Copyright (Public Administration) Regulations 2014
Debate between Lord Berkeley of Knighton and Earl of Erroll
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.