The Digital Economy Bill continues to be a political hot potato as the government backtracks on key provisions following a wave of criticism.

On this occasion, the issue making the headlines is the proposed “Clause 17”, a provision which would enable the Secretary of State, Lord Mandelson, to make amendments to the Copyright Designs and Patents Act without first consulting Parliament.

In December, top level executives from Google, Yahoo!, eBay and Facebook expressed strong concerns about this in an open letter to Lord Mandelson, the closing line of which reads “we urge you to remove Clause 17 from the bill.” The crux of their complaint is that the controversial provision could pave the way for arbitrary measures and a high degree of uncertainty if new laws can be fast-tracked through the system on a whim.

The government has made a number of concessions in order to allay some of these fears including proposals to water down the powers conferred upon the Secretary of State. In particular, a 60 day consultation period has been proposed, as has an evidential test whereby it must be shown that harm would result if the amendments were not made. In addition, the power cannot be used to create or modify a criminal offence. In spite of mounting opposition to the clause, the government remains in support ofit, stressing that the new powers are required in order to “future-proof” copyright law as new technologies develop.

Whilst most will appreciate that the law must evolve in line with technology, Clause 17 allows the Secretary of State effectively to rewrite primary legislation with a minimum level of Parliamentary scrutiny making this clause, perhaps, a step too far.

Posted by Ryan Harrison
0121 237 3950
rharrison@brownejacobson.com