Enterprise and Regulatory Reform Bill

Lord Lucas Excerpts

Monday 28th January 2013 Grand Committee

[Lord Howarth of Newport]

My Lords, I enter a note of caution. I feel as strongly as everyone else about the importance of intellectual property—that we should generate and protect it. That is a key dynamic of our economy and our creative economy in particular. However, I have some reservations about the proposition, as framed by the Alliance for Intellectual Property and as developed and powerfully articulated by the noble Lords, Lord Jenkin and Lord Clement-Jones, and the noble Baroness, Lady Buscombe. It seems to me that the specific remit of the proposed director-general of intellectual property rights as set forth in the amendment is insufficient and unbalanced. I am not opposed to anything contained within the proposed new clause, but if the Government are to create a functionary whose job it is to promote rights, it is important that the remit of that person and office should be balanced.

Everything that is proposed in the amendment for the director-general to do is directed towards advancing the interests of the creators and owners of intellectual property rights. That is fine in itself but there are also, very importantly, the interests of consumers and users. Ultimately, all of us believe that there is not a reason. If we have an appropriate regime for the promotion and protection of intellectual property rights, the whole of society will benefit, and I do not dissent from that. But in the near term or even the medium term, there are, as we know, tensions.

In the debate that the noble Lord, Lord Lucas, introduced for us as we reached Part 6 of the Bill he rightly stressed the responsibility that we all have as legislators to ensure that the new legislative regime is balanced and that the legitimate interests of all concerned are recognised. If we were to have a director-general of intellectual property, it should also be part of his duty to promote the broader public interest—something that we shall return to repeatedly in our debates on aspects of the clauses in Part 6 of the Bill.

On the other hand, if the remit of this office is as so far proposed by noble Lords, I do not see why the creators and owners of intellectual property should not themselves establish, fund and provide other support for their own champion. That would be entirely appropriate. But the role of government is all the time to seek to balance legitimate interests when they are in any degree of competition or tension. I am not against having a director-general, but further thought is needed. Perhaps a more generous and inclusive definition of the responsibilities of the director-general would be more appropriate.

The other new clause, proposed in Amendment 28D tabled by the noble Lord, Lord Clement-Jones, suggests that there should be an annual report on copyright licensing. That is an entirely good idea and I am happy to support it.

[Lord Lucas]

My Lords, I join the noble Lord, Lord Howarth, in everything that he said. It is important that the Government hold the ring on this. I take my views on copyright from Macaulay—it is a bargain between the producer and consumer. It is a bargain that needs to be kept balanced. A lot of good will flow from that balance. I would not have a director-general of copyright who looked after only the producers any more than I would have bank regulation that favoured only the banks. It is a matter of balance.

If we want to look at what goes wrong when the producers are in charge, we can look back at the history of the music industry and the way that it reacted to Napster. It made a mess of that. Rather than seizing on a new opportunity, it wanted to entrench its rights against the consumer. The industry was rolled over and a jolly good thing too.

Martin Mills is a hero of mine and I am delighted that he is defending copyright so strongly. I am sure that he is right in what he said, but it does not come down to a case of a lack of balance. We as a Government should feel able to enforce copyright strongly because the copyright owners are giving our people what they want—not trying to withhold stuff from them, fail to give them what they want or hold them to ransom, as was the case in that phase of the music industry.

I am entirely in favour of the amendment of the noble Lord, Lord Clement-Jones. What is being done on the copyright hub is of immense importance. I am a copyright producer and user. In both aspects I would be a keen user of the hub. It is a great chance for Britain to be at the start of this and to put ourselves at the centre. If there is anything that we as legislators can do on this to keep the Government’s foot on the gas pedal and pressed firmly pressed to the floor, we should take that opportunity.

[Baroness Morris of Yardley]

I support Amendments 28C and 28D, and draw the Committee's attention to my entry in the Register of Lords’ Interests as a director of the Performing Rights Society.

I listened carefully to the two preceding speakers. It is difficult to argue against a balance. Who would be against a balance in favour of a bias? But to some extent the amendments that have been presented seek to correct an imbalance that already exists. That is the problem. We are not starting from a level playing field and building in an imbalance: there is a feeling that intellectual property is not protected. The amendments seek to correct an imbalance that the two previous speakers mentioned.

A lot has been said about the importance of this industry and I shall not go over that again, but I have two points. This is probably a pivotal time in that this industry is growing, it is new and it is fast moving. We saw what happened when the sector itself failed to respond to new technology in the appropriate way 10, 15 or 20 years ago, and I think that we have been picking up the pieces ever since. However, things have moved on since then. It is right that, as a society, the Government and the industry now look at what is happening and ask, “What do we need to do to make sure that we can guarantee the future of this industry, giving people new ways of accessing music design and all those things, but protect the copyright holders as well”. Getting that right is what this legislation is about. Given how fast things are moving, if we get it wrong now, we will find it very difficult to go back and get it right again in the future. This is a really important point. In relation to this amendment, perhaps I may say to the Minister that I do not think we can see how it goes and come back in 12 or 18 months’ time to reflect and then take things forward. Now is the time to act.

--- Later in debate ---

[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.