Enterprise and Regulatory Reform Bill

Viscount Bridgeman Excerpts

Monday 28th January 2013 Grand Committee

[Viscount Bridgeman]

My Lords, I declare an interest as a director of the Bridgeman Art Library, of which my wife is the founder and chairman. I shall speak to Amendment 28DZA in support of the noble Lord, Lord Stevenson, and my noble friend Lord Clement-Jones. The noble Lord, Lord Howarth, has reminded us of the history of the 1988 Copyright, Design and Patents Act. It goes a great deal of the way to protecting the rights of copyright owners, it removes the excuses for copyright material being lifted without a legal licence, it ensures that works created in future are not orphaned whereby, as your Lordships will be aware, work cannot licensed in the ordinary way because those who hold rights in it are untraceable, consumers get a genuine guarantee that the work is what it says it is and its creators take responsibility for it.

However there is one glaring loophole, which has been so ably addressed by my noble friend Lord Clement-Jones, in part opened up by fast-growing developments in digital practice. It is that at present users are currently able to shelter behind the fact that rights information, which forms part of what is loosely termed metadata, obtained and distributed by computer programs, as opposed to being obtained manually, escapes the protection afforded to creators by the 1988 Act. This amendment seeks to rectify an obvious anomaly in the existing legislation.

I would also like to draw the Minister’s attention to the fact that, should this amendment be accepted—and I am well aware that there is considerable debate about whether this will be in primary or secondary legislation—there will need to be a cross-over to those clauses relating to orphan works and extended collective licensing.

I would also like to mention that giving effect to this apparently simple intention in plain English at the same time as making it watertight in IT terms is no easy task, and the framers of this amendment are to be congratulated on doing their best. No doubt, if this amendment is accepted, as I hope it will be, the Bill team will be able to consolidate the wording.

[Baroness Brinton]

My Lords, with the permission of the Grand Committee, I shall speak sitting down.

I shall speak to both amendments. On Amendment 28DZA, will the Minister confirm that there is already protection under the law for the stripping of metadata knowingly and without authority? Other noble Lords have alluded to that. I understood that it gave us the protection that we were seeking rather than going down the route of this amendment. Any infringement is therefore already contrary to civil law. If there are concerns that that protection is not strong enough, especially in relation to computer and electronic equipment—for example, in cameras—it is not just about large internet companies stripping data. There is a real problem for photographers; I know that some of their data are stripped. I am looking at the noble Baroness, Lady Howe of Idlicote, when I say that we have worked with the ISPs in relation to child safety and pornography. Surely there is a more effective way of working in the internet age with organisations that, whether deliberately or not, might try to remove that data.

I understand that this amendment is trying to tackle the problem, but I am worried that it relies on individuals to instruct their electronic equipment. That might be fine in the case of a highly proficient technical photographer, but not necessarily fine for amateurs creating metadata, particularly on the internet, as well as for some professionals who do not understand the technology too well.

I worry that this amendment creates a further barrier to orphan works, which we will be discussing later. If this amendment is accepted, it will make it almost impossible to collect copyright licence fees for some orphan works because of the conditions it puts upon person A and person B.

I turn to Amendment 28DZD. It is a complete change in tone. I declare an interest as a former stage manager of Footlights. I worked alongside people such as Steve Punt and Hugh Dennis on their very first shows. I worry that paragraph (b), which states that copyright is not infringed if,

“it is accompanied by sufficient acknowledgement”,

would provide a real problem to people working in our fast-moving light entertainment and comedy world. I can absolutely understand the parody of major works: I think of Benjamin Hoff’s The Tao of Pooh, which acknowledges, right at the start, where it is coming from.

But there has been a traditional and proud history in this country of parody and caricature, from “That Was the Week That Was” 60 years ago, moving right up to date with “The Now Show” on Radio 4. Steve Punt and Hugh Dennis did a wonderful sketch a fortnight ago on UKIP and the referendum on Europe using the theme of Gollum in the film of Lord of the Rings. I do not know whether noble Lords heard it, but the theme of the programme was “We wants referendumses”. It was very effective.

The problem is that proposed new subsection (3)(b) in Amendment 28DZA would mean that every sketch like that in a fast-moving half hour show would have to stop to acknowledge that it was taking both a piece from Peter Jackson's original film and the style of the actor. Therefore, frankly, it would be unworkable. I apologise, but I am afraid that the stage manager in me immediately thought, “Oh my goodness: this will kill comedy and light entertainment of the spontaneous type that this country excels in”.

--- Later in debate ---

[Baroness Warwick of Undercliffe]

My Lords, there are concerns about the impact of Clause 65 on designers and manufacturers, but this amendment seeks to address a problem which the clause will create for anyone who wants to use a two-dimensional representation of a design that is in copyright. This will affect a wide variety of users, but I am most concerned about the impact on those involved in teaching design. I declare a non-financial interest as a member of the council of University College London.

It is obvious that one cannot teach design without being able to show images of designs to your students. If you want to do this by example, showing a PowerPoint slide of a design during a lecture and the item is in copyright, you need a licence. If the term for industrial designs is increased to 70 years plus life, that means that you will need a licence for almost all 20th century designs. Many of these will be orphan works, so securing a licence under the current law would be difficult if not impossible. This would be eased by the orphan works provisions, which we will come to shortly. Meanwhile, this will have a real impact on the teaching of creative subjects.

In copyright, we have had almost nothing but consultation for the last decade, yet there was no consultation of non-commercial users here. The Government should consult all those potentially affected by the impact of this clause. The proposed amendment would be a proportionate response to the problem, allowing teachers, lecturers, museums, publishers and libraries to use photographs of designs without the need of a licence. It is in the interests of the creative sector that we allow such uses.

[Viscount Bridgeman]

My Lords, I speak to Amendment 28DZB, which has been so ably covered by the two movers of the amendment. I support this amendment as far as it goes, but it needs to make the distinction between incidental use, such as a passing shot of a chair on a TV programme, and one with a wider agenda—for example, financial or political. A well known example of the latter is the case about two years ago brought by Unilever, owners of the Marmite brand, against the BNP, whose image of a Marmite pot was a major feature on the BNP website. This resulted in an out-of-court settlement in favour of the plaintiffs. I hope that the Minister will take note of this proposed adjustment to the amendment.

[Lord Howarth of Newport]

My Lords, I support Amendment 28DZB. My noble friend Lord Stevenson of Balmacara has explained to the Committee why the jurisprudence of the European Court of Justice does not require after all that the Government repeal Section 52. I hope that the Government will think again very carefully about what they are doing.

I commend to the attention of the Minister and his officials the submission that other noble Lords will have received from Professor Lionel Bently of the University of Cambridge, which deals authoritatively with this matter. There would be significant and seriously unfortunate implications for teachers, publishers, museums, photographers, artists and filmmakers.

I echo and endorse the points very well made just now by my noble friend Lady Warwick. The impact on the practical ability of teachers of design to teach their discipline properly would be very damaging. If we undermine the teaching of design in this country, we do deep damage to the creative economy and make it less likely that new copyright and intellectual property will be developed for the benefit of our culture and our economy in the decades that lie ahead.