Intellectual Property Bill [HL]

Baroness Buscombe Excerpts

Wednesday 22nd May 2013 Lords Chamber

[Baroness Buscombe]

My Lords, I, too, very much look forward to the maiden speech of the noble and learned Lord, Lord Walker of Gestingthorpe.

It is testament to the importance of intellectual property and the value of the creative industries that this House is again considering the issue of copyright as the ink of the Enterprise and Regulatory Reform Act has barely dried. Indeed, I was surprised and very pleased when Her Majesty the Queen spoke in the gracious Speech of a “further Bill” which,

“will make it easier for businesses to protect their intellectual property”.

This aim reflects what I and many others in this House have long recognised: that this country has a strong and vibrant creative industries sector which, as the Secretary of State for Culture recently stated, should be central to the UK’s economic growth. I have to say that it is a bit rich of the noble Lord, Lord Stevenson of Balmacara, to begin his speech by saying that this is a sign that the Government have finally woken up to the importance of intellectual property. I might say that his previous Government never woke up.

Of course, I agree with the Minister that we must have a copyright regime which is fit for the digital age. However, this should not mean that we cannot also protect our most valuable assets—simply put, our creators. Indeed, the title of the Bill suggests that this is what this legislation is all about. It suggests to me that creators will at last be properly recognised and properly paid for their works in this digital age. The question is: does the Bill deliver? Is this an opportunity missed?

There is much to commend in the Bill. However, I want to take it a step further. Given our rich cultural history of Shakespeare, Dickens and Elgar, it might be easy to take for granted our world-leading creators and creative industries and to forget the extent to which we are enriched by them, culturally and economically. Without artists, who rely on a fair and secure copyright regime to be paid for their work, we would be a much poorer society in so many ways.

The current copyright climate is regrettably highly divided. There is a wide perception that large and well funded businesses such as Google and Yahoo! have more influence than creators on decision-makers around the world. These companies are too often portrayed, usually by themselves, as pioneers on the frontier of digital development, held back by the creative analogue luddites. I believe that this view of the search engines is wrong and, more importantly, short-sighted. These digital businesses need creators and their content to drive their businesses as much as they need the software developers to provide new ways to develop that content.

In the future, as the markets converge, these businesses will demand more high-quality content and innovation from the creative industries. These two groups are increasingly dependent on the same ecosystem to survive. However, there is a problem here, a huge problem which calls into question the worth of introducing more legislation to protect intellectual property when the powerful can continue to exploit with alacrity and for their own ends the creative work of others.

I want to make it clear at this point that I am not joining some populist—this week’s—bandwagon. This is an issue which I have been raising for over a decade and I now feel I must spell it out very simply for those who might think it has to do with tax. It does not. It is about how these search engines, otherwise known as content aggregators, make their money in the first place. It is also something of which I have personal experience. As chief executive of the Advertising Association, I visited Google back in 2005 to talk to its management about following its mantra of “doing the right thing” and supporting the system of self-regulation for advertising. Its firm and first response was that it was a technology company and that somehow that is where its value-added, its income, came from—not advertising.

Where is the integrity in that? If you do not think the right thing, you will not do it. I remember thinking then that these people make the BBC look almost humble—no mean feat. Let me explain how it works. The key question is: how do search engines—content aggregators—make money? How, for example, will Yahoo! recoup more than the $1 billion it has paid for Tumblr? Yahoo! will, I suggest, judge when the time is right to seek to attract advertisers to Tumblr. What attracts advertisers? Good content. Yahoo! will treat that valuable content produced by hard work and so many brilliant, creative minds—many of them British—as free and advertisers will pay Tumblr to appear next to that content. It is essentially a David versus Goliath situation—David is the creator. What we as legislators should be doing is making sure, to the best of our ability, that David is paid. If the Google model is followed, David will probably not be paid.

In 2009, Eric Schmidt, then CEO now executive chairman of Google, made it very clear when he said: “All we care about is the end user”—meaning, of course, the consumer not the creator. A recent article by Luke Johnson, someone with considerable business experience, a track record of success and a former chairman of Channel 4, is instructive. He said:

“Essentially, Google is a gigantic parasite that makes a fortune from exploiting the creativity and entrepreneurship of others. Its search engines do not actually make anything; they just take advantage of the achievements of others”.

He went on to say:

“Google has been destroying the cultural capital that is so vital to our economic success. If the concept of copyright is obliterated, then our creative industries will be shattered, since there will be no protection of original work”.

Strong stuff, but it needs to be said. As Luke also stated in his article:

“Sadly, Britain is particularly vulnerable to Google’s predations in this regard, since our creative industries are one of the fields in which we are world leaders”.

I was reminded of this only last week when I was lucky enough to attend the Ivor Novello awards, awards that champion great British authors and musicians. In that world, we are simply the best. In his opening speech, the chief executive of the Performing Right Society made a plea for politicians to recognise the importance of protecting our valuable British intellectual property. That protection is being constantly eroded by these corporate raiders—US companies taking advantage of great British content. Will this Bill address this? I fear it will not. I am afraid that this Bill, while a good Bill and one, I should stress, I wholeheartedly support as far as it goes, is tinkering at the edges. Perhaps legislation is not the answer. Perhaps this requires a sea change in the culture of the way the search engines do business. In many ways that is so much harder than just introducing legislation.

That said, of course, there are many positive proposals in the Bill. There are in the region of 350,000 designers in the UK and UK businesses spend in the region of £335 billion on design each year. I welcome the greater protections which the draft Bill proposed, in particular a more proportionate response to deliberate infringements of design rights, although I hope that the Government will consider further how the rights of unregistered design can equally be protected. There will clearly be many opportunities for this House to discuss these issues. However, as this House begins these discussions and begins to scrutinise the Bill, I would urge the Minister and the Government to remember the need to secure a copyright regime which protects and nurtures our creators and creative industries. More importantly, I urge them not to be distracted by those big businesses which have the most to gain from the illusion of a war between consumers, creators and businesses.

I believe that we should be striving to ensure that our copyright laws give our creative industries the incentive and freedom to grow and innovate. This will ensure that we can all benefit from their significant talents and skills, culturally and economically. Only this morning, the Prime Minister made it very clear on Radio 4 that he will continue to introduce bold policies and measures to drive our economic success. He also talked about the global race. Effective intellectual property law would make a good, strong contribution to that aim.