Baroness Brinton
Main Page: Baroness Brinton (Liberal Democrat - Life peer)Enterprise and Regulatory Reform Bill
Baroness Brinton Excerpts(11 years, 9 months ago)
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Viscount Bridgeman
My Lords, I declare an interest as a director of the Bridgeman Art Library, of which my wife is the founder and chairman. I shall speak to Amendment 28DZA in support of the noble Lord, Lord Stevenson, and my noble friend Lord Clement-Jones. The noble Lord, Lord Howarth, has reminded us of the history of the 1988 Copyright, Design and Patents Act. It goes a great deal of the way to protecting the rights of copyright owners, it removes the excuses for copyright material being lifted without a legal licence, it ensures that works created in future are not orphaned whereby, as your Lordships will be aware, work cannot licensed in the ordinary way because those who hold rights in it are untraceable, consumers get a genuine guarantee that the work is what it says it is and its creators take responsibility for it.
However there is one glaring loophole, which has been so ably addressed by my noble friend Lord Clement-Jones, in part opened up by fast-growing developments in digital practice. It is that at present users are currently able to shelter behind the fact that rights information, which forms part of what is loosely termed metadata, obtained and distributed by computer programs, as opposed to being obtained manually, escapes the protection afforded to creators by the 1988 Act. This amendment seeks to rectify an obvious anomaly in the existing legislation.
I would also like to draw the Minister’s attention to the fact that, should this amendment be accepted—and I am well aware that there is considerable debate about whether this will be in primary or secondary legislation—there will need to be a cross-over to those clauses relating to orphan works and extended collective licensing.
I would also like to mention that giving effect to this apparently simple intention in plain English at the same time as making it watertight in IT terms is no easy task, and the framers of this amendment are to be congratulated on doing their best. No doubt, if this amendment is accepted, as I hope it will be, the Bill team will be able to consolidate the wording.
Baroness Brinton
My Lords, with the permission of the Grand Committee, I shall speak sitting down.
I shall speak to both amendments. On Amendment 28DZA, will the Minister confirm that there is already protection under the law for the stripping of metadata knowingly and without authority? Other noble Lords have alluded to that. I understood that it gave us the protection that we were seeking rather than going down the route of this amendment. Any infringement is therefore already contrary to civil law. If there are concerns that that protection is not strong enough, especially in relation to computer and electronic equipment—for example, in cameras—it is not just about large internet companies stripping data. There is a real problem for photographers; I know that some of their data are stripped. I am looking at the noble Baroness, Lady Howe of Idlicote, when I say that we have worked with the ISPs in relation to child safety and pornography. Surely there is a more effective way of working in the internet age with organisations that, whether deliberately or not, might try to remove that data.
I understand that this amendment is trying to tackle the problem, but I am worried that it relies on individuals to instruct their electronic equipment. That might be fine in the case of a highly proficient technical photographer, but not necessarily fine for amateurs creating metadata, particularly on the internet, as well as for some professionals who do not understand the technology too well.
I worry that this amendment creates a further barrier to orphan works, which we will be discussing later. If this amendment is accepted, it will make it almost impossible to collect copyright licence fees for some orphan works because of the conditions it puts upon person A and person B.
I turn to Amendment 28DZD. It is a complete change in tone. I declare an interest as a former stage manager of Footlights. I worked alongside people such as Steve Punt and Hugh Dennis on their very first shows. I worry that paragraph (b), which states that copyright is not infringed if,
“it is accompanied by sufficient acknowledgement”,
would provide a real problem to people working in our fast-moving light entertainment and comedy world. I can absolutely understand the parody of major works: I think of Benjamin Hoff’s The Tao of Pooh, which acknowledges, right at the start, where it is coming from.
But there has been a traditional and proud history in this country of parody and caricature, from “That Was the Week That Was” 60 years ago, moving right up to date with “The Now Show” on Radio 4. Steve Punt and Hugh Dennis did a wonderful sketch a fortnight ago on UKIP and the referendum on Europe using the theme of Gollum in the film of Lord of the Rings. I do not know whether noble Lords heard it, but the theme of the programme was “We wants referendumses”. It was very effective.
The problem is that proposed new subsection (3)(b) in Amendment 28DZA would mean that every sketch like that in a fast-moving half hour show would have to stop to acknowledge that it was taking both a piece from Peter Jackson's original film and the style of the actor. Therefore, frankly, it would be unworkable. I apologise, but I am afraid that the stage manager in me immediately thought, “Oh my goodness: this will kill comedy and light entertainment of the spontaneous type that this country excels in”.
The Earl of Erroll
My Lords, I not sure why these two amendments have been grouped together because they are completely different. However, I will deal with the first one on metadata. I do not know what it has to do with stripping metadata off whatever you might read on the internet. It is saying, as far as I can make out, that if you have an automated system that comes across some metadata, it should respond to that intelligently and either not breach copyright or know that you are permitted to use it. But it does nothing about controlling the metadata or stopping people from stripping it.
In as much as it is saying that you should look at the metadata and therefore respond to it intelligently, yes, that is a nice thought. However, I wonder whether many programmes would be able to do that. I can see that it is probably targeted more towards the search engines and various things like that. I can see some problems with this and think that it will have to go into regulation to work out how to handle it.
We also need to think about the world stage and what is being done in other countries, because a lot of these things that look for items on the internet are based abroad. We want something that is practically useful. We do not want to drive things out of the UK. I am not saying that we should breach copyright and I think that we should use metadata intelligently to try to achieve the aims that we want, but we must be careful how we do it.
I am also keen on the use of data mining for research purposes. For example, you can talk to Wellcome and such people. Huge benefits have come from looking at disparate research material. Very often, new discoveries come from matching things from completely different spheres. That is what we forget when we worry about the protection of copyright for the artist or creative person in that sphere. Actually, researchers have completely different needs. They will not usually go around ripping off other people's ideas.
One of the challenges with this whole area of copyright is that we are trying to treat everything as if it is the same. It is not. Very often, when we benefit one lot we will disadvantage another and we need to be careful not to do that. That slightly worries me.
Leaving that to one side, Amendment 28DZD has a good point behind it, which is that you must have an exception for parody. Leaving the courts to decide what is fair in parody and what is not is very dangerous. As we know, courts are extremely expensive. If you are a small creative group trying to create parody and a big boy comes along and tries to hit you over the head in the courts, you will have to back down. That is bullying. Unfortunately, I do not think that our laws on bullying prevent that. If they did, we might be able to do something about it.
We must be very careful saying that recourse to the courts is workable. Basically, unless you are very rich or very poor, you are outside the law. You are not protected by British law because it is too expensive. That is something I have become aware of in general. We cannot rely on it. I think it is very important, but I entirely agree with the noble Baroness, Lady Brinton. We cannot try to attribute every single little thing that one tries to parody. That would be absolutely ridiculous and unworkable. Without that bit about the attribution, the idea that we are trying to protect parody is extremely important. Therefore, I like this amendment; it just needs a bit of tidying up, I suspect.
Lord Howarth of Newport
My Lords, I support Amendment 28DZB. My noble friend Lord Stevenson of Balmacara has explained to the Committee why the jurisprudence of the European Court of Justice does not require after all that the Government repeal Section 52. I hope that the Government will think again very carefully about what they are doing.
I commend to the attention of the Minister and his officials the submission that other noble Lords will have received from Professor Lionel Bently of the University of Cambridge, which deals authoritatively with this matter. There would be significant and seriously unfortunate implications for teachers, publishers, museums, photographers, artists and filmmakers.
I echo and endorse the points very well made just now by my noble friend Lady Warwick. The impact on the practical ability of teachers of design to teach their discipline properly would be very damaging. If we undermine the teaching of design in this country, we do deep damage to the creative economy and make it less likely that new copyright and intellectual property will be developed for the benefit of our culture and our economy in the decades that lie ahead.
Baroness Brinton
My Lords, I particularly support the comments made just now by the noble Baroness, Lady Warwick, and the noble Lord, Lord Howarth of Newport, on how the proposals would affect teachers in schools, colleges and universities. We have already heard that in order to use any type of digital information, users will need to apply for a licence. In addition to teachers, publishers reproducing photographs of industrially produced articles or museums and archives wanting to display them will also require licences. Along with other noble Lords, I am concerned that this will stifle the development of the creative sector, which is vital to the growth of the economy. There needs to be a balance between what is trying to be achieved and the practical problems that teachers and others would face.
I am also concerned that the government impact assessment focuses solely on commercial designs—as was pointed out by the noble Lord, Lord Stevenson—particularly replica furniture and other household goods. It is essential that non-commercial users are also consulted; they are currently covered by Section 52 of the CDPA, as has been mentioned. Those would include academics, museums, archives, libraries and publishers to make sure that the repeal of this provision does not have a negative, unintended consequence.
On Amendment 28EB, I am grateful for the reference by my noble friend Lord Clement-Jones to props in theatre. Unfortunately, the second paragraph of his amendment would create a practical problem. Before I went to Cambridge, I was a stage manager at the BBC. When you ordered a prop, you ordered it in one of three forms. It was either fully practical, for example a phone that would ring and you could speak to somebody; practical, so that you could pick it up and it would look and sound like the real thing; or non-practical—basically wood painted to look like the required item. All three of those were an identical telephone. Unfortunately, the clause would create a real problem, because the intention was to produce the article, as defined here, with no intention at all to infringe any copyright. I suspect that, with phones being so cheap these days, people do not go to the bother that they used to in the early and mid-70s when I was carrying out these orders, but there are plenty of other things within the creative sector that would be caught by this unintentional consequence.
Lord Clement-Jones
I want to respond very briefly to my noble friend. This amendment is intended for an entirely different purpose. It is not designed to deal with the props issue. The amendment put forward by the noble Lord, Lord Stevenson, was to deal with that, but this is to deal with an entirely different issue to do with follow-on design. Young designers use inspiration from an existing artistic three-dimensional work and want to incorporate that. That is the purpose of this amendment. This is needed in addition to other amendments to the clause. That is why the more you look at Clause 65, the more problematic it becomes.
Viscount Younger of Leckie
My Lords, Amendments 28DZB and 28EB are intended to ensure that artistic works can continue to be used in two particular ways after the repeal of Section 52 of the Copyright, Designs and Patents Act, or CDPA for short: first, that it shall not be an infringement to use an image of an article protected by copyright in a film, photograph or book; and, secondly, that it shall not be an infringement for new designs to use motifs from artistic works protected by copyright. For example, following the repeal of Section 52, a publisher who reproduces a photograph of any artistic work in a book may need to obtain permission to do so. Similarly, the scope for follow-on design may be restricted. The amendments are intended to make special provision for those circumstances.
The repeal of Section 52 means that all artistic works, irrespective of how and by whom they are used, will be treated equally under the law. The amendments seem to be intended to create special cases for particular uses of works. It is not clear that there is a compelling reason for some artistic works to be treated differently in that way. For example, why should it be necessary for a filmmaker to obtain permission to reproduce a painting by Francis Bacon, but not for another artistic work, such as a designer lamp?
Amendment 28DZC would create an exception that would cover the situations outlined above, but it goes further. It would in some circumstances allow the production of replicas and not just images of articles protected by copyright. As drafted, this would not be compliant with existing law.
There is another aspect to consider. In December, the Government announced changes that will be made to copyright exceptions. These will include, for example, an amended quotation exception, which will permit the use of photographs of artistic works in situations that the courts determine to be fair, and new exceptions for education. Those could cover some uses envisaged under the amendment. I reassure the Committee that the issue can be returned to when we have some experience of how the new arrangements work.
I shall pick up a number of points raised by noble Lords. First, I did indeed spot the article in the press this morning concerning the family business of a well known member of this Government. I think that the question of the noble Lord, Lord Stevenson, was: is it true to say that the wallpaper produced by the Chancellor’s family-owned interior design business will qualify for copyright protection? The repeal of Section 52 could benefit anyone who owns the copyright in a wallpaper, but not all wallpaper will qualify for copyright protection. That will depend on, for example, whether the wallpaper meets the requisite standards to qualify for copyright protection and is, for example, sufficiently artistic and original. Ultimately, that will be a matter for the courts to decide. The Government and the Design Council consider that the repeal of Section 52 will benefit young designers, as it should lead to UK designers developing new designs in markets that become less dominated by copies of artistic works. I hope that noble Lords find that particular example helpful.
It is important to address the point raised by the noble Lord, Lord Stevenson, concerning consultation. Indeed, it was an issue addressed by the noble Baroness, Lady Warwick. It concerns what consultation there will be before the repeal of Section 52. The UK is one of the few member states that has such an exemption. Further consideration will be given when the Government consult on how and when to bring that into force. Further to that, I reassure the noble Lord, Lord Stevenson, that the Government have discussed the repeal of Section 52 with interested bodies, including representatives of sellers of replicas of classic design furniture, such as Scott Howard Office Furniture. We have also had discussions with the Publishers Association, the chairman of the IP Bar Association and Professor Lionel Bently.
The Government will consult formally on how and when the repeal should take effect. We want to hear from affected firms to ensure that the right transitional arrangements are in place to allow them to adjust—for example, by modifying their supply agreements where necessary. The Government believe that it will be business as usual for many British firms who manufacture or sell affected replicas.
The noble Lord, Lord Stevenson, highlighted the question of how Clause 65 is supported by designers. Designers argue that the law undermines the integrity of the design industry and may make British companies less willing to support long-term investment in areas such as furniture design than their European competitors. I quote Sir Terence Conran:
“By protecting new designs more generously, we are encouraging more investment of time and talent in British design. That will lead to more manufacturing in Britain, and that in turn will lead to more jobs—which we desperately need right now”.
Tom Dixon, a British designer, has said:
“Current copyright laws leave designers woefully under protected compared to similar creative professions. This initiative is a small step toward establishing much needed protection of valuable intellectual property”.
The Government have considered these issues very carefully. I hope that in the light of the above, the noble Lord, Lord Stevenson, will withdraw his amendment.
Baroness Brinton
My noble friend said that museums had found that managed risk had sufficed so far. Does he recognise that the directive is narrower in scope than the Bill and covers only certain works for certain uses by certain organisations? In addition, it does not permit the use of orphan works for commercial purposes, which is within the scope of the Bill, and therefore changes the scope of what is under discussion.
Baroness Blackstone
My Lords, I should declare an interest as chairman of the board of the British Library. The library supports this clause, and I hope that other speakers will do so as well. Unpublished works account for a very large proportion of orphan works and include very old material that remains under copyright. The British Library has examples, going back not to the fourth century, as the noble Lord said, but certainly to the seventh century, which are still subject to copyright restrictions. Much unpublished material is of enormous importance from the point of view of scholarship and some of it is of unique quality. It comprises a large part of the important digitisation project that the British Library has undertaken and wishes to continue. It is important that this clause is retained because it will produce a position where more work of this sort can be digitised and made available to a wider range of people than is currently the case.
Lord Greenway
My Lords, I have every sympathy with the aims of the British Library, the Wellcome Foundation and others. However, I should like to bring the debate back to the photography angle. I am a photographer and there was a time when I used to make my living as a photographer, although I no longer have the time to do that. However, I have a considerable archive of my own photographs and photographs that I have acquired over very many years. In effect, I have what could be termed a small photo library.
I am concerned about this measure because copyright is, and always has been, a minefield. To my mind, what we are doing here risks making it even more of a minefield. What will be the position for the large number of photo libraries which, after all, make their living from selling reproduction rights for photographs? They are worried that they will be badly affected by this Bill. They do not think that there has been enough consultation. There is a risk that, if the Bill goes through as it stands, some of them could go out of business.
I find this business of orphan works difficult to comprehend. I have lots of photographs that could well be orphan works. I have no idea who took them. Some of them are 100 years old and were taken in other parts of the world. Do I have to license all those photographs and pay money into an account that may well build up into a huge sum of money and will be sitting there, most of the time unused, when such money could be used, especially by photo agencies, to increase their business in other ways? I find the whole thing exceedingly confusing. I would welcome the Minister pouring some light on that.
Baroness Brinton
My Lords, I should like to add my voice to the “Me toos” of the noble Lord, Lord Howarth, and the noble Baronesses, Lady Blackstone and Lady Warwick. I do not support these amendments and I support the retention of Clause 68. I will not repeat the very helpful points that were made earlier. Some other points that have been made by the National Museum Directors’ Council show the real problems with making the amendments work. This is not just an issue of not being able to identify or trace the rights holders; any activity requiring permission from the rights holders cannot happen because that in itself infringes copyright. This severely impacts on what an institution can do with the work. For example, a museum may display an orphan work but it cannot digitise that work for display in its catalogue, put it online, advertise it in any other way or have it as part of a picture on a postcard, as was talked about earlier. That makes a much bigger problem. The practical problem is that the work will be put into store. There are 4 million orphan photographs and documents in the Imperial War Museum stores at the moment, and 11 million orphan works occupying 180 kilometres of shelf space—the distance between here and Bath. At the Natural History Museum, there are approximately 125,000 art works and 200,000 notebooks, which they suspect are orphan works, as well as 1.3 kilometres of manuscripts—that is, here to Buckingham Palace.
There is a real problem here, particularly in these times of austerity. Earlier, we discussed the borderline between what is commercial and what is not commercial, certainly for universities, where I have worked for more than two decades, as have the noble Baronesses, Lady Blackstone and Lady Warwick. In these times of austerity, universities and other public organisations are being encouraged to be as commercial as possible and to find other sources of income in order to help to minimise the reliance on public funds. That is also true for the museums, libraries and archives world. The problem with these amendments is that they would make it so complicated that the orphan works would just sit in those stores for ever. Even if we do not know who owns the work, that does not mean that it is culturally insignificant. I believe that the public would be horrified if they thought that such a large number of works were inaccessible and banned for ever because tracing the rights holder, their heirs and successors was impossible.
The orphan works solution is a helpful one that will allow UK museums, libraries, archives and universities to produce much better exhibitions and displays for wider public knowledge and education. I think it will also facilitate the more effective use of public funding and reduce the almost impossible task of tracing the rights holders of some of these works. I pick up the point made by the noble Lord, Lord Greenway, just now about what happens to accumulated funds, but frankly that is something that the Government need to address. It is right that there should be protection for rights holders, and I think that the organisations that we have mentioned this evening are more than happy to pay a licence fee that reflects the commercial nature of an item where it is clearly very commercial, but I remain concerned that where there is no commercial rate, even a very small fee for an item in a museum might make the museum decide not to display it.
Finally, I pick up on the point made by the noble Lord, Lord Clement-Jones, on the EU directive. It is only a partial solution to the orphan works problem. It does not allow, for example, the models of public/private partnership that would fund the digitising of large archives; nor does it allow for any revenue-raising activities using orphan works. The revenue raised is limited to the cost and preservation of the item, or to making it available to the public. The EU directive on its own does not recognise the reality of public-private boundaries in our top universities, museums, libraries and archives today.
Lord Lucas
My Lords, I am not going to give any comfort to my noble friend Lord Clement-Jones on this, I am afraid. There is an awful lot to be gained from the orphan works clauses in opening up our cultural heritage and allowing us to share it. We absolutely need that to be a commercial enterprise as well as a public enterprise. For those who are active and fear that their works, particularly photographs, are going to become part of someone’s orphan collection, I say that there are things out there on the internet. There is TinEye for photographs, Shazam for music and Turnitin for text. All you have to do—and presumably the Government will do this when they come to say what diligent research is—is to make sure that you have registered your photographs with TinEye and then they can be found. I can recommend Shazam to anyone who does not have it as an app on their smartphone. It listens to the music and will tell you who is playing what. The tools are there. We do not have to wait for the copyright hub, although that will be useful when it comes. It merely uses these tools as ways of identifying the music or the photographs. We have the means, as long as people declare themselves to be a copyright owner, to make sure that they are found.
Baroness Warwick of Undercliffe
My Lords, I also comment on the question of diligent search. I agree that we need clarification about what will constitute diligent search, but I would worry if we set the bar too high, and these amendments ask us to set a very high bar indeed. Many noble Lords appreciate the time and effort involved in tracing the authors of some categories of work. It is essential that this is proportionate to the type of material involved and the likelihood of finding the owner.
As my noble friend Lord Howarth has said, if we do not establish a proportionate system, the requirement will act as a disincentive to use this legal route for using orphan works. Users will either risk infringement by using works without a licence, as some currently do now, or decide not to use the work at all. We have talked a lot about balance this evening. Clearly, we need the right balance in this case. That is the way the working group is already moving and that is the right approach.
Baroness Brinton
My Lords, in the interests of time, I really will just say “me too”. I very much support the comments made by the noble Lord, Lord Howarth and the noble Baroness, Lady Warwick.
Lord Clement-Jones
My Lords, I realise that I failed to speak to Amendment 30, so if I may I will just finish this group.
An orphan works license must provide remuneration for relevant rights holders, specifically the holding of money in escrow to remunerate rights holders who come forward within a certain time period. New Section 116C(4) of the Bill states:
“The regulations must provide for the treatment of any royalties or other sums paid in respect of a licence”.
That is welcome, but could be much clearer using the more broadly recognised term of “remuneration”. While royalties are common in the music industry, in the publishing industry royalties are used to describe payment made solely to authors. The word “remuneration” is also preferable for the avoidance of doubt as distinct from compensation, which would suggest a need for rights holders to prove harm before being able to receive their monies.