Alex Davies-Jones
Main Page: Alex Davies-Jones (Labour - Pontypridd)(2 years, 1 month ago)
Public Bill CommitteesBefore we adjourned, I was discussing the Government’s national artificial intelligence strategy and the two separate consultations launched by the Government to look at the intellectual property system in relation to AI. In those consultations, the Intellectual Property Office recognised that AI
“is playing an increasing role in...artistic creativity.”
However, specific questions about reviewing or enhancing performers’ rights were notably absent from both Government consultations. If the UK Government really want to make Britain a global AI and creative superpower, strengthening the rights of performers and other creatives must be at the heart of the national AI strategy.
Another key challenge is that our intellectual property framework is desperately out of date. Currently, performers have two sets of rights under the Copyright, Designs and Patents Act 1988: the right to consent to the making of a recording of a performance; and the right to control the subsequent use of such recordings, such as the right to make copies. However, as highlighted by Dr Mathilde Pavis, senior lecturer in law at the University of Exeter, AI-made performance synthetisation challenges our intellectual property framework because it reproduces performances without generating a recording or a copy, and therefore falls outside the scope of the Act. An unintended consequence is that people are left vulnerable to abuse and exploitation. Without effective checks and balances put in place by the Government, that will continue. That is why 93% of Equity members responding to a recent survey stated that the Government should introduce a new legal protection for performers, so that a performance cannot be reproduced by AI technology without the performer’s consent.
Advances in AI, including deepfake technology, have reinforced the urgent need to introduce image rights—also known as personality rights or publicity rights. That refers to
“the expression of a personality in the public domain”,
such as an individual’s name, likeness or other personal indicators. Provision of image rights in law enables performers to safeguard meaningful income streams, and to defend their artistic integrity, career choices, brand and reputation. More broadly, for society, it is an important tool for protecting privacy and allowing an individual to object to the use of their image without consent.
In the UK, there is no codified law of image rights or privacy. Instead, we have a patchwork of statutory and common-law causes of action, which an individual can use to protect various aspects of their image and personality. However, none of that is fit for purpose. Legal provision for image rights can be found around the world, so the Government here can and should do more. For example, some American states recognise the right through their statute, and some others through common law. California has both statutory and common-law strains of authority, which protect slightly different forms of the right.
The Celebrities Rights Act of 1985 was passed in California and extended the personality rights for a celebrity to 70 years after their death. In 2020, New York State passed a Bill that recognised rights of publicity for “deceased performers” and “deceased personalities”. Guernsey has created a statutory regime under which image rights can be registered. The legislation centres on the legal concept of a “personnage”— the person or character behind a personality that is registered. The image right becomes a property right capable of protection under the legislation through registration, which enables the image right to be protected, licensed and assigned.
The Minister will know that Equity is doing incredible work to highlight the genuine impact that this type of technology is having on our creative industry and our performers. He must therefore see the sense in our new clause, which would require the Government at least to consider the matter of synthetic media content, which thus far they have utterly failed to do.
It is a pleasure to serve under your chairmanship again, Ms Rees. I thank the shadow Minister, the hon. Member for Pontypridd, for raising the issues that she has done about synthetic and digitally manipulated content, which we are very conscious of. We are conscious of the risk of harm to those who work in the entertainment industry and of course, in particular, to victims of deepfake pornography.
We take intellectual property infringement extremely seriously. The Government have recently published a counter-infringement strategy, setting out a range of steps that we intend to take to strengthen the whole system approach to tackling infringement of intellectual property rights. It is widely acknowledged that the United Kingdom has an intellectual property framework that is genuinely world leading and considered among the best in the world. That includes strong protections for performers’ rights. We intend that to continue. However, we are not complacent and the law is kept under review, not least via the counter-infringement strategy I mentioned a moment ago.
Harmful synthetic media content, including the deepfakes that the hon. Member for Pontypridd mentioned, is robustly addressed by the safety duties set out in the Bill in relation to illegal content—much deepfake content, if it involves creating an image of someone, would be illegal—as well as content that could be harmful to children and content that will be on the “legal but harmful” adult list. Those duties will tackle the most serious and illegal forms of deepfake and will rightly cover certain threats that undermine our democracy. For example, a manipulated media image that contained incitement to violence, such as a deepfake of a politician telling people to attack poll workers because they are rigging an election, would obviously already fall foul of the Bill under the illegal duties.
In terms of reporting and codes of practice, the Bill already requires Ofcom to produce codes of practice setting out the ways in which providers can take steps to reduce the harm arising from illegal and harmful content, which could include synthetic media content such as deepfakes where those contain illegal content.
The Minister uses the example of a deepfake of a politician inciting people to attack poll workers during an election. Given some of the technology is so advanced that it is really difficult to spot when the deepfakes actually occur, could it be argued that Ofcom as regulator or even the platforms themselves would be adverse to removing or reporting the content as it could fall foul of the democratic content exemption in the Bill?
The democratic content protection that the shadow Minister refers to, in clause 15, is not an exemption; it is a duty to take into account content of democratic importance. That is on line 34 of page 14. When making a decision, it has to be taken into account—it is not determinative; it is not as if a politician or somebody involved in an election gets a free pass to say whatever they like, even if it is illegal, and escapes the provisions of the Bill entirely. The platform simply has to take it into account. If it was a deepfake image that was saying such a thing, the balancing consideration in clause 15 would not even apply, because the protection applies to content of democratic importance, not to content being produced by a fake image of a politician.
It is important that we get this right. One of our concerns on clause 15, which we have previously discussed, relates to this discussion of deepfakes, particularly of politicians, and timeframes. I understand the Minister’s point on illegal content. If there is a deepfake of a politician—on the eve of poll, for example—widely spreading disinformation or misinformation on a platform, how can the Minister confidently say that that would be taken seriously, in a timely manner? That could have direct implications on a poll or an election. Would the social media companies have the confidence to take that content down, given clause 15?
The protections in clause 15—they are not exemptions—would only apply to content that is of bona fide, genuine democratic importance. Obviously, a deepfake of a politician would not count as genuine, democratic content, because it is fake. If it was a real politician, such as the hon. Lady, it would benefit from that consideration. If it was a fake, it would not, because it would not be genuine content of democratic importance.
It is also worth saying that if—well, I hope when—our work with the Law Commission to review the criminal law related to the non-consensual taking and sharing of internet images is taken forward, that will then flow into the duties in the Bill. Deepfakes of internet images are rightly a concern of many people. That work would fall into the ambit of the Bill, either via clause 52, which points to illegal acts where there is an individual victim, or schedule 7, if a new internet image abuse were added to schedule 7 as a priority offence. There are a number of ways in which deepfakes could fall into the ambit of the Bill, including if they relate to extreme pornography.
The new clause would require the production of a report, not a change to the substantive duties in the Bill. It is worth saying that the Bill already provides Ofcom with powers to produce and publish reports regarding online safety matters. Those powers are set out in clause 137. The Bill will ensure that Ofcom has access to the information required to prepare those reports, including information from providers about the harm caused by deepfakes and how companies tackle the issue. We debated that extensively this morning when we talked about the strong powers that already exist under clause 85.
The hon. Lady has raised important points about intellectual property, and I have pointed to our counter-infringement strategy. She raised important points about deepfakes both in a political context and in the context of especially intimate images being generated by AI. I hope I have set out how the Bill addresses concerns in those areas. The Bill as drafted addresses those important issues in a way that is certainly adequate.
I welcome the Minister’s comments and I am grateful for his reassurance on some of the concerns that were raised. At this stage we will not press the matter to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 27
OFCOM: power to impose duties on regulated services
“OFCOM: power to impose duties on regulated services
(1) OFCOM may carry out an assessment of the risk of harm posed by any regulated service.
(2) Where OFCOM assess a service to pose a very high risk of harm, OFCOM may, notwithstanding the categorisation of the service or the number or profile of its users, impose upon the service duties equivalent to—
(a) the children’s risk assessment duties set out in sections 10 and 25 of this Act; and
(b) the safety duties protecting children set out in sections 11 and 26 of this Act.”—(Kirsty Blackman.)
This new clause enables Ofcom to impose on any regulated service duties equivalent to the children’s risk assessment duties and the safety duties protecting children.
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
I drafted this new clause following a number of conversations and debates that we had in Committee about how the Act will be scrutinised. How will we see whether the Act is properly achieving what it is supposed to achieve? We know that there is currently a requirement in the Bill for a review to take place but, as has been mentioned already, that is a one-off thing; it is not a rolling update on the efficacy of the Act and whether it is achieving the duties that it is supposed to achieve.
This is particularly important because there are abilities for the Secretary of State to make changes to some of the Act. Presumably the Government would not have put that in if they did not think there was a possibility or a likelihood that changes would have to be made to the Act at some future point. The Bill is certainly not perfect, but even from the Government’s point of view it is not perfect for all time. There is a requirement for the Act to be updated; it will have to change. New priority harms may have to be added. New details about different illegal acts may have to be added to the duties. That flexibility is given, and the Secretary of State has that flexibility in a number of cases.
If the Act were just going to be a standing thing, if it were not going to be updated, it would never be future-proof; it would never work in the changing world that we have. We know that this legislation has taken a very long time to get here. We have been sadly lacking in significant regulation in the online world for more than 20 years, certainly. For a very long time we have not had this. Now that the Act is here—or it will be once the Bill passes through both Houses of Parliament—we want it to work.
That is the point of every amendment we have tabled: we are trying to make the Bill better so that it works and can keep people as safe as possible. At the moment, we do not know how safe the internet will be as a result of the Bill. Even once it begins to be implemented, we will not have enough information on the improvements it has created to be able to say, “Actually, this was a world-leading piece of legislation.”
It may be that the digital regulation committee that I am suggesting in this new clause has a look regularly at the implementation of the Bill going forward and says, “Yep, that’s brilliant.” The committee might look at the implementation and the increasing time we spend online, with all the harms that can come with that, and says, “Actually, you need to tweak that a bit” or, “That is not quite fulfilling what it was intended to.” The committee might also say, “This brand new technology has come in and it is not entirely covered by the Act as it is being implemented.” A digital regulation committee was proposed by the Joint Committee, I think, to scrutinise implementation of the legislation.
The Government will say that they will review—they always do. I have been in so many Delegated Legislation Committees that involve the Treasury and the Government saying, “Yes, we keep everything under review—we always review everything.” That line is used in so many of these Committees, but it is just not true. In January I asked the Department for Digital, Culture, Media and Sport
“how many and what proportion of (a) primary and (b) secondary legislation sponsored by (i) their Department…has undergone a post legislative review”.
It was a written question I put to a number of Departments including DCMS. The reply I got from the Minister here was:
“The number of post legislative reviews the Department has undertaken on primary and secondary legislation in each of the last five years is not held within the Department.”
The Government do not even know how many pieces of primary or secondary legislation they have reviewed. They cannot tell us that all of them have been reviewed. Presumably, if they could tell us that all of them have been reviewed, the answer to my written question would have been, “All of them.” I have a list of the number they sponsored. It was six in 2021, for example. If the Department had reviewed the implementation of all those pieces of legislation, I would expect it to be shouting that from the rooftops in response to a written question. It should be saying, “Yes, we are wonderful. We have reviewed all these and found that most of them are working exactly as we intended them to.”
I do not have faith in the Government or in DCMS—nor pretty much in any Government Department. I do not have faith in their ability or intention to adequately and effectively review the implementation of this legislation, to ensure that the review is done timeously and sent to the Digital, Culture, Media and Sport Committee, or to ensure those proper processes that are supposed to be in place are actually in place and that the Bill is working.
It is unfortunate for the Minister that he sent me that reply earlier in the year, but I only asked the question because I was aware of the significant lack of work the Government are doing on reviewing whether or not legislation has achieved its desired effect, including whether it has cost the amount of money they said it would, whether it has kept the amount of people safe that they said it would, and that it has done what it needs to do.
I have a lack of faith in the Government generally, but specifically on this issue because of the shifting nature of the internet. This is not to take away from the DCMS Committee, but I have sat on a number of Select Committees and know that they are very busy—they have a huge amount of things to scrutinise. This would not stop them scrutinising this Act and taking action to look at whether it is working. It would give an additional line of scrutiny, transparency and defence, in order to ensure that this world-leading legislation is actually world-leading and keeps people safe in the way it is intended to.
It is an honour to support the new clause moved by the hon. Member for Aberdeen North. This was a recommendation from the Joint Committee report, and we believe it is important, given the sheer complexity of the Bill. The Minister will not be alarmed to hear that I am all in favour of increasing the scrutiny and transparency of this legislation.
Having proudly served on the DCMS Committee, I know it does some excellent work on a very broad range of policy areas, as has been highlighted. It is important to acknowledge that there will of course be cross-over, but ultimately we support the new clause. Given my very fond memories of serving on the Select Committee, I want to put on the record my support for it. My support for this new clause is not meant as any disrespect to that Committee. It is genuinely extremely effective in scrutinising the Government and holding them to account, and I know it will continue to do that in relation to both this Bill and other aspects of DCMS. The need for transparency, openness and scrutiny of this Bill is fundamental if it is truly to be world-leading, which is why we support the new clause.
I am grateful for the opportunity to discuss this issue once again. I want to put on the record my thanks to the Joint Committee, which the hon. Member for Ochil and South Perthshire sat on, for doing such fantastic work in scrutinising the draft legislation. As a result of its work, no fewer than 66 changes were made to the Bill, so it was very effective.
I want to make one or two observations about scrutinising the legislation following the passage of the Bill. First, there is the standard review mechanism in clause 149, on pages 125 and 126, which provides for a statutory review not before two years and not after five years of the Bill receiving Royal Assent.
I beg to move, That the clause be read a Second time.
The new clause would give Ofcom the power to co-operate with other regulators for the purposes of tackling harm from illegal content, and for criminal investigations and proceedings. The Minister will be aware that the vast range of human and business activity covered online presents a complex map of potential harms. Some harms will fall into or be adjacent to the purview of other regulators with domain-specific expertise. The relationship formalised through the Digital Regulation Cooperation Forum is well known. Indeed, Ofcom already has a working relationship with the Advertising Standards Authority and the Internet Watch Foundation, among others. Within this regulatory web, Ofcom will have the most relevant powers and expertise, so many regulators will look to it for help in tackling online safety issues. The Minister must recognise that public protection will most effectively be achieved through regulatory interlock. To protect people, Ofcom should be empowered to co-operate with others and to share information. The Bill should, therefore, as much as it can, enable Ofcom to work with other regulators and share online safety information with them.
Ofcom should also be able to bring the immense skills of other regulators into its work. The Bill gives Ofcom the general ability to co-operate with overseas regulators, but, with the exception of references to consulting the Information Commissioner’s Office when drawing up codes of practice and various items of guidance, the Bill is largely silent on co-operation with UK regulators.
The Communications Act 2003 limits the UK regulators with which Ofcom can share information—excluding the ICO, for instance—yet the Online Safety Bill takes a permissive approach to overseas regulators. The Bill should extend co-operation and information sharing in respect of online safety to include regulators overseeing the offences in schedule 7, the primary priority and priority harms to children, and the priority harms to adults.
Elsewhere in regulation, the Financial Conduct Authority has a general duty to co-operate. The same should apply here. Increasing safety through co-operation between relevant regulators is most easily achieved through our new clause, which will allow Ofcom to co-operate more widely. That is limited to co-operation in respect of harmful illegal content, harms to children and priority harms to adults. It is implicit that Ofcom will share information only with the regulators responsible for those precise matters. We have spoken frequently about the importance of co-operation, collaboration and consultation. This simple new clause would help to remedy the slight limitations placed on Ofcom in the Bill.
Ms Rees, with your permission, at this point—because this is likely to be my last contribution to the Bill Committee—[Interruption.] For shame. I place on record my sincere thanks to you and Sir Roger for chairing these Committee sittings, as well as all the Hansard staff, the Clerks, the Table Office, our civil servants, the Doorkeepers, the tech staff and broadcasting team who enable our proceedings to be broadcast to the public, and all members of the Committee for allowing great scrutiny of this legislation to take place. I look forward to continuing that scrutiny on Report.
On a point of order, Ms Rees. On behalf of the Back Benchers, I thank you and Sir Roger for your excellent chairpersonships, and the Minister and shadow Ministers for the very courteous way in which proceedings have taken place. It has been a great pleasure to be a member of the Bill Committee.
I am content with the Minister’s assurance that the provisions of new clause 41 are covered in the Bill, and therefore do not wish to press it to a vote. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Schedule 2
Recovery of OFCOM’s initial costs
Recovery of initial costs
1 (1) This Schedule concerns the recovery by OFCOM of an amount equal to the aggregate of the amounts of WTA receipts which, in accordance with section 401(1) of the Communications Act and OFCOM’s statement under that section, are retained by OFCOM for the purpose of meeting their initial costs.
(2) OFCOM must seek to recover the amount described in sub-paragraph (1) (“the total amount of OFCOM’s initial costs”) by charging providers of regulated services fees under this Schedule (“additional fees”).
(3) In this Schedule—
“initial costs” means the costs incurred by OFCOM before the day on which section 75 comes into force on preparations for the exercise of their online safety functions;
“WTA receipts” means the amounts described in section 401(1)(a) of the Communications Act which are paid to OFCOM (certain receipts under the Wireless Telegraphy Act 2006).
Recovery of initial costs: first phase
2 (1) The first phase of OFCOM’s recovery of their initial costs is to take place over a period of several charging years to be specified in regulations under paragraph 7 (“specified charging years”).
(2) Over that period OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the total amount of OFCOM’s initial costs.
(3) OFCOM may not charge providers additional fees in respect of any charging year which falls before the first specified charging year.
(4) OFCOM may require a provider to pay an additional fee in respect of a charging year only if the provider is required to pay a fee in respect of that year under section 71 (and references in this Schedule to charging providers are to be read accordingly).
(5) The amount of an additional fee payable by a provider is to be calculated in accordance with regulations under paragraph 7.
Further recovery of initial costs
3 (1) The second phase of OFCOM’s recovery of their initial costs begins after the end of the last of the specified charging years.
(2) As soon as reasonably practicable after the end of the last of the specified charging years, OFCOM must publish a statement specifying—
(a) the amount which is at that time the recoverable amount (see paragraph 6), and
(b) the amounts of the variables involved in the calculation of the recoverable amount.
(3) OFCOM’s statement must also specify the amount which is equal to that portion of the recoverable amount which is not likely to be paid or recovered. The amount so specified is referred to in sub-paragraphs (4) and (5) as “the outstanding amount”.
(4) Unless a determination is made as mentioned in sub-paragraph (5), OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the outstanding amount.
(5) The Secretary of State may, as soon as reasonably practicable after the publication of OFCOM’s statement, make a determination specifying an amount by which the outstanding amount is to be reduced, and in that case OFCOM must, in aggregate, charge providers of regulated services additional fees of an amount equal to the difference between the outstanding amount and the amount specified in the determination.
(6) Additional fees mentioned in sub-paragraph (4) or (5) must be charged in respect of the charging year immediately following the last of the specified charging years (“year 1”).
(7) The process set out in sub-paragraphs (2) to (6) is to be repeated in successive charging years, applying those sub-paragraphs as if—
(a) in sub-paragraph (2), the reference to the end of the last of the specified charging years were to the end of year 1 (and so on for successive charging years);
(b) in sub-paragraph (6), the reference to year 1 were to the charging year immediately following year 1 (and so on for successive charging years).
(8) Any determination by the Secretary of State under this paragraph must be published in such manner as the Secretary of State considers appropriate.
(9) Sub-paragraphs (4) and (5) of paragraph 2 apply to the charging of additional fees under this paragraph as they apply to the charging of additional fees under that paragraph.
(10) The process set out in this paragraph comes to an end in accordance with paragraph 4.
End of the recovery process
4 (1) The process set out in paragraph 3 comes to an end if a statement by OFCOM under that paragraph records that—
(a) the recoverable amount is nil, or
(b) all of the recoverable amount is likely to be paid or recovered.
(2) Or the Secretary of State may bring that process to an end by making a determination that OFCOM are not to embark on another round of charging providers of regulated services additional fees.
(3) The earliest time when such a determination may be made is after the publication of OFCOM’s first statement under paragraph 3.
(4) A determination under sub-paragraph (2)—
(a) must be made as soon as reasonably practicable after the publication of a statement by OFCOM under paragraph 3;
(b) must be published in such manner as the Secretary of State considers appropriate.
(5) A determination under sub-paragraph (2) does not affect OFCOM’s power—
(a) to bring proceedings for the recovery of the whole or part of an additional fee for which a provider became liable at any time before the determination was made, or
(b) to act in accordance with the procedure set out in section 120 in relation to such a liability.
Providers for part of a year only
5 (1) For the purposes of this Schedule, the “provider” of a regulated service, in relation to a charging year, includes a person who is the provider of the service for part of the year.
(2) Where a person is the provider of a regulated service for part of a charging year only, OFCOM may refund all or part of an additional fee paid to OFCOM under paragraph 2 or 3 by that provider in respect of that year.
Calculation of the recoverable amount
6 For the purposes of a statement by OFCOM under paragraph 3, the “recoverable amount” is given by the formula—
C – (F – R) - D
where—
C is the total amount of OFCOM’s initial costs,
F is the aggregate amount of the additional fees received by OFCOM at the time of the statement in question,
R is the aggregate amount of the additional fees received by OFCOM that at the time of the statement in question have been, or are due to be, refunded (see paragraph 5(2)), and
D is the amount specified in a determination made by the Secretary of State under paragraph 3 (see paragraph 3(5)) at a time before the statement in question or, where more than one such determination has been made, the sum of the amounts specified in those determinations.
If no such determination has been made before the statement in question, D=).
Regulations about recovery of initial costs
7 (1) The Secretary of State must make regulations making such provision as the Secretary of State considers appropriate in connection with the recovery by OFCOM of their initial costs.
(2) The regulations must include provision as set out in sub-paragraphs (3), (4) and (6).
(3) The regulations must specify the total amount of OFCOM’s initial costs.
(4) For the purposes of paragraph 2, the regulations must specify—
(a) the charging years in respect of which additional fees are to be charged, and
(b) the proportion of the total amount of initial costs which OFCOM must seek to recover in each of the specified charging years.
(5) The following rules apply to provision made in accordance with sub-paragraph (4)(a)—
(a) the initial charging year may not be specified;
(b) only consecutive charging years may be specified;
(c) at least three charging years must be specified;
(d) no more than five charging years may be specified.
(6) The regulations must specify the computation model that OFCOM must use to calculate fees payable by individual providers of regulated services under paragraphs 2 and 3 (and that computation model may be different for different charging years).
(7) The regulations may make provision about what OFCOM may or must do if the operation of this Schedule results in them recovering more than the total amount of their initial costs.
(8) The regulations may amend this Schedule or provide for its application with modifications in particular cases.
(9) Before making regulations under this paragraph, the Secretary of State must consult—
(a) OFCOM,
(b) providers of regulated user-to-user services,
(c) providers of regulated search services,
(d) providers of internet services within section 67(2), and
(e) such other persons as the Secretary of State considers appropriate.
Interpretation
8 In this Schedule—
“additional fees” means fees chargeable under this Schedule in respect of the recovery of OFCOM’s initial costs;
“charging year” has the meaning given by section76;
“initial charging year” has the meaning given by section76;
“initial costs” has the meaning given by paragraph 1(3), and the “total amount” of initial costs means the amount described in paragraph 1(1);
“recoverable amount” has the meaning given by paragraph 6;
“specified charging year” means a charging year specified in regulations under paragraph 7 for the purposes of paragraph 2.” —(Chris Philp.)
This new Schedule requires Ofcom to seek to recover their costs which they have incurred (before clause 75 comes into force) when preparing to take on functions as the regulator of services under the Bill by charging fees to providers of services.
Brought up, read the First and Second time, and added to the Bill.
New schedule 1 was tabled by Carla Lockhart, who is not on the Committee. Does any Member wish to move new schedule 1? No.
We now come to the final Question in the proceedings. The Committee has finished its work.
Bill, as amended, to be reported.