Lord Clement-Jones
Main Page: Lord Clement-Jones (Liberal Democrat - Life peer)Intellectual Property Bill [HL]
Lord Clement-Jones Excerpts
Lord Howarth of Newport
My Lords, Clause 20 requires the Secretary of State to report to Parliament annually on how the activities of the Intellectual Property Office and legislation have supported innovation and economic growth in the United Kingdom. I very much welcome the Minister’s commitment to the production of an annual report, but the requirement in Clause 20 is too narrow. The responsibilities of government range more widely than the wording suggests. Amendment 26A would require the report to cover how,
“legislation, the policy of the government and the activities of the Patent Office have balanced the interests of the owners of intellectual property and the wider interests of society”.
By “society” I mean not only in this country but across the world.
New inventions and techniques have improved lives again and again, particularly since the Industrial Revolution. Intellectual property laws and their intelligent enforcement are essential for the stimulation of innovation. As my noble friend Lord Stevenson said, we need a robust system of intellectual property legislation. However, I contend that it is not always the case that strong intellectual property rights—and their strong assertion—improve economic performance or are an unmixed benefit to society. Incentives and rewards to inventors, innovators, creative people and investors need to be balanced against the public benefit of wider and quicker diffusion of knowledge, and the lower prices that may result from early competition.
We should seek in policy to balance the interests of businesses with those of consumers and academics. A judgment always has to be made about the costs and benefits of monopoly, and, where monopoly is mitigated, of licensing. It has to be made on the appropriate length and breadth of a particular patent. It has to be made on whether the price in economic inefficiency of restricting the diffusion and use of knowledge is outweighed by the benefit of increased innovation. The appropriate balance will vary according to the context.
A longer duration of intellectual property rights seems more appropriate in literature and the arts than in manufacturing. There may be differences, too, with luxuries as opposed to necessities, and in the advanced world as against the developing world. We should also ask what proportion of patents in any field a business should be permitted: for example, in the field of genetic modification. I believe that there are enormous benefits to GM, but it is legitimate to ask whether Monsanto should hold patents for the vast majority of seeds planted in the world.
There are risks and disbenefits in granting patents too easily, and there are reasons to be sceptical when we look at applications for patents. There are definitional problems. What is new? What is original? The great Jewish sage Maimonides said that there was nothing new under the sun. Delacroix said of Raphael:
“Nowhere did he reveal his originality so forcefully as in the ideas he borrowed”.
True originality is indeed rare.
Much research is publicly funded. Should the first private interest to exploit that research gain a large advantage over the rest? It has been suggested, rather colourfully, that the application of intellectual property law in the 20th and 21st centuries should be compared to the movement of agricultural enclosures in the 18th century. Do we want intellectual enclosures or do we want commons?
A monopoly-holder protected from competition will be under less pressure to innovate again. That result is surely perverse. Monopoly-holders may move aggressively to squash budding competitors by taking lawsuits against them or taking them over. Microsoft has practised those techniques over many years. The consequence of those practices is that research and innovation have been discouraged. Research efforts can be distorted where patents exist. A competitor business may be more attracted to coming as close as it can to copying an existing patent that is seen to be a money-spinner than to developing a new product or embarking on innovation in a new area. We have seen that in the pharmaceutical field. Where there are dense patent thickets, it is particularly discouraging to new entrants and competitors.
I will say a word about genes. I was Minister for Science between 1990 and 1992. The most difficult decision I had to take as a Minister in government was whether we should allow gene patenting in this country. All my instincts and values were against it, but I was driven to take the view that we had to do it. We had unfortunately had poor funding settlements for science from the Treasury in recent years and it was difficult to see how British scientists would be able to stay in the game of the human genome project. At the same time, the US Supreme Court and subsequently the US Patent and Trademark Office had made it clear that they would grant patents for discovery of genes in certain conditions.
However, what was “discovery of genes”? It was not the invention of genes; it was precisely discovery. It seemed to me wrong that natural genes should be patentable. Knowledge of that kind ought to be disseminated as rapidly as possible for the benefit of humanity. There were vast potential benefits, obviously, in the field of health. Of course, when patenting became established, there was a headlong rush to patent. Among the companies that were successful in that competition, Myriad Genetics patented two human gene mutations that affect the susceptibility of people to breast cancer and ovarian cancer. Having secured those patents, they demanded licence fees even from not-for-profit laboratories. In that way, the existence of patents discouraged screening and discouraged the search for improved screening technologies. The medical benefits arising from the human genome project were restricted.
Yet I do not think that those businesses made more money internationally, because poor countries could not pay the higher costs that arose from the existence of patents. I therefore welcome wholeheartedly the recent judgment of the US Supreme Court written by Judge Clarence Thomas which, as I understand it, reverses the position that the court took in 1980. Sandra Park of the American Civil Liberties Union has said about the judgment:
“Because of this ruling, patients will have greater access to genetic testing, and scientists can engage in research on these genes without fear of being sued”.
The annual report will, I hope, reflect on issues such as that. I hope that it will reflect on what policy ought to be in the life sciences now and in the future. We face the possibility of new techniques of so-called “human enhancement”—adjustments to the brain and other parts of the human anatomy—which there will no doubt be attempts to patent. The Chinese are investing enormous resources in the field of life sciences. We will want to know what the Government’s view is on appropriate policy in this field. I hope that the annual review will provide an opportunity for the Government to share their thinking with us.
What will the annual report say about graphene? Graphene is said to be the new miracle material: single-atom-layer carbon. It is the thinnest, strongest material with high conductivity and flexibility. It has potential uses in desalination, solar power, waste cleaning, packaging, super-fast computers, and super-strong and super-light composite materials. Graphene is hardly yet commercially viable, but the race is on to patent in the area of graphene. I understand that, in May, UK businesses and universities held 54 patents in relation to graphene; US businesses and universities held 1,754; and Chinese businesses and universities held 2,204. What intellectual property regime in relation to graphene will be in Britain’s and in the world’s interests? I hope that the annual report will expound on Government’s policy in this kind of area and the principles upon which they make their judgment. The business department and the IPO do not assume, I hope, that the more UK patents there are, the better. When Jonas Salk, the discoverer of the polio vaccine, was asked in a television interview who held the patent, he said:
“The American people, I guess”.
He chose not to exploit that massively important and beneficial discovery. Tim Berners-Lee did not seek to patent the world wide web and, indeed, considers that software patents stifle innovation.
Inequality of access to knowledge often compounds the evils of inequality of access to income. We should not, in this country, take a narrow view of our national interest and should not ignore the interests of the developing world, particularly where medicines are concerned. To do so would be short-sighted, even in our own interest. We do not know whether the population of the globe at the end of this century will be 10 billion or 11 billion people, although these are the sorts of projections. We should not deprive the developing world of the knowledge that will enable its economies to grow and allow them to be rescued from poverty. If billions and billions of people are to live in poverty unnecessarily, because of the restriction of knowledge to the advanced, wealthy, western countries, that would be wrong in itself and very perverse in terms of our own interest. At the World Trade Organisation, I hope that the United Kingdom will seek to remodel and liberalise TRIPS. Clause 20 should not be just about the Intellectual Property Office and legislation—the requirements of the report should relate to wider policy.
Cost-benefit analysis in this area is never easy. It needs economic far-sightedness, ethical judgment and wisdom. We need a regime that is flexible and pragmatic, not schematic, and yet clear and comprehensible. As my noble friend Lord Stevenson said, the annual report ought to reflect a broad view from government as a whole—not just from the business department and the IPO but very much from the DCMS, with its particular responsibilities to promote creativity, and also from the ODA, because we have responsibilities, which I have mentioned, in relation to poverty and the advancement of human interests across the world. I hope that the annual report will share the Government’s vision and analysis in these respects. That is why we need to amend Clause 20.
I will very briefly set out the reasons for Amendment 28ZA, also in my name, which are obvious. The ears of the Intellectual Property Office must be deafened by the clamour of lobbyists. The office must be pushed and tugged this way and that and be continually under massive pressures, although I am certain that it does its best to arrive at a sensible, appropriate and balanced policy amid all this melee. In a democracy, everybody is entitled to put their point of view to the IPO but everybody also ought to be entitled to know who is seeking influence. We need to be sure that policy does not echo who shouts loudest. I believe that Amendment 28ZA would strengthen the IPO and the business department in their search for a balanced policy, would encourage confidence in the intellectual property regime and would assist the Government in the very difficult task they have of arriving at an appropriate policy in relation to lobbying.
Lord Clement-Jones
My Lords, as the noble Lord, Lord Stevenson, said, the debate on the Enterprise and Regulatory Reform Bill was a very useful start to this whole discussion about the IPO report to Parliament. We have built up a considerable degree of consensus about what that report should contain. I welcome Clause 20 as a step in the right direction but the noble Lord, Lord Jenkin, put the points extremely well on Amendments 26, 27 and 28, to which I have also put my name. If we are going to have such a clause in a piece of primary legislation, we need to be explicit about the kind of reporting requirement that the Secretary of State has. I entirely agree with the noble Lord, Lord Jenkin, that those are absolutely essential requirements, particularly as regards Amendment 26, and that the report should be about the promotion of innovation and economic growth,
“arising from the creation and exploitation of intellectual property”.
After all, that is what the Intellectual Property Office is all about.
Lord Clement-Jones
My Lords, I rise to speak briefly in support of Amendment 28A. My noble friend Lord Jenkin eloquently set out the case for his amendment and there are very few points that I would wish to add. The case that consumers are being misled was strongly made out by a recent Which? report. As my noble friend said, it is clear that the CPRs—the consumer protection regulations—are ineffective because they are not enforced by the OFT and trading standards and there has been no review which would allow others to enforce those same regulations.
I have practised in the past as an intellectual property lawyer. Passing off is very difficult to establish in these cases but that is the basis on which you would normally expect to enforce ordinary civil actions against this kind of parasitic copying. All the evidence given to me by the British Brands Group suggests that it is extremely difficult to obtain the evidence required by the courts to show confusion, partly because consumers tend not to complain about low-priced items. It is very difficult to gather the evidence in store and courts often dismiss survey evidence as unreliable.
Another interesting feature, which the Minister might care to address, is whether or not the UK is upholding its obligations under the Paris Convention and TRIPS. Article 10bis of the Paris convention and Article 2 of TRIPS require signatories, which include the UK, to assure nationals of “effective protection” against unfair competition. Counsel has given opinion in the past that the UK is not compliant and I believe that the Gowers review gave some indication that that was the case as well. The Government have a case to answer on this question. It is a long-running sore among the owners of these brands and, as the noble Lord, Lord Jenkin, said, there is photograph after photograph of this type of parasitic copying. There is plenty of evidence that it takes place.
Lord Borrie
My Lords, the noble Lords, Lord Jenkin and Lord Clement-Jones, made a clear and convincing case for doing something about so-called lookalikes. I like the word “cheat”, which the noble Lord, Lord Jenkin, used, because it is a simple, human word, which does not rest on any statute. It is perfectly clear to people generally what cheating is. This is a form of cheating and I hope that something can be done about it.
I have seen the Which? report, which shows basic examples of lookalikes and the originals and shows how easy it is, when rushing around the supermarket, to pick up the wrong item when it looks exactly like the one you want to buy. That is very serious. The only question I have may be one for the Minister rather than the noble Lord, Lord Jenkin.
In the last session we passed a Bill establishing a grocery adjudicator. A lot of these problems arise with groceries, which are fairly widely defined in the Groceries Code Adjudicator Act. That Act provides a remedy for anti-competitive activity by supermarkets and other grocers in relation to the practices of suppliers of goods, groceries in particular. I was not very keen on the idea of a special adjudicator being set up and wondered why we could not use one of the existing bodies, such as the Office of Fair Trading, and give it a clear remit to deal with the problem. However, a special post was set up and the lady is now in office. She has a back office of some sort and deals with complaints from farmers and other suppliers against supermarkets which have done something anti-competitively. Why can one not use that particular office to deal with the problem that the noble Lord, Lord Jenkin, talked about?
Lord Young of Norwood Green
My Lords, I am sure that noble Lords will recall that on 29 October last, the All-Party Parliamentary Intellectual Property Group produced a report, The Role of Government in Promoting and Protecting Intellectual Property, which urged the Government to get a grip on how IP policy is made. The chair, John Whittingdale MP, said in a press release:
“The current system of creating intellectual property policy just isn’t working. IP needs a champion within Government, who will recognise its significance and who will have the influence to co-ordinate policy across different departments. From trademarks to patents, design rights and copyright, UK companies depend on their IP rights to succeed and thrive. In this difficult economic climate it’s especially important that Government backs British businesses on IP. We hope that Government will take note of our proposals”.
In Committee on the ERR Bill, a number of noble Lords called for the creation of a new post of director-general of intellectual property rights, who would have a duty to promote the creation of IP and to protect it where it exists. We have retabled—with permission—the original amendment, which states:
“The Director General has a duty to … promote the creation of new intellectual property … protect and promote the interests of UK intellectual property rights holders … co-ordinate effective enforcement of UK intellectual property rights, and … educate consumers on the nature and value of intellectual property”.
The problem with the present situation, in which we have a Minister—the noble Viscount—and an executive agency, the IPO, is that the IPO may be an efficient registration body for the registration of IP rights but is not, and has never purported to be, a champion of IP. On the contrary, it sees its role as the passive one of holding the balance between creators and users. As the noble Lord, Lord Jenkin, said when he proposed the original amendment, the creators and owners of IP must have someone in government to speak up for them. That was what the amendment was intended to establish.
When he spoke in the original debate, the noble Lord, Lord Jenkin, commented that he had had a lot of support for the proposal from around the industry. He quoted the BPI, which argued that the director-general should be accountable for ensuring a framework for IP that would promote investment in new content, protect the investment from theft and counterfeit, and educate consumers on the importance of UK intellectual property to jobs, growth and the export strength of the United Kingdom.
Intellectual property across copyright, trade marks, design rights and patents is at the heart of the success of a modern knowledge-based economy. It is not sufficient to have one department, one Minister and one executive agency to try to do it all. There should be Ministers and expertise embedded right across Whitehall. If you add in the need to educate people about IP and how it works, the case for a DG in this area seems very strong indeed.
The UK is a world leader in intellectual property. We all agree that how the Government develop IP policy is vital for our economy. The Government should match this ambition and champion IP as much as possible. The IPO cannot remain a passive registrar of IP. It clearly needs to be more overtly a champion for IP. The United States has obviously benefited from having an IP tsar, otherwise known as the Intellectual Property Enforcement Coordinator, who is responsible for national strategy and reports directly to the White House. We offered a similar title to the Minister in an earlier debate, but he seemed unwilling to put on the robes or adopt the persona. I did not think that he looked like Ivan the Terrible; Peter the Great had a more constructive role, both literally and metaphorically, given Saint Petersburg, if I recall. I am sure that the Minister knows that such wonderful casting opportunities do not come too often. This is the second time I have asked him.
Having said that, creating a director-general of intellectual property rights to sit within the Intellectual Property Office and serve as a champion of IP rights within and across government would increase the influence of the Intellectual Property Office across government and also strengthen the hand of the Minister responsible for IP. As the Alliance for Intellectual Property says:
“We believe such a post is needed to ensure that this success is properly recognised, celebrated and built upon to ensure its contribution to growth, employment, culture and society is properly maximised; for IP to be championed in a way it is in other nations”.
I beg to move.
Lord Clement-Jones
My Lords, as someone involved in the All-Party Parliamentary IP Group report of last year, which the noble Lord, Lord Young, mentioned, it would be churlish of me not to take part briefly in this debate. The white horse which I see the noble Lord now sitting on had a pretty good trot during the passage of the Enterprise and Regulatory Reform Act 2013. I do not really wish to reopen the issue with a semi-Second Reading debate on the role of the Minister and the idea of an IP tsar.
It has been quite interesting over the past six months, and is really important, that the Government and the IPO have demonstrated that they have intellectual property holders’ concerns at heart. We are of course in Committee but, in the previous debate, the noble Lord, Lord Stevenson, talked about achieving a balance. Here the noble Lord, Lord Young, is talking about unequivocally championing IP. I am very much at the end of the spectrum: although, as the Minister picked up, I am very keen on having an evidence base, I am still an unequivocal champion of IP so I found what he had to say very attractive.
The issue for me is not so much structures as attitude, increasingly. “By their fruits shall ye know them” is the key to all this. Are the Government going to implement the Digital Economy Act? Are they going to limit the exceptions to those that are really needed in the fields in which they are being introduced? Will they produce the right kind of report about innovation, growth and intellectual property? What is their approach to protecting intellectual property rights in broad terms? A lot of it is about attitudes rather than structures.
Many of us would love to see an IP Minister with the same hat as the Creative Industries Minister. Given that that is a cross-departmental matter, I suspect that it is never going to happen but I believe that the connection between intellectual property and the creative industries is extremely important and should be represented in a single-focus Minister. That would be a great step forward.
I have met the very impressive United States intellectual property tsar, Victoria Espinel, who has a valuable role in the American Administration. However, I am not sure that an intellectual property tsar would play quite such a valuable role in the UK system. I say that despite the fact that I signed up to the relevant amendment but, hell, we can always change our positions. The more the Minister keeps doing what he is doing, the less we will see the need for not an inspector-general but a director-general of intellectual property. However, he probably still has some way to go to convince us that the Government and the IPO really have the interests of the creators of intellectual property at heart.
Lord Clement-Jones
My Lords, the noble Lord, Lord Stevenson, has found a novel way of responding to the consultation on exceptions. It is not a wholly welcome process nor, I am sure, will the Minister find it wholly welcome, since I suspect that questions fired with the rapidity of bullets can only really be answered in correspondence.
I am content to see the full suite of exceptions that will be put forward by the Government, which will of course need scrutinising. I hope that that will be both a formal and informal process, so that parliamentarians will have the opportunity to engage with the Minister and with the IPO on these exceptions—not simply through the debate that we will formally have when they come to the House as statutory instruments. I can see that the motives of the noble Lord, Lord Stevenson, are pure but I am not quite so sure whether the instrument he has used is appropriate.
Lord Howarth of Newport
My Lords, I support my noble friend Lord Stevenson of Balmacara in his proposal that the Government should publish a document of some sort setting out their thinking in relation to the suite of exceptions that they propose to legislate for. It will not be satisfactory if the first opportunity that Parliament has to consider these exceptions is in the highly constrained circumstances in which we consider unamendable orders, in fairly brief time, in Committee.
It would be very helpful if the Government would lay out their thinking in a report and better still—essential, I would suggest—if Parliament had the opportunity to debate that report, so that when we come to consider the specific orders and enact legislation on them, we do so in the context of a proper understanding of the thinking and strategic purpose of the Government. The Government have some very delicate and difficult judgments to make, exception by exception, and Parliament needs to take responsible decisions. Parliament will be better educated, and better placed to make appropriate judgments on this, if we have the opportunity to go through the preliminary stage that my noble friend suggested. The report need not be quite as ambitious as the one that he proposed in his amendment, which would set out,
“the government’s long term plans for the future of intellectual property in the United Kingdom”.
That could be quite a bulky document. However, if the report is focused on the issues raised in the exceptions for which the Government are minded to legislate, it would be very helpful to Parliament and to others as well.
Lord Young of Norwood Green
My Lords, we have argued in Committee about whether or not criminal sanctions should be introduced to the design rights field. However, even if the Government’s current proposal is adopted, unregistered design rights will remain outside the criminal courts.
It has been argued that the present civil damages regime is ineffective and provides no deterrent to those seeking to infringe IP rights—infringements which, it can be argued, impact on economic growth. The current regime offers little opportunity for organisations to claim back the true costs of the losses they suffer, apart from the often nominal unpaid licence fee, as it takes no account of the profits a person may have made on the back of their infringement. Therefore, given that the only penalty available is an ability to reclaim the fee that should have been paid in the first place, a situation is created that provides an incentive to infringe.
The Gowers report of 2006 stated that:
“Damage awards should act as a disincentive to infringement”.
The 2007 Culture, Media and Sport Select Committee report into new media and the creative industries stated:
“The deterrent effect of the present law in this respect is near zero: it should be substantial, as are some of the illicit profits being made”.
The 1997 Law Commission report, Aggravated, Exemplary and Restitutionary Damages, stated:
“Substantial numbers of consultees considered that exemplary damages do or could have a useful role to play in filling these gaps. They fulfil a practical need. We agree”.
When pressed, the Ministry of Justice points to the fact that the civil regime is there only to compensate, while the criminal regime is there to punish. However, blurring of these boundaries already takes place. In January 2010, a judge awarded exemplary damages in a civil case involving a car insurance scam. In addition to ordering the individuals in the fraud ring to compensate the companies for £300,000 of losses, the judge ordered the ring to pay a further £92,000 as a punishment. The reason, he stated, was to send a clear message that this sort of action would not be tolerated.
The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights—TRIPS—requires that members provide enforcement procedures that “permit effective action” against infringement of intellectual property rights covered by the agreement, including,
“remedies which constitute a deterrent to further infringements”.
The EU directive on the enforcement of intellectual property rights echoes the TRIPS obligation. To satisfy the obligations imposed by TRIPS and EU law, many EU member states have adopted strong rules on civil damages for intellectual property infringements; for example, in Ireland aggravated and exemplary damages are available. In other markets, including Austria, the Czech Republic, Greece, Poland and Romania, rights holders can recover multiple damages. Lithuania provides for a form of statutory damages. These remedies are not available in the UK. In addition, Canada, the US and other countries have introduced statutory or pre-established damages.
Can the Minister say whether the UK Government believe that their implementation of the enforcement directive meets the requirement for member states to have “effective, proportionate and dissuasive” civil remedies? It is true that the courts are free to continue to apply their existing approach. A subsequent licence purchase, for example, may be deemed adequate to compensate for lost profits. Technically, this leaves the rights holder with the ability to recover unfair profits by suing the infringer. However, proving such profits can be exceedingly difficult in many cases, especially where the profit is a saved cost.
Much, if not all, of the substantive and common law that concerns the awarding of damages predates the development of the modern, digital-based creative economy. As a result, anomalies, deficiencies and inequities have become increasingly apparent, particularly for copyright interests. The amendment provides the ideal opportunity for these problems to be fixed. I beg to move.
Lord Clement-Jones
My Lords, I was not planning to speak on the amendment but the noble Lord, Lord Young, made such a good fist of the arguments that I wanted to say that this matter needs serious examination. In fact, when one looks closely, one sees that this is a relatively mild amendment because it does not really constitute exemplary damages. It simply rolls up royalties into a lump sum that otherwise could have been awarded by a court. Exemplary damages are rather tougher. Indeed, many rights holders complain that the provisions of the amendment would be inadequate when all they are going to get is just the equivalent of a royalty when, in fact, an infringement has taken place over a long period. One could go a lot further, but as a first step and as a way of stimulating discussion this is an interesting amendment.
Viscount Younger of Leckie
My Lords, Amendment 28AC would allow for the awarding of damages in copyright infringement cases that compensate a plaintiff for the infringement, as well as the additional damages allowed in some circumstances for copyright infringement. This is already catered for by Regulation 3(2) of the Intellectual Property Regulations 2006—SI 2006/1028—and damages may be awarded at the court’s discretion.
Copyright gives the creator of a protected work the right to control certain acts, such as how and when the work is copied or when it is issued to the public. Most cases of copyright infringement fall under the remit of civil law and are dealt with by the civil courts. Infringement can be a criminal matter, particularly where it is carried out deliberately and/or it occurs on a commercial scale. The UK legal system does not generally have principles of punitive damages in the civil courts. In some circumstances this is possible for blatant copyright infringement, but these provisions are rarely used. Civil remedies in UK law are aimed at settling disputes and provide restitution and compensation, while punishment is the purpose of the criminal courts.
Intellectual property law is complicated and in many circumstances it is possible for an individual or business to infringe accidently. As a result, although it is possible to obtain additional or exemplary damages for copyright infringement in some circumstances, this is not something that the Government intend to introduce more widely. In particular, the introduction of further exemplary damages for design rights and patents would almost certainly have a negative impact on innovation, as industry would become more nervous about infringement when developing new products. Further damages would also create a perverse incentive for some individuals and organisations to take legal action that might otherwise be inappropriate.
An important principle of UK law is ensuring that the level of penalty is proportionate to the level of wrongdoing. The Government believe that furthering exemplary damages could allow for disproportionate sanctions to be imposed on those who unintentionally infringe IP and would not support rights holders, or protect or enforce their rights. Above all, we have seen no evidence that exemplary damages work where they are available in other countries.
The noble Lord, Lord Young, questioned whether the UK Government are doing enough on enforcement. I am delighted that this gives me an opportunity to provide some highlights of what I regard as a serious and important matter. The UK’s legal system convicts pirates and counterfeiters, and 80% of criminal cases under IP legislation in 2009 led to a guilty verdict. In 2009, the UK convicted nearly eight times as many copyright offenders as in 2002. The assets seized from IP criminals were £21 million in 2010-11, which was more than twice the previous year’s figure. Figures vary from year to year, understandably, but there is an increasing trend in the value of assets recovered since 2004-05.
The noble Lord, Lord Young, spoke generally about whether the current system is working. To address his first question, we simply have not seen the evidence that the UK’s penalties are ineffective deterrents. UK piracy is relatively low, and Ofcom research suggests that it is not rising. That is not to say that we are complacent. However, I ask the noble Lord to withdraw his amendment.
Lord Clement-Jones
“Remote e-lending
(1) Section 5(2) of the Public lending right Act 1979 (interpretation) is amended as follows.
(2) At the end of the definition of “lent out” omit “but paragraph (b) does not include being communicated by means of electronic transmission to a place other than library premises”.”
Lord Clement-Jones
My Lords, as your Lordships know, the public lending right is the legal right of authors to receive payment for the loan of their books by public libraries. Currently it applies to the loan of books only in printed format. It does not apply to e-books, audiobooks and e-audiobooks.
William Sieghart and a distinguished advisory panel carried out a review of a number of issues and concerns on the subject of e-lending in libraries. Their report, An Independent Review of E-Lending in Public Libraries in England, was published in March 2013. A number of recommendations were made to ensure that authors receive fair remuneration from the lending of digital, audio and e-audiobooks by libraries. The review recommended that the anomaly whereby rights holders are still not recompensed for the loan of their audio and e-books should be urgently addressed by extending PLR to cover e-books, audiobooks and e-audiobooks; that there should be an increase in the Government’s PLR funding to take this into account, so that writers and other rights holders are equitably compensated; that the provisions in the Digital Economy Act 2010 that extend PLR to on-site loans of audiobooks, e-books and e-audiobooks should be enacted; and that the Government should find space in their legislative programme, at the earliest opportunity, to enact primary legislation to extend PLR to remote e-loans.
I will say a word on the legalities around PLR. Authors who have granted publishers the right to publish their works as audiobooks or e-books will typically retain copyright in the work and will often retain the exclusive right to lend the work granted by Section 16(1) of the Copyright, Designs and Patents Act 1988. Under Section 18A of the CDPA it is an infringement of copyright in a literary work to lend that work to the public without the copyright owner’s permission. However, Section 40A of the CDPA permits public libraries to lend books that fall within the public lending right scheme. If the Digital Economy Act is implemented, the PLR scheme will be varied to include audiobooks and e-books. Until that happens, loans of audiobooks and e-books issued without a copyright owner’s authorisation perpetuate a situation in which lending rights are being infringed.
Loans of audiobooks are significant, considering that no payment is made to authors for their loan from libraries and that in many instances the libraries charge for the loans. The latest CIPFA statistics put the number of audiobook loans at 9.9 million for 2010-11 and 8.9 million for 2011-12. However, CIPFA treats e-audio separately in the 2011-12 figures and there is an additional figure to be taken into account of 287,000 loans for e-audiobooks.
In their response to the Sieghart report, the Government committed to pursuing legislation to extend PLR to remote lending in future parliamentary Sessions. They also agreed to consider commencing the relevant provisions of the Digital Economy Act. Their commitment to pursuing the legislation to extend PLR to remote lending was said to be subject to compliance with the EU copyright directive, with further funding dependent on evidence of remote loans.
What are the potential consequences if the Government do not implement the recommendations? The continuing failure to provide for lending remuneration in respect of non-print formats raises an important legal issue. While on-site e-book lending is a developing service, the ability to access audiobooks in public libraries is clearly highly valued by the public. The advisory panel heard that around 10 million audiobook loans take place each year, the vast majority of which are in hard-copy formats. Quite apart from the inequitable treatment of rights holders, the current situation also places the library service in a position where rights are being infringed on a daily basis. For libraries and authors, the longer-term consequences of a failure to implement the Sieghart recommendations expeditiously are clear: readers are increasingly choosing digital formats, anticipating on-demand access at the time and place of their choosing.
The Government should act upon William Sieghart’s recommendations without delay to effect the extensions to PLR envisaged by the Digital Economy Act, to provide adequate additional funding for these extensions and to fund and encourage appropriate models for remote e-book lending so that libraries can act within the law and authors can receive fair remuneration.
Since the Government are now committed to pursuing the legislation to extend PLR to remote lending, subject to compliance with the EU copyright directive, with further funding dependent on evidence of remote loans, why not use this Bill for the enabling legislation? I beg to move.
Lord Howarth of Newport
My Lords, I support the noble Lord, Lord Clement-Jones, very strongly indeed. I am very glad that he tabled this amendment. There is a palpable injustice that needs to be remedied and I can see no good reason why it has not already been done. It should be done very expeditiously indeed.
The historic authors’ public lending right scheme has always been run on a highly cost-effective basis. The cost of it has been minimal to public funds. But it has been valued very much by authors, not because it makes them rich—there is a low ceiling on the total remuneration they can receive through the scheme—but because it gives recognition to their copyright and their rights as authors. Rightly, they feel strongly about it. It is clear that the principles of the system need to be extended to e-books and should have been extended long ago to audiobooks. All the thinking has been done by Mr Sieghart and his colleagues.
To carry on with the present state of affairs is disreputable. I suspect that the constraint is seen as one of cost but even a token royalty or token remuneration would satisfy the principle, which I think is important to authors. I hope very much that the Minister, speaking on behalf of not only his department but the DCMS, will be able to encourage us today.
Viscount Younger of Leckie
I was attempting to give a fuller answer in that I, too, understood that it was a slightly more complex question and that is why I would like to give a holistic answer covering the noble Lord’s general point about the timing and the rollout of the Digital Economy Act.
My noble friend Lord Clement-Jones asked why we should not just provide a token amount of remuneration in respect of PLR. By EU law, remuneration must be more than merely illusory. Although the UK has a degree of discretion as to the amount, the European Commission’s case law has said that it must be real and reflect the loss of remuneration, so the availability of funding is relevant to any extension. My noble friend also asked what the implications were if these changes were not made. To clarify that point, library authorities can continue to lend e-books without the extension of PLR.
The noble Lord, Lord Howarth, asked whether the issue is one of cost and, if so, whether a token amount can be paid. My noble friend Lord Clement-Jones made a similar point. The financial implications must be given consideration but I assure noble Lords that the Culture Minister is giving this proper consideration even as the challenging economic circumstances continue. With this in mind, I hope that my noble friend will withdraw his amendment.
Lord Clement-Jones
My Lords, I thank the Minister for that quite complex reply. I thank the noble Lord, Lord Howarth, for his support, and the noble Lord, Lord Young. I liked his question about what has happened to the Digital Economy Act. It is one of those mysteries, like “Who killed Cock Robin?”.
The Minister seemed to be saying that it is far easier to implement the Digital Economy Act for onsite e-lending than it is for remote e-lending. If I have elicited that as a response, we can at least start sorting out the wheat from the chaff. It sounds as if 26 June is a very significant date for whether or not we are going to be able to implement that part of the Digital Economy Act. I shall put on my party clothes if, on the 26 June, we know that there is going to be something in the budget for PLR under Section 43 of the Digital Economy Act. I shall put on even more party clothes if, after four years, we start issuing letters next year under the initial obligations code. The fact that it has taken four years to implement an Act will perhaps be in the Guinness book of records, although the noble Lord, Lord Borrie, who has a great memory for these things, may remember other Acts that have not been implemented. However, it is good news on that front. It sounds as if there is some willingness to implement the Act as far as that is concerned.
I am rather baffled that the Government should commission a report by somebody extremely distinguished, with a very distinguished advisory panel, which came to some very clear conclusions about remote e-lending, and then shuffle the whole thing off into a piece of research. I am sure that that is very frustrating for all concerned. The Minister talked about the bodies that were involved, including the publishers, but the authors—the ALCS and others—really need to be involved in this process. In many respects, all this is happening behind a somewhat closed door as far as the writers are concerned, but they should be involved. Clearly I am not going to get very far with that until the results of the survey are put together.
On the legal issue, not all libraries have reached an agreement with aggregators. There will be continuing infringement until we have either proper, blanket licensing—via the aggregators, publishers or whatever—or we have something in the Digital Economy Act, or another instrument, to bring remote e-lending within PLR. The situation will continue to be very unsatisfactory. I heard exactly what the Minister said about the status of remote e-lending under the copyright directive. I am not an expert on that directive but I doubt whether it is beyond the wit of man to find a way through that and to find some satisfactory way of including remote e-lending in PLR if the budget is there.
However, the number of hard copy or print books which are subject to PLR is diminishing over time, so the pool of money required to compensate authors—the Minister said that £6,600 is the limit under PLR—may not necessarily grow, because there will be a compensating diminution in the number of printed books taken out as against the quantity of digital lending. I would not be at all surprised if this required no additional funding and it was simply a matter of political will to recognise that the technology is moving in a particular direction and to make sure that authors are compensated as much for the loan of digital books as for the loan of print books. However, we will not get much further today. I thank the Minister for his considered reply and beg leave to withdraw the amendment.
Lord Clement-Jones
“Copyright in broadcast
Omit section 73 of the Copyright, Designs and Patents Act 1988 (reception and re-transmission of wireless broadcast by cable).”
Lord Clement-Jones
My Lords, I am afraid I have three amendments in a row. I do not know whether it will be “three strikes and you’re out”, but Amendment 30 is the second. I will first explain that Section 73 of the Copyright, Designs and Patents Act is a provision in UK copyright law that permits the immediate retransmission of the main PSB free-to-air services by “cable” in the area where the original PSB channel was broadcast. Crucially, Section 73 provides that the copyright in the broadcast, and in any work included in the broadcast, is not infringed by such retransmission. The effect of the section is to permit “cable” operators to retransmit PSB services without agreement or consent.
What was the original purpose of the provision? The policy justification for Section 73 in its current form was to encourage cable rollout in the 1980s and 1990s as a competing platform to terrestrial television. How have the courts interpreted the provision today? In the recent TVCatchup litigation in the UK and CJEU, TVCatchup, an online TV service provider, argued that its retransmission and commercial exploitation of the PSB services via the internet was lawful under Section 73 on the basis that “cable” ought to be given its natural meaning. The judge in the High Court litigation agreed, and stated:
“I see no reason why the cabling system inherent in the internet should not be regarded as ‘cable’ for the purposes of the Section 73 defence”.
This is not an interpretation that can ever have been intended by Parliament—nor, based on correspondence with the IPO, is it one that the Government believe is correct. In that correspondence in 2008-09 the IPO stated that,
“‘cable’ in section 73 as amended must mean the same thing as ‘cable’ in the Information Society Directive, the relevant requirements of which were implemented by the section 73 amendments in question. In the Information Society Directive ‘cable’ is not synonymous with ‘wire’ and is confined (as therefore, is section 73 CDPA) to the retransmission of broadcasts by conventional cable programme providers. The foregoing supports this Office’s view that the activities of IPTV providers such as ‘Zattoo’ who purport to rely on section 73, are in fact wholly outside the scope of that provision and that there are grounds for challenging them on that basis”.
The IPO also stated in the correspondence that the interpretation of Section 73 by the IPTV providers, and confirmed by the UK courts in the TVCatchup case,
“cannot have been Parliament’s intention”.
What are the problems with Section 73 now, in the light of that case? First, economic loss for PSBs and the UK creative economy. Section 73 is now being relied on by a series of service providers, most notably TVCatchup and FilmOn, to make money from PSB channels by retransmitting them via their own online services and placing advertising in and around the channels, which include BBC channels. Not only are the PSB services being exploited without agreement or payment to anyone, including contributors, but, perversely, Section 73 effectively permits these illegitimate online services to stream a small amount of content on the PSB channels, such as a number of old series for which online rights were not obtained and some sports coverage, that the PSB services themselves cannot stream online for rights reasons. This perverse consequence of Section 73 has attracted significant attention from underlying rights holders, including UK producers and foreign providers such as US studios, as well as from other industry bodies.
Services such as TVCatchup undermine the legitimate online streaming services and on-demand catch-up services provided by PSBs which, in the case of commercial PSBs, are a core part of ongoing efforts to make a financial return on the PSB investment in original UK content.
It is increasingly clear that TVCatchup in particular is operating at scale in the UK and has many millions of users. Indeed, it claims that it has close to 12 million registered users on its site. The key losses from this exploitation for the PSBs are loss of audience from legitimate PSB online streaming services, linear broadcast viewing and on-demand services, and, for the commercial PSBs, loss of advertising and sponsorship revenue from their own channels. By contrast with PSB exploitation of channels and content online, none of the TVCatchup revenue flows back into original UK content production or to underlying talent and rights holders. The scale and problem of this free riding is likely to increase substantially over the coming years as more and more households adopt connected TV—that is, IPTV.
Secondly, the original policy rationale for Section 73 has gone. Significant cable roll-out is now a thing of the past and the TV distribution market is now highly competitive. Cable is a highly effective and well resourced competitor to Sky and Freeview/digital terrestrial television. There is no reason to continue to grant a primary legislative advantage from the 1980s to one particular platform operator in the current competitive market. Moreover, the Communications Act 2003 introduced a “must offer” obligation on the PSBs under Section 272, requiring broadcasters to offer the main PSB services for carriage on the cable, as well as satellite, platform. In addition, Virgin Media contracts with the PSBs for the supply of all the other channels offered by the PSBs that are not covered by Section 73.
Thirdly, the provision is almost certainly in breach of European law and exposes the UK Government to damages actions. In its submissions to the CJEU on the TVCatchup case, the European Commission made clear that it had grave doubts about the compatibility of Section 73 with the 2001 copyright directive. I will not go into the detail of that. The Commission went on to observe that it was “very doubtful” that the UK court’s ruling that TVCatchup could make use of Section 73 for that part of its service transmitted over the internet “could stand”. Notwithstanding the Commission’s clear position, however, the CJEU could not deal with the compatibility of Section 73 in its judgment in the TVCatchup case because the UK court had declined the request of the broadcasters to refer the question of the compatibility of Section 73 to the CJEU in the first place. What should the Government do in the face of this?
In broadcasters’ meetings with the Government to date it has been very hard to understand the remaining policy rationale for Section 73, particularly given the “must offer” obligation that applies to the PSB channels. Broadcasters believe that repeal of Section 73 would be a sensible deregulatory measure that would end the unjustifiable damage which is being suffered by the PSBs, and would ensure that the UK continues to meet its Community law obligations. They believe that the forthcoming legislative programme, including this Bill, provides the Government with an opportunity urgently to consider repealing Section 73, assuming this cannot be achieved by secondary legislation following the passage of the Enterprise and Regulatory Reform Act. Repeal of Section 73 would not only assist broadcasters in their fight against parasitic websites—we have used that term earlier today—but would also ensure that UK legislation complies with the EU acquis and therefore reduces the risk of any potential infringement proceedings against the UK.
The negative commercial impact of retaining Section 73 is significant for UK public service broadcasters, and ultimately, as a result, the producers of the audio-visual content they broadcast. This impact will continue to increase if no action is taken by the Government to repeal these provisions. I beg to move.
Lord Stevenson of Balmacara
My Lords, I declare no current interest in this matter, although I was director of the British Film Institute when the Copyright, Designs and Patents Act was enacted. I was also author of a minor monograph that is still in print.
The amendment troubles me. Section 73 of that Act is only one component of a complex web of regulation that provides equilibrium in the UK broadcast market. It ensures that consumers who have already paid for PSB content through the licence fee or indirect taxation can get access to publicly funded content through a cable platform at no additional cost. It is true that Section 73 is a relatively old provision created when the cable industry was in its infancy. It is also true that the cable industry is in a different position than when Section 73 was conceived. However, the age of something should not determine value. Attempts to delete old things from existence can surely give no Member of your Lordships’ House much comfort.
However, the amendment gives the Government a chance to look again at the objective of Section 73 and to ask themselves whether the outcomes it delivers today are still relevant to their public policy objectives. I acknowledge that the recent TVCatchup case referred to by the noble Lord, Lord Clement-Jones, raises legitimate concerns about the use of Section 73 as a defence for the retransmission of free-to-air PSB channels online.
I understand that the Government are currently looking at how Section 73 might be amended and tightened to ensure that the beneficiaries of the clause are the intended platforms that are acting within the law. Perhaps when he responds the Minister will again put on his DCMS hat and let us know what progress is being made in that review, and indeed what progress is being made on the communications White Paper—another of the vanishing opportunities for the Government to intervene in these areas, which has been promised since 2010. It seems that we are no nearer to a publication date.
However, apart from the TVCatchup issue, I understand that Section 73 continues to provide PSBs and consumers with the most efficient route to access the PSB channels that most cable subscribers want and who equally do not want to have to pay twice for. Some noble Lords may be aware of the ongoing row between the PSB community and the Sky platform about the level of fees paid to broadcast on the commercial satellite platform. Indeed, one of the major gripes that PSBs have at the moment—and I understand that they been lobbying for this through the communications review process—is that they want to see an end to fees that they have to pay to platform providers to carry their content.
However, when setting out the Government position in his speech to the Oxford Media Convention in January 2013, the Culture Minister said:
“I welcome the steps Sky have taken so far to reduce retransmission fees to a much lower level. But we want them to go further, taking into account the undoubted value that PSBs offer to satellite platforms and their viewers, so that there’s a level playing field: zero fees either way”.
This would, indeed be a good outcome for consumers. However, the question remains of how to draft a clause to ensure that there is a level playing field between all platforms, with zero fees either way.
Unlike publicly funded platforms and unlike BSkyB, cable has never charged PSB channels to carry their content. Given that this zero charge/zero pay policy is the policy outcome required by the Government, and we understand that this issue will be considered in some detail by the Government when their communications White Paper is eventually published in the summer, the amendment seems somewhat previous, as well as contrary to consumer interests.
While the recent TVCatchup case may indeed require an adjustment to the current law, abolishing the clause entirely, as the noble Lord, Lord Clement-Jones proposes, seems entirely contrary to the interests of 4 million cable customers who access public service content, at no cost to those broadcasters, through the cable platforms. I hope that the Government will firmly resist the amendment.
Lord Clement-Jones
My Lords, I am delighted to hear that the Government are looking at this. I do not know whether this is going to be the long awaited White Paper coming out at the end of July—again, I will put my party clothes on if this is the case, since we have been waiting 18 months for this. If it includes consideration of Section 73, so much the better.
I am glad that although the noble Lord, Lord Stevenson, disagrees with me, he thinks that there are legitimate concerns. However, this is not a matter of depriving 4 million consumers of the ability to see public service broadcasting over various digital media, because that is already covered by Section 272 of the Communications Act 2003. I hope that there is not going to be a knee-jerk reaction to Section 73 going and that people very carefully consider what Section 272 actually sets out; basically, it gives the right—and Ofcom enforces it—for Virgin, Sky and so on to show these public service broadcast channels over their own platforms.
I have not raised the whole issue of whether or not we adopt a US-style system with regard to the balance of trade between satellite and public service broadcasters and so on. That was not my intention at all. My intention was to draw attention to what, really, is cheating—we were talking earlier about cheating—by services such as TVCatchup, which has no commercial arrangements with the public service broadcasters. It inserts its own advertising in the breaks of commercial broadcasting. It is taking advantage of other people’s content. It is not paying for it. It does not feed back into the public service broadcasters in any shape or form. If one puts a TVCatchup app on an iPad or another tablet, there is no obligation to pay the BBC licence fee, so nobody is deriving any benefit from the services it provides other than TVCatchup itself. This why our public service broadcasters are so concerned and wish to see action on this. I very much hope that, come July, our honourable friend Mr Vaizey will take cognisance of a serious gap through which TVCatchup is driving a coach and horses. In the meantime, I beg leave to withdraw the amendment.
Lord Clement-Jones
“Criminal liability
(1) The Copyright, Designs and Patents Act 1988 is amended as follows.
(2) In section 107(4A)(b) (criminal liability for making or dealing with infringing articles, etc) for “two” substitute “ten”.
(3) In section 198(5A)(b) (criminal liability for making, dealing with or using illicit recordings) for “two” substitute “ten”.
Lord Clement-Jones
Noble Lords will be pleased to hear that this is a rather shorter amendment. Amendment 31 inserts a new clause which will increase criminal penalties for digital copyright offences. Criminal offences for online copyright theft have maximum penalties of two years’ imprisonment. Criminal offences for physical copyright theft have maximum penalties of 10 years’ imprisonment. This discrepancy came about because the new offences were introduced by secondary legislation using the European Communities Act 1972 as part of the UK’s implementation of the copyright directive in 2003. Penalties for new criminal offences introduced by secondary legislation via the ECA are limited to two years’ imprisonment. This was also after my right honourable friend Vince Cable’s Private Member’s Bill that became the Copyright etc. Trade Mark (Offences and Enforcement) Act 2002 and that increased penalties for criminal copyright offences to harmonise them with those available for trade mark offences at 10 years.
I strongly believe that criminal sanctions should not be dependent on whether the offence is taking place in an online or physical environment. Intellectual property is still being stolen, whichever format is being used. The problem that this has created for law enforcement was seen recently in FACT’s significant landmark private prosecution of Anton Vickerman. Vickerman was making £50,000 each month running a website which facilitated mass-scale copyright infringement. He was prosecuted and subsequently convicted on two counts of conspiracy to defraud and sentenced to four years’ imprisonment. This sentence would not have been possible if he had been prosecuted under copyright law.
This amendment does not introduce any new offence. It is simply about addressing an anomaly in the level of penalties available. The maximum criminal penalties for IP offences are: trade mark, 10 years; physical copyright, 10 years; registered designs, 10 years proposed in the Bill; and online copyright, two years. The Government prosecutors are happier using fraud legislation to obtain convictions against online infringers. Given this, there is no appetite to amend the CDPA. Trade associations such as FACT and the BPI anti-piracy unit tell a different story. While they do use the Fraud Act in some instances, it would not be applicable to all cases and offences. Fraud legislation is used because, owing to this discrepancy, there is no other option. The Fraud Act is used as a work-around because of the leniency in the CDPA.
In the Vickerman case, had he not conspired with someone, conspiracy would not have been a possible charge, which would have left a serious offence subject to a disproportionately low maximum penalty. What law enforcement and prosecutors need is a full package of legislative options available to them so that they can consider each case individually and use the piece of legislation that will get them the best result. This discrepancy aids defendants. They are able to point to the fact that the maximum penalty for these offences is only two years, and therefore that they are minor offences and should not be viewed as serious. This is incredibly damaging. Modern copyright law should focus on having a content-neutral and platform-neutral approach to infringement. I beg to move.
Lord Young of Norwood Green
My Lords, we support in principle the amendment of the noble Lord, Lord Clement-Jones, and would be interested to hear the ministerial response.
Viscount Younger of Leckie
My Lords, I listened carefully to the speech of my noble friend Lord Clement-Jones. In so doing, I was multitasking and was able to calculate that my noble friend has pledged to dress himself up in no fewer than three layers of party clothes, which, I imagine, must be quite an impressive sight. Given that this is the last amendment that I will be speaking to in Committee, I want briefly to thank all Peers who have contributed and engaged in Committee on the Bill. I realise that there will be more to speak about on Report and I look forward to further discussions.
The effect of the amendment tabled by my noble friend would be to increase the maximum penalty for online copyright infringement to 10 years’ imprisonment. While I recognise that there appears to be a discrepancy between the penalties obtainable from the two offences of online copyright infringement, with a maximum of two years’ imprisonment, and physical copyright infringement, with a maximum of 10 years under the Copyright, Designs and Patents Act, I cannot support harmonisation of the two offences, given my understanding of the area.
Prosecutors are already using our current fraud legislation to obtain convictions for online infringement, with substantial penalties, up to a maximum of 10 years’ imprisonment. The existing legislation allows for effective prosecutions to be made without reliance on any specialist intellectual property knowledge. Last year, for example, the owner of the website Surfthechannel—which linked to pirated copies of films and TV—was sentenced to four years in prison on two counts of conspiracy to defraud, more than the two years available under the CDPA.
The important economic aspect of this was addressed by the Digital Economy Act when it came into force in 2010. This raised financial penalties on digital offences to £50,000, in line with physical copyright theft. The Government have no evidence to support the suggestion that an increased sanction for online copyright infringement would either increase the number of prosecutions brought forward, increase the length of sentences passed down to those found guilty of infringement or deter more people from infringing. We have not consulted on this and we have no plans to do so.
With existing legislation already providing the necessary penalties and prosecutors having a range of options already at their disposal, at the present time I see no reason to increase sanctions under the Copyright, Designs and Patents Act, despite there being a slight discrepancy. In particular, changes should not be made without carrying out the appropriate consultation to gather evidence of the impact.
I hope that this has clarified the Government’s position to my noble friend, and I ask him to withdraw his amendment.
Lord Clement-Jones
My Lords, although the Minister has thanked everyone for their part in Committee, he has, sadly, ended on a somewhat stony note because he is saying that it would not be appropriate to introduce something without consultation but has absolutely no intention of entering into a consultation. That slightly puts one in a cul-de-sac in all this.
The Minister’s statement directly contradicts the experience on which I have been briefed by FACT and the BPI in terms of their ability to use fraud legislation and common-law conspiracy. Clearly, they either have not put their case sufficiently to the IPO or the IPO’s evidence is at variance for some reason. Perhaps it is talking to a different set of prosecutors. However, on a couple of occasions, as well as talking about party clothes, I have said that I am very much in favour of evidence-based legislation. I am very keen that we should have the evidence and that we do not legislate without it.
If we need further discussion and evidence, I very much hope that the Minister will be open to that despite the advice that he has received that the fraud legislation is relatively straightforward to use. That is certainly not what I have been told and I would not have tabled an amendment if I had believed that. The discrepancy is not minor but one of eight years, which is significant, especially if you were locked up for that period. You would, quite honestly, notice the difference.
However, the hour is late and we have had a good trot at a number of issues raised in Committee today and I beg leave to withdraw the amendment.