The government has, as promised, rewritten the Digital Economy Bill’s Clause 18 to get around concern that the wording used by the House Of Lords would not be legal, and to see that it receives the debate campaigners are calling for.
Like the clause’s previous incarnation, the new measure – penned by culture secretary Ben Bradshaw – would let aggrieved copyright holders get a court injunction to force ISPs to block access to online services that facilitate copyright infringement.
But, whereas the previous wording would have written the provision directly in to the Copyright, Designs and Patents Act 1988, the rewrite grants the power to Bradshaw himself, who would then draft a statutory instrument proposing a similar amendment to the act.
Bradshaw would have to consult on the idea before drafting the idea for parliament in a document that would require specific Lords and Commons approval before being allowed to amend copyright law.
Essentially, the government is taking the blocking idea partially outside the Digital Economy Bill to ensure it gets the debate campaigners want and to ensure it complies with European law. Lord Mandelson, in a letter to Tory shadow culture secretary Jeremy Hunt, promises “maximum parliamentary oversight and a proper opportunity to debate and consider the measure before it is used”.
But, when Bradshaw submits the proposal, a 60-day clock starts ticking for further expression of views – and the clock can continue ticking even if parliament is dissolved. Surely Bradshaw isn’t expecting to push the measure in to a post-election parliament?
The rewrite also extends the injunction-giving power from just the High Court to all courts and undoes the previous clause’s stipulation that ISPs pay copyright holders’ court bills for the privilege.
The measure would grant injunctions forcing ISPs to block access to any online “location” that “has been, is being or is likely to be used for or in connection with an activity that infringes copyright”. It will be introduced after the bill’s second Commons reading on April 6.
None of this affects the parallel “technical measures” (ie. bandwidth throttling, account suspension) the bill wants leveled against consumers themselves.