Lord Mandelson waters down controversial Clause 17 of the Digital Economy Bill

January 14, 2010

In November 2009 the Digital Economy Bill proposed by the UK Government contained, among other things, controversial provisions relating to online copyright infringement.   Of particular concern were the powers given to the Secretary of State in Clause 17, which would enable changes to be made to the Copyright, Designs and Patents Act 1988 (ie UK copyright law) by way of a statutory instrument “for the purpose of reducing the infringement of copyright by means of the internet”. Although the government argued that an element of flexibility is required to enable legislation to cope with the developments in technology, these broad powers raised concerns regarding uncertainty for rights holders, ISPs and consumers.

The scope of this provision led many including Google, Facebook, Yahoo and eBay to lobby the government to have Clause 17 removed. On 13 January the government published amendments to the Bill which significantly water down these controversial powers. The amendments limit the Secretary of State’s ability to change primary legislation to copyright infringement on the internet and require the Secretary of State to be satisfied that (a) the infringement is having a serious effect on business or consumers; and (b) that the amendment is a proportionate way to address that effect. Further, the Secretary of State will be required to consult with persons likely to be affected, and lay a draft order and explanatory document before Parliament. The amendments propose that this be followed by a “super-affirmative” process which would enable greater scrutiny by Parliament than previously provided for.

The amendments will be welcomed by those opposed to the initial proposals for Clause 17.