Viscount Younger of Leckie
Main Page: Viscount Younger of Leckie (Conservative - Excepted Hereditary)Copyright (Public Administration) Regulations 2014
Viscount Younger of Leckie Excerpts
Viscount Younger of Leckie
That the draft regulations laid before the House on 27 March be approved.
Relevant documents: 41st Report from the Secondary Legislation Scrutiny Committee, 26th Report from the Joint Committee on Statutory Instruments
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie) (Con)
My Lords, in moving the lead regulations I will take the opportunity to speak to all three instruments before us today, which deal with exceptions to copyright.
In today’s digital world the process of copying is intrinsic to new technologies that are used by vast sections of our society, from researchers and curators to teachers and consumers. Yet under current UK copyright law a great many activities that are intuitively acceptable to any reasonably minded person are unlawful or at best uncertain simply because they involve some element of copying. It is the responsibility of government to ensure that copyright law achieves an appropriate balance between protecting the rights and interests of creators and serving the wider public interest.
These statutory instruments are part of a process that dates back to the publication of the Hargreaves review in May 2011—and in fact similar recommendations were made in 2006 by the Gowers review of copyright under the previous Administration.
I feel it is appropriate at this stage to comment that the Government are proposing two other statutory instruments: first, on personal copying for private use; and, secondly, on parody, caricature and pastiche and quotation.
The Joint Committee on Statutory Instruments has asked for some further points of clarification. It is not unusual for the committee to want to spend more time considering SIs but it does, unfortunately, have implications for the timetable for these exceptions, given where we are in the parliamentary cycle. While this delay is disappointing for the Government and many members of the public, the Government remain firmly committed to implementing each of these important exceptions to copyright law as soon as possible.
I turn to the three SIs before us today. One makes changes to the exceptions for research, education, libraries and archives. This instrument includes a new exception for text and data mining for non-commercial research. The other two instruments make changes for the benefit of disabled people and public administration. In most cases the instruments make small changes to existing exceptions—for example, by expanding the types of copyright works that the exceptions apply to or the types of institution or user that can benefit from them.
I am pleased to report that the Joint Committee on Statutory Instruments considered the three instruments we have before us today and had no comments to report. This means that the committee has not identified any issues that it feels need to be brought to the attention of Parliament. Noble Lords will also be aware that my officials and I provided oral evidence to the Secondary Legislation Scrutiny Committee on 6 May, and the committee reported its views on 9 May. I welcome this consideration of the regulations, and I very much welcome the opportunity for further consideration today.
The potential benefits of these SIs are significant. At a conservative estimate, based on the Government’s impact assessments, the measures in the three instruments are predicted to benefit the United Kingdom by nearly £250 million over 10 years. For the avoidance of doubt, the majority of uses of copyright materials will continue to require permission from copyright owners. The regulations have been carefully and narrowly drafted to contain safeguards that ensure they do not prejudice the legitimate interests of creators and rights holders. Indeed, many of the changes simply modernise existing exceptions that have been part of UK law for many years.
Over the past few years, the Government have consulted extensively on these proposals and the Secondary Legislation Scrutiny Committee recently commended the Government on their “sustained efforts” to consult on these measures. There is no doubt that the Government found it enormously helpful to hear the full spectrum of viewpoints, including those of individual creators, businesses, researchers and consumers.
I turn first to the new copyright exception to permit UK researchers to use text and data-mining technologies as part of their research. Data-mining techniques allow researchers to analyse large amounts of text and data using computers. This is extremely efficient and makes it easier for researchers to make interconnections within the vast amount of data being produced in the digital age. This new exception for text and data mining contributes to the Government’s overall goal of making the UK one of the best places in the world to do science.
This measure is necessary because current copyright law does not allow us to realise all the potential benefits of text and data mining. This is because the technology usually requires copies to be made of the material that is being analysed, and making these copies risks infringing copyright. At the moment, only 11% of articles in the European database of biomedical research papers can be electronically analysed without seeking specific permission from the copyright owner. This is the case even where the researcher or their institution may have already paid for a licence to read these articles.
The evidence submitted to the Government’s consultations showed that requiring individual researchers to seek specific permission from each rights holder is a significant obstacle to the uptake of data mining. One case study found that a simple exercise to mine all papers with the term “malaria” in their title could require a researcher to spend between four and five weeks seeking permissions—time far better spent on actual research. The changes proposed will allow researchers to make copies of any material they already have the right to read, without obtaining additional permission from the rights holder. This will apply only to text and data mining as part of a non-commercial research project.
Researchers in the US and Japan already have this freedom to carry out text and data mining. This exception will give similar freedoms to British researchers, and give Britain greater competitive strength internationally. To ensure that researchers are fully able to benefit from the exception, the legislation makes contract terms that seek to prevent or restrict text and data mining for non-commercial research unenforceable. It is important to add, however, that it will not stop rights holders imposing controls on the way in which researchers can access material, such as reasonable limits on download speeds.
I turn now to other research elements of this same statutory instrument. The regulations will extend the existing fair-dealing research exception to cover all types of copyright works, not just literary and artistic works. Researchers will be permitted to carry out reasonable, limited copying for non-commercial research and private study, without permission from the copyright holder. The amount of copying that can occur is limited by fair dealing, which means that copying a whole work is extremely unlikely to be allowed. Institutions such as libraries and universities will also be able to offer access to copyright works on the premises at electronic terminals for research and private study. That will reduce costs and improve access.
Lord Stevenson of Balmacara (Lab)
My Lords, I thank all those who have contributed to this short but important debate today, which goes to prove that this is an interesting area of activity. As the noble Lord, Lord Clement-Jones, said, it bears on one of our key industrial sectors, which we must be careful to ensure is given protection and support. In some of the earlier debates on these issues in other places, where perhaps not so many people would crowd in as have done today, we had thought that we were a lonely band, a small group of complete nerds who were interested only in the very detailed minutiae exemplified by the brilliant speech from the noble Lord, Lord Clement-Jones, on the wide issues relating to copyright contracts, to which I will leave the Minister to respond. Of course, I am wrong; many issues are coming up now that we will return to with pleasure as we go through the other statutory instruments, and indeed as we wait for further measures to come forward as a result of the ERR Bill, particularly extended collective licensing and orphan works. Those who do not know these things might want to get themselves ready for it, because that too will be great fun.
The argument that we have heard today from the Minister is that these “small” changes to the UK’s copyright regime are vital to supporting innovation and growth in the UK. In fact, to my mind they bear more on individuals, particularly those with disabilities, and on the not-for-profit libraries and archives in the digital age, helping them to serve their patrons more effectively and to reduce costs. It is therefore likely that they will lead to greater efficiency, innovation and improved research, which is a good thing, and there seems to be no independently validated evidence that any of the proposed new exceptions will damage the legitimate commercial interests of rights holders.
Rights holders often claim, as the noble Lord, Lord Clement-Jones, suggested, that exceptions are or soon will be rendered unnecessary by the existence of licensing schemes. That argument has some merit and good progress has been made on this, particularly through the copyright hub, but consumers will not be well served if the licensing system is overly complex or expensive or withdraws works and therefore makes them inaccessible. It is also true, at least at present, that many copyright works are not, and in some cases cannot be, covered by licensing schemes. There is, for instance, no scheme for unpublished literary works such as private letters, or one for private films or photographs. It may be, as I have mentioned, that the mooted extended collective licensing schemes and action on orphan works will address many of these issues, but until then archives and libraries have no choice but to rely on exceptions in order to provide a service to the public.
My first point is that I do not think that the impact of these SIs will be quite as significant in the wider economy as the noble Lord makes out. In any event, it is important that both sides in this argument do not overclaim. We should also bear in mind that if, in a digital world, citizens do not feel that the law appropriately supports their own personal and educational needs, it will simply be ignored, which is in no one’s interest. Indeed, the noble Earl, Lord Erroll, rather hinted that that was the way in which he approached matters.
The Government believe that the changes contain safeguards to ensure that a reasonable balance is maintained between the interests of creators, owners, performers, consumers and users of copyright works. We have some concerns on this point. What is important is that we have a balanced copyright system that respects the legitimate interests of both the rights holders and the users of copyright works. Copyright law should work for everyone. There should be incentives for people to invent and create, appropriate protection for the output that they produce and a right to a reasonable return on that investment.
These instruments update the framework of exceptions to copyright in performance and expand the freedoms in copyright law to allow third parties to use copyright works for a variety of purposes without permission from copyright owners. We broadly agree with this approach and have supported the Government through this seemingly endless and tortured process. However, I should put on record that we wonder whether utilising exceptions is in itself the best way of making changes to a regime that in some respects is creaking and, as the noble and learned Lord, Lord Scott, suggested and my noble friend Lord Howarth agreed, may be in need of some serious recalibration.
We should recall that in Modernising Copyright Ministers stated:
“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013”.
I observe October as a rather crucial date. It is one of the two CCDs referred to by the noble Lord, Lord Clement-Jones. Well it is May 2014, and we have only three SIs, although, of course, there are actually six exceptions contained in them and, as we know, there are more to come. It is fair to say that the Government have had a bumpy ride on this, and I think it is partly because they seem to have difficulty in opening up to proper debate and discussion with the industry and consumers not only about the principles under which they are operating but on the detailed drafting. As has been said, there is more to come in terms of public explanations of what is being proposed. However, there has been a public consultation, there was also a very brief general discussion on a QSD in your Lordships’ House, and further work and technical reviews have been undertaken. We are where we are.
I have only one substantive point to make about the regulations, although there are a number of questions I should like to put to the Minister. The question that underlies some of the points that have already been made is about the exchange in the Secondary Legislation Scrutiny Committee when the Minister was adamant that this packet of measures involved minor changes. In introducing the exceptions today, he said that they are “small changes to existing provisions”. However, the committee stated in its report:
“We pressed the Minister on his statement to us … that the changes proposed were ‘relatively minor’: we are not persuaded that this is an accurate assessment of their impact”.
I should be grateful if the Minister could expand on that when he responds. I struggle with his description “relatively minor”. I probably agree that they are quite small, but I do not know what reference point he is taking on this. What is the relativity?
I now turn to the exceptions themselves, the first of which is disability. It must be right that all print-disabled learners should have the right to have information provided in an accessible format. Indeed, this is required under Section 20(6) of the Equality Act 2010. Amending the existing exceptions for visually impaired people so that they cover all impairments that prevent a person accessing and making use of all types of copyright work will achieve this. We agree with what the Government are trying to do here and support it.
The public administration regulations will allow more public bodies proactively to share online unpublished third-party material from businesses and members of the public. We agree that the Government are doing the right thing here, and we support it.
The third SI is a bit of a plum pudding of an exception because the Government have tried to wrap a controversial issue—to overcook my metaphor—in the middle of three brown-bread and apple-pie proposals—sorry about that. This was the issue that got the most flak during the consultation process, and it continues to worry a number of industry personnel, as we have heard today. It is said that a new text and data-mining exception will dramatically boost non-commercial research by allowing computers to read material that consumers have already purchased or have legal access to. It is also said that the lack of such an exception means that UK research continues to lag behind countries such as the United States, which already allow text and data mining. My main concern is that the exception is designed to assist people who wish to make use of copyright works for the purposes of non-commercial research and private study. Non-commercial research I can sort of understand, and that seems to be an appropriate way to provide an exception, but what exactly is private study? The Government’s position on this seems vague and may well be open to legal challenge. I should be grateful if the Minister could return to this when he responds. I have looked at the accompanying information booklet, which says that this exception is not restricted to those studying at school, college or university. The guidance states that,
“this also applies to those carrying out their own private study but you must be genuinely studying (like you would if you were studying for a college course) to qualify. An example of this could be when you are learning to identify birds in your garden or simply learning more about a particular hobby”.
We seem to be quite a long way away from malaria. One can empathise with copyright holders who fear that a qualification such as,
“simply learning more about a particular hobby”,
might be seen to be driving a coach and horses through this provision. I should be grateful if the Minister could explain the position a little better when he comes to reply.
On the other exceptions within this SI, I particularly welcome the exceptions for libraries and archives and declare my interest as a former director of the British Film Institute, whose national film archive will benefit considerably from these changes.
Finally, I turn to common commencement dates. According to the Better Regulation Framework Manual, new domestic measures, both regulatory and deregulatory, must come into force on a common commencement date, either 6 April or 1 October each year. The guidance says that by requiring regulatory changes to occur at set times, CCDs inform business and other stakeholders about forthcoming regulatory changes, helping them to plan and budget for new measures and to minimise any additional costs. That seems a good and sensible suggestion. I point out that this is advice to officials but presumably also to Ministers. It goes on:
“You should always assume that your policy will be implemented on a CCD unless you have received explicit RRC”—
Reducing Regulation Committee—
“clearance for a waiver on one of the grounds below … clear emergencies … anti-avoidance measures … measures which remove significant risk or detriment from business … instances where the costs of timing a measure to meet a CCD would be wholly disproportionate to the public purse and … orders which commence other measures on a CCD”.
Can the Minister explain to the House into which particular category these exceptions fall? There is mention of,
“limited flexibility for deregulatory measures to come into force on a date other than a CCD if there would be demonstrable benefits to business”.
However, it says:
“This would require agreement to a waiver by RRC at write-round”.
Can the Minister confirm that his department has obtained this waiver? If so, perhaps we could have sight of the letter? It would be interesting to read it.
Finally, I draw the Minister’s attention to paragraph 1.10.9 of the guidance, which states:
“If an unanticipated delay means that your measure will not be ready for the planned CCD”—
which seems to be the sort of case we have here—
“you should wait until the next CCD”.
However, the Government are trying to introduce three of the five SIs on 1 June. The next CCD is 1 October. Can the Minister at least confirm that the two delayed exceptions will be scheduled to come into force on 1 October? If it is not 1 October, can we please be allowed to know why?
Viscount Younger of Leckie
First, I will say how pleased I am that so many people have contributed today. What the noble Lord, Lord Stevenson, said is true: there is a greater number of noble Lords here than there has been for many of the copyright debates. I should quickly say that, although I did not agree with all the comments that were made, I greatly appreciate your Lordships’ presence.
As I said at the outset, this is a package of reasonable and common-sense changes to copyright exceptions, which will deliver significant benefits to the UK. I am sure that the noble and learned Lord, Lord Scott of Foscote, will understand when I say that I will not be focusing on private copying, parody and pastiches, as we are not ready for those particular SIs at the moment.
I also thank the noble Lord, Lord Howarth, for his kind words. He spent quite a bit of time focusing on the consultation process. It is true that, rather unprecedentedly, we engaged with a great number of people across the spectrum, looking at the rights-holders and consumer-and-user ends of the copyright process. In my case, it involved more than 250 meetings, so what the noble Lord said is true: we really have engaged. I hope that, as the noble said, this has been helpful. He was also right to say that there comes a time when the consultation process, which has been extremely long, has to come to an end. I think, again, that he is right that we need to move forward with that.
A lot of questions were raised today; I hope that I can get through them all. I will address a couple of them to begin with. The first was raised by the noble Lord, Lord Berkeley of Knighton, who asked about the amendments to public guidance in relation to copying sheet music for exam use, which is an extremely interesting point. I thank him for his kind words and the recognition of the changes that the Government are making. We have welcomed the written submissions from some stakeholders setting out their thoughts on the guidance; these will be considered in due course.
The second point was raised by the noble Lord, Lord Walton, who I notice is not in his place. I beg the noble Lord’s pardon; he is now in his place. He asked whether schools and universities would now not need any photocopying licences. He used the example of the ALCS to this effect. I can reassure him that schools and universities will still need to hold photocopying licences. It would not be right to allow schools to copy textbooks without payment in order to get them for free. Authors will still be properly remunerated. However, where works are not licensed, a teacher will be able to make photocopies without worrying about copyright infringement, so I hope that that clarifies the point.