UK Lords pass bill to create Internet anti-piracy enforcement office

The British House of Lords has passed a bill that might, if enacted into law, put the UK's Parliament at odds with the European Commission over how best to enforce copyright anti-infringement laws. Called the Digital Economy Bill, it would charge Internet service providers with the task of keeping track of suspected file sharers and copyright violators, and reporting on them to copyright holders as well as to the country's Office of Communications (OFCOM).

As the bill is currently written, OFCOM would be charged with determining the "initial obligations" of Internet service providers with respect to suspected infringers, provided those obligations meet the specific guidelines. It would be up to OFCOM, should the bill be enacted, to determine all the specifics -- the "fiddly bits" -- such as how ISPs monitor their customers ("subscribers"), at what stage it becomes necessary to report on their activities, how long they retain information on those customers, and what else they do with that data. In the UK, regulations enacted by a regulatory body such as OFCOM are called codes.

Specifically, the bill would require that OFCOM "makes provision about how internet service providers are to keep information about subscribers; that it limits the time for which they may keep that information; that the requirements concerning subscriber appeals are met in relation to the code; that the provisions of the code are objectively justifiable in relation to the matters to which it relates; that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons; that those provisions are proportionate to what they are intended to achieve; [and] that, in relation to what those provisions are intended to achieve, they are transparent." (This page from Parliament.UK contains the exact text of this section.)

ISPs would be indemnified from any responsibility for the infringing activity, but only if they fulfill their obligations as OFCOM would define them. Those obligations would include, according to the bill, expedient response to requests from copyright holders, as well as some sort of "technical measure" to punish the "relevant subscriber." As the bill is written now, it appears the fuzziness of "relevant subscriber" may be intentional, so as not to imply that the customer must first be found guilty of charges.

"A 'technical obligation,' in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the Internet," the bill reads. "A 'technical measure' is a measure that: (a) limits the speed or other capacity of the service provided to a subscriber; (b) prevents a subscriber from using the service to gain access to particular material, or limits such use; (c) suspends the service provided to a subscriber; or (d) limits the service provided to a subscriber in another way. A subscriber to an internet access service is 'relevant' if the subscriber is a relevant subscriber to the service...in relation to one or more copyright owners."

From here, the bill proceeds to the House of Commons, where elected officials will debate whether it would be fair, under the terms of the last paragraph, to punish suspected subscribers prior to their hearing in court. Liberal leaders there were quoted by the BBC this morning as having indicated such a law would be contrary to the EU's Technical Standards Directive.

Last week, in a near-unanimous vote of the European Parliament, a resolution was adopted to compel participants in the multi-national Anti-Counterfeiting Trade Agreement (ACTA) to report to the EU Parliament, and eventually publicly, on terms being negotiated between countries. Such terms might compel member countries in ACTA to adopt laws similar to what the House of Lords just passed.

Ironically, this entire affair comes on the same week as MPs begin debate on a measure, first reported by the London Telegraph, to replace the House of Lords entirely with a second, publicly elected body of Parliament. The new upper house -- which may, the report states, be dubbed the "Senate" -- would include members who may very well be lords and landowners, elected for staggered terms of up to 15 years. Some say the Labour Party is unveiling the plan now in order to attract opposition from Tory leaders, who currently have an edge in public opinion polls. Painting the Tories as "pro-Lords" could, in turn, color them as "pro-establishment," and thus out of touch with modern-day British interests.