should include the presumption of innocence and the need for "copper-bottomed" evidence of infringement, he added.

Mandelson also proposed changes to other clauses in the bill that have generated opposition. An amendment to Clause 11, which covers the imposition of technical measures such as bandwidth throttling and temporary account suspension, calls for such measures to be approved by both houses of Parliament.

In addition, the minister wants to tighten up the language of Clause 18, which would allow the business secretary to nationalise UK domain registries. His amendment would limit the scope to registries that deal with UK-specific domains. This follows complaints from the .tel registry, Telnic, which said it could be affected by legislation intended to tackle the .uk registry, Nominet.

Another Mandelson amendment aims to ensure that any arrangements made between copyright holders and ISPs to share the cost of enforcing copyright law would have to be approved by both houses of Parliament.

Lords Clement-Jones and Razzall also published amendments on Tuesday, including one to reduce the fine for ISPs reduced from £250,000 to £10,000. The fine would be imposed on providers that did not comply with measures to combat copyright infringement, such as sending out warning letters to suspected file-sharers.

Earlier this week, Lords Whitty (Labour) and Lucas (Conservative) tabled an amendment that would limit the scope of such measures to peer-to-peer (P2P) technology. Whitty also proposed that notifications of alleged infringement should only be sent to the accused person's postal address, not to their email address.

The next stage for the bill will be a Lords debate on Monday. Peers will then vote on the tabled amendments sometime in February, then carry out a third reading of the bill. After that, the bill will be handed over to the House of Commons.

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