Power to amend copyright provisions: the details

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Power to Amend Copyright Provisions: what is it?

This is clause 17 of the Digital Economy Bill, which provides a limited capability to ‘future proof’ powers in the Copyright Designs and Patents Act 1988 (“CDPA”) to deal with civil infringement of copyright online. It is not a power to make sweeping changes to the nature of copyright or to what constitutes copyright infringement for the purposes of Part 1 of the CDPA, as has been suggested.

Why is this clause needed?

Technology in this area moves fast and this clause will enable Government to move quickly and flexibly if the existing legislation is not able to provide adequate forms of redress for civil infringement of copyright that takes place online.

Elsewhere in the Digital Economy Bill we are legislating to create a framework to help rights holders take action against those unlawfully sharing material online via many to many services such as peer-to-peer (P2P) in a way that infringes copyright.

However unlawful file-sharing using P2P is not the only form of infringement which takes place on line. It is currently the most damaging but this may not always be the case. We need to be able to react far quicker to prevent or reduce widespread copyright infringement that is enabled by use of any new technologies in the future

Isn’t this a very wide power?

The power is quite restricted, both by limitations in the drafting of the clause itself, and by external limitations arising from the context in which the power operates, for example the requirement that the powers must be exercised consistently with human rights obligations and European legislation.

The wording of the clause requires that the power may only be used:

• to prevent or reduce copyright infringement on line if appropriate to do so having regard to technological developments that have occurred or are likely to occur
• to amend the CDPA in ways that do not create or amend any criminal offences
• following consultation
• by means of affirmative resolution procedure in both Houses

In addition to these limitations in the statute, the power may only be used in a way that is consistent with Convention Rights, with European Directives on subjects such as copyright protection, Internet Service Provider liability and privacy and in a way that is consistent with principles of administrative law.

For example, despite what some commentators have suggested, this power must be exercised consistently with the limitations imposed on general or specific monitoring of internet traffic in EU law.

As you can see, this power is not as broad as some commentators have attempted to claim. The limitation that the power may not amend any criminal offence in particular means that no alteration may be made to what constitutes copyright infringement subject to a criminal penalty, significantly restricting the uses to which this power could be put.

Does this give you a power to do things without parliamentary oversight or debate?

No, the Bill clearly requires a consultation followed by a vote in both Houses of Parliament before the power could be used to bring in secondary legislation.

For what is the power to be used?

We can envisage today some potential areas where this power could be required, for example to clarify or otherwise streamline the injunctive procedure available under section 97A (this section may offer rights holders a course of action for example against the use of certain website hosted services for copyright infringement, but has never to our knowledge been used). However, the point of this clause is to allow the Secretary of State to respond quickly to threats when they arise in the future. By their very nature we do not know precisely what those threats are today. That is why this power is drafted in general terms, with appropriate safeguards, so that it remains useful as technology and behaviours develop.

Background facts

The creative industries are a significant source of employment and national wealth creation, as well as delivering cultural and social benefits. They contribute 6.4% of GVA and have grown by an average of 4% over the past decade compared to 3% for the economy as a whole.

Creative industries have indicated they suffer considerable losses from unlawful peer-to-peer file- sharing. The BPI claims that unlawful file-sharing using P2P costs the UK music industry £180m pa (2008), while IPSOS gives a loss in the UK for TV and films of £152m (2007).