§ 319 — Conditions relating to infringement by locating information

319.—(1) This section applies where —(a)

an electronic copy (called in this section the main copy) is made available on an online location on a network (called in this section the originating network);

(b)

the NSP commits a rights infringement by referring or linking a user of any network to the online location; and

(c)

the referring or linking is done by using —(i)

an information location tool (for example, a hyperlink or directory); or

(ii)

an information location service (for example, a search engine).

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

if the NSP has the right and the ability to control any rights infringement in relation to the main 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 main 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 main 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 main copy,

the NSP expeditiously takes reasonable steps to remove or disable access to —

(iv)

the main copy; and

(v)

any further electronic copies made from the main copy and made available on the NSP’s primary network, but only if the NSP knows about those further copies;

(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 main copy (other than a take‑down notice under subsection (2)(b)(iii));

(b)

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

—(1) This section applies where —(a)

an electronic copy (called in this section the main copy) is made available on an online location on a network (called in this section the originating network);

(b)

the NSP commits a rights infringement by referring or linking a user of any network to the online location; and

(c)

the referring or linking is done by using —(i)

an information location tool (for example, a hyperlink or directory); or

(ii)

an information location service (for example, a search engine).

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

if the NSP has the right and the ability to control any rights infringement in relation to the main 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 main 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 main 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 main copy,

the NSP expeditiously takes reasonable steps to remove or disable access to —

(iv)

the main copy; and

(v)

any further electronic copies made from the main copy and made available on the NSP’s primary network, but only if the NSP knows about those further copies;

(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 main copy (other than a take‑down notice under subsection (2)(b)(iii));

(b)

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