Out-Law News | 04 Mar 2010 | 4:17 pm | 3 min. read
The Digital Economy Bill is being debated and voted on by the Lords before it goes to the House of Commons, where it will also be debated and voted on and, the Government hopes, made law before this year's general election.
The Bill contained controversial Government plans to give ministers the power to change copyright law without full Parliamentary scrutiny. A Liberal Democrat and Conservative Party amendment to replace that measure with court powers to block access to entire websites from the UK has been adopted.
But digital rights campaigners, telecoms industry representatives and online businesses have expressed outrage that courts will be able to block access to large parts of the internet because of copyright infringement claims.
Amendment 120A replaces Clause 17, which had caused controversy over the powers to change law that it gave ministers. It replaces it with a new clause.
"The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement … [if] a substantial proportion of the content accessible at or via each specified online location infringes copyright," says the new clause.
Video-sharing website YouTube is known to host a lot of copyright-infringing content. It can do so lawfully, provided it blocks access to or removes infringing content upon receipt of notice from the copyright owner. But the amendment to the Digital Economy Bill suggests that copyright owners will have a power to force ISPs to block access to the entire website.
Internet service provider trade body the ISP Association (ISPA) said that it was "outraged" at the amendment and said that its acceptance was "negligent".
"This amendment has been hastily constructed and rushed through at report stage without due consideration of the implications or consultation with the interested parties that would be affected," said an ISPA statement. "The many associated legal, technical and practical issues have simply not been debated in nearly enough depth. For a policy of such gravity, this is negligent."
"This amendment is misjudged and disproportionate and this Bill is a wholly inappropriate place to introduce this debate," it said. "ISPA has been a long term advocate against any form of network level blocking as it ineffective when applied to content that people are actively searching for and believes the Peers behind this amendment should consider the available research, which supports this view."
Liberal Democrat peer Lord Clement-Jones was behind the amendment and, in a blog post, defended the proposal.
"The injunction will only be granted where copyright owners had first requested ISPs to block access to the site and where they had also requested the site operator to stop providing access to the infringing material (either by removing the material itself or removing the ability to access the material)," he said. "Site blocking is not a new phenomenon, the most well-known being the recommended list of sites to block provided by the Internet Watch Foundation."
"There already exists a remedy under the Copyright, Designs and Patents Act (section 97A) which grants copyright owners a broad power to apply to the Court for an injunction. Therefore, all amendment 120A does is enhance this power by giving copyright owners a more clearly defined route," said Lord Clement-Jones.
"ISPA is particularly disappointed that the Lords supporting this amendment drew parallels with the model of network-level blocking administered by the Internet Watch Foundation," said ISPA in response. "The suggestion that a framework developed to fight against the distribution of criminal images of child sexual abuse is appropriate to tackle allegations of civil copyright infringement is incomprehensible."
Professor of Internet Law at Sheffield University Lilian Edwards wrote in her blog that though the amendment at least opened the whole process up to court scrutiny, its effects would be felt most alarmingly outside the court room.
"There will in reality be no, or few, court applications, just non-publicised notifications," she said. "This is essentially legislation for covert extralegal censorship for the benefit of entrenched private interests."
"The threat that an ISP will be stuck with all the costs of the court action will effectively nullify almost any ISP putting up resistance, when notified to block a site. What incentives do ISPs have to resist?" she said. "Defending Internet freedom is not after all their core business model. This is what the Americans call 'chilling effects' on free speech."
Digital rights activism body the Open Rights Group (ORG) said that the amendment would lead to sites hosting user-generated content to be routinely blocked by ISPs under the proposed court orders.
Editor's note, 04/03/2010: Liberal Democrat peer Lord Clement-Jones, who added the amendment, has told ZDNet UK that, in his opinion, YouTube is not threatened by his proposal because its parent, Google, complies with takedown notices. "Whenever they are asked to do so, they behave impeccably and take down copyright material," he said.