“The provision inserts new sections 124A to 124M in theCommunications Act 2003 (“the 2003 Act”), which impose obligations on internet service providers (“ISPs”) to: • Notify their subscribers if the internet protocol (“IP”) addresses associated with them are reported by copyright owners as being used to infringe copyright; and • Keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of some or all of those who are reported on. After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.” • Notify their subscribers if the internet protocol (“IP”) addresses associated with them are reported by copyright owners as being used to infringe copyright; and • Keep track of the number of reports about each subscriber, and compile, on an anonymous basis, a list of some or all of those who are reported on. After obtaining a court order to obtain personal details, copyright owners will be able to take action against those included in the list.”
“ISPs will have to keep a record of the number of CIRs linked to each subscriber along with a record of which copyright owner sent the report. Under section 124B of the 2003 Act, inserted by clause 5, an ISP may be required to provide a copyright owner with relevant parts of those records on request (“copyright infringement lists”), but in an anonymised form so as to ensure compliance with data protection legislation.”
“I have read the Impact Assessment and I am satisfied that (a) it represents a fair and reasonable view of the expected costs, benefits and impact of the policy, and (b) that the benefits justify the costs.”
“The intention of the Order is to specify the allocation of costs arising from the primary legislation in the Act which places obligations on ISPs when informed by copyright owners through copyright infringement reports to identify and inform subscribers of their illegal behaviour and to maintain record keeping systems.”
“The analysis of the implementation of the Directive in the Member States shows that the Directive lays a solid foundation for enforcing intellectual property right in the internal market, but that certain clarification may be needed to avoid any ambiguities and adapt the Directive to the new challenges posed in particular by today’s digital environment.”
“(2) Whereas the internal market comprises an area without internal frontiers in which the free movement of goods, persons, services and capital is ensured; whereas, therefore, the prohibition of quantitative restrictions on the movement of goods and of measures having equivalent effect is one of the basic principles of the community; (3) Whereas in order to promote the smooth functioning of the internal market, as much transparency as possible should be ensured as regards national initiatives for the establishment of technical standards or regulations; (4) Whereas barriers to trade resulting from technical regulations relating to products may be allowed only where they are necessary in order to meet essential requirements and have an objective in the public interest of which they constitute the main guarantee; (5) Whereas it is essential for the Commission to have the necessary information at its disposal before the adoption of technical provisions; whereas, consequently, the Member States which are required to facilitate the achievement of its task pursuant to Article 5 of the Treaty must notify it of their projects in the field of technical regulations; (6) Whereas all the Member States must also be informed of the technical regulations contemplated by any one Member State; (7) Whereas the aim of the internal market is to create an environment that is conducive to the competitiveness of undertakings; whereas increased provision of information is one way of helping undertakings to make more of the advantages inherent in this market; whereas it is therefore necessary to enable economic operators to give their assessment of the impact of the national technical regulations proposed by other Member States, by providing for the regular publication of the titles of notified drafts and by means of the provisions relating to the confidentiality of such drafts; (8) Whereas it is appropriate, in the interests of legal certainty, that Member States publicly announce that a national technical regulation has been adopted in accordance with the formalities laid down in this Directive; (9) Whereas, as far as technical regulations for products are concerned, the measures designed to ensure the proper functioning or the continued development of the market include greater transparency of national intentions and a broadening of the criteria and conditions for assessing the potential effect of the proposed regulations on the market; (10) Whereas it is therefore necessary to assess all the requirements laid down in respect of a product and to take account of developments in national practices for the regulation of products; … (13) Whereas the Commission and the Member States must also be allowed sufficient time in which to propose amendments to a contemplated measure, in order to remove or reduce any barriers which it might create to the free movement of goods; (14) Whereas the Member State concerned must take account of these amendments when formulating the definitive text of the measure envisaged.”
“(1) Whereas, in order to promote the smooth functioning of the internal market, as much transparency as possible should be ensured as regards the future national rules and regulations applying to Information Society services, by amending Directive 98/34/EC; … (8) Whereas, without coordination at Community level, this foreseeable regulatory activity at national level might give rise to restrictions on the free movement of services and the freedom of establishment, leading in turn to a refragmentation of the internal market, over-regulation and regulatory inconsistencies; (9) Whereas, in order to ensure real and effective protection of the general-interest objectives involved in the development of the Information Society, there is a need for a coordinated approach at Community level when questions relating to activities with such highly transnational connotations as those of the new services are dealt with; … (12) Whereas it is therefore necessary to preserve the smooth functioning of the internal market and to avert the risks of refragmentation by providing for a procedure for the provision of information, the holding of consultations, and administrative cooperation in respect of new draft rules and regulations; whereas such a procedure will help, inter alia, to ensure that the Treaty, in particular Articles 52 and 59 thereof, is effectively applied and, where necessary, to detect any need to protect the general interest at Community level; whereas, moreover, the improved application of the Treaty made possible by such an information procedure will have the effect of reducing the need for Community rules to what is strictly necessary and proportional in the light of the internal market and the protection of general-interest objectives; whereas, lastly, such a procedure will enable businesses to exploit the advantages of the internal market more effectively;”
“… The German regulation in question constitutes a new technical specification within the meaning of Article 1, cited above, since non-reusable sterile medical instruments may henceforth be marketed or used in Germany only if certain obligations are fulfilled the application of which was formerly confined to the labelling of medicinal products. The application, to given products, of a rule which previously only affected other products, constitutes, with regard to the former, a new regulation and must therefore be notified in accordance with the directive.”
“… that enabling measure, taken as such, does not require to be notified on the basis of Article 8 [of the TSD as it then stood] aforesaid since it does not constitute a new specification. The situation is different as regards the implementation of that measure, which does constitute a new specification which must be notified.”
“The alarm systems and networks … and their components may be marketed or in any event made available to users only after prior approval has been granted under a procedure to be laid down by royal decree.”
“27. As regards Article 12 of the 1990 Law, it is to be recalled that it provides that the products in question may be marketed only after having been previously approved according to a procedure to be laid down by royal decree, which was laid down by the 1991 Decree. 28. According to the Commission and CIA Security, Article 12 of the 1990 Law constitutes a technical regulation within the meaning of the Directive 83/189 whilst Signalson, the United Kingdom and the Belgian Government, in their written observations, submit that this article is merely a framework law not comprising any technical regulation within the meaning of Directive 83/189. 29. A rule is classified as a technical regulation for the purposes of Directive 83/189 if it has legal effects of its own. If, under domestic law, the rule merely serves as a basis for enabling administrative regulations containing rules binding on interested parties to be adopted, so that by itself it has no legal effect for individuals, the rule does not constitute a technical regulation within the meaning of the directive (see the judgment inCase C-317/92 Commission v Germany[1994] ECR I-2039 , paragraph 26). It should be recalled here that, according to the first subparagraph of Article 8(1) of Directive 83/189, the Member States must communicate, at the same time as the draft technical regulation, the enabling instrument on the basis of which it was adopted, should knowledge of such text be necessary to assess the implications of the draft technical regulation. 30. However, a rule must be classified as a technical regulation within the meaning of Directive 83/189 if, as the Belgian Government submitted at the hearing, it requires the undertakings concerned to apply for prior approval of their equipment, even if the administrative rules envisaged have not been adopted. 31. The reply to be given to the third and fourth questions must therefore be that a rule such as Article 4 of the 1990 Law does not constitute a technical regulation within the meaning of Directive 83/189 whereas provisions such as those contained in the 1991 Decree do constitute technical regulations and that classification of a rule such as Article 12 of the 1990 Law depends on the legal effects which it has under domestic law.”
“The Law and the 1991 Decree introduced a type approval procedure for alarm systems and networks. Article 12 of the Law laid down, as stated, the actual requirement of prior approval of alarm systems and networks. At the hearing the Belgian government explained that even without the 1991 Decree Article 12 of the Law would not be without legal effect. The provision is thus not merely an enabling provision (see the situation inCase C-317/92 Commission v Germany[1994] ECR I-203 , para 26), but is on the contrary a significant substantive regulation. Article 8 of the directive can hardly, in my view, be interpreted to the effect that such a general requirement concerning prior approval should be exempted from the obligation to inform the Commission, inasmuch as it can stand alone. Irrespective of its general character, such a requirement concerns the product's properties. Furthermore, its enforcement would per se create great uncertainty on the part of traders and thus give rise to not insignificant obstacles to trade. A provision such as that contained in Article 12 of the Law must therefore, in my view, be regarded per se as a technical regulation which must be notified.”
“At the hearing it was accepted by all of those present that in order to comply [with the French law] producers must affix some form of distinguishing mark to the packaging in which they market household goods … [The French law] thus requires products to be identified, but does not insist on the use of a particular mark or symbol.”
“32. Consequently, the Court must also consider the possibility that, in the light of all the factual and legal evidence before the national court, that court will reach the conclusion that the second paragraph of Article 4 of Decree No 92-377 must be interpreted as imposing on producers an obligation to mark or label the packaging, although not specifying what sign must be affixed. 33. In such an event, it would have to be held that that provision is in fact a technical specification within the meaning of Directive 83/189 and, consequently, that, since the obligation is imposed by decree in the case of marketing of packaged products throughout the national territory, that provision constitutes a technical regulation. 34. In that case, even though the detailed rules regarding the marking or the labelling remained to be defined, marking or labelling would, in itself, be compulsory, also for imported products (see, in particular,Case C-13/96 Bic Benelux[1997] ECR I-1753 , paragraph 23). In addition, having regard to the aim of Directive 83/189, namely the protection of free movement of goods by means of preventive control (see, in particular,Case C-194/94 CIA Security International[1996] ECR I-2201 , paragraphs 40 and 48), such a control, implemented in accordance with the procedure prescribed by that directive, would be both appropriate and possible.”
“This is a [draft] notice underSection 135 of the Communications Act 2003 (“the Act”) addressed to BT Group plc, whose registered company number is 4190816 and any subsidiary or holding company, or any subsidiary of that holding company, all as defined insection 1159 of the Companies Act 2006 . This notice requires you to provide the information set out below, in the manner and form specified, for the purposes of enabling Ofcom to carry out its functions in relation to the making of a code undersection 124D of the Act to regulate the obligations of internet service providers under sections 124A and 124B of the Act.”
“135 Information required for purposes of chapter 1 functions (1) Ofcom may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under this Chapter.”
“prohibits in principle all forms of restriction to the freedom to provide Information Society services, i.e. any actions on the part of a Member State liable to hamper or otherwise make the free provision of services less attractive. However, possible exemptions from the principle are provided for in Article 22(2) and (3) [later moved into Article 3 of the ECD].”
“Where an information society service is provided which consists of the transmission in a communication network of information provided by a recipient of the service or the provision of access to a communication network, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that transmission where the service provider— (a) did not initiate the transmission; (b) did not select the receiver of the transmission; and (c) did not select or modify the information contained in the transmission.”
“1. Member States shall not impose a general obligation on providers, when providing the services covered by Articles 12, 13 and 14, to monitor the information which they transmit or store, nor a general obligation actively to seek facts or circumstances indicating illegal activity. 2. Member States may establish obligations for information society service providers promptly to inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.”
“This Article establishes that no general obligation should be imposed on providers to screen or to actively monitor third party content. This general rule does not affect the possibility of a court or law enforcement agency requesting a service provider to monitor, for instance, a specific site during a given period of time, in order to prevent or fighting (sic) specific illegal activity.”
“Member states are prevented from imposing a monitoring obligation on service providers only with respect to obligations of a general nature; this does not concern monitoring obligations in a specific case and, in particular, does not affect orders by national authorities in accordance with national legislation.”
“142. To my mind, the aim of [the ECD] is to create a free and open public domain on the internet. It seeks to do so by limiting the liability of those which transmit or store information, under its Articles 12 to 14, to instances where they were aware of an illegality. 143. Key to that aim is Article 15 of [the EC], which prevents Member States from imposing on information society service providers an obligation to monitor the information carried or hosted or actively to verify its legality. I construe Article 15 of that directive not merely as imposing a negative obligation on Member States, but as the very expression of the principle that service providers which seek to benefit from a liability exemption should remain neutral as regards the information they carry or host.”
“Copyright, neighbouring rights, rights referred to in Directive 87/54/EEC and Directive 96/9/EC as well as industrial property rights.”
“The country of origin principle, as envisaged in this Directive, requires certain derogations in the specific cases cited in Annex 11 [as it then stood]. Indeed, certain specific areas cannot benefit from the country of origin principle because in these fields: - it is impossible to apply the principle of mutual recognition as set out in the case law of the Court of Justice concerning the principles of freedom of movement enshrined in the Treaty, or - it is an area where mutual recognition cannot be achieved and there is insufficient harmonisation to guarantee an equivalent level of protection between Member States, - there are provisions laid down by existing Directives which are clearly incompatible with Article 3 because they explicitly require supervision in the country of destination.” - it is impossible to apply the principle of mutual recognition as set out in the case law of the Court of Justice concerning the principles of freedom of movement enshrined in the Treaty, or - it is an area where mutual recognition cannot be achieved and there is insufficient harmonisation to guarantee an equivalent level of protection between Member States, - there are provisions laid down by existing Directives which are clearly incompatible with Article 3 because they explicitly require supervision in the country of destination.”
“It is important that the proposed directive on the harmonisation of certain aspects of copyright and related rights in the information society and this Directive come into force within a similar time scale with a view to establishing a clear framework of rules relevant to the issue of liability of intermediaries for copyright and relating rights infringements at Community level.”
“Member states shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.”
“Internet access providers and managers of local area networks can, using reasonable means, identify Internet users to whom they have attributed IP addresses as they normally systematically “log” in a file the date, time, duration and dynamic IP address given to the Internet user. The same can be said about Internet Service Providers that keep a logbook on the HTTP server. In these cases there is no doubt about the fact that one can talk about personal data in the sense of Article 2(a) of the [DPD] (page 16).”
“1. Member States may adopt legislative measures to restrict the scope of the rights and obligations provided for in Article 5, Article 6, Article 8(1), (2), (3) and (4), and Article 9 of this Directive when such restriction constitutes a necessary, appropriate and proportionate measure within a democratic society to safeguard national security (i.e. State security), defence, public security, and the prevention, investigation, detection and prosecution of criminal offences or of unauthorised use of the electronic communication system, as referred to in Article 13(1) of Directive 95/46/EC. To this end, Member States may, inter alia, adopt legislative measures providing for the retention of data for a limited period justified on the grounds laid down in this paragraph. All the measures referred to in this paragraph shall be in accordance with the general principles of Community law, including those referred to in Article 6(1) and (2) of the Treaty on European Union. 1a. Paragraph 1 shall not apply to data specifically required by Directive 2006/24/EC of the European Parliament and of the Council of15 March 2006 on the retention of data generated or processed in connection with the provision of publicly available electronic communications services or of public communications networks to be retained for the purposes referred to in Article 1(1) of that Directive.”
“It is clear, however, that Article 15(1) of [PECD] ends the list of the above exceptions with an express reference to Article 13(1) of Directive 95/46. That provision also authorises the Member States to adopt legislative measures to restrict the obligation of confidentiality of personal data where that restriction is necessary inter alia for the protection of the rights and freedoms of others. If they do not specify the rights and freedoms concerned, those provisions of Article 15(1) of Directive 2002/58 must be interpreted as expressing the Community legislature’s intention not to exclude from their scope the protection of the right to property or situations in which authors seek to obtain that protection in civil proceedings.”
“’general authorisation’ means a legal framework established by the Member State ensuring rights for the provision of electronic communications networks or services and laying down sector specific obligations that may apply to all or to specific types of electronic communications networks and services in accordance with this Directive.”
“The general authorisation should only contain conditions which are specific to the electronic communications sector. It should not be made subject to conditions which are applicable by virtue of other existing national law which is not specific to the electronic communications sector. Nevertheless, the national regulatory authorities may inform network operators and service providers about other legislation concerning their business, for instance through references on their websites.”
“The general authorisation shall only contain conditions which are specific for that sector and are set out in Part A of the Annex and shall not duplicate conditions which are applicable to undertakings by virtue of other national legislation.”
“Audio-visual policy and content regulations are undertaken in pursuit of general interest objectives, such as freedom of expression, media pluralism, impartiality, cultural and linguistic diversity, social inclusion, consumer protection and the protection of minors. The Commission communication “Principles and guidelines for the Community’s audio-visual policy in the digital age”, and the Council’s conclusions of6 June 2000 welcoming this communication, set out the key actions to be taken by the Community to implement its audio-visual policy.”
“The conditions listed in this Annex provide the maximum list of conditions which may be attached to general authorisations… …. 2. Administrative charges in accordance with Article 12 of the Directive.”
“The courts have struggled with the question of whether, and to what degree, they should defer to the assessment of the primary decision maker when determining whether their decision or conduct is compatible with a Convention right. The problem arises because, although the courts have been given the task of determining for themselves whether decisions of public authorities are compatible with Convention rights, such questions frequently involve difficult assessments and judgments that the courts are not as well-placed to make as the primary decision maker. By way of example, judgments about the scale of a particular social problem that Parliament or government decides to address is not a matter that the courts can easily assess. Likewise, predictions as to the likely effectiveness of measures taken by the political branches, and the potential effectiveness of alternatives, are also extremely difficult judgments for the judges to make. The primary decision maker will often be better placed to make such judgments. There is also a further concern. The courts are not accountable for making such assessments in the same way as politicians and public authorities are. It is therefore sometimes suggested that the courts lack democratic legitimacy to make such assessments and should defer to those who are accountable for making them.”
“the evaluation of scientific evidence and advice as to public health risks, and which have serious implications both for the general public and for the manufacturers, processors and retailers of the suspect cheese.”
“79. Second, whilst the fundamental rights at issue in the main proceedings are expressly recognised by the ECHR and constitute the fundamental pillars of a democratic society, it nevertheless follows from the express wording of paragraph 2 of Articles 10 and 11 of the Convention that freedom of expression and freedom of assembly are also subject to certain limitations justified by objectives in the public interest, in so far as those derogations are in accordance with the law, motivated by one or more of the legitimate aims under those provisions and necessary in a democratic society, that is to say justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued (see, to that effect,Case C-368/95 Familiapress[1997] ECR I-3689 , paragraph 26,Case C-60/00 Carpenter[2002] ECR I-6279 , paragraph 42, and Eur. Court HR, Steel and Others v. The United Kingdom judgment of23 September 1998 , Reports of Judgments and Decisions 1998-VII, § 101). 80. Thus, unlike other fundamental rights enshrined in that Convention, such as the right to life or the prohibition of torture and inhuman or degrading treatment or punishment, which admit of no restriction, neither the freedom of expression nor the freedom of assembly guaranteed by the ECHR appears to be absolute but must be viewed in relation to its social purpose. Consequently, the exercise of those rights may be restricted, provided that the restrictions in fact correspond to objectives of general interest and do not, taking account of the aim of the restrictions, constitute disproportionate and unacceptable interference, impairing the very substance of the rights guaranteed (see, to that effect,Case C-62/90 Commission v Germany[1992] ECR I-2575 , paragraph 23, andCase C-404/92 P X v Commission[1994] ECR I-4737 , paragraph 18). 81. In those circumstances, the interests involved must be weighed having regard to all the circumstances of the case in order to determine whether a fair balance was struck between those interests. 82. The competent authorities enjoy a wide margin of discretion in that regard. Nevertheless, it is necessary to determine whether the restrictions placed upon intra-Community trade are proportionate in the light of the legitimate objective pursued, namely, in the present case, the protection of fundamental rights.”
“The results of studies of intentions, behavioural range, deviant behaviour, the effects of deterrents, and cognitive perceptions of moral behaviour online, are ambiguous at best.”
“Overall, studies from several disciplines indicate that it is unclear what effects that various types of prosecution, threats of prosecution and other sanctions are likely to have.”
“10. The content industries argue strongly that unlawful file sharing has had a damaging effect on sales in recent years, which significantly outweighs any of the spillover effects. There is a lack of consensus in the literature from academic and industry sources about what sort and how great an effect file sharing has on the creative industries, and whether there are other reasons to explain declining sales in recent years. That said, most studies agree that unlawful file sharing does play a role in the decline of sales. Estimates for the scale of the sales displacement effect – i.e. revenue lost by industry because the content was accessed for free, through file sharing – tend to be in the range of between zero and 20%. Studies on the effect of unlawful P2P downloading on industry revenues Sales displacement effect (as % of total revenues Industry Country Method Oberholzer-Gee & Strumpf (2007), Journal of Political Economy 0% Music US Actual downloads data IPSOS (2007) 2% Film and television UK Survey data Zentner (2008), Journal of Law and Economics 8% Music 7 European countries, including the UK Survey data Rob & Waldfogel (2006), Journal of Law and Economics 9% Music US Survey data Hennig-Thurau, Henning & Sattler (2007), Journal of Marketing 9% Film Germany Downloads proxies data Jupiter Research (2007) 17% Music UK Survey data Peltz & Waelbroeck (2004), mimeo 20% Music 16 countries, including the UK Downloads proxies data ... 12. Unlawful P2P file sharing is of concern in its own right because it is unlawful. It also creates a problem of industry revenue loss creating a disincentive to invest in artists and content production as investors cannot fully appropriate the returns on their investment. That this may already be happening may be suggested by findings from the IFPI Digital Music Report 2010, which reported that the number of local repertoire releases in France dropped from 271 in the first half of 2003 to 107 in the same period of 2009. New signings of French artists also fell by 60% from 91 in the first half of 2002 to 35 in the same period in 2009. Reticence in investing in the creative industries in the future would be damaging to the economy and therefore is a significant cause for concern to the Government. 13. The figures most often quoted to illustrate the impact of file sharing on sales are for the film and music industries. The greatest amount of research into the effects of file sharing has been for the music industry, not least because it was the first industry to feel the effects of such online behaviours and, in terms of overall numbers, it represents the biggest area of P2P activity. IPSOS estimates a sales displacement effect of£185 million for the film and television industry in 2009. Jupiter Research estimated a sales displacement effect of£180 million for the music industry in 2008. We have not been able to assess fully the reliability of the methodology used in calculating these figures – not least because there is not a wide selection of work from which to draw comparative information and against which to benchmark the industry figures. However, we understand that the methodology used to generate those figures did acknowledge and take account of the fact that there would not be a direct transfer from unlawful downloads to legitimate purchases i.e. there would be some people who, if stopped from unlawfully downloading, would simply choose not to consume the content, rather than purchasing it legally, or who would have consumed it lawfully but in a way that would not have generated marginal revenue. Therefore, we are sufficiently persuaded that these figures are an appropriate contribution to the evidence base for the provisions of the DEA. 14. At all times during the DEA process and through the consultation periods before that, BIS has been scrupulous in making clear that the Government’s estimates of the loss to unlawful file sharing and potential benefits of the DEA obligations have been based on figures provided by the creative industries. The Government was not in a position either to conduct its own research – which would in any case have relied upon the cooperation of rights holders in providing information or to audit industry repots which were regarded as confidential. There has been a limited amount of research in this area, therefore the evaluation of data sources in existence is challenging because of the absence of comparative data. 15. BIS also consistently sought additional evidence through consultations on the extent of the impact of unlawful file share. Although the Claimants critique the Government’s use of industry figures in the assessment of costs and benefits of the provisions, it should be noted that ISPs have consistently declined to make available an alternative estimate for the cost of unlawful file sharing. However, those ISPs with significant content interests have not demurred at the estimates provided in their responses to Government consultations.”
“125. In summary, whilst I would share both Professor Liebowitz’s view that the majority of studies find that file sharing has a negative impact on the sales of recorded music and his reservations about some of the studies that find no (or a positive) impact, I would strongly object to his interpretation of the extant literature as providing strong support for the claim that file sharing is responsible for the entire decline in sales. I can see little support for the consensus view portrayed by Professor Liebowitz, and would rather take the position that Professor Leibowitz adopted in 2008 when he noted that “most recent research … has found that the impact of file sharing is negative although the methodology used in these papers generally makes it difficult to determine clear estimates of the position of the recent decline in sound recording sales that might be caused by file-sharing”.”