Corporate Insolvency and Governance Bill

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Tuesday 16th June 2020 Lords Chamber

[Lord Howarth of Newport [V]]

My Lords, I will follow the noble and learned Lord, Lord Wallace of Tankerness, and make my comments in reference to Amendment 129 in the name of the noble Lord, Lord Hodgson of Astley Abbotts. I begin by commending him on the very strong statement of principle he made in the debate on the first group about the constitutional impropriety of too many aspects of this Bill.

His amendment dealing with the “relevant period” provides us the opportunity to touch on the constitutional principle of retrospectivity. The Bill’s provisions are backdated, altering the law on winding-up petitions as it stood after 1 March in some aspects and after 27 April in others. I do not in any way dissent from the intention of the noble Lord, Lord Hodgson, to bring in a further measure to protect vulnerable businesses. None the less, we ought to recognise that it is generally held that retrospective legislation undermines the rule of law.

In this Bill, a legal right that people relied on is ex post facto wiped out, to the detriment of persons who relied on it. Provisions in Schedule 10 operate retrospectively to invalidate winding-up petitions made by creditors, albeit creditors exercising a statutory right. They could even be deprived of the benefit of a favourable court judgment previously made, as the noble and learned Lord just said. It allows the court to undo the effect of winding-up petitions and even to require petitioners to be liable for costs. This is a remarkable provision and appears to be incompatible with the rule of law.

Retrospective legislation should be very rare indeed. It is constitutionally objectionable in principle, so, like the noble and learned Lord, Lord Wallace, I ask: how does the Minister justify it? If he considers it necessary to deal with abuses by creditors, how widespread are these abuses? How many instances have been reported? Why is a change in the law needed to deal with them, and why a retrospective change in the law?

[Lord Stevenson of Balmacara [V]]

My Lords, I have nothing to add; the arguments make themselves. I look forward to hearing from the Minister.

Cultural Property (Armed Conflicts) Bill [HL]

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Tuesday 28th June 2016 Lords Chamber

[Baroness Neville-Rolfe]

As the noble Lord knows, I am always happy to have cups of tea with him and they are usually extremely wide-ranging.

[Lord Howarth of Newport]

I am a little worried that we are turning into the Tea Party movement here.

[Lord Stevenson of Balmacara]

We live in cultural times. I beg leave to withdraw the amendment.

Intellectual Property Bill [HL]

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Tuesday 23rd July 2013 Lords Chamber

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Clement-Jones, takes us back quite nostalgically to the days of the passage of the Enterprise and Regulatory Reform Bill. He is absolutely right to remind us of the importance of the metadata issue. It would be welcome if the annual report were to include a section describing such progress as may be being made on that important issue.

I will speak to Amendment 14, in my name. I very much welcome the commitment that the Minister has made in the Bill to the publication of an annual report. Policy on intellectual property is arcane and is vigorously contested among specialists and between special interests. It is very important—its effects are far-reaching—yet it is not well understood, either by Parliament or the public. I therefore hope that the annual report will be more ambitious than is suggested by the terms of the clause in the Bill. I want it to range rather more widely to help Parliament and the public better understand the major policy issues and the principles which animate the Government in taking their specific decisions and formulating their broader policy.

I take it that the role of government is to judge the balance of the public interest in relation to intellectual property between affording protection to creative individuals and enterprises, and opening new possibilities as early as possible to the wider public, consumers and other originators of ideas and knowledge, such as academics, designers and other creative people.

Of course we need to protect intellectual property in certain circumstances. It is essential to incentivise innovation. Often there is a strong public interest in that—but not invariably. It should not be axiomatic that we grant more and more intellectual property rights. Applications should be judged on their merits. The Intellectual Property Office and the Government should not be negative but should be sceptical about applications, and should all the time be ready to question the consensus. While it is desirable to achieve an alignment of international regimes, for example through agreements at European Union level, it is important not to rest on the achievement of those agreements. As the noble Viscount reminded us, consistency is not necessarily a virtue.

Intellectual property is a form of monopoly. It leads to some rigging of the market and restraint of trade—and rigged markets and restraint of trade carry with them inefficiencies and opportunity costs. Others are restrained from accessing or exploiting new knowledge as early as they might do. Price competition is postponed. The holders of intellectual property, being protected, may become complacent and less innovative. That would be an ironic outcome of a policy intended to promote innovation. The incumbent may try to use monopoly power to crush rivals and new challengers who dare to enter the field.

Historically there have been vast benefits when decisions have been taken not to patent new discoveries. Jonas Salk declined to patent his invention of the vaccine for polio—to vast human benefit. Sir Tim Berners-Lee thought it was wrong to patent the world wide web. While it will be many decades before we can begin to assess the benefits or otherwise of that decision, it certainly created large new freedoms.

In Committee, my noble friend Lord Stevenson and I used the historical metaphor of the enclosures movement. We agreed that we preferred intellectual commons to intellectual enclosures. As the House will know by now, my view is that intellectual property is a necessary evil and that we should keep it to a minimum—just enough but no more than is needed to incentivise. Yet the tendency of policy has been to lengthen protection, and Governments have been prone to brag about the number of patents that are held in the UK, as if it was a measure of success. It is a measure of inventiveness, but it is also an index of economic rigidities. The Government should not simply equate maximising the profits of intellectual property holders with the public good. The question must be asked: cui bono?

It is commonly preferable to enlarge opportunities for small and medium-sized enterprises rather than to buttress the monopoly strength of giant multinational corporations. If we want to generate more jobs, spread wealth, tackle the negative externalities of certain business practices and raise more taxes, it may be preferable to support SMEs as against corporate giants.

The methodology needed to establish the necessary minimum has to be pragmatic and based on an assessment of the benefits and disbenefits of protection in relation to the economy, social well-being, research and culture. There are different effects of intellectual property depending on different timescales, industrial sectors, amounts of market share and geographical scales, just as there are different effects between luxuries and necessities.

The Government’s vision should not just be of what is in the narrow interest of the United Kingdom. They should not take the view “my country right or wrong” in relation to intellectual property. We should not always reflexively back UK plc. As we move towards a world with a population of perhaps 10 billion people and with vast migrations, it will be enormously in the interests of the United Kingdom that the poorer peoples of the world should be able to make rapid progress in knowledge, education and the growth of their economies. Judgments about intellectual property policy need to be economically farsighted, humane, ethical and wise. They will be very difficult indeed to make in, for example, the burgeoning field of the life sciences and where bioethical issues are at stake. I very much welcome the judgment by the US Supreme Court in relation to Myriad Genetics. However, as the noble Lord reminded us in Committee, it poses a significant challenge to the European Union. The EU biotechnology patents directive may need to be reconsidered in the light of that American judgment. As we see the development of techniques of so-called human enhancement, such issues are likely to proliferate. I hope that, year by year, the annual report will offer discussion of these matters.

The Minister very understandably and rightly said in Grand Committee, at col. 53 of Hansard on 18 June that each annual report should not be “a Hargreaves-like review”. But it should be thoughtful and instructive and should be more than a catalogue or parade of BIS or IPO activities, statistics, lists of negotiations and seminars and an account of assistance given to business. It should articulate values and principles and the Government’s vision. I mean the vision of the whole Government, not just the business department but other departments that have a vital interest in intellectual property such as the DCMS, the Department of Health, the schools department and the Department for International Development.

I conclude by noting that the noble Viscount, as Minister for intellectual property, has vastly important responsibilities which go beyond what is written into the clause as we have it now—that is,

“the promotion of innovation and of economic growth”.

The annual report ought to reflect those wider responsibilities and should be the basis of Parliament’s and the public’s continuing consideration of this policy area, which has such wide significance.

[Lord Stevenson of Balmacara]

My Lords, I would like to pick up on the points made by the noble Lord, Lord Clement-Jones, about metadata. I endorse his feeling that good work is going on in this area in the Copyright Hub, which I think will bridge a gap between where everybody would like to be and where photographers think we are. I think that a number of steps still need to be taken on that but if the Government will keep a close eye on it and help where they can there is a reasonable expectation and hope that we will find something of lasting good coming out of that. As regards the amendment proposed by my noble friend Lord Howarth, he makes his point with great elegance. I look forward to hearing from the Minister.

Intellectual Property Bill [HL]

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Thursday 13th June 2013 Grand Committee

[Lord Stevenson of Balmacara]

My Lords, I am very grateful to the noble Lord, Lord Clement-Jones, for his lucid introduction of these two amendments. As he says, the first seems to deal with an error. We shall wait to see what the Minister says about it, but we would support it if he chose to take it further.

Amendment 24 picks up the debate where we left it on Tuesday. For most of the time we reflected on why the Government have adopted a two-track approach, although unfortunately in this case the tracks lead in opposite directions. In one there is no attempt to simplify the design rights field. The points made by Ian Hargreaves in his report, and picked up by many commentators, seem to have been ignored. I know that it is difficult to eliminate unregistered design rights; nevertheless the fact that we have five different ways of classifying or approaching these designs is still an irritant and source of confusion for the industry. It cannot be effective in terms of building up the creative industries more generally. It is something that will have to be addressed at some point, if it is not dealt with in this Bill.

The second track is this: why should one penalise on the registered design side but not on the unregistered design side? We will be opposing the question that Clause 13 should stand part in the next group, so my position on this is somewhat complex because I would not want to see criminal penalties brought into this area at all. That is not the right direction of travel and I will expand on that when I speak in the clause stand part debate. Parking that for a moment, I accept absolutely the points made by the noble Lord, Lord Clement-Jones. There is no substantive difference in how unregistered and registered designs are treated. The fact that they are registered does not in any sense imply approval or otherwise of them, or give them any status that is different from unregistered ones. The figures are exactly what they are. Most of the people who operate in these fast-moving areas, particularly fashion, tend to use unregistered designs, and those who do so have no real protection when there is a problem.

I was particularly struck by the points made by the noble Lord, Lord Clement-Jones, about the way in which the design copying process might happen. Most people would take the 3D representation of a design, not the 2D design. As he pointed out, the discrepancy in how such malfeasance is then approached by the courts is obviously a stark example of how the process is not working.

The noble Lord’s final point about parity of arms is one that we will return to. It is clear that there is a real danger in the creative industries these days that those with the resources can use the system to obtain advantage in the knowledge that people will not be able to defend their designs. Yet we rely on these individuals and small companies to provide the design initiative that is necessary to grow our creative industries. For all these reasons, I support the noble Lord in his amendments.

[Lord Howarth of Newport]

My Lords, consistency is not necessarily a virtue and I think that we should be very careful in the field of intellectual property. We legislate not simply out of tidy-mindedness or a desire to achieve a satisfying consistency by transferring rules and regulations that may have applied relatively successfully in one area to another. However, it seems that the noble Lord, Lord Clement-Jones, has made a strong case for consistency in the treatment of registered designs and unregistered designs in terms of the proposed criminal offence. I would be grateful if the Minister could give us his explanation.

Intellectual Property Bill [HL]

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Tuesday 11th June 2013 Grand Committee

[Lord Stevenson of Balmacara]

My Lords, this follows on from the discussion that we have been having in relation to the willingness of the Government for the United Kingdom to join, in its own right, the Hague agreement. It refers to the fact that in the consultation process the majority of respondents were in favour of the UK becoming a member of the Hague agreement in its own right. In a sense, that is very good because, as I understand it, the Hague agreement will be a very effective way of progressing the ability of those who originate materials and wish to earn from them to secure that right across territories and, increasingly, across the world, as the agreement is not limited to the United Kingdom or indeed to the European Union. Therefore, it is an important step.

However, as was pointed out by one of the respondents, the UK simply joining the agreement in its own right may not be sufficient to take the trick in this area, as the agreement is very little known and there would be a steep learning curve. The Government agree that there is work to be done here and they have confirmed that the IPO will work with a range of interested parties to publicise these and other changes to the law. Our amendment would put a little weight behind that by giving the Government a six-month window in which to get their show on the road.

As with a previous amendment, I wonder whether the Minister could put some flesh on what the IPO intends to do. I understand from some of the documentation we have seen that there is regular contact with designers, representatives of the design professions, and legal and other advisers. However, this is something where a bit more hearts-and-minds activity is required, and it would be very helpful if, in responding, the Minister could, as I said, put some flesh on that by explaining what is going to happen on the ground. I beg to move.

[Lord Howarth of Newport]

My Lords, I am grateful to my noble friend Lord Stevenson for raising what I think the Committee will agree is a very important issue. Intellectual property law is infernally complex and difficult. It is labyrinthine, as my noble friend remarked a little earlier this afternoon. For the businesses that the Government rightly seek to assist through this legislation, there are real difficulties in understanding the law.

It is of course a long-standing principle that ignorance of the law is no excuse. However, the department will of course want to facilitate a good understanding of the law. It would be helpful if the noble Viscount would unfold his thinking to us about how this is actually to happen. Does the Secretary of State for Business, Innovation and Skills have the address of every business in this country, including sole traders and the myriad little businesses that come and go, perhaps entering different incarnations, which are very hard for anybody to trace? Of course he does not. Perhaps he expects them to have recourse to the websites of the business department and the IPO: is it envisaged that those websites should provide an encyclopaedic account of intellectual property law? I imagine it is not, although I am sure that the IPO, not least through the opinion service that this Bill legislates for, will always do its best to help people to understand the law as it may apply in their circumstances, and to know what opportunities the law creates for them.

My noble friend referred to the design professions and their representatives. However, I do not think anybody can be confident that the design professions necessarily represent perfectly everybody who practises in the relevant fields. Hard-pressed business people operating from day to day will often find it pretty difficult to know the rules of these very complex games. This debate is useful because government ought always to reflect on the practical impact of their legislation on those whose lives and businesses it will affect. As I noticed and readily acknowledge, the purpose here is to give assistance to business. However, the task of enabling small traders to steer their way through this labyrinth, small and medium-sized enterprises in particular, is massive. I am grateful to my noble friend for tabling this amendment and look forward very much to the Minister telling us a bit more about how the Government see this working in practice.

[Viscount Younger of Leckie]

My Lords, this amendment would place a duty on the Secretary of State under this provision to report to both Houses of Parliament six months after the commencement of the Bill. The aim of the report would be to notify Parliament what plans the Government had put in place to educate business users about the changes to the law this clause brings about.

I agree with what I believe is the principle behind this amendment: that when changes to the law are made which could impact on businesses or consumers, the Government should provide guidance to users. The Government have already engaged with all key stakeholders through their consultations on the changes now set out in the Bill. I am grateful for the words from the noble Lord, Lord Stevenson, who mentioned that he was aware of this.

This engagement continues as the Bill progresses through Parliament. In addition, the Government will be producing a plain English guide to the Bill, particularly aimed at small and medium-sized businesses, which will be issued before Report. The Intellectual Property Office continues to work through the representative bodies for the design sector to ensure that their members have the guidance they need on the new legislation, if it comes into force.

The noble Lord, Lord Howarth, asked how we can further penetrate the myriad businesses that may be affected. In the letters that we have pledged to write, we will add some information on publicity and distribution, which I hope will be helpful. He also asked further about this issue. I can reassure him that over the past year, almost 18,000 businesses benefited from face-to-face advice from the Intellectual Property Office, which also used online engagement extensively. I am proud to say, as the IP Minister, that it now has 18,000 Twitter followers, more than any other intellectual property office in the world.

The noble Lord, Lord Stevenson, asked whether we could provide more information on what plans there were to educate as well as to inform business. These plans will build on the extensive work that the Intellectual Property Office already carries out through its business outreach programme and through schemes such as the training for business advisers across the UK. I hope these answers help to give some substantive responses to the questions raised by the noble Lord, Lord Stevenson, and the noble Lord, Lord Howarth.

The Intellectual Property Office, on behalf of government, already reports on the support and guidance that it provides to businesses through its annual corporate report and chief executive’s report. Therefore, the Government are not persuaded that a commitment to Parliament to report on this specific area of business support needs to be set out in the Bill. Accordingly, I ask the noble Lord to withdraw his amendment.

--- Later in debate ---

[Lord Stevenson of Balmacara]

My Lords, we believe the Government to be supportive of the general concept that all procedures and processes should, where possible, be digitally routed and that the activities of the Government themselves and their dependent functions should encourage people to migrate to the digital world as quickly as possible. I have already picked up enough stick by referring to a form in paper style, which my noble friend Lord Borrie immediately picked up was inappropriate, but I think that he also had in mind that this was redolent of an earlier age of quill pens and ink on forms completed in triplicate and dispatched by pigeon post around various offices, before being collated in compendious storage areas that could be permanently trawled by clerks bound to that paper. I am sorry for the flight of fancy, but it has been a long afternoon.

At the heart of the amendment is a proposal that we should, wherever possible, encourage those for whom the Government are responsible to think digitally. Therefore, the amendment would ask the registrar to centre the work of the IPO and in relation to the design opinions service and all parts of that around a digital platform. The development of all interactions or communications with clients should be digital. The online tools and digital platforms that will be created would be a huge advantage to those operating in this field because they will reduce costs, encourage quick responses and improve the quality of the advice and information exchanged.

The amendment has an impeccable pedigree and a wish to see the Government performing better, and I hope that it will commend itself to the Minister when he responds. I beg to move.

[Lord Howarth of Newport]

My Lords, while strongly endorsing the thrust of my noble friend’s amendment, I simply ask the Minister when he replies if he will explain to the Committee how we can have confidence that the department and the Intellectual Property Office will be able to maintain the appropriate security of online communications. Also, can he assure us that they will be able to preserve documentation in perpetuity?

[Viscount Younger of Leckie]

My Lords, Amendment 21 would place a duty on the registrar to encourage the use of online tools and digital platforms in the conduct of design registration. I welcome the noble Lords, Lord Stevenson of Balmacara and Lord Young of Norwood Green, raising this issue as it is an objective the Government already take seriously. IPO customers have indicated a genuine preference for the convenience offered by such services, and the IPO has further sought to incentivise such behaviour, for example by the use of lower fees for the electronic filing of trade mark applications. Currently more than 80% of trade mark applications occur online and therefore the Government see no reason why this figure cannot be achieved for online design applications. The IPO has recently migrated trade mark registrations to a fully electronic document management system and is starting to develop a similar system for design registration. The latter forms a commitment in the published corporate plan of the Intellectual Property Office, which I signed off earlier in the year.

Given the efforts that the office is making in this regard, I remain to be convinced that a specific duty needs to be set out in primary legislation. I understand the comments and the question raised by the noble Lord, Lord Howarth. The noble Lord, Lord Stevenson, raised this issue too, in terms of ensuring that we can have confidence in the security of the Government’s digital services. I can assure noble Lords in the Committee today that the IPO’s policies for keeping information secure and for maintaining them in line with the Government’s wider commitments in this area are in place.

I hope this will provide sufficient reassurance to the noble Lord and that he will withdraw the amendment.

Enterprise and Regulatory Reform Bill

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Wednesday 20th March 2013 Lords Chamber

[Lord Stevenson of Balmacara]

My Lords, it would be wrong of me to let the noble Viscount’s concluding remarks pass, particularly as I was named. I also thank him for his considerable work on the Bill, his courtesy during debate, and his incredible letter-writing abilities. I have never been in receipt of so many letters, both by e-mail and by hand. Sometimes people actually checked up whether a letter had arrived that I had not even received. It was helpful to know that it was on its way. We even received three further letters overnight in anticipation of this debate. It shows the quality of the service that we received. I am sure that the noble Viscount will accept that that was not entirely his work.

I also thank the Bill team, although not all of them are present. I hope that my words will go back to those who are not here. The team has been extremely helpful in giving us information and facilitating meetings. I also thank my Front Bench team, the noble Baronesses, Lady Worthington, Lady Hayter and Lady Thornton, and the noble Lords, Lord Young, Lord Whitty and Lord McKenzie, who, along with our legislative support team, have taken much of the load off my shoulders and done a brilliant job in scrutinising the legislation. It has been four months—a considerable amount of one’s time—since we began consideration of the Bill. That explains why the choir has been bereft of our support during that time.

The Bill runs to 266 pages, which, as the noble Lord, Lord Clement-Jones, reminded us, is a bit more than when it was first published. That represents a fair number of trees. This was never going to be an easy job. It is also important to put on record that the Bill did not come to us sanctified by work in another place. A lot of changes were added just as the Bill left the House of Commons, and the Government have added a number of measures while we have been considering it. There will presumably be further consideration in another place on matters such as health and safety, abolition of the Agricultural Wages Board and Midata, which were never discussed in the House of Commons. I should be interested to see what happens when the Bill comes back after Easter.

As the Minister said, the Bill is in a better shape from its time here. It was amended and concessions were offered on 27 major points, which is pretty good. I do not claim credit for them all but in the spirit of bipartisanship, I think we can agree that in most cases the changes were of benefit. There are one or two matters on which we divided, but I am sure that the Government will want to reflect carefully on whether they wish to change the will of the House, which was expressed in many cases narrowly, but nevertheless firmly. I hope that those matters will weigh heavily on the Government.

It has been a most enjoyable time, made better by the good responses that we have received, and I hope that the Bill will fulfil its purposes, even though in some areas it never quite lived up to its name.

[Lord Howarth of Newport]

My Lords, the last bars of the music are dying away, the curtain is falling, moving valedictory statements have been made but, unfortunately, I have again to be the grit in the oyster because I need to respond to the debate, and the House may wish to know my intention in respect of these amendments.

I thank all noble Lords who have participated in a genuinely helpful debate. I was particularly pleased that the indefatigable noble Lord, Lord Clement-Jones, with whom I have had some degree of disagreement, was willing to support the proposition in the amendment that there should be a review. The noble Earl, Lord Clancarty, supported it, as did the noble Baroness, Lady Brinton, the noble Earl, Lord Erroll, and my noble friend Lord Stevenson. I am grateful to them all.

I am grateful to the noble Earl, Lord Clancarty, for speaking as an artist, because his perspective was valuable. If he, as an artist, has been willing to see another side of the argument on orphan works that is in the public interest, it is particularly telling. The noble Earl, Lord Erroll, spoke as a taxpayer. We cannot all be artists but we all have to be taxpayers. He was absolutely right in what he said about the inappropriateness of setting the tariffs by reference to market values. It is wrong to introduce market values in every area of public life and I wish we could get away from that in our modern political culture. The noble Earl was extremely forthright in his characterisation of the ethics of the Government’s proposition.

However, I was grateful to the noble Viscount, who spoke thoughtfully and constructively, and I very much appreciate the spirit of his response. He acknowledged that there needs to be review. He asked us to be content with the prospect that there will be a review after only one year by the orphan works authority. There is a question as to whether it is appropriate for the body to review itself. Of course it should always do so, but is that sufficient? I hope that whatever Government there is after 2015 will look again at the methodology for monitoring the progress of the orphan works licensing scheme and ensuring that it is fit for purpose and not producing unintended, unfortunate consequences. We all want it to succeed, and if it is not going to succeed we will need to take further legislative steps to get it right.

It would be helpful to have the second impact assessment that the Minister promised for 2015, but we will need subsequent impact assessments. They need to be proper assessments, not ones whereby you just press a button and the computer produces. Whitehall is getting adept at producing impact assessments. They need to be of high quality.

The noble Lord, Lord Clement-Jones, rightly suggested that the progress of the orphan works licensing scheme would be an appropriate topic to be in the annual report of the Intellectual Property Office. That is so, but a whole range of matters will need to be covered in that annual report and there will from time to time be the necessity for a document that is more particularly focused on the orphan works scheme, unless we can all be confident that it really is working according to our best hopes.

On Amendment 11, the noble Viscount again gave me some grounds for encouragement in his emphasis that a variety of options is possible. He did not explain why the Government do not simply accept that the money ought to be returned after a reasonable interval to those who have lodged it because no rights holders have come forward. Even if they subsequently come forward, of course, they will be paid by the licenced bodies. He did not explain why we do not simply and straightforwardly return the money after a reasonable interval. However, he does not rule it out and he promises full consideration, as well as promising to write to us to clarify what that full consideration may mean, and I am appreciative of that.

The Minister has, as my noble friend Lord Stevenson said, been a most abundant and generous letter writer. However, before he lays down his pen, it would also be helpful if he could bring himself to write one further epistle to us about what diligent search and extended collective licensing the Government envisage at this stage. I recognise that there is more work to be done by the working group, but he will know that probably the greatest anxiety of the cultural institutions, even greater than their anxiety about the requirement for up-front payments, is that the regulations may land them with an impossible task in terms of diligent search. It seemed to me that the Minister made helpful remarks on this subject on Report, but if he were willing to elaborate a little and clarify in another letter to us what he intended when he made those observations on Report, we would be particularly appreciative.

In view of the constructive and helpful tenor of the Minister’s response, I beg leave to withdraw the amendment.

Enterprise and Regulatory Reform Bill

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Wednesday 6th March 2013 Lords Chamber

[Lord Howarth of Newport]

My Lords, I, too, welcome the Minister’s commitment that an annual report should be published by the Intellectual Property Office. It may not reach the top of the bestseller lists, but it is right in principle that the public should have the opportunity to be informed about what the current issues are and what developments in policy are or may be. That is very proper. Of course, Parliament in particular should have that information. I hope that we would find the opportunity to debate the annual report each year that it comes out.

I congratulate the noble Lord, Lord Clement Jones, and his co-signatories on the terms in which they have they expressed this amendment and the particular examples that they have given of the kind of material that should be covered in the annual report. The report would need to review the state of copyright licensing in the United Kingdom. I hope that in fulfilling that requirement it would provide a discussion about how the Intellectual Property Office seeks to balance its absolutely right and necessary defence of the interests of intellectual property holders with wider interests that the public may have in the early and extensive benefit that can be received from the dissemination of this new information, knowledge and material. That is important.

I am also pleased that the expectation would be that the annual report should review cross-border co-ordination between our own jurisdiction and jurisdictions in other countries. For example, we would certainly want to know how the Intellectual Property Office and BIS are looking to mesh the complementary policies that we develop in this country with the policies that are being developed in the European Union and other countries that may be ahead of us in some respects.

For example, we know that the European Union orphan works directive is very limited and strictly curtailed in what it would allow. Only cultural sector bodies and educational establishments, not companies, could benefit from its provisions. Public/private partnerships, for example, would be prevented. That represents what is at the moment too limited and cautious an approach on the part of the European Union.

Mass digitisation projects are only going to be able to be carried out by our great cultural institutions in partnership with the private sector, and that ought to be contemplated as policy-making develops both in this country and in Brussels. The attempt to continue to draw absolute distinctions between commercial and non-commercial purposes will prove to be too restrictive of the ability of great institutions that are publicly funded in this country, such as libraries, universities and museums, which ought to be able to work freely in partnership with the private sector but which may be constrained by legislation as it has so far appeared to develop.

The noble Lord, Lord Clement-Jones, also mentioned the question of metadata. That is highlighted in the amendment. It is excellent that, at last, we have a working group looking at the problems that arise with metadata and digital photography. The working group is trying to find out why this stripping happens, why creators do not get paid and, above all, what solutions might be found, presumably by way of new technology but perhaps in other ways, to ensure that intellectual property is not stolen from photographers. The fact that it is already illegal to strip metadata under Section 107 sadly does not prevent it happening. There is a legitimate and very important issue there and I hope that progress on that will be covered in the report, as the noble Lord said.

I also hope that the report will inform us as to how the Intellectual Property Office seeks to gather views and reconcile different interests and points of view. I have very much sympathy with it in the very difficult and sensitive task that it has to carry out.

Let me give an instance. I saw in the British Journal of Photography recently a story headed:

“News agencies go on the offensive, call for judicial review of copyright changes”.

I was surprised to learn that:

“The world’s largest news agencies have delivered a Letter Before Claim to the UK’s business secretary Vince Cable in what is described as the first step in the process of initiating a Judicial Review - a formal legal challenge to governmental planned legislation”.

The article goes on to suggest that the Government are proceeding quite improperly. It challenges the Government’s plans to introduce their proposed changes through what they were pleased to call “Henry VIII clauses”—secondary legislation which is not subject to the full scrutiny of Parliament.

That is not very complimentary to your Lordships. We are engaged in quite serious and intensive scrutiny of this legislation. We certainly will be when we have the regulations in due course. What was completely bizarre was then to read a quotation in the name of Mr Paul Ellis of the Stop43 organisation:

“The technology, academic and cultural heritage sectors want to be able to use other people’s copyright property without having to ask or pay for it, and view copyright law as an obstacle. Under their intense propaganda and lobbying onslaught several governments have fallen for this line and are trying to introduce laws that weaken copyright, such as the Enterprise and Regulatory Reform Bill now going through Parliament”.

He then goes on to denounce,

“these lobbying-driven legislative attempts to confiscate our property”.

It seems a bit of a case of the pot calling the kettle black. The serious point is that the IPO is very vigorously lobbied from a multiplicity of sources and by a multiplicity of powerful commercial interests; the noble Baroness, Lady Buscombe, referred to some of them. It has always to be the duty of the IPO, the Government and us in Parliament to ensure that workable policies are arrived at that represent an appropriate balance between the range of competing, relevant and, indeed, legitimate interests that are all intensely concerned about what we do.

I hope that the annual report will include some account of how the IPO weathers these storms and what its philosophy is in terms of receiving and listening to representations and establishing working groups which allow people to have the opportunity to contribute their thinking and remind policy-makers of their legitimate interests but, at the same time, do not cause the policy to be unduly tipped and biased in favour of those who shout loudest. That would always be wrong. I have every confidence that that will not be allowed to happen. However, it may be helpful to those who have this arduous and difficult responsibility of developing the technical details of policy in the copyright field that we have a better understanding of what it is that they have to cope with. I support this amendment.

[Lord Stevenson of Balmacara]

My Lords, I will make a few brief remarks in closing this short debate. First, I associate myself with the warm expressions of thanks and support to the Minister not only for his very assiduous work in responding to the questions and queries that were raised at earlier stages of the Bill but for the meetings that he has had. I am not quite sure how he has managed to keep going—he is looking a bit shell-shocked, although that may not just have been today. We are all very grateful to him for what he has done. Indeed, it has brought a different sensibility to the whole way in which we have been able to engage with this and I am very grateful for that. I am sorry that the choir has lost his very nice tuneful voice as a result, but I hope he will get back into it after this intensive work is over.

Having said that, has the mood really changed? We have just heard that there are still quite big guns out there, and the reference from my noble friend Lord Howarth to the judicial review—I have benefited from the courtesy of being shown a copy of the 36-page document that went in—certainly suggests that there are still some people with axes to grind out there and serious points, too, which need to be considered and reflected. Although we are making progress and, I think, beginning to arrive at a common position on a number of issues raised in this part of the Bill, there are still some hurdles ahead which we have got to think about. For instance, I got two letters and several e-mails today from people again expressing concern about what is happening here. They are not sighted and perhaps not up to speed with what is going on but they certainly feel very strongly about it.

As other noble Lords have said, there are other things going on here. We are doing a lot of the work in this Bill but, in parallel, the outcome of the Hargreaves report and the various pieces of secondary legislation that will be going through, which radically change the way in which we deal with copyright and performance rights, need to be accommodated and brought alongside some of the movements that are here. A lot of what we have been saying in the discussions and debates on this Bill has been contingent on a satisfactory outcome for those things, and I do not want to prejudge where we are going to get to on parody, exceptions for educational use and desirable things like copying for archives. These are all important parts of the ecology that this Bill touches on but does not completely encapsulate. We must therefore be careful not to overcall what we are achieving here.

A third example on that list would perhaps be the one raised by the noble Baroness, Lady Buscombe, which is that we are not alone here; lots of other people are working on their copyright registrations and legislation and moving forward. That will always affect how we do things. We will not make the progress that we want to make in terms of this industry, and the work that goes into this type of activity in the UK will be for nothing, if we are outsmarted and outgunned by those who either have a much more advanced concept of copyright and licensing or none at all. These are important points.

Enterprise and Regulatory Reform Bill

Debate between Lord Stevenson of Balmacara and Lord Howarth of Newport

Monday 28th January 2013 Grand Committee

[Lord Howarth of Newport]

My Lords, the noble Lord, Lord Jenkin, is the most diligent of parliamentarians. If he has not been able to read the impact assessment from start to finish, that illustrates that we have problems in achieving satisfactory scrutiny of legislation.

I support Amendments 28H, 28J and 28JA because I agree with noble Lords who have already argued that it is important that we should look at the relevant statutory instruments one by one, in so far as that is realistic and practical.

I believe that it is realistic and practical for Parliament. There may be problems in that, as has already been suggested, the material contained within different statutory instruments may overlap with other statutory instruments to a degree, in which case one must proceed pragmatically. But it is right in principle that Parliament should have the maximum opportunity to examine secondary legislation. One could say that the more minimalist the primary legislation the more important it is to ensure that the secondary legislation that stems from it is thoroughly scrutinised.

We can be a little too defeatist in Parliament about the scope for satisfactory scrutiny of statutory instruments. When I was in the House of Commons, time was all too limited for examining SIs. As a self-regulating House, we are better placed to ensure that we examine statutory instruments more thoroughly in this House. We have committees of the House that take it upon themselves to do a lot of preliminary work on our behalf. There is a disposition and a considerable ability in your Lordships' House to do this job properly.

We cannot overstate the importance of some of this secondary legislation. The creation of new exceptions to copyright law can have a major bearing on the livelihoods of large numbers of people and on the performance of significant sectors of our economy. We owe it to the public whom we serve that we take the greatest care to ensure that these exceptions are properly formulated.

The presumption should be that each one is embodied in a separate statutory instrument and carries with it a separate impact assessment, which I hope will then be on a scale that the Minister and all the rest of us would be able to manage. I hope that the Minister will be able to give a full and formal assurance that this will be the approach of the Government.

[Lord Stevenson of Balmacara]

My Lords, I add my thoughts to those that have already been expressed about these issues and have some specific questions in relation to Modernising Copyright: A Modern, Robust and Flexible Framework, the latest publication dealing with the way in which copyright exceptions are to be brought forward, which was published in December 2012.

We have been blessed with substantial impact assessments. Indeed, we have discussed them. Unfortunately, I dropped mine on my foot as I was coming out of my office today and I am still limping as a result. It was really quite heavy. But it was very valuable because I have been reading it and I have got a lot out of it as has been clear in the comments made so far. One of the themes that we have discussed in this series of debates today is how copyright legislation should go forward. In particular, the example that we have had to use, because it is current, is that of the Hargreaves recommendations.

The Government's proposals, as outlined in their modernising copyright report, are that:

“The Government intends to legislate for a new system of permitted acts for copyright works, incorporating the changes discussed in this document. These changes need to be carried through consistently. In the light of stakeholder comments about the degree to which the existing Copyright Act has been amended since 1988, the Government will therefore introduce the system for Parliamentary approval en bloc rather than piecemeal, through the smallest possible number of Statutory Instruments”.

That is not what we are arguing for. We are saying in our amendments that we want more time and more discrete information to be provided. I would be grateful if the Minister, when he responds, could analyse why the Government have said that in relation to the points that we have made.

The Government go on to say that publishing statutory instruments en bloc,

“will help the system be clear and consistent”,

but we would argue quite the reverse. The Government then say:

“For this reason, the Government proposes that all the measures take effect at the same time, the intention being that they come into force in October 2013”,

which is a relatively short time in parliamentary terms. It will be difficult for us to get through all this in the appropriate way, given the sensibility of the discussions.

I support the amendments in this group. We discussed these issues when they were raised in a number of earlier areas. The Government must be in absolutely no doubt at all that these issues are large in the minds of those who have been corresponding with us. It would be useful if we could have a proper statement from the Minister on how things will go forward.