§ 318 — Conditions relating to infringement by storage

318.—(1) This section applies where a NSP commits a rights infringement by storing an electronic copy on its primary network (called in this section the stored copy) at the direction of a user of that network.(2) The conditions for this section are —(a)

if the NSP has the right and the ability to control any rights infringements in relation to the stored copy — the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;

(b)

if —(i)

the NSP knows that rights infringements have been committed in relation to the stored copy;

(ii)

the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the stored copy; or

(iii)

the NSP is served with a take‑down notice that purports to be given by or on behalf of the rights owner of the stored copy,

the NSP expeditiously takes reasonable steps to remove or disable access to the stored copy;

(c)

the NSP has —(i)

designated a representative to receive take‑down notices under paragraph (b)(iii); and

(ii)

published, in the prescribed manner, the prescribed information about the designated representative; and

(d)

any condition as may be prescribed.

(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including —(a)

industry practice in relation to the charging for services by NSPs; and

(b)

whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.

(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:(a)

a notice that purports to be given by or on behalf of the rights owner of the stored copy (other than a take‑down notice under subsection (2)(b)(iii));

(b)

a notice by the rights owner of the stored copy under section 326(2)(b) (intention to apply for access disabling order).

—(1) This section applies where a NSP commits a rights infringement by storing an electronic copy on its primary network (called in this section the stored copy) at the direction of a user of that network.

(2) The conditions for this section are —(a)

if the NSP has the right and the ability to control any rights infringements in relation to the stored copy — the NSP does not receive any financial benefit that is directly attributable to any of those rights infringements;

(b)

if —(i)

the NSP knows that rights infringements have been committed in relation to the stored copy;

(ii)

the NSP knows about facts or circumstances that would inevitably lead to the conclusion that rights infringements have been committed in relation to the stored copy; or

(iii)

the NSP is served with a take‑down notice that purports to be given by or on behalf of the rights owner of the stored copy,

the NSP expeditiously takes reasonable steps to remove or disable access to the stored copy;

(c)

the NSP has —(i)

designated a representative to receive take‑down notices under paragraph (b)(iii); and

(ii)

published, in the prescribed manner, the prescribed information about the designated representative; and

(d)

any condition as may be prescribed.

(3) In deciding whether a financial benefit is directly attributable to a rights infringement for the purposes of subsection (2)(a), all relevant matters must be considered, including —(a)

industry practice in relation to the charging for services by NSPs; and

(b)

whether the financial benefit is greater than the benefit that would usually result from charging in accordance with accepted industry practices.

(4) In deciding whether a NSP knows about the matters in subsection (2)(b)(i) or (ii), the following notices must be ignored:(a)

a notice that purports to be given by or on behalf of the rights owner of the stored copy (other than a take‑down notice under subsection (2)(b)(iii));

(b)

a notice by the rights owner of the stored copy under section 326(2)(b) (intention to apply for access disabling order).