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UK Digital Economy Bill: The infamous Henry VIII clause  which will permit the Secretary of State to re-write UK copyright law without oversight from Parliament, will also permit the copyright industries to keep their trade secrets, under a proposed new amendment from Lord Mandelson.

*Next debate is this Tuesday, 26 January. Lords Razzall, Whitty, Clement-Jones and Lucas have announced their intention to oppose the Clause. *

An amendment tabled to the Digital Economy Bill calls for the details of representations made to the Secretary of State  in consultations amending copyright law to be kept confidential. The aim of the amendment is  to protect the commercial interests of the copyright industries. (See full text below).


The amendment is one of several which Lord  Mandelson has

tabled in  response to the criticism of the infamous Clause 17 - Henry VIII clause - in the Digital Economy Bill. Clause 17 would enable Lord Mandelson to re-write copyright law and his re-write would  not require the scrutiny of Parliament. The stated reason for Clause 17 is to enable the government to address new technological developments which may impact on copyright - in other words, to clamp down more quickly on the successor to peer-to-peer filesharing. 

  Lord Mandelson's other amendments attempt to address the criticism that he would have the sole power to alter the Copyright, Designs and Patents Act. However, they  appear to be little more than window-dressing, and the essence of the clause remains, which gives him the total right to re-write UK copyright law, without the Parliament being able to have any say in it.


For example, the following amendment says that he should consult before making an order for  new copyright, or copyright enforcment, measures, but he may choose who he wishes to consult:

The Secretary of State may not make an order under this section unless-

5 (a) the Secretary of State has consulted the persons the Secretary of

State thinks likely to be affected by the order (or persons who represent

such persons) and such other persons as the Secretary of State thinks fit; (amendment 211B)


The question is of course, whether  he will only consult representatives of Hollywood and the BPI, or whether he may see his way to include  Internet users and industry. (And note that persons who represent such persons is likely to be a reference to the music collecting societies such as the PRS.)


Parliament will be given "an explanatory document " but it does not appear to be the case that Parliament will be able to fully scrutinise the measures,


In that document, Lord Mandelson ( if he is still the Secretary of State) will have to:

describe the infringement of copyright that the Secretary of State is

satisfied is having a serious adverse effect on businesses or consumers;

(b) describe the effect;

(c) explain why the Secretary of State is satisfied that making the

amendment is a proportionate way to address that effect;

(d) give details of the consultation undertaken under section 302A(9), any

representations received as a result of the consultation, and the changes

(if any) made as a result of such representations.


Here is the amendment to Clause 17 which states confidentiality of representations:


(3) Where a person making representations in response to consultation under

section 302A(9) has requested the Secretary of State not to disclose them, the

Secretary of State must not disclose them under subsection (2)(d) if or to the

extent that to do so would (disregarding any connection with proceedings in

Parliament) constitute a breach of confidence actionable by any person.

(4) If information in representations made by a person in response to consultation

under section 302A(9) relates to another person, the Secretary of State need

not disclose the information under subsection (2)(d) if or to the extent that-

(a) it appears to the Secretary of State that the disclosure of that information

could adversely affect the interests of that other person; and

(b) the Secretary of State has been unable to obtain the consent of that other

person to the disclosure.


There will be a 60-day period during which representations may be made to the Secretary of State. He will determine when that period begins and ends.


Given that his department  has not  taken notice of the formal consultation process which was undertaken up until the end of September this year, what guarantees do citizens or the Parliament have, that he will respect this 60-period?


The Digital Economy Bill text .

The House of Lords debates

The House of Lords  amendments to the Digital Economy Bill

UK Parliament webcasts including House of Lords and House of Commons

This article is licensed under a Creative Commons Attribution Non-commercial-Share Alike 2.5 UK:England and Wales License. It may be used for non-commercial purposes only, and the author's name should be attributed. The correct attribution for this article is: Monica Horten (2010) Mandelson in new move to protect music industry secrets 25 January 2010. 








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