The Digital Economy Bill has started its progress in Parliament starting in the House of Lords. It has already been discussed in committee and will next be heard at the Report Stage in the Lords on the 1st March 2010.

There are several sections of interest to Melon Farmers:

• Online infringement of copyright
  
  This includes open ended and general powers for the government to censor the internet in the name of copyright protection
   
• Powers in relation to internet domain registries
  Setting up another tool for the government censorship of the internet
   
• Video recordings Act

The Government are making the following basic changes

• This section separates out video censorship into two sections, video games censorship (PEGI ratings will be implemented by the Video Standards Council) and video works censorship (as implemented by the BBFC).
   
• The current exemptions from mandatory games classification will be reduced so that anything that would be rated 12 or upwards will now be subject to mandatory vetting by the games censors.
   
• The government seem to be adding a new power for the censors to revoke as well issue certificates
   
• People submitting video works are to be forced to agree to a 'code of practice' re the labelling of their products.
   
• There's also added complex wording targeting more complex mixtures of media
   
• And of course the government have added the power to change the Video Recordings Act at any time in the future via an order of the secretary of state

40 Classification of video games etc

(1) Section 2 of the Video Recordings Act 1984 (exempted video works) is amended as follows.

(2) In subsection (1)—

(a) after video work insert other than a video game,
(b) after paragraph (a) insert or, and
(c) omit paragraph (c) (and the word or before it).

(3) After that subsection insert—

(1A) Subject to subsection (2) or (3) below, a video game is for the purposes of this Act an exempted work if—

(a) it is, taken as a whole, designed to inform, educate or instruct;
(b) it is, taken as a whole, concerned with sport, religion or music; or
(c) it satisfies one or more of the conditions in section 2A.

(4) After section 2 of that Act insert—

2A Conditions relating to video games

(1) The conditions referred to in section 2(1A)(c) are as follows.

(2) The first condition is that the video game does not include any of the following—

(a) depictions of violence towards human or animal characters, whether or not the violence looks realistic and whether or not the violence results in obvious harm,
(b) depictions of violence towards other characters where the violence looks realistic,
(c) depictions of criminal activity that are likely, to any extent, to stimulate or encourage the commission of offences,
(d) depictions of activities involving illegal drugs or the misuse of drugs,
(e) words or images that are likely, to any extent, to stimulate or encourage the use of alcohol or tobacco,
(f) words or images that are intended to convey a sexual message,
(g) swearing, or
(h) words or images that are intended or likely, to any extent, to cause offence, whether on the grounds of race, gender, disability, religion or belief or sexual orientation or otherwise.

(3) In subsection (2) human or animal character means a character that is, or whose appearance is similar to that of—

(a) a human being, or
(b) an animal that exists or has existed in real life, but does not include a simple stick character or any equally basic representation of a human being or animal.

(4) The second condition is that the designated authority, or a person nominated by the designated authority for the purposes of this section, has confirmed in writing that the video game is suitable for viewing by persons under the age of 12.

(5) The Secretary of State may by regulations amend this section—

(a) by amending the first condition, or
(b) by adding a further condition (or by amending or removing such a condition).
(6) Regulations under this section may make provision by reference to documents produced by the designated authority.

(5) In section 3 of that Act (exempted supplies), after subsection (8) insert—

(8A) The supply of a video recording in the form of a machine of a type designed primarily for use in an amusement arcade is an exempted supply unless the video game (or, if more than one, any of the video games) that it contains—

(a) depicts, to any significant extent, anything falling within section 2(2)(a), (b), (c) or (d) or (3), or
(b) is likely to any significant extent to stimulate or encourage anything falling within section 2(2)(a) or, in the case of anything falling within section 2(2)(b), is likely to any extent to do so. The supply of any other video recording is an exempted supply if the recording is supplied for the purpose only of its use in connection with a supply that is an exempted supply under subsection (8A).

(6) At the end of that section insert—

(13) The Secretary of State may by regulations amend this section and the regulations may, in particular—

(a) add a case in which the supply of a video recording is an exempted supply for the purposes of this Act, or
(b) repeal a provision of this section.

41 Designated authority for video games etc

(1) After section 4 of the Video Recordings Act 1984 insert—

4ZA Designated authorities for video games and other video works

(1) The power to designate a person by notice under section 4 includes power to designate different persons—

(a) as the authority responsible for making arrangements in respect of video games (the video games authority), and
(b) as the authority responsible for making arrangements in respect of other video works (the video works authority).

(2) Where there are two designated authorities, references in this Act to the designated authority, in relation to a video work, are references to the designated authority responsible for making arrangements in respect of the video work, taking account of any allocation in force under section 4ZB.

4ZB Designated authorities: allocation of responsibility for video games

(1) Where there are two designated authorities, the video games authority may, with the consent of the video works authority, allocate to that authority responsibility—

(a) for a class of video games, or
(b) for video games, or a class of video games, when (and only when) they are contained in a video recording that is described in the allocation (whether by reference to its contents, to the manner in which it is, or is to be, supplied or otherwise).

(2) If an allocation is in force—

(a) the video works authority is responsible for making arrangements under this Act in respect of the allocated video games, and
(b) the video games authority ceases to be responsible for making such arrangements.

(3) An allocation—

(a) must be made by a notice, and
(b) may be withdrawn at any time by a notice given by the video games authority with the consent of the video works authority.

(4) When making or withdrawing an allocation under this section, the video games authority must have regard to any guidance issued by the Secretary of State.

(5) A notice under this section must be—

(a) sent to the Secretary of State, and
(b) published in such manner as the video games authority considers appropriate.

(6) A question as to which designated authority is responsible for making arrangements in respect of a video game may be conclusively determined by the video games authority.

4ZC Designated authorities: video works included in video games

(1) The video games authority may make such arrangements in respect of video works included in video games as it considers are necessary for the purposes of fulfilling its responsibilities in respect of video games.

(2) Where there are two designated authorities, the arrangements made by the video games authority under section 4 must, to the extent that the video games authority considers appropriate, include either or both of the following—

(a) arrangements for having regard to any classification certificate issued by the video works authority in respect of a video work included in a video game;
(b) arrangements for obtaining and having regard to a determination by the video works authority as to the suitability of all or part of a video work included in a video game.

(3) For the purpose of determining the extent to which arrangements described in subsection (2)(a) or (b) are appropriate, the video games authority must—

(a) consult the video works authority, and
(b) have regard to any guidance issued by the Secretary of State.

(4) In this section, suitability means suitability for the issue of a classification certificate or suitability for the issue of a classification certificate of a particular description.

(2) Schedule 1 (which contains further amendments of the Video Recordings Act 1984) has effect.

Schedule 1 Classification of video games etc: supplementary provision

1 The Video Recordings Act 1984 is amended as follows.

2

(1) Section 4 (authority to determine suitability of video works for classification) is amended as follows.

(2) In subsection (1)(b)—

(a) in sub-paragraph (i), after issue insert or revocation, and
(b) in sub-paragraph (ii), after issuing insert and revoking.

(3) After subsection (1B) insert—

(1C) The arrangements made under this section may require a person requesting a classification certificate for a video work to agree to comply with a code of practice, which may, in particular, include provision relating to the labelling of video recordings.

(4) After subsection (3) insert—

(3A) The Secretary of State must not make a designation under this section unless satisfied that adequate arrangements will be made for taking account of public opinion in the United Kingdom.

(5) For subsection (5) substitute—

(5) No fee is recoverable by, or in accordance with arrangements made by, the designated authority in connection with a determination in respect of a video work or the issue of a classification certificate unless the designated authority has consulted the Secretary of State about such fees.

(6) Omit subsection (6).

(7) After that subsection insert—

(6A) When making arrangements under this section, the designated authority must have regard to any guidance issued by the Secretary of State.

(6B) The Secretary of State may not issue guidance about the matters to be taken into account when determining the suitability of a video work for the issue of a classification certificate or a classification certificate of a particular description.

(8) In subsection (8)—

(a) after Act insert—

(a) , and

(b) at the end insert , and

(b) references to the designated authority, in relation to a  classification certificate, are references to the person or persons designated under this section when the certificate is issued, (but see also section 4ZA(2)).

3 In section 7 (classification certificates), at the end insert—

(3) For the purposes of this Act, a video work is not a video work in respect of which a classification certificate has been issued if every classification certificate issued in respect of the video work has been revoked.

4 After that section insert—

7A Classification certificates for particular video recordings

(1) A classification certificate issued in respect of a video work may be issued so as to have effect only for the purposes of a video recording that is described in the certificate (whether by reference to its contents, to the manner in which it is, or is to be, supplied or otherwise).

(2) For the purposes of this Act, a video recording contains a video work in respect of which a classification certificate has been issued if (and only if) a classification certificate that has been issued in respect of the video work has effect for the purposes of the video recording.

5 In section 8 (requirements as to labelling etc), omit subsections (2) and (3).

6

(1) Section 11 (supplying video recording of classified work in breach of classification) is amended as follows.

(2) In subsection (1)—

(a) for containing substitute , or no video recording described in the certificate, that contains,
(b) for a video recording containing that work substitute such a video recording, and
(c) after unless insert—

(a) the video work is an exempted work, or
(b) .

(3) In subsection (2), after paragraph (b) (but before or) insert—

(ba) that the accused believed on reasonable grounds that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was an exempted work,.

7

(1) Section 12 (certain video recordings only to be supplied in licensed sex shops) is amended as follows.

(2) In subsections (1) and (3)—

(a) for containing substitute , or no video recording described in the certificate, that contains, and
(b) for a video recording containing the work substitute such a video recording.

(3) In subsection (6)—

(a) for containing substitute , or no video recording described in the certificate, that contains, and
(b) for a video recording containing that work substitute such a video recording.

8

(1) Section 13 (supplying video recording not complying with requirements as to labels etc) is amended as follows.

(2) In subsection (1), after unless insert—

(a) the video work is an exempted work, or
(b) .

(3) In subsection (2), before paragraph (a) insert—

(za) believed on reasonable grounds that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was an exempted work,.

9

(1) Section 14 (supplying video recording containing false indication as to classification) is amended as follows.

(2) In subsection (1), after unless insert—

(a) the video work is an exempted work, or
(b) .

(3) In subsection (2)(a), after sub-paragraph (i) (but before or) insert—

(ia) that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was an exempted work,.

(4) In subsection (3)—

(a) after unless insert—

(a) the video work is an exempted work, or
(b) .

(5) In subsection (4)(a), before sub-paragraph (i) insert—

(ai) that the video work concerned or, if the video recording contained more than one work to which the charge relates, each of those works was an exempted work,.

10

(1) Section 22 (other interpretation) is amended as follows.

(2) In subsection (1), at the end insert—

video games authority and video works authority have the meaning given in section 4ZA.

(3) In subsection (2), after Act insert (and subject to regulations under subsection (2A)).

(4) After subsection (2) insert—

(2A) The Secretary of State may by regulations make provision about the circumstances in which, for the purposes of this Act, a video recording does or does not contain a video work.

11 After section 22 insert—

22A Regulations

(1) Regulations under this Act are to be made by statutory instrument.

(2) Every power of the Secretary of State to make regulations under this Act includes—

(a) power to make different provision for different purposes, and
(b) power to make transitional or saving provision.

(3) A statutory instrument containing regulations under section 2A or 3 may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

(4) Any other statutory instrument containing regulations under this Act is subject to annulment in pursuance of a resolution of either House of Parliament.

12 Until such time as section 2A of the Video Recordings Act 1984 comes into force, section 22A(3) of that Act has effect as if the words 2A or were omitted.

The Digital Economy Bill was discussed in Lords Committee on 8th February 2010.

A long list of amendments were discussed and withdrawn. Here is a brief summery of these.

Exemptions: Amendment 246 Moved by Lord De Mauley

This was an unneeded suggestion to add to the list of material that would exempt a video game from the need for classification. In reality the list in the original bill is sufficient, but this issue has become something of a band wagon issue having received press attention. So a fair few lords lined up to add their name to the cause including Baroness Howe of Idlicote, The Lord Bishop of Manchester and Lord Addington.

Government Censorship Power: Amendment 247 Moved by Lord De Mauley

Rightfully questioned the powers being given to the Secretary of State in the name of future proofing games censorship.

BBFC as R18 Experts: Amendment 248 Moved by Lord De Mauley

This amendment relates to the BBFC retaining powers to classify games containing R18 pornography. It also questioned whether both the VSC and the BBFC should duplicate the work of differentiating between 18 and R18 material. The BBFC seem to be held as the 'experts' in identifying porn.

At least the debate seemed to assume that  R18 is here to stay and no seemed to be taking the opportunity of the bill to re-ban porn.

Hybrids: Amendment 250 Moved by Lord Howard of Rising
Also amendment 251 Moved by Baroness Howe of Idlicote

These amendments raised the dual censor issue of what to do with hybrid media, ie games containing video or DVDs containing games etc

Duty to promote online safety: amendment 251A Moved by Baroness Howe of Idlicote

(1) It shall be the duty of internet service providers and mobile phone operators to take such steps, and to enter into such arrangements-

(a) to bring about, or to encourage others to bring about, a better public understanding of online safety;
(b) to provide prominent, easily accessible and clear information on filtering options of public electronic communication services for the purposes of online safety-

(i) at the time of purchase of the service; and
(ii) to make such information available for the duration of the contract.

(2) In this section online safety means safe, responsible use of the internet and other communication devices by children and young people.

Baroness Howe of Idlicote said she was speaking for children's charity CARE and wanted to make the availability of parental control facilities to be made more prominent. Again there were lords queuing up support this amendment. The government pointed out that in reality it is far too complex a question for a sentence to be attached to this bill and that the issues are being widely discussed for future measures.

Age Verification Schemes: amendment 251A Moved by Baroness Howe of Idlicote

Additional protection from harmful material through online on-demand programme services using age verification scheme

For section 368E(2) of the Communication Act 2003 (harmful material), substitute-

(2) An online on-demand programme service must not contain any material which might seriously impair the physical, mental or moral development of persons under the age of eighteen.

(3) If an online on-demand programme service contains the following material, the material must only be made available using a clearly identifiable and robust age verification scheme to determine that the person purchasing or otherwise obtaining access to the material is not under eighteen-

(a) material which might seriously impair the physical, mental or moral development of persons under the age of eighteen;

(b) material which is contained in a video work for which a classification certificate has been issued containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops);

(c) material which falls within subsection (4) unless it is contained in a video work for which a classification certificate other than one containing the statements mentioned in section 7(2)(c) of the Video Recordings Act 1984 (recordings to be supplied only in licensed sex shops) has been issued.

(4) Material falls within this subsection if it is pornographic and portrays, in an explicit and realistic way, any of the following-

(a) an act of penetration of the vagina or anus of a person with a part of a person's body or anything else;
(b) the performance by a person of an act of intercourse or oral sex;
(c) the performance by a person or an act of intercourse or oral sex with an animal;
(d) an act of masturbation;
(e) an act of ejaculation;
(f) human genital organs or human urinary or excretory functions; or
(g) an act of restraint or violence which is associated with sexual activity.

(5) In this section-

classification certificate and video work have the same meaning as in the Video Recordings Act 1984;

pornographic has the same meaning as in section 63 of the Criminal Justice and Immigration Act 2008 (possession of extreme pornographic images).

Perhaps the easiest practical attack on the availability of porn and lords drew parallels with the age controls inherent in physical R18s being limited to sex shops.

Lord Davies of Oldham for the Government said: My Lords, I am happy to reassure the noble Baroness, Lady Howe, and the right reverend Prelate the Bishop of Manchester on these points, but I cannot accept the amendment because we have a law in place that achieves its effect. Section 368E(2) of the Communications Act was introduced by the Audiovisual Media Services Regulations 2009 and requires that, if an on-demand programme service contains material which might cause serious impairment to children or young people, it should only be shown in a way that would ensure that they do not usually see it or hear it. The regulations are in response to a European Union directive that applies to all on-demand programme services all the time.

I accept entirely the anxieties of the noble Baroness about these issues, which prompted her to table the amendment, but the question is whether we should go further than the present regulations. We are in discussion about this with Ofcom and the Association for Television On-Demand, the leading video-on-demand industry body to make sure that any moves we make are the right ones to ensure that children are adequately protected. If it turns out on reflection that it is necessary for the Government to take action, we can introduce further regulations under the same provision as those in force at present, to strengthen and reinforce the protection. I reassure the noble Baroness that she has raised an important topic but her amendment is not necessary.

Fees: Amendment 254 Moved by Lord Howard of Rising

This amendment questioned whether the government were right to withdraw from powers to control censorship fees.

Content Advice: Amendment 255ZA Moved by Lord Howard of Rising

This amendment discussed exactly how mandatory content advice labelling should be. Very mandatory or just a bit mandatory.

Our previous blog article: Digital Economy Bill 2009 seeks to crush UK Internet Domain Registry industry with bureaucratic red tape and unfair legal costs was almost correct in its analysis of just how appallingly badly draughted clauses 18 to 20 of the notorious twice disgraced, unelected, Labour Minister Mandelson's Digital Economy (destruction of) Bill was, as originally published:

Digital Economy Bill [HL] House of Lords debates, 26 January 2010,

Lord Young of Norwood Green (Government Whip; Labour): I turn to the amendments in question. Following representations made by the industry, the Government realised that the scope of the domain name provisions in the Bill could have unintended consequences.

Specifically, the definitions in Clause 18 as currently drafted would bring any organisation or company in the UK that runs its own name server within the scope of the powers-that was not intended.

Similarly, the UK-based domain name registry operations of some third countries are also caught. Again, that is not what the Government had in mind when they proposed this draft legislation.

...Read full article