Amendments made last week to the Digital Economy Bill have the potential seriously to impact upon the ability of sites such as YouTube to show freely content posted by users.
The amendments to Clause 17 of the Bill provide that a copyright holder who believes their rights are being infringed by an internet user, can ask that user’s ISP to block the user’s site without the need to obtain a court order. If the ISP refuses to block the site, the copyright holder can apply to the court for an injunction to prevent the ISP from continuing to display the allegedly infringing content. If an injunction is awarded against the ISP, the ISP will be liable for the costs of the court action.
For sites such as YouTube, the amendments could be particularly damaging. Such sites frequently display content which allegedly infringe copyright; however this could (until now) be done lawfully provided that, upon notification of the infringement from the copyright holder, the infringing content is removed from the site by the ISP immediately. With the new amendments, copyright holders could potentially oblige an ISP to block access to an entire website for an indefinite period of time, rather than simply blocking access to or removing the infringing content. The amendments make no provision for how and when an ISP can unblock their site.
The amendments have been widely criticised for imposing a disproportionate penalty against ISPs for copyright infringement as well as being unfairly biased in favour of copyright holders. It is thought that the threat of paying for the cost of litigation instigated by a copyright holder to obtain an injunction will force ISPs to comply with the demands of copyright holders and block their sites in cases where there is merely an alleged, but not necessarily an actual, copyright infringement. Internet users could in turn find access to popular sites severely restricted. Whether the amendments will be challenged as a restriction to freedom of expression under human rights legislation remains to be seen.
One must also question why IP theft should have a different set of rules from any other form of theft?