What a mess. The government has rejected a controversial Digital Economy Bill clause that would force ISPs to block access to copyright-infringing websites – and will instead return to giving Peter Mandelson his own powers to enact similar measures.
Lib Dem lords last week won House Of Lords approval for a British Phonographic Industry-suggested measure (Clause 18) that would let rightsholders force blocking orders from ISPs via High Court injunction. After concern that this could mean irresponsible blocks on a range of websites, they proposed a further amendment that would allow blocked websites to take an overturn appeal back to court.
It didn’t matter. In the House Of Lords on Monday, the government’s Lord Young rejected the amendment, explaining: “We do not believe the clause as drafted could be legally enforceable.”
Instead, Young said, the government aims to “bring forward a clause that would seek to ultimately achieve the same effect” – but via different means. “We need to look for something that would work legally by giving the Secretary Of State the power to bring forward regulations to achieve the intended effect,” Young said.
This is troublesome for two reasons:-
1) The site-blocking idea was only introduced in the first place as a replacement for an earlier clause that, some Lords and others feared, would give Lord Mandelson wide-ranging autonomy to amend copyright law on an ongoing basis.
2) The government’s latest proposed replacement will be added to the bill in a kind of legislative dead zone, after the bill leaves the House Of Lords for the last time on Monday and before it goes to House Of Commons scrutiny.
The latter angers cross-bench peer the Earl Of Errol. He told the house: “It’s going to be inserted somehow between here and The Other Place. We’ve got no idea what it looks like … it’s a complete and absolute abuse of parliamentary process – I’m not sure why we sit and debate at all.”
Monday’s third reading in the Lords was peers’ last opportunity to influence the bill. Lords expressed confusion on whether the as-yet-undefined new clause can be added to the bill before Westminster’s “wash-up” stage, requiring significant Conservative backing in the final days before parliament is dissolved.
Lord Clement-Jones, who had proposed the controversial site-blocking clause with fellow Lib Dem peer Lord Razzall, brushed aside criticisms after a leak last week showed their proposal had essentially been authored by the British Phonographic Industry: “I certainly don’t accept that all this is evidence we’re in the pockets of the music industry.” He added: “This is not the reintroduction of Clause 17” – referring to the original clause that would have given Mandelson the powers in the first place.
Regardless of with what the government chooses to replace the site-blocking clause, a couple of Lords, in final comments, suggested such a measure should extend to search engines like Google…
— Conservative Lord Lucas: “I think they will have to be asked to block material to some extent.” He relayed the example of him searching for a legal copy of an ebook narrated by Stephen Fry: “The first three pages were occupied by illegal material when I looked on Google (NSDQ: GOOG). It was easy enough to identify them because they all referred to Bit Torrent – it would have been easy enough to block them out of the index. It would be one of the most obvious ways of making life inconvenient (for pirates).”
— Labour Lord Triesman urged the government to “have a discussion with the search engine companies“: “There are variety of things things … It’s not beyond them to deal with that – it’s not beyond them to cooperate because it’s socially right to cooperate, let alone legally right to cooperate. I urge that conversation goes ahead as soon as possible.”
— But, responding to the Earl Of Errol, who had spoken on behalf of search engines concerned at the prospect, the government’s Lord Young said it was not the intention to enact measures against search sites.