Intellectual Property (Unjustified Threats) Bill [HL]

Lord Lucas Excerpts

Wednesday 15th June 2016 Grand Committee

[Lord Lucas (Con)]

My Lords, I am not going to differ from anyone who has spoken before in welcoming this Bill. It seeks to deal with an acknowledged mischief of unjustified threats and, to my mind, follows related improvements that we made to the law of defamation a couple of years ago. I hope—as I think the noble Baroness, Lady Bowles, does—that this is a direction in which the Government will continue. There are clearly other opportunities for improving our national life in this direction. It is therefore a puzzle to me that the Government appear to be going in the opposite direction on copyright.

The repeal of Section 52 of the Copyright, Designs and Patents Act 1988 opens up any and every photographer and reproducer of photographs of interior or exterior views to threats of legal action from the copyright holders of any designed object depicted in those photographs. All the defences that exist now are to be swept away. There was no need for the Government to do this. There is nothing in the underlying EU legislation or court judgments that requires this. It appears to have been done for ease and tidiness. However, we will find ourselves in a position where if you publish a photograph of a London street scene, you will be actionably infringing the rights of the manufacturers of cars, clothes, traffic lights, lamp-posts—anything designed that can be identified in them, except for sculptures, which alone are exempted under Section 62. The threat applies to historic images, too, so any reproduction of any image taken some while ago is actionable in the same way. Because we do not have in this country an artistic merit restriction on copyright, the ability to take action does not apply just to the designers of an object but to anyone making a design drawing preliminary to the object. Do the Government really believe that in a world flowing with lawyers and collection societies no one will buy up the rights of some former designer of everyday objects, say Douglas Scott who designed the Routemaster bus, and start suing anyone who depicts them? The world is sadly full of people who like to play a junior version of the game that this Bill addresses.

A few years ago, I had a small role in the demise of ACS Solicitors, which were thankfully sacked by the Law Society after some long delays. They were shaking down internet users for allegedly infringing copyright on pornography and other low-grade media. Their evidence was extremely suspect but was never tested in court. ACS made its money from the threats and never took anyone to court, although it used the courts to target its victims via Norwich Pharmacal orders. Now some careless person has dropped blood on to the ashes of ACS and the same scam is alive again with the same thin evidence. The relevant body has an IP address. It has not revealed how it got it. But, given that IP address, it is going through the same old pharmacal procedure, but this time, to avoid the vulnerability that ACS experienced, the solicitor involved—Wagner & Co—withdraws after obtaining the Norwich Pharmacal order, so it is not involved in the threat processes, which are undertaken by shell companies. There does not seem to be any redress for people threatened or for ISPs which are asked to comply with Norwich Pharmacal orders.

If anybody comes across the names of Hatton and Berkeley, Ranger Bay, Golden Eye International, Mircom International, TCYK—all of them well known in the correspondence about what is going on—I urge them to put this thing in the bin. The current scammers are not pursuing anyone: they are just after threats and extortion and shaking people down. If you really feel you need to talk to a solicitor, there is a firm called Lawdit which has hundreds of these cases on its books and is consolidating them.

I applaud the Government for helping our businesses avoid unjustified threats but I would like to know what they intend to do to help the granny in the Clapham nursing home who is being threatened by their smaller, nastier cousins with allegations that she has been downloading pornography illegally. Surely it is not acceptable to the Government that that should continue. These villains are laughing at and abusing the system, just as ACS did until it was closed down, just as the people that the Bill addresses are doing. Could we not, for instance, allow citizens and those acting for them to send a sue or desist letter and then make any further threats short of action liable to penalty, as is done in the Bill? Would that not be a good right for citizens who are being threatened in any circumstances? Also, what do the Government intend to do to mitigate the mischiefs that they are unleashing by the abolition of Section 52? Could they not, for instance, extend the protection given to sculpture in Section 62 to all objects incidental to a 2D or virtual production? That would be very similar to the protection which exists at present.

The Bill shows an admirable intention to protect businesses and citizens from the parasites who live by making unjustified threats against them and from those who seek to use very important and well-meaning legislation, intended to protect those who create in this economy, to unjustified advantage. I hope that the Government will look at their own actions and at what is happening at a lower level and consider going further than they have in the Bill.