Changes to the Digital Economy Bill forced through by Lib Dem politicians could have dire consequences for the World Wide Web.
The amendment - which gives courts the power to force ISPs to block access to sites which host 'a significant amount' of copyrighted material - could theoretically shut down some of the Internet's biggest players, including Youtube and Facebook.
The clause, which has been proposed by middle-of-the-roaders Lord Razzalll and Lord Clement Jones, says that "The High Court shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court."
Courts would have to determine "whether a substantial proportion of the content accessible at or via each specified online location infringes copyright, the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both)."
The inclusion of the word 'via' is the greatest cause for concern for ISPs. It means that not only will site administrators be responsible for the content on their own servers, they can also be held responsible for any copyrighted material to which they link.
Youtube has said many times that it is impossible for it to check the copyright status of every one of the thousands and thousands of clip uploaded to its servers every day, which could easily be read as not taking reasonable steps to prevent infringements. Facebook, and dozens of other linchpin sites, could also find themselves on the wrong side of the law if the bill is passed.
The amendment also includes the catch-all killer clause that courts will have the power to block anything deemed to be 'a threat to national security'.
Jim Killock from the Open Rights Group described the amendment as "dangerous", explaining that the bill would "open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive 'copyright attacks' that could shut them down, just by the threat of action."
Nobody in their right mind thinks it is fair for artists to have their work freely distributed without their permission and without payment. But is already illegal to distribute or offer for distribution copyrighted material.
This bill will give the courts, and in effect the government, terrifyingly draconian powers to shut down any website or ISP which annoys it.
"This is exactly how libel law works today," said Jim Killock. "Suppressing free speech by the unwarranted threat of legal action."
The full text of proposed Amendment 120a to the Digital Economy Bill follows:
LORD HOWARD OF RISING
Leave out Clause 17 and insert the following new Clause—
"Preventing access to specified online locations for the prevention of online copyright infringement
In Part 1 of the Copyright, Designs and Patents Act 1988, after section 97A insert—
"97B Preventing access to specified online locations for the prevention of online copyright infringement
(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, requiring it to prevent access to online locations specified in the order of the Court for the prevention of online copyright infringement.
(2) In determining whether to grant an injunction under subsection (1), the Court shall have regard to the following matters—
(a) whether a substantial proportion of the content accessible at or via each specified online location infringes copyright,
(b) the extent to which the operator of each specified online location has taken reasonable steps to prevent copyright infringement content being accessed at or via that online location or taken reasonable steps to remove copyright infringing content from that online location (or both),
(c whether the service provider has itself taken reasonable steps to prevent access to the specified online location,
(d) any issues of national security raised by the Secretary of State.
(e) the extent to which the copyright owner has made reasonable efforts to facilitate legal access to content,
(f) the importance of preserving human rights, including freedom of expression, and the right to property, and
(g) any other matters which appear to the Court to be relevant.
(3) An application for an injunction under subsection (1) shall be made on notice to the service provider and to the operator of each specified online location in relation to which an injunction is sought and to the Secretary of State.
(a) the Court grants an injunction under subsection (1) upon the application of an owner of copyright whose copyright is infringed by the content accessible at or via each specified online location in the injunction, and
(b) the owner of copyright before making the application made a written request to the service provider giving it a reasonable period of time to take measures to prevent its service being used to access the specified online location in the injunction, and no steps were taken,
the Court shall order the service provider to pay the copyright owner's costs of the application unless there were exceptional circumstances justifying the service provider's failure to prevent access despite notification by the copyright owner.
(5) In this section—
"copyright owner" includes a licensee with an exclusive licence within the meaning of section 92 of this Act,
"infringing content" means content which is produced or made available in infringement of copyright,
"online location" means a location on the internet, a mobile data network or other data network at or via which copyright infringing content is accessible,
"operator" means a person or persons in joint or sole control of the decisions to make content accessible at or via an online location, and
"service provider" has the meaning given to it by section 97A(3) of this Act.
(6) Subsections (1) to (5) shall come into force on such day as the Secretary of State may by order appoint not less than 3 months and not more than 12 months after subsections (1) to (5) have been notified to the Commission of the European Communities ("the Commission") in accordance with the obligations of notification imposed by Directive 98/34/EC.
(7) If any comments are received from Member States of the European Union or the Commission after subsection (1) to (5) have been so notified and the Secretary of State reasonably considers amendments are necessary to give effect to such comments, he may make the necessary regulations within the period referred to in subsection (6)(a), to amend subsections (1) to (5).""