Digital Economy Bill

Baroness Buscombe Excerpts

Report: 1st sitting: House of Lords
Wednesday 22nd February 2017 Lords Chamber

[Lord Mendelsohn]

My Lords, I support the amendment and thank the noble Lord, Lord Clement-Jones, for an outstanding summary. In relation to caps, it is important to understand the consequences of bills which cause stress to people in particular circumstances, and why this is another part of ensuring that we have the right social impact in such policies. Mobile phones are not luxury products. Actually, low-income households are more reliant on their mobile phones than other households: they are five times more likely to be mobile- only—that is, no landline or broadband—than the highest earning groups. The major cause of mobile phone debt is unexpectedly high bills which are usually caused by consumers using services not included in their standard monthly tariffs—very frequently with no real conception about how the complexity of the tariff has an impact on their bills. These unanticipated bills can make it harder for consumers to budget, especially if they are on a low income. Unexpected bills can exacerbate a consumer’s debt problems. Citizens Advice reports that 70% of its clients who receive mobile phone debt service also receive advice on other debts. The consequences are significant and only these measures outlined in this amendment will in our view have the impact to address this problem. In other ways, complicated information and other consequences will limit the capacity of people to manage their debts.

I must confess that I think ensuring roaming capacity —not a national roaming programme—for those people in the absence of service in order to increase their ability to access mobile services is a terrific idea. I thought it was a very good idea when I first heard it, so I got one, and it is outstanding. I have cracked many of the problems of very poor mobile service, including in that far-fetched place, which never seems to have decent service, called Hampstead. I now have perfect service—it is an absolutely terrific system.

I think that there is a very strong case for this. We are not talking about a national programme, but it certainly addresses a large part of the problem about coverage. There seems to be no particular issue: it gives us good customer experience, it is not particularly difficult to roll out, and that is why it is sensible and worth while for it to be in this Bill. Now that I have another phone, I of course endorse the provisions on switching, but I would make this point about switching and compensation. These strengthen and make explicit the powers of Ofcom to require certain changes in relation to compensation to make sure that companies automatically compensate customers who experience poor levels of service. I think there is a very strong consensus, and that Ofcom will come to the conclusion that it is vital that consumers are financially compensated. An automatic compensation scheme will act as an incentive to telecoms companies to improve their performance.

[Baroness Buscombe (Con)]

My Lords, I am sorry that I was unable to satisfy noble Lords at Committee, so let me try again. Amendment 5 raises important issues for many customers, and we really do appreciate consumer concerns. Following previous debates that we have had on these matters, my officials have spoken with mobile network operators to check progress in this area.

Currently, providers offer consumers various ways to manage their usage, including the use of bill caps. So I say to the noble Lord, Lord Clement-Jones, that it is possible already for a consumer to put a cap on his or her expenditure. Tesco Mobile, for example, already provides capped contracts for the benefit of its customers. This includes a safety buffer which can be set to suit preference. Three allows consumers to block calls that go over their monthly allowance and calls that may be not be included as part of their allowance. Vodafone allows a cap to be set up through an app. Additionally, EE, Virgin Media and O2 offer the facility of notifying customers through warning text message alerts when approaching the limit of their allowances.

The Government expect providers to continue to take steps to minimise bill shock and ensure that their customers are adequately equipped to manage their mobile phone usage. We will underline this further in the forthcoming consumer Green Paper, which will be published in April, a Green Paper that my noble friend Lord Ashton has referenced today. This is an issue that needs careful thought, which is why the Government believe it is only right that we do so in a consultative manner. We need to consider and mitigate unintended consequences in that process.

Universal bill caps do not exist for other utility services for good reason—the essential nature of them. Mobile phone services are indeed an essential service for many; I agree with the noble Lord, Lord Mendelsohn, that they are not a luxury. We need to ensure that the outcome from this debate does not risk putting people in vulnerable situations, whether that is leaving them unable to make a vital call when they break down at the side of the road or having to contact a friend or relative in their hour of need.

I know a number of elderly people living on their own who rely wholly and completely on their ability to use their mobile phone if they are afraid or concerned or have a fall. They may have forgotten to pay their bills and so on. Suppose they did not have that opportunity to contact someone in an emergency. They would be put in a difficult and frightening situation. I know there is a feeling that, “Well, the bill cap is there, but people could still contact the emergency services”. However, we already have an enormous burden on our emergency services, and we fear that this would increase that burden. So would this really be in the interests of consumers, as suggested by the noble Lord, Lord Clement-Jones?

I agree with noble Lords that mobile providers need to take responsibility for looking after their customers. The Government have previously negotiated a voluntary agreement with providers that means there is already a £100 liability cap to cover lost and stolen mobile phone handsets, provided that they are reported as lost or stolen within 24 hours. There was good reason not to put that agreement in primary legislation: it would have been too prescriptive and offered no flexibility as technologies progress. That is an issue that we keep returning to: do we want to be prescriptive in the Bill when we are talking about the digital economy, when we know the technology is constantly changing? So we have considerable concerns with putting such a prescriptive amendment into primary legislation.

It is worth highlighting that Ofcom, as regulator, has a duty to protect the interests of the end-user in the telecom markets. It would therefore seem improper to progress the amendment without due consideration to what the role of government and Ofcom would be regarding enforcement. There is no point putting this in the Bill if there is no practical enforcement. This is yet another reason why the Green Paper will allow us to reach a well thought-out solution to address the concerns that noble Lords have rightly raised.

The switching principles that noble Lords have proposed putting on to the statute book are broadly those on which the Government consulted in an October 2015 call for evidence. Following the end of that consultation, the Government published a response in May 2016, including revised principles based on responses received to the call for evidence. The Government’s response also confirmed our commitment to work with Ofcom to ensure that consumers could switch their telecom services, by legislating through the Digital Economy Bill. However, the Bill does not mandate the switching principles, as this would go against the spirit of them as principles and would not take account of the different characteristics of different sectors and consumer needs. We know that it would risk creating a power that could prove to be, again, too prescriptive for the future needs of consumers as technologies continue to develop.

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Moved by

[Baroness Buscombe]

19: Before Clause 28, insert the following new Clause—
“Lending of e-books by public libraries
(1) In section 5(2) of the Public Lending Right Act 1979 (interpretation) for the definition of “lent out” substitute—““lent out” means made available to a member of the public for use away from library premises for a limited time (including by being communicated by means of electronic transmission to a place other than library premises) and “loan” and “borrowed” are to be read accordingly;”.(2) Section 40A of the Copyright, Designs and Patents Act 1988 (lending of copies by libraries or archives) is amended as follows.(3) After subsection (1) insert—“(1ZA) Subsection (1) applies to an e-book or an e-audio-book only if— (a) the book has been lawfully acquired by the library, and(b) the lending is in compliance with any purchase or licensing terms to which the book is subject.”(4) In subsection (1A)—(a) for “subsection (1)” substitute “subsections (1) and (1ZA)”;(b) after paragraph (a) insert—“(aa) “e-audio-book” means an audio-book (as defined in paragraph (a)) in a form enabling lending of the book by electronic transmission,”.”

[Baroness Buscombe]

My Lords, Amendment 19 fulfils a manifesto commitment to enhance the public lending right by extending it so that authors of e-books and audiobooks have the right to receive payment from a government fund for the remote lending of these books from public libraries across the UK. The new clause also amends the Copyright, Designs and Patents Act 1988 to enable rights holders to include appropriate terms in respect of e-books and e-audiobooks to reflect the differences between digital and physical books and ensure that e-lending by public libraries mirrors physical lending. This will mean that current protections for authors, publishers and booksellers can be maintained. The Government have been pressed to make this amendment throughout the passage of the Bill in both Houses. I reassure the House that it has always been our intention to deliver on our commitments to authors as soon as possible.

In preparing this amendment, we have had to await the outcome of litigation, and we have discussed the matter in depth with lenders, publishers and authors. I am pleased that the sector supports our approach; it has also reiterated its shared commitment to support a strong book sector, reading and literacy, including by supporting public access to e-books as well as physical books and audiobooks through libraries. I put on record the Government’s thanks to the sector representatives, and I hope that they will continue to work closely with the Government to successfully implement these changes and support the Government’s manifesto commitment to ensure remote access to e-books for public library users. I also thank all noble Lords who have spoken on this issue. I beg to move.

[The Earl of Clancarty (CB)]

My Lords, I take this opportunity to congratulate the Government on introducing this amendment, for which authors will be very grateful indeed. Credit should go to the groups and associations that have campaigned for this change, including the Society of Authors and the Authors’ Licensing and Collecting Society, which have both campaigned on this issue for some time.

I have just one issue with the wording of the Government’s amendment. The Society of Authors briefing argues that it would be clearer if the words, “for the purpose of library lending” were added to “lawfully acquired” in line 32. This clarification is in the amendment in the name of the noble Lord, Lord Clement-Jones. The phrase “lawfully acquired” hangs there by itself and although it might be argued that it is implied that the acquisition is for library lending, that is not absolutely clear. It should be stressed that all interested parties were in agreement about this and would be happier if this clarification were made. Will the Minister promise to look at this before Third Reading and see if it can be tweaked?

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[Lord Stevenson of Balmacara]

My Lords, we welcome the Government’s tabling their amendment on this issue, as promised. In Committee, the Minister said she wanted to work with the sector groups involved to support a strong book sector that helps to promote opportunities for the public to read and learn, and she intended to table her own proposals for the necessary legislative changes as soon as possible. We sometimes hear that and then have to wait ages, but this time she has been able to get the Whitehall system to work to her agenda, and I congratulate her on that.

[Baroness Buscombe]

I thank all noble Lords who have spoken in this short debate. I shall refer to Amendment 23, tabled by the noble Lord, Lord Clement-Jones. When moving this amendment in Committee, the noble Lord explained that interested parties representing the sector had since proposed a different wording from that used in the amendment. The Government have considered the suggested wording from the sector and our amendment seeks to reflect stakeholder views, although we have achieved the intention of enabling terms to be applied by rights holders to e-books and e-audiobooks for lending through an amendment to the Copyright, Designs and Patents Act 1988. Rights holders will therefore be able to make e-books and e-audiobooks available with clear terms about whether these are available for lending and, if so, what conditions on library lending would apply, such as one loan to one user at a time or that the book will be available to lend for a limited overall lifespan.

I am also delighted that the proposed extension of the public lending right to include remote e-lending has cross-party support, as was made clear in Committee. This amendment will maintain protections for rights holders, while enabling authors to rightly receive public lending right payments for the increasing remote lending of their works, as they do for the lending of books from library premises. I hope the noble Lord, Lord Clement-Jones, will therefore not press his amendment but support the Government’s new clause.

In response to the noble Lord, Lord Maxton, I can confirm that, as I think we discussed in Committee, the provision covers all books, including purely online, digital books. It is also UK-wide, so it is not a question of devolved powers. However, it is all to do with public lending rights and lending through public libraries, not with the example he raised regarding Amazon.

Amendment 19 agreed.

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[Lord Inglewood (Con)]

My Lords, I understand that the extent of what is happening is such that it is a genuine mischief. It is important that the Government are in a position to deal with it because of the damage that is taking place.

From my perspective, it does not really matter how it is done, provided that it is done, and that “when ‘tis done, ‘tis done quickly”. That is the way we will deal with this. Whatever response the Government may have to the particular amendment being put forward, I hope that they will be able to assure us that they are in a position to deal with the problem and intend to do so, rather than letting it drift on.

[Baroness Buscombe]

I thank all noble Lords who have taken part in this important debate on an issue that we take extremely seriously. It is very much on the Government’s agenda, and I am happy to confirm that again.

Amendment 20 seeks to provide the Secretary of State with a regulation-making power in order to prohibit the manufacture, sale or hire of unauthorised decoders. We have discussed previously in the House the pressing threat to subscription broadcast services caused by illicit set-top boxes, especially those which provide IPTV functionality. These IPTV boxes can in certain cases be considered unauthorised decoders, although that may vary depending on how they are set up to function.

As noble Lords will be aware, to better understand this area and what new legislation might be needed, the Government have committed to conducting a call for views on IPTV boxes, which I referred to in Committee. When we were last discussing this topic, I promised that the call for views would be published within a few weeks, and I am very pleased to announce that we have secured a publication slot for the document for 23 February—tomorrow. The purpose of the call for views is to help the Government understand where further action is needed to address the problem. If there is evidence to support changes to legislation, then we have promised to bring forward proposals in due course.

This information-gathering exercise will enable us to properly respond to the most pressing current threat caused by IPTV boxes. If there are other issues specific to unauthorised decoders that fall outside of the scope of this work, I would very much welcome details. We can then consider whether we need a further exercise to look at those distinct areas. The call for views runs for six weeks, until 5 April 2017, at which time the Government will assess the responses and determine the best course of action. The Government fully understand the harm done by illegal set-top boxes and IPTV, which is why it is crucial that we have a robust evidence base for effectively tackling this problem.

With regard to the manufacture of the hardware devices specifically, as your Lordships may expect, this usually happens outside the UK. That is why the IPO is working with partners across the world, including the Government’s IP attaché in China, to explore what can be done in source and transit countries.

Having said all that, I very much take on board what noble Lords have said this evening, including the noble Lords, Lord Clement-Jones and Lord Stevenson. The noble Baroness, Lady Kidron, of course has talked, quite rightly, several times in your Lordships’ House now, about young people and their digital habit, which starts frighteningly young. This is something we have to confront, and we sense the urgency with which we have to deal with this very real problem. Although I cannot make any commitment tonight, I hope that noble Lords will allow me to take this back and see if we can think of something more that we might be able to do. On that basis, I would be grateful if the noble Lord would withdraw the amendment.

[Lord Stevenson of Balmacara]

Before the noble Baroness sits down, could I just tease out what she has just said? Could that be read as a commitment to bring this back at Third Reading, so that we could spend a little time working out exactly what was required?

[Baroness Buscombe]

I cannot make a commitment that we will bring this back at Third Reading. We would certainly think more about it between now and then, but I can make no commitment that we would bring it back.

[Lord Stevenson of Balmacara]

I thank the Minister for her comments. I am sorry she is not minded to use the opportunity afforded by the fact that the Bill will go on until the end of March, which seems awfully close to the time by which she was suggesting that responses would be back, to enable us to make some progress on this. The points made by the noble Baroness, Lady Kidron, and the noble Lord, Lord Inglewood, are both right and bear on the same issue. It is clear that something is happening here that we could nip in the bud very quickly if we were able to take the appropriate powers. We are not specifying what those powers have to be, so we are not constraining the Government in how they might wish to take this forward, but quick action might prove more effective in the long run. Shutting this down would save us from the threat of it becoming a pest and a menace across all areas. I think it is worth testing the opinion of the House.

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[Viscount Colville of Culross (CB)]

My Lords, I voice my admiration for the noble Lord, Lord Clement-Jones, and his dogged determination to get Section 73 of the copyright Act repealed, and I am grateful to the Government for including its repeal in the Bill. Their response to the technical consultation seems to mean that it will be repealed immediately, but I too would like the Minister to assure us that it will be.

[Baroness Buscombe]

In Committee, and again here today, noble Lords have expressed their desire to see a swift repeal of Section 73. As I set out in Committee, the Government, through the Intellectual Property Office, have consulted on the technical aspects of the repeal, including on the question of a transition period, and committed to returning to this issue on Report following the publication of the government response to the consultation. The IPO published the Government’s response to the technical consultation on 10 February. In summary, the responses did not see the need for creating a new rights clearance mechanism and were in favour of no or a very short transition period in connection with the repeal of Section 73. The Government agree with that view.

I therefore confirm to the House that Section 73 will be repealed without a transitional period and that no compulsory structure for licensing needs to be introduced. In coming to the decision not to have a transition period, the Government considered that the intention to repeal Section 73 was announced in summer 2015. The industry has therefore had plenty of time to prepare for the repeal. There is also the ongoing and pressing issue of online service providers continuing to rely on the Section 73 exception to permit the streaming of PSB content over the internet without seeking the necessary permissions or paying any licence fees. This can impact not only the copyright owners in the broadcast but the underlying copyright owners in the content carried within the broadcast itself. The Government regarded the resulting financial loss to the affected parties as an important driver for a swift repeal. The repeal will become effective on a date to be appointed by statutory instrument after Royal Assent is received for the Bill. I confirm that the Government will commence repeal without delay before the Summer Recess.

On Amendment 21, the IPO consultation also looked into the position of underlying rights holders in PSB content, such as musicians and scriptwriters, and whether new rights clearance mechanisms needed to be introduced. It concluded that there are already extensive commercial rights agreements in place between underlying rights holders, broadcasters and the platforms, and that these will be capable of factoring in the new rights, which will be reactivated following the repeal of Section 73.

Underlying rights holders already contract, on terms acceptable to them, with broadcasters and platforms in respect of rights that are not currently exempted by Section 73, such as underlying rights in non-PSB content and in programmes transmitted on all other non-cable platforms. As such, we do not think that statutory intervention in the manner proposed in the amendment is necessary.

In response to the question put by the noble Lord, Lord Clement-Jones, I want to make it clear that underlying rights holders already have in place rights agreements with broadcasters. Section 73 only ever applied to cable networks, so the value of underlying rights will have been factored in for transmission on all platforms.

I hope this explanation has assured the noble Lords that the purpose behind their amendment has been met. I therefore ask them to withdraw the amendment.

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[Baroness Jones of Whitchurch (Lab)]

My Lords, I am grateful to the noble Lord, Lord Clement-Jones, for raising this again today. As both previous speakers have said, it is a really important issue for authors, writers and musicians, who are operating in an increasingly complex world where it is very hard to keep tabs on the use that is being put to their own creative work and the way it is being distributed and accessed. As a result, many in the sector feel that they are not properly rewarded for their creative endeavour. It is obviously crucial to us that we encourage them to continue to be creative and help them to be fairly rewarded because, as we increasingly begin to recognise, that creativity is not only important to them but will be an essential bedrock of the UK’s future prosperity in the years to come.

The noble Lord quite rightly raised the issue of the draft directive on copyright, and he quoted the Minister’s reliance on the discussions of that draft in her response in Committee. However, as with other pieces of draft EU legislation, there is now a horrible feeling that the clock is ticking and that time might run out before the directive can be transposed into UK law. Therefore, we very much support the noble Lord in his bid to bring more certainty to the lives, and the incomes, of our much-valued creators.

I would like to raise two further points. First, the amendments as they stand assume that all publishers have the facility to provide regular statements of income outside the normal accounting periods. This is indeed easy for the large publishers, which already have author portals where this kind of detailed information is uploaded in real time and accessible to authors and their agents on a daily basis. However, we should also spare a thought for the smaller publishing houses, whose growth we also want to encourage, and which might not have such sophisticated accounting systems. The wording of the amendments might be rather too prescriptive or open to interpretation in this regard. We do not want to add too much of an extra burden to those smaller organisations.

Secondly, and perhaps more importantly, the amendments do very little to help those authors who are beholden to Amazon, which publishes 90% of e-books and is responsible for a significant proportion of physical book sales. Its behaviour in driving down prices through heavy discounting is seriously damaging the incomes of authors and publishers alike. Therefore, you can have transparency and fairness, but we will not add much more value back into the creative sector unless steps are taken to curb the monopolistic behaviour of Amazon. Perhaps the Minister could advise us as to what steps are being taken to monitor that increasing dominance of Amazon and to look at the impact it is having on the income of people who are trying to be creative and whom we very much want to value. At what stage would the Government take steps to intervene to make sure that those incomes are, in some way, protected for the future?

[Baroness Buscombe]

My Lords, I thank all noble Lords who have taken part in this debate on Amendment 24, tabled by the noble Lords, Lord Clement-Jones and Lord Foster. This amendment, which was first tabled in Committee, partly reflects proposals currently under discussion at European level as part of the draft copyright directive, as noble Lords have said this evening. It would require organisations using copyright works via licences to provide creators with regular information on how their work has been used, and the revenue generated by their use. This obligation could be met by complying with a code of practice determined at sector level. The amendment also provides creators with recourse to the intellectual property enterprise court in cases where such a code was not implemented or adhered to.

As we said in Committee, the Government agree that transparent markets can benefit all parties. I particularly understand the potential benefits of transparency in areas such as the creative industries, where individual artists—writers, musicians and performers, as noble Lords have said so eloquently this evening—often deal with large corporations. As noble Lords are aware, the Government are currently in the process of negotiations on the draft copyright directive, and I continue to hold the view that we should allow this process to reach a conclusion before considering the case for domestic intervention. I appreciate that the noble Lords, Lord Clement-Jones and Lord Foster, the noble Earl, Lord Clancarty, and the noble Baroness, Lady Jones, would welcome a firm statement of support for the Commission’s proposals in this area. Unfortunately, however, I am not in a position to give such a statement this evening. However, I can assure noble Lords that the information received in the recent call for views on the directive has been carefully considered, and that the Government will continue to engage constructively in this debate, including in relation to the role of collective bargaining mechanisms and industry-led codes in improving reporting to creators.

I also wish to raise another issue regarding the amendment. The proposals from the European Commission include an ability for member states to adjust or restrict the transparency obligation in certain cases, taking into account, for example, the contribution of an individual creator to an overall work, or the proportionality of the administrative burden. Views on the benefits of these powers are mixed, and are likely to require careful consideration with the creative industries at sector level if the directive comes into force in the UK. However, I believe that it would be imprudent to accept an amendment at this stage that does not appear to provide the Government with similar flexibility. Doing so could risk imposing burdens on publishers, producers and broadcasters that restrict their ability, in effect, to develop new talent. With this explanation and the renewed assurance that the Government really do take the concerns of creators in this area seriously, I hope that the noble Lord will withdraw his amendment.

[Lord Clement-Jones]

My Lords, I congratulate the noble Baroness, Lady Buscombe, on finding a new argument at the end; I thought that was magnificent. Imprudence is something that I would never want to be accused of in these circumstances. I thought that this amendment did not reflect fully what Article 14 contained. The Minister was absolutely right: it was entirely the intention that it would not contain that, because of the difficulty of interpretation. It is possible to do that more easily in continental law, rather than when you transpose it into UK law. I shall be very interested to see what our parliamentary draftsmen make of it, if ever they are faced with the task of transposing Article 14 into UK law.

I like the sound of “engage constructively”. I know that the Minister’s heart is in the right place and I think she said something like, “We really do mean this”, so the sincerity was utterly apparent. In the face of that, how can I do anything but withdraw the amendment? I beg leave to withdraw.

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[Lord Foster of Bath (LD)]

My Lords, I am delighted to support the amendment in the names of the noble Lord, Lord Stevenson, and others. I am sure that all Members of the House recognise that there is a serious problem that needs to be addressed, although fewer people are accessing illegal material on the internet as a result of the growing number of relatively cheap and easily accessible alternatives. We should welcome that and the fact that in this country we probably provide a wider range of alternative legal sources—for the downloading of music, for example—than any other in the world. Nevertheless, there continues to be a problem, with about 15% of UK internet users—about 6.7 million people—continuing to download and access illegal material. I therefore welcome any measures that can be taken to introduce ways to prevent that. Of course I welcome the voluntary agreement that has been reached. I congratulate the Minister for Intellectual Property, who I know has worked very hard with the relevant parties, including the IPO, to secure the voluntary code. As the noble Lord, Lord Stevenson, said, the details have still to be worked on and there will be a review in 2017.

I ask the Minister to reflect seriously on this key point. In opposition, I have spent a lot of time moving amendments to various proposals that the Government “may” do something to delete “may” and insert “must”. On this occasion, I am delighted to support the amendment, which says that the Government may do something, if the need arises.

The Department for Culture, Media and Sport is rarely given credit for the important role it plays in the life of this country. As a result, it rarely has opportunities to have legislation before the House. While the Minister may tell me, as she did in a previous debate, that should the voluntary code not work, the Government will consider taking legal action at some point, she would find it difficult to find a legislative peg on which to hang that action.

The Intellectual Property Alliance and others have suggested that we need a backstop mechanism in the event that the code, which we welcome, is unsuccessful in future. For that reason, I hope that the Government will be willing to accept what is a simple amendment giving them power in future if they need it.

[Baroness Buscombe]

My Lords, Amendment 25 returns to the topic of search engines and copyright and would give the Government power to impose a code of practice on search engines to minimise the visibility of copyright-infringing websites in search results.

As we have discussed previously, this is an area in which we have been seeking a voluntary agreement between search engines and rights holders, and I am pleased to be able to confirm that we now have that agreement and have finalised the text of a code of practice. This newly agreed code sets out clear targets for reducing the visibility of infringing websites in search results. The code also specifies a number of areas where rights holders and search engines have agreed to work together with the general aim of supporting legitimate content and reducing piracy. We have always been clear that action is needed in this area and it is a manifesto commitment. But we have also been clear that a voluntary agreement would be quicker, more flexible and, most importantly of all, more collaborative than a legislative intervention. We now have that voluntary agreement and the parties to the code are already working to deliver on the commitments it contains. All parties to the agreement have engaged in these negotiations and the work to date in good faith. They are continuing to work in good faith and I am confident that that will also be the case for work going forwards.

The noble Lord, Lord Stevenson, questioned whether it would be possible to have sight of the code. We do not plan to publish the code in full because details about the number of copyright infringement reports a site can receive before it is demoted might allow pirates to game the system. We are, however, very happy to share the commitments in the code in more general terms.

We understand where noble Lords are coming from in seeking a backstop power, but I return to that word “collaborative”. We have come a very long way in what we have achieved thus far. I can remember working and having discussions with search engines in years gone by, trying to encourage them to respect and accept responsibility for what they do and the impact they can have on others. In that sense, we believe very strongly that we should continue with that collaboration and not consider a backstop power. We do not believe it is necessary. With that explanation, I hope the noble Lord will accept that a statutory power is not needed at present and thus feel able to withdraw the amendment.

[Lord Stevenson of Balmacara]

Although I am grateful to the Minister for her robust comments about our amendment, I profoundly disagree with them. I cannot see this agreement lasting and believe that there will have to be a backstop power at some stage. Surely the truth is that if it was necessary in America to introduce legislation to get that system to work, it is bound to be necessary in other places where those with the large rights holdings may feel they can operate in a way that is not necessarily in the best interests of consumers in the United Kingdom. I still think, as the Minister touched on at the end of her peroration, that this is something that we will have to drag the search engines towards, because it is not their business model. Their concern is to make sure that they get as many people coming to them and through them to other portals in other areas that they can get to. Their interest in engaging in that is something we will return to in future legislative arrangements. I think that they will be unable to sustain a position in which they act as neutral transferors of other people’s issues and wishes, because it does not work. They will have to accept that they have responsibility to work to make sure that the worst excesses at the moment are resolved in a way that does not hurt rights holders.

At the moment, it is a “large copyright holders against large search engines” agreement, and on that level it might operate. I do not think it will be effective. I do not think it is sustainable because there will be new people coming in and business models and practices will change—we cannot foresee that. Power will be necessary. If the Government will not seize a gift that is worth a lot of future pain and help them avoid the difficulties they will face in trying to find the legislative time—as the noble Lord, Lord Foster, said—to put this in, we cannot make them do it. I beg leave to withdraw the amendment.