Copyright (Public Administration) Regulations 2014
Viscount Younger of Leckie
That the draft regulations laid before the House on 27 March be approved.
Relevant documents: 41st Report from the Secondary Legislation Scrutiny Committee, 26th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, in moving the lead regulations I will take the opportunity to speak to all three instruments before us today, which deal with exceptions to copyright.
In today’s digital world the process of copying is intrinsic to new technologies that are used by vast sections of our society, from researchers and curators to teachers and consumers. Yet under current UK copyright law a great many activities that are intuitively acceptable to any reasonably minded person are unlawful or at best uncertain simply because they involve some element of copying. It is the responsibility of government to ensure that copyright law achieves an appropriate balance between protecting the rights and interests of creators and serving the wider public interest.
These statutory instruments are part of a process that dates back to the publication of the Hargreaves review in May 2011—and in fact similar recommendations were made in 2006 by the Gowers review of copyright under the previous Administration.
I feel it is appropriate at this stage to comment that the Government are proposing two other statutory instruments: first, on personal copying for private use; and, secondly, on parody, caricature and pastiche and quotation.
The Joint Committee on Statutory Instruments has asked for some further points of clarification. It is not unusual for the committee to want to spend more time considering SIs but it does, unfortunately, have implications for the timetable for these exceptions, given where we are in the parliamentary cycle. While this delay is disappointing for the Government and many members of the public, the Government remain firmly committed to implementing each of these important exceptions to copyright law as soon as possible.
I turn to the three SIs before us today. One makes changes to the exceptions for research, education, libraries and archives. This instrument includes a new exception for text and data mining for non-commercial research. The other two instruments make changes for the benefit of disabled people and public administration. In most cases the instruments make small changes to existing exceptions—for example, by expanding the types of copyright works that the exceptions apply to or the types of institution or user that can benefit from them.
I am pleased to report that the Joint Committee on Statutory Instruments considered the three instruments we have before us today and had no comments to report. This means that the committee has not identified any issues that it feels need to be brought to the attention of Parliament. Noble Lords will also be aware that my officials and I provided oral evidence to the Secondary Legislation Scrutiny Committee on 6 May, and the committee reported its views on 9 May. I welcome this consideration of the regulations, and I very much welcome the opportunity for further consideration today.
The potential benefits of these SIs are significant. At a conservative estimate, based on the Government’s impact assessments, the measures in the three instruments are predicted to benefit the United Kingdom by nearly £250 million over 10 years. For the avoidance of doubt, the majority of uses of copyright materials will continue to require permission from copyright owners. The regulations have been carefully and narrowly drafted to contain safeguards that ensure they do not prejudice the legitimate interests of creators and rights holders. Indeed, many of the changes simply modernise existing exceptions that have been part of UK law for many years.
Over the past few years, the Government have consulted extensively on these proposals and the Secondary Legislation Scrutiny Committee recently commended the Government on their “sustained efforts” to consult on these measures. There is no doubt that the Government found it enormously helpful to hear the full spectrum of viewpoints, including those of individual creators, businesses, researchers and consumers.
I turn first to the new copyright exception to permit UK researchers to use text and data-mining technologies as part of their research. Data-mining techniques allow researchers to analyse large amounts of text and data using computers. This is extremely efficient and makes it easier for researchers to make interconnections within the vast amount of data being produced in the digital age. This new exception for text and data mining contributes to the Government’s overall goal of making the UK one of the best places in the world to do science.
This measure is necessary because current copyright law does not allow us to realise all the potential benefits of text and data mining. This is because the technology usually requires copies to be made of the material that is being analysed, and making these copies risks infringing copyright. At the moment, only 11% of articles in the European database of biomedical research papers can be electronically analysed without seeking specific permission from the copyright owner. This is the case even where the researcher or their institution may have already paid for a licence to read these articles.
The evidence submitted to the Government’s consultations showed that requiring individual researchers to seek specific permission from each rights holder is a significant obstacle to the uptake of data mining. One case study found that a simple exercise to mine all papers with the term “malaria” in their title could require a researcher to spend between four and five weeks seeking permissions—time far better spent on actual research. The changes proposed will allow researchers to make copies of any material they already have the right to read, without obtaining additional permission from the rights holder. This will apply only to text and data mining as part of a non-commercial research project.
Researchers in the US and Japan already have this freedom to carry out text and data mining. This exception will give similar freedoms to British researchers, and give Britain greater competitive strength internationally. To ensure that researchers are fully able to benefit from the exception, the legislation makes contract terms that seek to prevent or restrict text and data mining for non-commercial research unenforceable. It is important to add, however, that it will not stop rights holders imposing controls on the way in which researchers can access material, such as reasonable limits on download speeds.
I turn now to other research elements of this same statutory instrument. The regulations will extend the existing fair-dealing research exception to cover all types of copyright works, not just literary and artistic works. Researchers will be permitted to carry out reasonable, limited copying for non-commercial research and private study, without permission from the copyright holder. The amount of copying that can occur is limited by fair dealing, which means that copying a whole work is extremely unlikely to be allowed. Institutions such as libraries and universities will also be able to offer access to copyright works on the premises at electronic terminals for research and private study. That will reduce costs and improve access.
Lord Scott of Foscote (CB)
My Lords, I do not wish to oppose any of the three sets of regulations that the noble Viscount has recommended we approve. However, there are one or two aspects of the Government’s approach to copyright that I find a little worrying, and perhaps I may ventilate them with the Minister. They may arise particularly when the last two sets of regulations, which are not before the House at the moment, come to be considered.
It has to be borne in mind that copyright has been the subject of legislation for a long time. I cannot remember when the first Copyright Act was enacted, but it was enacted for the purpose of providing proper regulation of the protection that the producers of copyright works—artistic, musical, literary or whatever—were entitled to expect. Generally speaking, they were professionals earning their living from the works that they produced for those who were able to benefit from them. It became apparent that legislation was needed in this sphere and it has been thus ever since.
The Minister referred to a benefit that the current spate of regulations will produce of, I think, £250 million over 10 years. I was wondering out of whose pocket that would come. Does it mean that the proprietors of the copyrights will be subsidising the use of their work by receiving lower sums for that work, and for the copyright licences that they were granted, than they were previously receiving? If so, it is a sort of compulsory donation by the proprietors of the copyright works in question to the benefit of the country, which I am not sure has any precedent elsewhere. I began to think of the relevant law applying to patents. If an inventor produces a very valuable patent which the Government of the day wish to exploit for their own entirely proper purposes, the Government can apply to the courts and obtain a compulsory licence but they will not get it for nothing. The compulsory licence will have a term under which some remuneration for the use of the patent is paid to the proprietor of the patent—the inventor.
Here, we have amendments to the copyright regime that will apparently save a great deal of money, but, as I have asked already, at whose expense will that be? If it is just a saving in time for administrators, that is one thing, but if the copyright holders will receive less, that is entirely different. I wonder whether the patent analogy of a compulsory licence on appropriate terms that can be fixed by the court ought not to be preferred as the means of dealing with the problems that have been identified.
As I said, I do not object to any of the regulations. They are all for worthy purposes, but to the extent that their effect is to require copyright holders to be compulsory donators to, in some cases, charitable purposes and, in some, just general public purposes, I wonder whether it is fair to do so without providing for some compensatory element to recompense them for the loss to their pockets—which, according to the Minister, will be substantial—over the next 10 years.
These points are going to arise particularly when the last two sets of regulations—one relating to personal copies for private use and the other relating to copying for the purposes of quotation and parody—come to be considered. Nothing there could be described as remotely charitable or for the public benefit, which is a shield under which these three sets of regulations can all shelter. I think that the Minister needs to tell the House to what extent the savings that the Government anticipate from the five regulations taken as a block will fall upon the pockets of the copyright holders who have created these works of arts, pieces of music or literary masterpieces that enjoy copyright.
Lord Walton of Detchant (CB)
To follow up the point made by my noble and learned friend, perhaps I may briefly ask the Minister whether these welcome modifications to copyright law will in any way have an impact on or amend the procedures followed by the Authors’ Licensing and Collecting Society, which provides modest sums for authors if their works are subsequently copied through libraries or other mechanisms. Will they affect that procedure of the ALCS?
Lord Clement-Jones (LD)
I thank the Minister warmly for his introduction. Whatever comments I may have on the substance of the exceptions, I thank him for his careful navigation and assiduous consultation and communication in the run-up to these SIs being tabled, including for the way in which the regulations have been presented to Parliament. I also thank him for his willingness to debate the issues, as we did last December and before the Secondary Legislation Scrutiny Committee recently. We should thank both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their careful scrutiny. I am pleased to hear from the noble and learned Lord, Lord Scott, and to see that the noble Baroness, Lady Morris, is in her place, as is the chair of the Secondary Legislation Scrutiny Committee, the noble Lord, Lord Goodlad.
There were some very good reasons for this careful scrutiny. After all, copyright is the foundation of our creative industries’ success and the economic driver of growth for this sector, which contributes £71.4 billion to the UK economy. The reform of copyright should be handled sensitively, with the value of the creative industries and any negative impact caused by changes to the law firmly in mind. Wrongly formulated, the exceptions could potentially deter investment in the industries and weaken performers’ and creators’ ability to benefit financially from their work.
It is also an extremely technical area of law. It has been pointed out by many experts that the Government’s proposed changes to primary copyright law implemented by way of secondary legislation risk not being compliant with our obligations under EU directives and incorrectly implement related legislation. It is notable that the Secondary Legislation Scrutiny Committee remarked from the outset in its report on the strength of opinion on the question of contract override, which I attempted to highlight in our December debate. It also said that,
“we flag up the possibility that the changes will have a greater economic impact on producers and creators than the Government have so far envisaged”—
a point made by the noble and learned Lord, Lord Scott. The committee expressly says that it is not persuaded by the Minister’s statement that the changes are relatively minor. This particularly applies to the personal copies for private use exception, to be debated in future.
The Government cannot have it both ways. They cannot say that these exceptions will have minimal effect and then claim that there will be a benefit of a total of £500 million to the UK economy over 10 years for all five of the exceptions and £250 million for those that we are discussing today. In fact, in the Commons committee, a number of MPs drew attention to inadequacies with the impact assessments and sought to probe further how the figure of £500 million was arrived at. Where does this figure come from? Can we have a complete breakdown? Are the Government certain that this benefit is without any loss on the other side of the equation, a point raised by the noble and learned Lord, Lord Scott? How do the Government plan to monitor whether this benefit is achieved?
As a result of one of the key conclusions, where I wholeheartedly agree with the SLSC, the instruments are to be reviewed by the Intellectual Property Office no later than April 2019. The committee said:
“We would urge the Government to monitor the impact of the changes from the point of implementation, and in particular to respond effectively if it becomes clear that any negative potential is being realised”.
Can the Minister give that assurance? Can he commit to repealing these regulations if there is overwhelming evidence of a negative impact?
Lord Howarth of Newport (Lab)
My Lords, I join the noble Lord, Lord Clement-Jones, in congratulating the noble Viscount, Lord Younger, and thanking him for all his courtesy and assistance to noble Lords in making himself and his officials available to us so that we have had the opportunity to be informed about the Government’s thinking and to ask questions. He has been impeccable in this regard. Equally, I congratulate him on the extent of the consultation that he has undertaken. Any interests that still find themselves in disagreement with what the Government propose cannot reasonably say that they have not had the opportunity to put their case and to be heard. I agree with him that this process, which has been very long drawn out, does now need to be brought to a conclusion.
The Minister and the Intellectual Property Office have had to make their way forward through hurricanes of lobbying, and they have persisted in their purpose to achieve a better balance—what he just now called an “appropriate balance”—between the interests of creators, of rights-holders, and those of users and the wider public interest. He has also sought to modernise these aspects of the intellectual property regime to take account of technological change, which of course has been very great since the enactment of the Copyright, Designs and Patents Act in 1988. In this respect, he is catching up with progress that has been made rather earlier in a number of European countries, where perhaps established interests have less of a stranglehold on policy development. However, established interests are fighting a rearguard action. A managed retreat is a very difficult manoeuvre, and we have just seen a very fine example of it in the speech of the noble Lord, Lord Clement-Jones. I fully appreciate the right of the noble Lord to make the case that he does, and I think that many people will be grateful to him for doing so, but not all those who have raised objections are as scrupulous as the noble Lord.
Publishing was once considered a gentleman’s occupation, but I fear that all too extensively in the modern publishing industry it is a fairly cut-throat business. Publishers are among those who have sought to use contract to negate existing exceptions. The British Library told us not very long ago that 90% of contracts offered to it for licensing electronic content restricted the public interest exemptions that were already permitted under copyright law. The Alliance for Intellectual Property, the British Copyright Council and the Motion Picture Association have all complained to the Secondary Legislation Scrutiny Committee about the contract override provisions in these statutory instruments, but I do not think that it is reasonable for them to do so. It seems to me, having listened to what the noble Lord, Lord Clement-Jones, said, that we are entirely accustomed to changes in the law modifying the enforceability of existing contracts. People would be surprised if we reformed the law of tenancy if the situation remained that existing tenants had to carry on under the preceding contract. If we were to reform employment law to make changes, as I hope we might, in zero-hours contracts, for example, and what is permitted there, I do not think that we would find it acceptable if the employees who have to operate according to zero-contracts were required to carry on with the same contract indefinitely. It is therefore entirely reasonable that legislation in the public interest should modify the enforceability of existing contracts in the field of copyright.
The Minister has on various occasions described these reforms as “relatively minor”, “de minimis” and “modest”. He explained to us just now that he anticipates that the three statutory instruments before us will yield some £250 million of saving or advantage to the economy over 10 years. Some people think that that is a lot; I am inclined to think that it is a little. I appreciate the force of the points made by the noble and learned Lord, Lord Scott of Foscote, but I invite him to consider the other side of the balance sheet. There are vast costs to our economy of compliance with the copyright regime. There are vast opportunity costs arising from the restraint on people being free to use material as they would wish. There is an enormous apparatus of administration and bureaucracy associated with this regime. Huge amounts of time have to be spent on compliance. There are policing costs. It seems to me increasingly unrealistic to suppose that the enforcement of our traditional historic regime in the digital era can be successful and the attempt to sustain it is probably going to be futile. Innumerable lawyers, consultants and lobbyists are making a good living, perfectly legitimately, out of the complexity, impenetrability, imprecision and futility of the existing regime.
The Earl of Erroll (CB)
My Lords, I shall be brief and shall stick to the three regulations. I think they are essential because, first, of the problem of the preservation of things for history. My father is a great genealogist and historian, and one sees so many things lost and destroyed. I have archives going back to the 1200s, because they are written on vellum. Unfortunately, that does not apply to the modern stuff, which can disappear all too easily. Most of the media it is in will decay over time. Therefore we need to do what they call format shift and move it around. One of the problems with the current copyright restrictions is that you cannot format shift legally. The ridiculous thing is that you find that you have bought a piece of music that you can play on one thing, or you may have downloaded something on to your Sky box that you can watch any time, but actually you want to watch it on your iPad—this is not a iPad, it is a Microsoft Surface—and you are meant to buy a copy of it, even though you have it sitting there on your device at home.
That is not about these regulations, because that is coming up later, but the same sort of thing applies to the British Museum and other people who are trying to preserve stuff. They will allow them to preserve things which they cannot legally at the moment. As a private individual, personally, I would break the law, but you cannot do that as a public body. That is the challenge.
The Wellcome Trust is very interesting on this subject. It is interested in research that is going to save lives. At the moment, to try to what they call data mine—to research across many bits of information across the internet from many different sources—you have to clear every bit of it. I think that it was the noble Lord, Lord Clement-Jones, who asked what that costs and where the money comes from. Someone asked that. The answer is in sheer time of people trying to track down the sources to get every one cleared before you can look at it. That is absolute madness and is delaying research. As a result, people are dying, in some cases, because we cannot do research that we should be able to do.
At the same time—this is a bit of a red herring, but it is not meant to be—we are talking about releasing everybody’s personal health information to save lives. It will be all right to data mine that under Care.data, but here we are with stuff that is perfectly public and is not sensitive information, but we cannot mine it because of the copyright laws.
The challenge comes because the copyright springs out of the Statute of Anne—Queen Anne—of 1710, I think, as amended. Of course, it was all built around written work. I think it actually came from Charles II’s licences for the printing presses. It was all about printed work but the world changed when, suddenly, entertainment could be broadcast and then with the general availability of entertainment over the internet.
The trouble is that it is not usually the creators who own this higher value or more expensive stuff but the people who bought up the rights very early on. They own the rights. The big rights holders are not the creators and we should not mix the two up. Some creators still have their copyright but an awful lot of them do not. This would be to defend a distribution system which is rooted in the past. I am afraid that it is not going to survive in the long term, whether your Lordships like it or not. It needs to evolve and the question is how. Yes, you have to have fair reward—for the creators in particular, because that is where innovation comes from—but the way to do that is not by having such complex systems as the noble Lord, Lord Clement-Jones, laid out for us. There is such complexity in those for an ordinary human being who is not a lawyer, such as a researcher or any person who is not a specialist in law. You need to be a lawyer who is used to representing copyright interests to understand all the ins and outs and be able to do anything with it. That is wrong, in my idea, and is what is holding things up.
These three regulations are very much to be welcomed. They will help enormously the good people who are trying either to do research or to preserve our history. They are not going to do any damage whatever to the people who own a lot of entertainment and other copyrights.
Lord Berkeley of Knighton (CB)
My Lords, I, too, congratulate the Minister on being extremely constructive in his attention to comments made by the music industry. Speaking as a composer, I sometimes feel on the horns of the dilemma that he faces. I would love to make my music completely free to schools and educational institutions but my publishers say, “It costs us money to produce it”, and the record people say, “It costs us money to record it”. That in a sense is the balance we have to strike here.
In the debate on 5 December 2013, which was mentioned by the noble Lord, Lord Clement-Jones, I spoke about what was then the forthcoming education exception and noted that the introduction of a “fair dealing” exception for the purposes of instruction was at that point of great concern to music publishers in this country. To them, the sale of sheet music for use in teaching is a key income stream. The chief concern was that fair dealing is a vague term and unlikely to be understood by consumers of sheet music. As such, music publishers were delighted to see improvements made to the drafting of the education exception, in particular the narrowing of the fair dealing element of the exception to be,
“for the sole purpose of illustration for instruction”,
in line with the EU directive. This is a helpful and necessary amendment and goes some way to allaying the concerns of the music publishing community.
In addition, music publishers welcome the inclusion of the frequently asked questions on sheet music in the education and training guidance notes which accompany the statutory instrument. However, those frequently asked questions could, I respectfully suggest, be further strengthened to give greater clarity to music teachers and music students, who will benefit from the new exception. The suggested improvements to the guidance notes include a specific reference to the Government’s published interpretation of the new education exception: that copying of sheet music by private music teachers is unlikely to fall under the exception,
“as it is not non-commercial, and is unlikely to be considered either illustrative or fair dealing”.
Music publishers would also like the frequently asked questions on copying material for use in exams to state clearly that making a copy of a musical work for use by an exam candidate when performing the work is not allowed under this exception. This protection for sheet music publishers is explicit in Section 32(4) of the current CDPA and its removal from the new Section 32, with no clarification in the frequently asked questions on exams, could lead to confusion.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank all those who have contributed to this short but important debate today, which goes to prove that this is an interesting area of activity. As the noble Lord, Lord Clement-Jones, said, it bears on one of our key industrial sectors, which we must be careful to ensure is given protection and support. In some of the earlier debates on these issues in other places, where perhaps not so many people would crowd in as have done today, we had thought that we were a lonely band, a small group of complete nerds who were interested only in the very detailed minutiae exemplified by the brilliant speech from the noble Lord, Lord Clement-Jones, on the wide issues relating to copyright contracts, to which I will leave the Minister to respond. Of course, I am wrong; many issues are coming up now that we will return to with pleasure as we go through the other statutory instruments, and indeed as we wait for further measures to come forward as a result of the ERR Bill, particularly extended collective licensing and orphan works. Those who do not know these things might want to get themselves ready for it, because that too will be great fun.
The argument that we have heard today from the Minister is that these “small” changes to the UK’s copyright regime are vital to supporting innovation and growth in the UK. In fact, to my mind they bear more on individuals, particularly those with disabilities, and on the not-for-profit libraries and archives in the digital age, helping them to serve their patrons more effectively and to reduce costs. It is therefore likely that they will lead to greater efficiency, innovation and improved research, which is a good thing, and there seems to be no independently validated evidence that any of the proposed new exceptions will damage the legitimate commercial interests of rights holders.
Rights holders often claim, as the noble Lord, Lord Clement-Jones, suggested, that exceptions are or soon will be rendered unnecessary by the existence of licensing schemes. That argument has some merit and good progress has been made on this, particularly through the copyright hub, but consumers will not be well served if the licensing system is overly complex or expensive or withdraws works and therefore makes them inaccessible. It is also true, at least at present, that many copyright works are not, and in some cases cannot be, covered by licensing schemes. There is, for instance, no scheme for unpublished literary works such as private letters, or one for private films or photographs. It may be, as I have mentioned, that the mooted extended collective licensing schemes and action on orphan works will address many of these issues, but until then archives and libraries have no choice but to rely on exceptions in order to provide a service to the public.
My first point is that I do not think that the impact of these SIs will be quite as significant in the wider economy as the noble Lord makes out. In any event, it is important that both sides in this argument do not overclaim. We should also bear in mind that if, in a digital world, citizens do not feel that the law appropriately supports their own personal and educational needs, it will simply be ignored, which is in no one’s interest. Indeed, the noble Earl, Lord Erroll, rather hinted that that was the way in which he approached matters.
The Government believe that the changes contain safeguards to ensure that a reasonable balance is maintained between the interests of creators, owners, performers, consumers and users of copyright works. We have some concerns on this point. What is important is that we have a balanced copyright system that respects the legitimate interests of both the rights holders and the users of copyright works. Copyright law should work for everyone. There should be incentives for people to invent and create, appropriate protection for the output that they produce and a right to a reasonable return on that investment.
These instruments update the framework of exceptions to copyright in performance and expand the freedoms in copyright law to allow third parties to use copyright works for a variety of purposes without permission from copyright owners. We broadly agree with this approach and have supported the Government through this seemingly endless and tortured process. However, I should put on record that we wonder whether utilising exceptions is in itself the best way of making changes to a regime that in some respects is creaking and, as the noble and learned Lord, Lord Scott, suggested and my noble friend Lord Howarth agreed, may be in need of some serious recalibration.
We should recall that in Modernising Copyright Ministers stated:
“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013”.
I observe October as a rather crucial date. It is one of the two CCDs referred to by the noble Lord, Lord Clement-Jones. Well it is May 2014, and we have only three SIs, although, of course, there are actually six exceptions contained in them and, as we know, there are more to come. It is fair to say that the Government have had a bumpy ride on this, and I think it is partly because they seem to have difficulty in opening up to proper debate and discussion with the industry and consumers not only about the principles under which they are operating but on the detailed drafting. As has been said, there is more to come in terms of public explanations of what is being proposed. However, there has been a public consultation, there was also a very brief general discussion on a QSD in your Lordships’ House, and further work and technical reviews have been undertaken. We are where we are.
I have only one substantive point to make about the regulations, although there are a number of questions I should like to put to the Minister. The question that underlies some of the points that have already been made is about the exchange in the Secondary Legislation Scrutiny Committee when the Minister was adamant that this packet of measures involved minor changes. In introducing the exceptions today, he said that they are “small changes to existing provisions”. However, the committee stated in its report:
“We pressed the Minister on his statement to us … that the changes proposed were ‘relatively minor’: we are not persuaded that this is an accurate assessment of their impact”.
I should be grateful if the Minister could expand on that when he responds. I struggle with his description “relatively minor”. I probably agree that they are quite small, but I do not know what reference point he is taking on this. What is the relativity?
I now turn to the exceptions themselves, the first of which is disability. It must be right that all print-disabled learners should have the right to have information provided in an accessible format. Indeed, this is required under Section 20(6) of the Equality Act 2010. Amending the existing exceptions for visually impaired people so that they cover all impairments that prevent a person accessing and making use of all types of copyright work will achieve this. We agree with what the Government are trying to do here and support it.
The public administration regulations will allow more public bodies proactively to share online unpublished third-party material from businesses and members of the public. We agree that the Government are doing the right thing here, and we support it.
The third SI is a bit of a plum pudding of an exception because the Government have tried to wrap a controversial issue—to overcook my metaphor—in the middle of three brown-bread and apple-pie proposals—sorry about that. This was the issue that got the most flak during the consultation process, and it continues to worry a number of industry personnel, as we have heard today. It is said that a new text and data-mining exception will dramatically boost non-commercial research by allowing computers to read material that consumers have already purchased or have legal access to. It is also said that the lack of such an exception means that UK research continues to lag behind countries such as the United States, which already allow text and data mining. My main concern is that the exception is designed to assist people who wish to make use of copyright works for the purposes of non-commercial research and private study. Non-commercial research I can sort of understand, and that seems to be an appropriate way to provide an exception, but what exactly is private study? The Government’s position on this seems vague and may well be open to legal challenge. I should be grateful if the Minister could return to this when he responds. I have looked at the accompanying information booklet, which says that this exception is not restricted to those studying at school, college or university. The guidance states that,
“this also applies to those carrying out their own private study but you must be genuinely studying (like you would if you were studying for a college course) to qualify. An example of this could be when you are learning to identify birds in your garden or simply learning more about a particular hobby”.
We seem to be quite a long way away from malaria. One can empathise with copyright holders who fear that a qualification such as,
“simply learning more about a particular hobby”,
might be seen to be driving a coach and horses through this provision. I should be grateful if the Minister could explain the position a little better when he comes to reply.
On the other exceptions within this SI, I particularly welcome the exceptions for libraries and archives and declare my interest as a former director of the British Film Institute, whose national film archive will benefit considerably from these changes.
Finally, I turn to common commencement dates. According to the Better Regulation Framework Manual, new domestic measures, both regulatory and deregulatory, must come into force on a common commencement date, either 6 April or 1 October each year. The guidance says that by requiring regulatory changes to occur at set times, CCDs inform business and other stakeholders about forthcoming regulatory changes, helping them to plan and budget for new measures and to minimise any additional costs. That seems a good and sensible suggestion. I point out that this is advice to officials but presumably also to Ministers. It goes on:
“You should always assume that your policy will be implemented on a CCD unless you have received explicit RRC”—
Reducing Regulation Committee—
“clearance for a waiver on one of the grounds below … clear emergencies … anti-avoidance measures … measures which remove significant risk or detriment from business … instances where the costs of timing a measure to meet a CCD would be wholly disproportionate to the public purse and … orders which commence other measures on a CCD”.
Can the Minister explain to the House into which particular category these exceptions fall? There is mention of,
“limited flexibility for deregulatory measures to come into force on a date other than a CCD if there would be demonstrable benefits to business”.
However, it says:
“This would require agreement to a waiver by RRC at write-round”.
Can the Minister confirm that his department has obtained this waiver? If so, perhaps we could have sight of the letter? It would be interesting to read it.
Finally, I draw the Minister’s attention to paragraph 1.10.9 of the guidance, which states:
“If an unanticipated delay means that your measure will not be ready for the planned CCD”—
which seems to be the sort of case we have here—
“you should wait until the next CCD”.
However, the Government are trying to introduce three of the five SIs on 1 June. The next CCD is 1 October. Can the Minister at least confirm that the two delayed exceptions will be scheduled to come into force on 1 October? If it is not 1 October, can we please be allowed to know why?
Viscount Younger of Leckie
First, I will say how pleased I am that so many people have contributed today. What the noble Lord, Lord Stevenson, said is true: there is a greater number of noble Lords here than there has been for many of the copyright debates. I should quickly say that, although I did not agree with all the comments that were made, I greatly appreciate your Lordships’ presence.
As I said at the outset, this is a package of reasonable and common-sense changes to copyright exceptions, which will deliver significant benefits to the UK. I am sure that the noble and learned Lord, Lord Scott of Foscote, will understand when I say that I will not be focusing on private copying, parody and pastiches, as we are not ready for those particular SIs at the moment.
I also thank the noble Lord, Lord Howarth, for his kind words. He spent quite a bit of time focusing on the consultation process. It is true that, rather unprecedentedly, we engaged with a great number of people across the spectrum, looking at the rights-holders and consumer-and-user ends of the copyright process. In my case, it involved more than 250 meetings, so what the noble Lord said is true: we really have engaged. I hope that, as the noble said, this has been helpful. He was also right to say that there comes a time when the consultation process, which has been extremely long, has to come to an end. I think, again, that he is right that we need to move forward with that.
A lot of questions were raised today; I hope that I can get through them all. I will address a couple of them to begin with. The first was raised by the noble Lord, Lord Berkeley of Knighton, who asked about the amendments to public guidance in relation to copying sheet music for exam use, which is an extremely interesting point. I thank him for his kind words and the recognition of the changes that the Government are making. We have welcomed the written submissions from some stakeholders setting out their thoughts on the guidance; these will be considered in due course.
The second point was raised by the noble Lord, Lord Walton, who I notice is not in his place. I beg the noble Lord’s pardon; he is now in his place. He asked whether schools and universities would now not need any photocopying licences. He used the example of the ALCS to this effect. I can reassure him that schools and universities will still need to hold photocopying licences. It would not be right to allow schools to copy textbooks without payment in order to get them for free. Authors will still be properly remunerated. However, where works are not licensed, a teacher will be able to make photocopies without worrying about copyright infringement, so I hope that that clarifies the point.