Baroness Buscombe
Main Page: Baroness Buscombe (Conservative - Life peer)Copyright
Baroness Buscombe Excerpts
Baroness Buscombe
Baroness Buscombe (Con)
My Lords, I am pleased that we have convened this short debate regarding copyright exceptions. This is an important opportunity to focus upon a few key issues that remain of real concern to the creative industries, notwithstanding many meetings between the IPO, Ministers and stakeholders—I understand in the region of 250 all together—together with impact assessments and the sharing of early drafts of the statutory instruments.
The Government’s aim must be right—to increase the value of copyright while supporting our creators and our freedom of speech. This package of reforms is intended to enable non-commercial, pioneering research, private study and teaching in schools and define the parameters within which we, as consumers, can use what we have paid for. It is not directly concerned with business-to-business licensing; it is, however, about making it easier for businesses to provide new technologies without being held liable for how consumers might use their products. While these reforms do not expressly concern business-to-business licensing, the whole business community is potentially affected.
My focus is on testing whether the legislation will do what is intended, as opposed to allowing unintended consequences to flow from imprecise drafting or a failure to future-proof innovation that could harm rights holders. That is quite a challenge in itself. While there has been extensive debate around exceptions, there remain areas where rights holders continue to question whether applying an exception is the most expedient way forward.
I begin with concerns regarding text and data mining. Given the speed of technological advancement and innovation, some have suggested that the exception route is rendered unsuited to protect rights holders and suggest that, instead, digital market-based solutions to some of the emerging issues around text and data mining would be better addressed through improvements to licensing and technological standards. The Government recognise that copyright needs to meet current and future technological challenges. Is this achievable with the use of exceptions? For example, while an exception may remove a publisher’s exclusive right to prevent copying for the purposes of text and data mining, a researcher’s ability to engage in the activity across different publisher platforms is dependent upon there being an alignment of technological and contractual standards and practices.
Another area of concern is provisions for contract override. I would welcome reassurance from my noble friend the Minister on this point: while the override on one level makes absolute sense, I can see a real conflict where a contract runs the risk of including two contradictory statements of what is and is not acceptable. For example, while the purpose of the contract override is to ensure that contracts would be rendered unenforceable if they restricted or prevented a relevant exception, it is also the Government’s stated policy that publishers should be able to maintain the ability to impose conditions of access prior to the mining of works. In practice, surely this means that the publisher can restrict the scope of an exception, in which case, with the addition of a contract override, the whole contract becomes unenforceable. Clarity and reassurance on this point would be extremely helpful. Perhaps my noble friend the Minister could explain why the proposed contract override provisions have not hitherto been subject to their own separate consultation, discussion or economic impact assessment.
A further complication here relates to European law. I refer in particular to the enforceability of technical protection measures as set out in Article 6 of the copyright directive and Section 296ZA of the Copyright Act. Copyright holders are permitted to restrict or prevent certain acts through the use of technical protection measures if certain criteria are met, in which case how does this work with contract override?
Some definitions require clarity. For example, can my noble friend explain what is the difference between “for the purposes of instruction”, “non-commercial use” and “non-commercial research”? In addition, the term “lawful access” could be interpreted according to how the user might wish to access the content. What is genuinely “non-commercial”? In other words, the exception must not be used as an excuse to avoid obtaining a licence. Will those in academia interpret this in the same way as rights holders who need to earn their living?
Private exceptions further highlight the difficulty of definitions. Private exceptions should be narrowly defined so that third-party aggregators cannot choose to commercially exploit creative content and also to ensure that the ability to license value-added services is not compromised.
From a legal standpoint, I can see that there is a world of difference between stating that a private exception is to be used only in parodying a work, rather than having an exception for any work that is used in the process of a parody. It may seem a subtle distinction but, if it is not made clear, a commercial production company could, for example, use copyright footage for free, purely with the aim of reducing production overheads of TV programmes and with no recompense for the original creator. In essence, parody must be carefully defined so that it cannot be used as an excuse to avoid licensing.
The meaning of the word “pastiche” also needs to be clearly defined. Current definitions, such as that of the OED, which refers to a,
“medley of various ingredients; a hotchpotch, farrago, jumble”,
leave the door wide open to interpretation depending upon one’s perspective and desired use of that intellectual property.
The moral rights of a creator need to be protected. Many will know of the recent case of the Beastie Boys, which is pertinent as advertisers of a toy are using one of their songs, despite the band having a blanket ban on the use of their music in advertisements.
It is critical that we all know what is meant by these terms. I appreciate that it is the task of parliamentary counsel to tackle these very nuanced points, and I urge them, with very great respect, to take on board just how important it is to get this right. Leaving it to the courts to define the scope is somewhat defeatist. I really want to assist my noble friend the Minister in providing certainty and clarity in the first place. In essence, it is the drafting of the proposed exceptions that has to be tight and right.
There are other concerns affecting different parts of the creative industries. For example, will the Government reconsider the education exception, even at this late stage, so that it does not negatively impact the business models of publishers of sheet music, who were previously protected by the requirement that the exception should not cover reprographic copying?
Copyright awareness is key. Consumer and rights holder confusion has to be minimised to ensure that this legislation works in practice. Education is of paramount importance, and I note that the Government are focusing on this now through the IP awareness campaign, launched on 23 October, with multiple activities in the pipeline over the next six months to promote awareness and the importance of respecting copyright. I hope and assume that these activities will not only explain the importance of copyright protections but focus on how they are applied. Therefore, can the Minister expand on plans to develop awareness, including from an international perspective? Consumers, academics and commercial enterprises, be the latter a sole trader or a large established user of content for commercial gain, must know what they can and, more importantly, cannot do with works that they have already paid for.
In addition, IPO enforcement activity, including important reform of the Intellectual Property Enterprise Court to bring about more expedient and cost-efficient access to justice, is a critical component of IPO responsibility. Clearly, the Government have a strong focus on this, although minimising the potential for distortive and harmful practices by third parties is the aim here; litigation as a result of these regulations should remain a very last resort. That brings me to my final point.
It would be very helpful if my noble friend could set out an approximate timetable for the next steps through to the introduction of these regulations next year. There is also the question of bundling the statutory instruments. I understand that that lies within the competence of parliamentary counsel, who have the unenviable task of finalising the drafting. All those potentially affected by this legislation, including the academic community, will need to prepare for its introduction.
In conclusion, the Government agreed with Hargreaves that the copyright system had not kept pace with the digital revolution and, in particular, that the current framework means that a great many intuitively acceptable activities are illegal or uncertain because they involve an element of copying. The process of copying is at the heart of many technologies being used by consumers, teachers, academics and researchers in pursuit of entirely legitimate aims. These exceptions must therefore ensure that, in seeking to legitimise private use, imprecise drafting does not inadvertently or vicariously enable third parties—or indeed the consumers themselves—to commercially exploit and undermine the copyright system. I go back to my first point: this package of reforms is about creating value from copyright works. I very much hope that the Minister will be able to achieve this laudable aim.