Government amends plan for ministerial power to change copyright law

Clause 17 of the Government's Digital Economy Bill gives the Secretary of State the power to amend the Copyright, Designs and Patents Act in several ways, including giving the minister the general power to "make any consequential amendment, repeal or revocation of provision (whenever made) contained in or made under an Act".

Opponents of the clause have warned that it could give ministers the power to make substantial changes to copyright law without the degree of Parliamentary scrutiny that changes to the law are usually subjected to.

Amendments proposed yesterday by business secretary Lord Mandelson create more detailed Parliamentary scrutiny for any proposed changes to copyright law by using a 'super-affirmative procedure', which involves a 60-day consultation period.

A spokesman for the Department of Business, Innovation and Skills (BIS) said that the amendments would also create a threshold that must be crossed before action is taken. The problems of copyright infringement which the clause is designed to deal with must cross that threshold of seriousness before the clause can be used, he said.

The proposed amendment says that after the Secretary of State has concluded a consultation on his plans he must make available to Parliament an 'explanatory document' on his plans.

The amendment states:

"The explanatory document must—
(a)   describe the infringement of copyright that the Secretary of State is satisfied is having a serious adverse effect on businesses or consumers;
(b)   describe the effect;
(c)   explain why the Secretary of State is satisfied that making the amendment is a proportionate way to address that effect".

BIS has said that its changes are not a U-turn and that it believes that the ministerial powers are essential for the efficient combating of as-yet-unknown future methods of copyright infringement.

"The Government remains squarely behind the aims of clause 17 – we would not have written it into the Bill if we did not think it was needed," said a BIS statement.

"However concerns have been raised around whether the clause is appropriately targeted. This is why we have tabled a series of Government amendments which aim to clarify the breadth and scope of the clause and further reinforce the transparency of the process and the scrutiny of Parliament," it said.

The BIS spokesman said that the changes cannot be discussed by the committee guiding the law through the Houses of Parliament until a week has passed since they were tabled.

The Bill contains other controversial proposals, such as the demand that internet service providers sever connections used by suspected copyright-infringing file sharers in some circumstances.

Nearly 300 amendments to the Bill have been proposed, including suggestions that those making claims of copyright infringement quantify the damage they have been cause and that those whose claims turn out to be bogus are penalised for making them.

Conservative peer Lord Lucas this week also suggested that search engines be made exempt from copyright suits stemming from their copying, or 'indexing', of web pages.