Copyright (Public Administration) Regulations 2014

Lord Howarth of Newport Excerpts

Wednesday 14th May 2014 Lords Chamber

Mr Willetts was equally circular in response in the committee. He basically said that it was included among the key domestic measures in the Government’s seventh statement of new regulations. Instead of adhering to the common commencement date programme, the Government are implementing early simply because they want to. Should the Minister not revise the implementation date to the common commencement date of 1 October for all new exceptions and take the opportunity to revise and correct the consumer-facing material at the same time? I look forward to the Minister’s reply.

[Lord Howarth of Newport (Lab)]

My Lords, I join the noble Lord, Lord Clement-Jones, in congratulating the noble Viscount, Lord Younger, and thanking him for all his courtesy and assistance to noble Lords in making himself and his officials available to us so that we have had the opportunity to be informed about the Government’s thinking and to ask questions. He has been impeccable in this regard. Equally, I congratulate him on the extent of the consultation that he has undertaken. Any interests that still find themselves in disagreement with what the Government propose cannot reasonably say that they have not had the opportunity to put their case and to be heard. I agree with him that this process, which has been very long drawn out, does now need to be brought to a conclusion.

The Minister and the Intellectual Property Office have had to make their way forward through hurricanes of lobbying, and they have persisted in their purpose to achieve a better balance—what he just now called an “appropriate balance”—between the interests of creators, of rights-holders, and those of users and the wider public interest. He has also sought to modernise these aspects of the intellectual property regime to take account of technological change, which of course has been very great since the enactment of the Copyright, Designs and Patents Act in 1988. In this respect, he is catching up with progress that has been made rather earlier in a number of European countries, where perhaps established interests have less of a stranglehold on policy development. However, established interests are fighting a rearguard action. A managed retreat is a very difficult manoeuvre, and we have just seen a very fine example of it in the speech of the noble Lord, Lord Clement-Jones. I fully appreciate the right of the noble Lord to make the case that he does, and I think that many people will be grateful to him for doing so, but not all those who have raised objections are as scrupulous as the noble Lord.

Publishing was once considered a gentleman’s occupation, but I fear that all too extensively in the modern publishing industry it is a fairly cut-throat business. Publishers are among those who have sought to use contract to negate existing exceptions. The British Library told us not very long ago that 90% of contracts offered to it for licensing electronic content restricted the public interest exemptions that were already permitted under copyright law. The Alliance for Intellectual Property, the British Copyright Council and the Motion Picture Association have all complained to the Secondary Legislation Scrutiny Committee about the contract override provisions in these statutory instruments, but I do not think that it is reasonable for them to do so. It seems to me, having listened to what the noble Lord, Lord Clement-Jones, said, that we are entirely accustomed to changes in the law modifying the enforceability of existing contracts. People would be surprised if we reformed the law of tenancy if the situation remained that existing tenants had to carry on under the preceding contract. If we were to reform employment law to make changes, as I hope we might, in zero-hours contracts, for example, and what is permitted there, I do not think that we would find it acceptable if the employees who have to operate according to zero-contracts were required to carry on with the same contract indefinitely. It is therefore entirely reasonable that legislation in the public interest should modify the enforceability of existing contracts in the field of copyright.

The Minister has on various occasions described these reforms as “relatively minor”, “de minimis” and “modest”. He explained to us just now that he anticipates that the three statutory instruments before us will yield some £250 million of saving or advantage to the economy over 10 years. Some people think that that is a lot; I am inclined to think that it is a little. I appreciate the force of the points made by the noble and learned Lord, Lord Scott of Foscote, but I invite him to consider the other side of the balance sheet. There are vast costs to our economy of compliance with the copyright regime. There are vast opportunity costs arising from the restraint on people being free to use material as they would wish. There is an enormous apparatus of administration and bureaucracy associated with this regime. Huge amounts of time have to be spent on compliance. There are policing costs. It seems to me increasingly unrealistic to suppose that the enforcement of our traditional historic regime in the digital era can be successful and the attempt to sustain it is probably going to be futile. Innumerable lawyers, consultants and lobbyists are making a good living, perfectly legitimately, out of the complexity, impenetrability, imprecision and futility of the existing regime.