Intellectual Property Bill [HL]
Debate between Lord Young of Norwood Green and Lord Howarth of Newport
Lord Howarth of Newport
My Lords, Amendment 12 is a development of an amendment that I tabled in Committee, and I was sufficiently encouraged by the Minister’s response to feel that it was worth tabling this amendment on Report.
I start by saying that I have no interest to declare. No one has asked me to table any of the amendments that I have put down in the course of our proceedings on the Bill and I have no financial interest in any aspect of this legislation. I mention this simply because I think that it is helpful to parliamentarians in both Houses and to other people who may follow our proceedings to know whether any noble Lord participating in the proceedings has such an interest.
I venture to suggest that this amendment is timely. Recent unhappy events have propelled the Government finally to publish their Transparency of Lobbying, Non- party Campaigning and Trade Union Administration Bill. The Second Reading of that Bill in the House of Commons will not take place until September, so the Minister has the opportunity, with this amendment, to show that he is ahead of the game and, indeed, to do rather better than the Government seem minded to do in their Bill.
In Committee the Minister acknowledged the importance of this issue. Intellectual property can be a very valuable thing. It creates monopoly of a kind and it is not surprising, therefore, that lobbying is intense in relation to policy on intellectual property and, indeed, on specific decisions. Officials working in this area effectively have the power to enrich other people, and in that respect they are rather like planning officers. It seems to me that procedures relating to intellectual property policy formation and decision-making, just as with procedures in planning, ought to be as transparent as possible. Indeed, I was encouraged that the Minister said to us in Grand Committee:
“The Government are committed to transparency”.
He helpfully explained that Ministers, special advisers and the Permanent Secretary in his department, as in other departments, disclose on a quarterly basis on the government website the names of external organisations that they meet. It was very welcome that he announced that this practice would be extended to the chief executive of the Intellectual Property Office. He said that the publicity on the website would state what the main topic had been at the meeting, but he disagreed with my suggestion that there should be some further disclosure of the contents of the meeting—he said that disclosure must be proportionate. He observed that freedom of information law applies in this area and that an FoI request would be considered in the light of the requirements of the Act. However, at that point he said:
“We feel that we have gone as far as we can”.—[Official Report, 18/7/13; col. GC 54.]
I submit that the Minister did not go far enough in Committee. Indeed, the ministerial code, as it is, requires that the disclosure of meetings between Ministers and others with external organisations should be at least quarterly, so the Minister adopted a minimalist position in this regard.
Mr Cameron, when he was leader of the Opposition, made a speech in February 2010 entitled “Rebuilding Trust in Politics”, in which he said that,
“it’s time we shone the light of transparency on lobbying”.
Then nothing happened for three years until scandals forced the Government to act, but even now their proposals are inadequate—many would say derisorily so. I believe that the minimalist position taken by the Government will not hold. The disclosure of only the names of organisations that Ministers, special advisers, Permanent Secretaries and the chief executive of the IPO have met is palpably inadequate. The lobbying consultancies sell their services on the basis that they know how to get to the officials who are formulating policy options and briefing Ministers. There is much agitation in the media about the lobbying of politicians, but the lobbying of officials is at least equally important. Therefore, my amendment would require much fuller transparency than the Minister has so far been willing to contemplate. My drafting is amateur and could no doubt be improved, but if noble Lords are kind enough to read the amendment I think that they will be clear about what I am driving at.
I have of course made an exception to the requirement for disclosure of matter that can properly be regarded as commercially confidential. I think that that must be right, although I also have to say that the mantra of “commercial in confidence” induces quite a lot of scepticism among Members of Parliament and noble Lords who again and again have been fobbed off with its deployment when they have sought to probe government contracts for the public service—contracts that are extremely important and about which parliamentarians should be entitled to know more than the Government customarily allow. However, that is a side issue.
I make it clear that I am not opposed to lobbying. Of course it must be right in a liberal society and a democracy that people can make representations on behalf of themselves and other interests to those who are in power. It is legitimate and indeed positively a good thing that interested parties should have an opportunity to explain their case to the IPO. However, equally, other interested parties and other citizens ought to be entitled to know who is making such representations and, in broad terms, what the content of those representations may be. After all, they may have another legitimate case. Indeed, they may be able to assist the Intellectual Property Office and the Minister as they seek to make the right decisions in the public interest.
The IPO is, I believe, in receipt of a very great deal of lobbying—much of it aggressive. The public are worried about lobbying. Mr Cameron spoke of the,
“far-too-cosy relationship between politics, government, business and money”.
He spoke of the need to shine the light of transparency on,
“who is buying power and influence”.
In those words, it seems to me, Mr Cameron made a fairly serious allegation, although I note of course that it was not specifically in relation to intellectual property.
Last week in a column in the Guardian on 19 July, Sir Simon Jenkins went so far as to say:
“Doing the right thing is hardly a consideration in Whitehall now”.
I think that that remark is grossly exaggerated and unjust, but if prominent columnists are saying such things, no wonder there is some cynicism among the public.
I do not in any sense impugn the motives or the honesty of officials in the IPO, in the business department or anywhere else, but I believe that they are under great pressure. The drug companies, for example, are prepared to exert pressure on an enormous scale. I again quote Sir Simon Jenkins in that article. He says that,
“the NHS allows drug companies to spend £40m a year on gifts to doctors, blatantly, to use their products at the expense of the same NHS.”.
We have been reading in the newspapers about the extraordinary allegations against western pharmaceutical companies and their practices in China. I do not doubt that pharmaceutical companies will spend whatever it takes to influence decisions on the patenting of new drugs.
I simply think it is important to reassure the public. We have an opportunity through this amendment to protect the reputation of the Intellectual Property Office and to protect the reputation of the intellectual property regime all in all. The Government were slow to act on the commitment made in the coalition agreement, but this amendment offers the Minister the opportunity to provide an exemplary policy. I hope he will seize that opportunity. I beg to move.
Lord Young of Norwood Green
My Lords, my noble friend Lord Howarth has comprehensively analysed the need for more transparency and the need to protect integrity. We support the basis of the amendment and I look forward to hearing the Minister’s response.
Intellectual Property Bill [HL]
Debate between Lord Young of Norwood Green and Lord Howarth of Newport
Lord Howarth of Newport
My Lords, I support the noble Lord, Lord Clement-Jones, very strongly indeed. I am very glad that he tabled this amendment. There is a palpable injustice that needs to be remedied and I can see no good reason why it has not already been done. It should be done very expeditiously indeed.
The historic authors’ public lending right scheme has always been run on a highly cost-effective basis. The cost of it has been minimal to public funds. But it has been valued very much by authors, not because it makes them rich—there is a low ceiling on the total remuneration they can receive through the scheme—but because it gives recognition to their copyright and their rights as authors. Rightly, they feel strongly about it. It is clear that the principles of the system need to be extended to e-books and should have been extended long ago to audiobooks. All the thinking has been done by Mr Sieghart and his colleagues.
To carry on with the present state of affairs is disreputable. I suspect that the constraint is seen as one of cost but even a token royalty or token remuneration would satisfy the principle, which I think is important to authors. I hope very much that the Minister, speaking on behalf of not only his department but the DCMS, will be able to encourage us today.
Lord Young of Norwood Green
My Lords, I thank the noble Lord, Lord Clement-Jones, for his comprehensive contribution, as well as my noble friend Lord Howarth. I think that they have covered the waterfront on this one. The only thing I would add is: can the IP Minister tell us what has happened to the Digital Economy Act? I look forward to his response. Basically, we support the premise that is contained in this amendment.
Intellectual Property Bill [HL]
Debate between Lord Young of Norwood Green and Lord Howarth of Newport
Lord Young of Norwood Green
Noble Lords will be relieved to know that this will be a much briefer contribution.
In their consultation, the Government stated that they would introduce safeguards and transitional provisions for third parties which had commissioned designs, but they failed to do so. This amendment would require the Secretary of State to introduce transitional provisions for commissioned designs for a period of six months after the Act comes into force. Clause 22 allows transitional provisions to be brought forward, but this is an issue of considerable concern in the design community and it seems right for this provision to be in the Bill.
In the consultation document, the Government raised the question of whether there should be “statutory” safeguards for commissioners for a transition period. Why the change? Why not have this on the face of the Bill? The consultation document also acknowledges the concerns about changing the status quo and says that,
“the IPO will work with bodies representing and promoting designers, as well as IP legal advisers to publicise these and other changes to the law, and their potential impact”.
It expresses the view:
“This should help alleviate some of the concerns about this change in particular”.
Can the Minister say what progress has been made with this laudable initiative and with whom the IPO has been working, and can he give us an assessment of the IPO’s success in alleviating the concerns that it recognises exist in this area? If this work has not yet started, can he outline the proposed programme and the time it will be likely to take? I beg to move.
Lord Howarth of Newport
My Lords, I have one question for the noble Viscount. In legislating to effect this change, how does he intend to secure the position of people who have commissioned designs? They have invested capital and made an important personal commitment to commissioning a design. In future, the design right of that design is to be vested in the designer and not the commissioner. I do not object to that in principle but I should be grateful if he would clarify how the commissioners’ interests are to be secured in this new situation. Is it to be by way of contract between the commissioner and the person he employs? If so, what ought the commissioner to stipulate in the contract of his employee? However, supposing that the designer is freelance or an independent contractor, how strong will be the protection for the entrepreneur who has commissioned the design and whose interests I think none of us would want to see neglected?