My Lords, I might agree with a number of points that the noble Lord, Lord Stevenson, made, but I particularly agree that this is a complicated area. The point of this reform is to remove a power from the Digital Economy Act 2010 to make regulations which would allow the court to grant injunctions requiring service providers to block access to specified sites in order to prevent the infringement of copyright. That is the purpose of this reform. There are wider debates about the importance of the creative industries and the Government’s programme to ensure that the creative industries remain part of our economic revival, which is a point that the Government are working on. I want to concentrate on the purpose of this part of the reform.
The Government have no intention of having regulations following the Digital Economy Act because we believe that access can be, and is in practice, blocked through a simpler mechanism via the legislation that the noble Lord mentioned, the Copyright, Designs and Patents Act 1988. The provisions being repealed were inserted because copyright owners were concerned at the time that, although the legislation provided them with a tool to tackle unlawful peer-to-peer file-sharing, it did nothing to help them defend their copyright against sites dedicated to infringement, which were generally operated outside the UK. Copyright owners made a case that the power in Sections 17 and 18 of the Digital Economy Act should be included to enable them to tackle such sites. They were unable to take action against the sites in the UK and found it difficult to pursue them in their home territory. The
solution was to provide a mechanism through which copyright owners could apply to the High Court for an injunction requiring internet service providers to block access to identified sites for the internet service providers’ subscribers.
However, as the noble Lord, Lord Stevenson, said, following the Digital Economy Act being enacted, the Government asked Ofcom to carry out a review of the efficacy of such site-blocking injunctions, were they to be made. Ofcom concluded that in practice such injunctions were unlikely to be effective, largely due to the time an application would take. This is stating the obvious: very often people will want to ensure that there is a remedy that is as speedy as possible when time is of the essence. In Ofcom’s view, it would be no improvement on the existing Section 97A provisions under the 1988 Act. On that basis, the Government announced that they had no intention of making such regulations under DEA.
Moreover—this is important because the noble Lord also referred to this—copyright owners began to utilise other provisions in Section 97A of the 1988 Act successfully to apply for site-blocking injunctions. This rendered the regulation-making powers in the DEA unnecessary. Such provisions had not been used before since copyright owners were unsure how the court would interpret them and were worried about potentially being left in a worse position.
I want to emphasise that it is absolutely not the intention of this Government to put at risk the health and growth of the creative economy, an area where this country has a real competitive strength. If I were to take a different view with the noble Lord, I think the record of this Government has been extremely strong during a very exciting time of change in this area which is vital to our economic strength and recovery. However, Section 97A of the 1988 Act is now providing remedies for copyright owners and is doing so in an increasingly efficient and economical way. Economy in seeking redress is important. Copyright owners are content that the provisions work and have now used them to block around 40 sites. That being so, and in light of the doubts about the practical usability of the power in the DEA following Ofcom’s review, we believe there is no need for the DEA power.
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The noble Lord accused the Government of having no overarching vision or strategy. The Government are absolutely clear about the critical importance of the creative industries. We have a clear view of the continued development of this industry. Those visions were set out in the connectivity, content and consumers papers which considered a wide variety of factors relevant to the issues. From my dealing with Ministers in the department, I know that this is a sector where there are huge opportunities that we and people running businesses must grasp. That is very much what we seek to encourage.
On the development of the legal framework for protecting intellectual property, the repeal of these provisions does not suggest in any way that the framework for regulation is flawed of IP. Rather, it shows that the existing framework is working. This repeal provides
certainty about the framework being used by those concerned. The remaining provisions of the Digital Economy Act are unaffected and should industry-led voluntary work be ineffective, we would return to those remaining provisions.
The noble Lord also asked whether the 1998 Act, which the industry is now using, is sufficient for the digital age. Put simply, the answer is yes. That is precisely why copyright owners are now using that remedy for the rapid streamlined process which gives them what they need. Although I agree with the noble Lord that we need to keep these matters very closely under watch and to make sure that we are ahead of the curve as a country in the development of something so crucial, from what I understand, those copyright who which are concerned about infringements are using existing legislation satisfactorily.