Copyright

Lord Stevenson of Balmacara Excerpts

Thursday 5th December 2013 Grand Committee

[Lord Stevenson of Balmacara (Lab)]

My Lords, I thank the noble Baroness, Lady Buscombe, for securing this debate and congratulate her on her very lucid introduction to the issues. I do not think this debate was quite what the Minister meant when he offered us a chance to have what I think he called in essence a Second Reading debate around the batch of exceptions that are being brought forward. None the less, it is welcome and I thank all noble Lords for their contributions.

As happens when you talk about intellectual property, we have also had a veritable raft of submissions from those outside. As I am sure the Minister is aware, this area is extremely well watched out there. Those of us who dare to put our heads above the parapet to speak about it tend to get a deluge of papers and material which make for interesting, but rather long, reading. However, that shows that this is a really important issue.

What problem are the Government trying to solve? As the noble Baroness, Lady O’Neill, has just said, the issue here is trying to find the right balance—that is, the link— between a premium for innovation and an assurance that there will be access to material, or, as my noble friend Lady Warwick said, between allowing material to be used while not losing the incentive to create. This is compounded by what many people call a rather too prescriptive European and international legislative framework, where the only margin of appreciation to reflect local interests or local markets is to take action through exceptions. This is why Professor Hargreaves called for a broader and deeper review of this whole area in his report. Sadly, that has not yet happened, and I think that we will have to return to it.

Underlying some of the concern out there in the real world is the worry about exactly what timetable and process we have to go through. I would be grateful if the Minister will say when the Government intend to lay the SIs, whether the exceptions will be bundled when they are laid before Parliament and, if not, whether they will be laid all at once or in stages. Do the Government still expect all of them to come into force on one date? Is that date April 2014? Will further impact assessments—several noble Lords have mentioned this—be prepared and be ready for the House to consider when the SIs are laid?

I take from this debate that, while some of the exceptions that have been proposed—some noble Lords have mentioned them—are good and supported and will not cause difficulty when they are implemented, some are so hampered by the quality of the current drafting or because of their inability to deal with some of the technological issues that have been raised that more work will still need to be done to get them right. In particular, I think that the text and data-mining exception, mentioned by several noble Lords and particularly by the noble Baroness, Lady Buscombe, needs to be re-examined carefully. The parody and pastiche exception seems to many people to be underdeveloped, and it needs further work. I do not think that people are against the idea of there being such an exception, particularly given the specifics of British humour, but it is important that, if it is there, it is defined properly.

We had several contributions on the education exception. It is clear that there is a need for change here in order that the exception, or indeed the practice, in the world of education is made internet-ready. Of course, if we are still in the age of blackboards then we need to move on that and make sure that we deal with all the points, including those about reprographics.

On private copying and remuneration, the noble Lord, Lord Berkeley of Knighton, made a very powerful plea for further consideration of whether the remuneration cycle has been lost in the process of bringing forward the exception. The noble Lord, Lord Stoneham, mentioned quotations and the concerns in that regard in regional and other presses. Again, I think that that should be looked at.

Other than that, we think that these things are broadly in the right place, except that there are some cross-cutting issues, including the very important point about the contract override. I think that what the Government are intending to do there is clear but the current drafting does not provide the necessary assurance.

What will kill this process is a combination of failure to listen carefully to what people who work in the industry are saying and imprecise drafting. The noble Baroness, Lady Buscombe, said that it should be “tight and right”, and I agree with her. There will be an awful lot of problems if we do not get this right and, of course, the downside of even getting it right may well be that there are unintended consequences that need to be brought through.

Another thought to bear in mind is that, in focusing hard on the wording that we currently have and thinking through where it might end up, we also have to think hard about where the public are on this issue. There is an element of a need for common sense on this point. The submission received from Which? a few days ago was very good on this. It tried to outline where the public are in their perception of what copyright does and does not permit in relation to private copying. The problem which it did not specifically raise, but which I think still exists, is that, if the Government are unable to provide the right framework for the legislation, there is a real danger that people will simply ignore it, and nobody will win on that basis.

It seems to me that what the Minister has to do now is to offer a further round of discussions on the current drafts. That should be possible and there is time for such discussions. That would give us a chance to make sure that the wording that is causing such concern at the moment is looked at once more. Given that the Secretary of State apparently held a meeting on these issues as recently as this week, it seems that the door is still open, and I hope that the Minister will confirm that that is the case.

[The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)]

My Lords, I am most grateful to my noble friend Lady Buscombe for initiating this debate. Of course, I have had the pleasure of debating copyright issues with her on a number of occasions, most recently on the Enterprise and Regulatory Reform Bill. Although we have not always been able to agree on some points, I have always found her interventions to be thoughtful and considered, and today was no different.

The Government have done much to ensure that interested parties have their say. Copyright is important for the creative industries and for the country—a point made by many noble Lords, particularly my noble friend Lord Stoneham. Copyright exceptions are no different, so the Government are taking proper account of rights holders’ concerns.

The Hargreaves process has been about listening, and listening carefully. Professor Hargreaves himself sought and received a wide range of views that informed his proposals. The Government then consulted fully on their own proposals, and these built on the work of Professor Hargreaves.

The Government considered the responses carefully and made changes before setting out their policy. The digital copyright exchange concept, for example, was further refined. The policy on exceptions was set out in December 2012. The Government then consulted interested parties on the draft regulations through its technical review and have continued to listen. However, the process has to conclude at some point. The Government cannot consult endlessly, but I continue to listen today.

My noble friend Lady Buscombe commented on the number of meetings that the Government have held with stakeholders over the past 18 months. Over the course of the year, I have had detailed discussions with creative industry representative bodies, creators, broadcasters, research institutions and others on this important topic. I have also been keen for Parliament to debate these issues, and I am glad that we have heard a number of viewpoints today.

A number of questions were put to me during the debate and I will, as ever, try to respond to all the issues raised. To begin, I would like to make a few general points. The Government know that in this area views are divided and that not everyone will be pleased all the time. The focus must continue to be on what we believe is good for industry, consumers and growth. The copyright system supports growth by offering incentives to creators and investors. This serves the public interest by stimulating the creation of new copyright works. At the same time, the system needs to serve the reasonable needs of the whole range of businesses and individuals affected by it. Everyone has an interest here, and the Government have done their best to hear everyone’s views.

The creative industries are a vital part of the UK economy and its culture. We have heard today about some of their concerns. The exceptions we will ask Parliament to approve are designed not to undermine business-to-business licensing. They will not harm the ability of content-owners to provide additional services to consumers in new and exciting ways. For example, the licensing of services such as UltraViolet and Tune Match will be unaffected.

What we have heard suggests that the copyright system has simply not kept pace with the digital revolution. My noble friend Lady Buscombe mentioned this. Copying is at the heart of many new technologies being used by consumers, teachers, academics, curators and researchers. As a result, a great many innocent, reasonable activities are illegal or questionably legal, simply because they involve some element of copying. The law needs to change. For example, a teacher should be able to put a quote on an interactive whiteboard in order to illustrate a point to the class; a museum should be able to make a copy of a film in order to preserve it for posterity; and somebody who has bought a CD should be able to copy it to their MP3 player in order to listen to their music in the gym. Changes are needed if users and creative industries alike are to make the most of technology. The Government have proposed relatively small but important changes that will apply to all technologies, including technology yet to be invented. We do not want out-of-date laws to restrict people’s use of new technologies and services.

We have also listened to concerns about complex copyright law. The proposed changes will remove up to 45 pages of unnecessary rules and regulations from the statute book while maintaining the essential protections that creative industries need and want. These changes should make copyright works more valuable to all by giving users clarity about their rights and building respect for copyright in the process. Creators stand to gain from these changes, particularly where they are innovating. Users will have new de minimis rights, but if they want to do more than those rights allow, they will need a licence.

We believe these are modest changes that together would contribute more than £500 million to the UK economy over 10 years. Additional benefits of around £290 million are predicted, along with positive effects on innovation, competition, education, research and, of course, respect for copyright law.

Let me now move to address the main points made and questions raised during the debate. I shall start by answering a question asked by my noble friend Lady Buscombe and the noble Lord, Lord Stevenson, on the timetable and the next steps. Following the technical review, the next iteration of the regulations is with parliamentary counsel, which is where we are now. They will then be subject to approval by me and the Secretary of State Vince Cable. The Government’s aim is to lay regulations in time for the common commencement date in April 2014. This means that it is likely that regulations will be laid before Parliament in February 2014. The noble Baroness, Lady Warwick, asked when the exception for text and data mining will be in place. On that question of timing, as with the rest of the package, the Government intend to put this exception in place in 2014.

I turn now to the issue of contract override.

[Lord Stevenson of Balmacara]

Can the Minister confirm whether he has yet decided how many individual exceptions will be introduced and if they are to be bundled in more than one group or separately?

[Viscount Younger of Leckie]

The noble Lord makes a good point about bundling. We are not in a position yet to be able to give an indication on that. I have indicated on several occasions how I would like to have as many of the SIs as possible unbundled, to allow further debate; but I am not in a position to give a full answer.

On the question of contract override, the Government want to see these benefits delivered in full. This is why they believe that, where a copyright exception has been established, restrictions should not be reimposed by contracts. My noble friend Lady Buscombe raised this subject, asking why the contract override provisions had not been subject to their own separate consultation and discussion. The contract override provisions were initially proposed in the Hargreaves review, and were subsequently consulted on explicitly by the Government’s copyright consultation which ran, as I mentioned earlier, between December 2011 and March 2012. Following that process, the contract override provisions were also discussed at each of the open meetings held during the technical review period. Given the attention and consideration that has been given to these provisions—in multiple sessions and consultations—the Government believe that this element of policy has been properly and thoroughly discussed.

My noble friend Lord Clement-Jones asked why the existing wording in Section 50 of the CDPA was not used. The existing wording in Section 50A, which must be read together with Section 296A, allows the making of backup copies of computer programmes. This provision declares void any contract terms that seek to prevent this activity. Our approach to this issue in the present context is slightly different. It does not void contract terms, but instead renders the terms unenforceable and only does so to the extent that they restrict a permitted act. Taking the approach from Section 50A of rendering the term void would be a disproportionate measure in many cases, and we believe is unnecessary here.

My noble friend Lord Clement-Jones also asked whether I was confident that the proposed contract override provisions were fully consistent with the Government’s obligations under the information society directive. The answer to that is in the affirmative; the directive is clear that the ability of member states to implement domestic provisions affecting contract law is unrestricted. My noble friend Lord Clement-Jones also asked in the same context why such a fundamental change to the application of UK contract law was being made by secondary legislation. This is not a new concept in British copyright law: contract override clauses exist already in relation to a number of exceptions and we believe that this is a sensible and proportionate approach that has no broader impact beyond allowing the use of these copyright exceptions by their intended audience.

I now turn to the important subject of impact assessments. The Government have worked hard to ensure that the proposed changes were based on evidence. The impact assessments were based on the best evidence available and were reviewed and validated by the independent Regulatory Policy Committee. My noble friend Lord Clement-Jones asked whether I stood by the proposed benefits of the exceptions, and the headline figure in Hargreaves included patents and the digital copyright exchange, which has been misunderstood in some criticisms.

On the numbers relating to exceptions, the Government have refined them to take into account further evidence, which is explained in the impact assessments. We stand by the estimates that are in the impact assessments, and these assessments have been validated, as I say, by an independent body.

I move on quickly to the important subject of private copying, which was raised by a number of noble Lords, including the noble Lord, Lord Berkeley. The noble Lord asked for clarification about the exception for private copying for personal use. This measure will give consumers greater freedom to enjoy creative content that they have bought, by allowing them to make copies for their own use. We believe it is a commonsense change which is widely supported by consumers and aims to build public confidence in the copyright system.

The noble Lord, Lord Berkeley, and my noble friend Lord Stoneham suggested that the private copying exception should not extend to cloud storage, and that that would be “a step too far”, I think was the expression used. We say that this is intended to be a technology-neutral measure and that it should be fit for the future. Consumers make little distinction between local and remote storage, and it makes little sense to do so in this legislation.

Briefly, in my final minutes, the important matter of text and data mining was raised, not least by my noble friend Lady Buscombe, who asked in this context about the meaning of the term “lawful access”. It is access that is legitimate based on a proper application of the UK’s legal framework law and, where applicable, relevant contract terms.

I fear that there are many other questions I have not had time to answer, and I pledge to write to noble Lords on their questions, and particularly on this important subject. To conclude, I reiterate that the UK Government—as noble Lords will already know—is committed to maintaining the incentives that copyright offers to all types of creator. These changes will achieve that, while also allowing consumers, researchers and many others to make reasonable use of the copyright works they have paid for.