Lord Stevenson of Balmacara
Main Page: Lord Stevenson of Balmacara (Labour - Life peer)Enterprise and Regulatory Reform Bill
Lord Stevenson of Balmacara Excerpts
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)
My Lords, the amendments in this group make consequential provisions on the clause that the House agreed on royal charters and make some minor and technical improvements. Following the Government’s acceptance of the amendment of the noble Lord, Lord Stevenson, earlier this week in relation to royal charters, we have brought forward a clause dealing with the extent of this provision. We have by that amendment limited the extent to England and Wales.
The Government have been clear that they respect the right of the Scottish Government and Northern Ireland Executive to consider how they wish to respond to the recommendations of the Leveson report. Only last week, the noble and learned Lord, Lord McCluskey, presented the report of his expert panel on how Lord Justice Leveson’s recommendations could potentially be implemented in Scotland. The body created by the royal charter would be capable of operating throughout the United Kingdom, including Scotland and Northern Ireland, should the devolved Administrations want it to. The Government have been clear that whether it does so is a matter for discussion with the Scottish Government and the Northern Ireland Executive. However, it is important that we observe the boundaries between our respective powers, and it is for this reason that the extent is limited to England and Wales. This is because the measures, were they to have UK-wide extent, would also prevent Scottish Ministers or Northern Ireland Ministers from exercising their royal prerogative to make recommendations to Her Majesty in Council in respect of these devolved matters. It is therefore an issue that should be discussed more fully with the devolved Administrations to allow them the opportunity to comment.
It is important to note that nothing in this clause prevents the charter from operating across the United Kingdom, if that is desired. If the Government are asked by the Scottish Government or Northern Ireland Executive to extend the provisions, we will consider doing so.
As the Prime Minister announced in the House of Commons on Monday, the Secretary of State for Culture, Media and Sport and the Advocate-General for Scotland will shortly have discussions with Scottish Ministers. Such discussions will also be held with Ministers of the Northern Ireland Executive. Those discussions will consider whether the extent of the new clause should be amended to go beyond England and Wales, during consideration of amendments in the other place. The amendments before us also amend the Long Title of the Bill to reflect inclusion of the new clause, and provide that the clause will come into effect on Royal Assent.
Amendments 1 and 2 are minor technical amendments relating to the UK Green Investment Bank which seek to improve the drafting of Part 1 of the Bill. Amendment 1 ensures that references to greenhouse gases throughout Part 1 of the Bill—not just in Clause 1(1), as previously—are given the same definition as in Section 92(1) of the Climate Change Act 2008. Amendment 2 clarifies that the activities referred to in Clause 5(2)(b) have the same meaning as those referred to Clause 5(2)(a).
Moving on to competition, Amendment 14 is a technical amendment to Schedule 4. It has two purposes. First, it will enable us to provide for the appointment to the CMA panel of individuals who have already served eight years on the Competition Commission panel but require temporary appointment to the CMA panel to see out an existing inquiry. Secondly, it will enable us to make clear that other Competition Commission panel members who are appointed to the CMA panel can subsequently be reappointed to the CMA panel to see out an inquiry which began when they were members of the Competition Commission panel. I beg to move.
Lord Stevenson of Balmacara
My Lords, I am grateful to the Minister for introducing these amendments. We are broadly happy with the majority of them. I have just a couple of points concerning the territorial issues he talked about in relation to the royal charter, which may have eluded me. I am sure that he will be able to put me right.
As I understand it, the royal charter will operate across the whole of the United Kingdom but the intention of government Amendment 12 is to restrict the effect of the entrenchment clause—which was passed in this House on Monday—to England and Wales. However, if it is subsequently decided that the measures should be enacted for Scotland and Northern Ireland, what are the Government’s intentions? I think the Minister said that he expected that these discussions would be concluded by the time we were in receipt of any comments that the House of Commons might want to make on the Bill. If my arithmetic is correct, that is only three or four weeks away so we are putting rather a tight timetable on it. In the unlikely event that these discussions continue beyond that date, can the Minister speculate on how it would be possible to amend the Bill once it has received Royal Assent, or does he have other plans that would allow us to take that forward?
My second point is a rather narrow one. We are dealing with royal charters and therefore the territories to which they apply. While Her Majesty has been gracious in allowing her prerogatives on this point to be surrendered to Parliament, what happens to other territories, such as the Channel Islands and the Isle of Man, where the royal charter will clearly have effect but the clause of the Bill will not run because it is limited to England and Wales specifically?
The Earl of Erroll
My Lords, I add a slight note of dissent. I entirely agree with Amendment 9, which gives greater flexibility to,
“make different provision for different purposes”.
However, Amendment 8 paints the regulation-makers into a corner. I quite see the point of the noble Lord, Lord Clement-Jones, on the commercial stuff. This is his word as a commercial lawyer among the large rights holders and the people who make money out of this material. I see their point. They have invested heavily in some of this stuff, as in other cases, and they want a commercial return on it.
The trouble is with all the other stuff. This is not just about photographs sitting in commercial archives or produced for a commercial purpose. This is not about film sitting in a commercial archive, or from which, published or not, somebody is trying to make some money. It is everything. The sort of stuff that has ended up with genealogical societies around the country and in libraries’ photographic collections will all fall under this. I realise that this does not apply to pre-1957 photographs, so it will not affect people doing research on the Second World War, but you will suddenly have this strange cut-off point. It would have been wise to keep greater flexibility in this so that the Minister, using,
“make different provision for different purposes”,
could have introduced a definition of which kinds of photograph or film were covered. It would not have been difficult to do.
Therefore, Amendment 8 should perhaps be withdrawn because it can be covered in the rest of the provisions, which says that he can then go on to reduce the duration of copyright in existing works. It is made by regulations. If you can do different provisions for different purposes, I would have thought there would be the flexibility to be able to meet the concerns of the noble Lord, Lord Clement-Jones, and the perfectly valid commercial concerns, and also have done things for the libraries, universities, researchers and other people who want to do other things with the works where there was no commercial intent in the first place. Therefore, I would accept Amendment 9 for flexibility, and if I were the Minister, I would withdraw Amendment 8.
Lord Stevenson of Balmacara
My Lords, I echo the initial comments of the noble Lord, Lord Clement-Jones, on this. The Minister has again shown his willingness to listen to some of the concerns that have been expressed on this matter. I welcome the two amendments in this group, although I note the points recently made, which may bear further thought. However, the Government are in the right place on this. It is a question of sticking to where we are and recognising that.
We should also recognise that this has been a complicated journey through these legislative clauses. Copyright is never an easy issue to get into. I am sure that the noble Lord would recognise that; he has always looked a bit punch-drunk when we have had discussions on it but has come up smiling, which is one of his nice characteristics. However, there are a number of difficult and complex issues underneath this. They are not going to be resolved by what is in the Bill, although we have caught up in a number of areas and that is good. This is really about setting up discussions that we will have to have in this House and another place as the various changes that are being provoked by the Hargreaves report are brought forward as what are in generic terms called “copyright exceptions”. They of course deal with a large number of issues that could have been, as we have argued, contained in this Bill but have been left deliberately to secondary legislation. That is not to say that we will necessarily agree with everything that we see when that comes through. There have to be a lot of complicated discussions on some of these points. We welcome the opportunity to have those, based on where we are now. On that basis, I am happy to agree with these amendments.
Viscount Younger of Leckie
My Lords, I will make a few brief comments. I thank those who have contributed to this short debate: the noble Lord, Lord Stevenson, the noble Earl, Lord Erroll, and my noble friend Lord Clement-Jones. I am pleased that the amendments have been accepted, in general, in the spirit in which they were intended. To take up the comments of the noble Lord, Lord Stevenson, it is true that copyright is a complex issue. There are polarised views from both sides. We all recognise that.
I listened intently to the comments of the noble Earl, Lord Erroll. It would be good if I wrote extensively to him concerning the point of extending the provisions beyond normal photographs, to put it crudely. The noble Earl asked whether photographers’ concerns could be addressed regarding Amendment 9. A relatively small number of photographs are covered by the 2039 provisions: as he may know, it is only those taken between 1957 and 1969. Those who want to use those photographs could seek a licence or use orphan work for business. However, I will follow this with a more thorough response to the noble Earl.
The Earl of Erroll
My Lords, I support both amendments, which were spoken to most ably by the noble Lord, Lord Howarth of Newport. The noble Earl, Lord Clancarty, also made comments that were absolutely right on the nail.
A review is only sensible. An awful lot of the figures should be obtainable from the licensing authorities, whoever is going to be appointed, on the financial stuff, how much is done, and so on. I do not imagine that it will require a huge amount of public money to try to do a review at whatever period is thought best.
As a taxpayer, I am concerned about the up-front fees. The noble Lord, Lord Howarth, almost did not stress that point enough. The notion is that those fees should be set at a rate that means that orphan works do not undercut stuff that might be in a commercial library of works that people can license. They would probably not be on the same subject in most cases; they would be for different purposes. If one of the big national libraries or a university was trying to prepare a work of academic interest, they would not rush around paying fortunes to these libraries that have collections of pictures or text. They cannot do that; they will not have the budget for it. If someone was to look at what this stuff was currently sold for, or licensed for, we could be talking about a huge sum of money going into the bodies collecting for orphan works. We are not talking about a petty million, or something like that.
A department always expands to spend the money provided, so if it is going to be ploughed into trying to collect these things will get enormous and complex, and they will spend money like water. On the subject of BIS sponsoring training programmes, well, we know what happens with most government training programmes, so just to get the point across and to see the horror on the Minister’s face, I volunteer to be either one of the societies collecting the money so that I can have a huge scheme, or one of the chief accredited training agencies, because this will be a licence to print money.
The point is well made by the noble Lord, Lord Howarth. The funding of universities and libraries and institutions like that, which this provision is aimed at, comes out of public or charitable funds, and it is there for a purpose. The concept that this is a hidden tax that then goes back to the Exchequer or to fund a nice quango or whatever is totally unethical. I cannot put that strongly enough. If the public woke up to the fact that that was happening, they would be absolutely horrified, so the Minister would be incredibly well advised to accept this amendment to protect the Government from all sorts of accusations in future—unless, of course, they do not expect to be in power by the time this happens and think that another Government will take the flack. However, given that most politicians think they will still be in power, if I were them I would protect myself.
Lord Stevenson of Balmacara
My Lords, my noble friend Lord Howarth, when introducing this amendment, mentioned that in Parliament as a whole there was a genuine sense that issues to do with copyright were dealt with in a non-partisan way, and he explained some of the background to the CDP Act 1988 and to the Digital Economy Act. This debate has shown that the spirit lives on. I stress that I do not think that this is a partisan issue; we are all very interested in this new and broadly welcome provision, which anticipates the EU directive and perhaps gold-plates it a little. However, there is no doubt that we need an orphan works scheme. It is right that it should be introduced and we are backing it all the way. Within that it is absolutely clear that rights holders must be remunerated if they wish. However, as many of them will not be easy to find, a diligent search of a high standard must be carried out. I recognise that the way to prove all that is to create this escrow account approach, and that that should be done for a reasonable period. However, the more one listens to the points that are made round here, the more one feels that this is going in the wrong direction in this respect. As virtually all speakers have said, surely it cannot be in the best interests of the Government to tax the institutions that are expected to carry out this work and mainly benefit from it. That cannot be right. The Minister was reported in Hansard as saying that if the escrow funds were building up and not being used, they could be used to defray the costs of running the licensing body, to pay for preservation costs and for training. However, that escrow funding is the money that would be paid to rights holders, so it does not really belong to the licensing body to do with it as suggested.
We are at the fringe of moving in the wrong direction here. It would be sensible if the Government were to pause and think about this again. This is a good scheme and is the right thing to do, but perhaps there is a way in which one can retain the funds that are going to be held for potential rights holders within the original institutions. At least then they would have the benefit of the money even if they could not allocate it, and the sensibility that this somehow was a taxation scheme would be avoided because it would not work. It would be the worst of all possible worlds if, at the end of this process of trying to get these proposals scheduled and incorporated in legislation, the whole scheme was stillborn because people could not see how it could be financed. I very much want to hear what the Minister has to say on this matter. Some movement towards the position of the noble Lord, Lord Howarth, would be much appreciated.
Viscount Younger of Leckie
My Lords, I thank the noble Lord, Lord Howarth, for his amendments. They raise important issues and I trust that I can provide some satisfactory assurances. I say at the outset that I very much welcome his support for an orphan works scheme and, indeed, for the principle that creators should be paid. He recognises that there is a balanced approach to this issue in this respect.
Regarding Amendment 10, the Government agree that there will need to be a full and proper evaluation of the effectiveness of the orphan works scheme, and its impact on users and rights holders. That is why the Government have committed to a review of the functioning of the scheme one year after it is fully functional. This post-implementation review would be undertaken by the orphan works authorising body and would include, for example, data on the number of orphan works registrations, and permissions issued by the authorising body. The scope of any review, as determined by discussions with stakeholders, would be incorporated into the authorising body’s regulations. I assure the House that the outcome of the review will be reported to Parliament.
Separately, the Government have committed to another impact assessment of the orphan works scheme in April 2015: that is, one year after the scheme is fully operational. According to government guidance, the first review of regulations,
“should in most cases be carried out and published no later than five years after the relevant regulation comes into force”.
In undertaking to do a post-implementation review after one year, with accompanying impact assessment, the Government’s plans will be fully consistent with these principles and guidance.
Amendment 11 would require regulations to make provision that unclaimed fees paid for the use of orphan works were returned to the licensee within a five-year period. Under the proposals currently in the Bill, in the event that fees remain unclaimed for the licensed use of an orphan work, a variety of options are possible: for example, unclaimed fees could be used to help creators; subsidise the cost of running the orphan works scheme—I believe that that point was raised by the noble Lord, Lord Howarth—pay for preservation costs in public institutions; or pay for industry training. I know that there are wide-ranging views on the appropriate use of unclaimed fees. This is why the wording in the Bill is permissive; it requires regulations to deal with this issue but does not rule any particular option in or out. It does not rule out the return of the fee to the licensee. The current wording allows for further consideration of all these options, with the input of all relevant stakeholders.
The noble Lord, Lord Howarth, supported by the noble Earl, Lord Erroll, raised the issue of the money going to the Exchequer. The use of the funds will be the subject of a full consideration. I hope that gives some reassurance to noble Lords. In other words, all options are open and there will be no presumption that the money will go to the Treasury under this scheme. I hope that that also reassures the noble Baroness, Lady Brinton. The noble Baroness raised a related matter concerning how long the money would sit in bona vacantia. As a general principle, money falling into bona vacantia is dealt with by the Treasury Solicitor, and there is no time period as such. I do not know whether that helps. I hope the House will agree that this is the right way forward. I again assure the noble Lord that it is the Government’s intention that the licence fee for the use of an orphan work should be proportionate to the type of use. However, particularly where orphan works are used commercially, the Government believe it is vital that the conditions of use do not inadvertently undermine the market for known works, particularly, for example, where we are concerned with the livelihoods of creators such as photographers.
The noble Lord, Lord Howarth—
Lord Stevenson of Balmacara
I am sorry to interrupt the noble Viscount but this is a crucial point. Will he go back over what he said as I was slightly confused by the wording? Is he saying that before any decision is taken about how the money held in the escrow account is to be utilised if no claims are taken up in the five-year period—that money is held against potential claims—there will be full consultation about that? He used the word “consideration”. If he could confirm that it is a consultation process and that all options are on the table for that, we would be very reassured.
Viscount Younger of Leckie
The word I used was “consideration” rather than “consultation” but there is a fine line between the two. I must stick with “consideration” but I think the best thing to do is to define precisely what is meant by “consideration”. My understanding—I give this commitment today—is that “consideration” does indeed mean consultation. However, I would like to follow up with yet another letter to confirm that.
On Report, the noble Lord, Lord Howarth, concluded that a search would be required for each and every rights holder. The orphan works scheme never intended to promise mass digitisation without a prior diligent search. If we wanted to do this, we would have to find another means of achieving it as the scheme we are now considering could not do so. That might be achieved using ECL, but that depends on the existence of the relevant collecting societies. Those are all questions that we cannot answer at this point.
My noble friend Lord Clement-Jones asked whether there could be a review of orphan works produced as part of an annual report. This seems to be a sensible suggestion. I will certainly consider this idea, along with my officials. He also asked about sublicensing and whether it would be permitted. Every act will require a licence. If someone wishes to use an orphan work—for example, in a television documentary—the licence will need to cover all the issues envisaged. The licensing body will not be able to delegate its powers to license to another person. The provision for orphan work licensing will be construed restrictively by the courts.
On this basis, I hope that the noble Lord, Lord Howarth, feels able to withdraw his amendment. As he considers his reply, and before I conclude, as this is the last group of amendments, I would like to take this opportunity to thank all noble Lords who have participated in our many and varied debates on the important issues covered by the Bill during its passage through this House. As ever, they have brought considerable experience to our debates. In particular, the noble Lord, Lord Stevenson, has led the opposition Front Bench in an insightful and wise way and has rightly subjected the detail to a constructive challenge. We sing in harmony in the Parliament choir—he is more harmonised than me—and we have managed to find a pretty good degree of harmony on this Bill.
It is certainly the case that the Bill is better for the scrutiny that it has received in this House. I should like to place on record my thanks in particular to my noble friend Lady Stowell for her able support on the equalities provisions. I thank the House officials, the Hansard writers and especially the Bill team and all officials who have been deeply involved in supporting me so ably.
Lord Stevenson of Balmacara
My Lords, it would be wrong of me to let the noble Viscount’s concluding remarks pass, particularly as I was named. I also thank him for his considerable work on the Bill, his courtesy during debate, and his incredible letter-writing abilities. I have never been in receipt of so many letters, both by e-mail and by hand. Sometimes people actually checked up whether a letter had arrived that I had not even received. It was helpful to know that it was on its way. We even received three further letters overnight in anticipation of this debate. It shows the quality of the service that we received. I am sure that the noble Viscount will accept that that was not entirely his work.
I also thank the Bill team, although not all of them are present. I hope that my words will go back to those who are not here. The team has been extremely helpful in giving us information and facilitating meetings. I also thank my Front Bench team, the noble Baronesses, Lady Worthington, Lady Hayter and Lady Thornton, and the noble Lords, Lord Young, Lord Whitty and Lord McKenzie, who, along with our legislative support team, have taken much of the load off my shoulders and done a brilliant job in scrutinising the legislation. It has been four months—a considerable amount of one’s time—since we began consideration of the Bill. That explains why the choir has been bereft of our support during that time.
The Bill runs to 266 pages, which, as the noble Lord, Lord Clement-Jones, reminded us, is a bit more than when it was first published. That represents a fair number of trees. This was never going to be an easy job. It is also important to put on record that the Bill did not come to us sanctified by work in another place. A lot of changes were added just as the Bill left the House of Commons, and the Government have added a number of measures while we have been considering it. There will presumably be further consideration in another place on matters such as health and safety, abolition of the Agricultural Wages Board and Midata, which were never discussed in the House of Commons. I should be interested to see what happens when the Bill comes back after Easter.
As the Minister said, the Bill is in a better shape from its time here. It was amended and concessions were offered on 27 major points, which is pretty good. I do not claim credit for them all but in the spirit of bipartisanship, I think we can agree that in most cases the changes were of benefit. There are one or two matters on which we divided, but I am sure that the Government will want to reflect carefully on whether they wish to change the will of the House, which was expressed in many cases narrowly, but nevertheless firmly. I hope that those matters will weigh heavily on the Government.
It has been a most enjoyable time, made better by the good responses that we have received, and I hope that the Bill will fulfil its purposes, even though in some areas it never quite lived up to its name.
Lord Howarth of Newport
My Lords, the last bars of the music are dying away, the curtain is falling, moving valedictory statements have been made but, unfortunately, I have again to be the grit in the oyster because I need to respond to the debate, and the House may wish to know my intention in respect of these amendments.
I thank all noble Lords who have participated in a genuinely helpful debate. I was particularly pleased that the indefatigable noble Lord, Lord Clement-Jones, with whom I have had some degree of disagreement, was willing to support the proposition in the amendment that there should be a review. The noble Earl, Lord Clancarty, supported it, as did the noble Baroness, Lady Brinton, the noble Earl, Lord Erroll, and my noble friend Lord Stevenson. I am grateful to them all.
I am grateful to the noble Earl, Lord Clancarty, for speaking as an artist, because his perspective was valuable. If he, as an artist, has been willing to see another side of the argument on orphan works that is in the public interest, it is particularly telling. The noble Earl, Lord Erroll, spoke as a taxpayer. We cannot all be artists but we all have to be taxpayers. He was absolutely right in what he said about the inappropriateness of setting the tariffs by reference to market values. It is wrong to introduce market values in every area of public life and I wish we could get away from that in our modern political culture. The noble Earl was extremely forthright in his characterisation of the ethics of the Government’s proposition.
However, I was grateful to the noble Viscount, who spoke thoughtfully and constructively, and I very much appreciate the spirit of his response. He acknowledged that there needs to be review. He asked us to be content with the prospect that there will be a review after only one year by the orphan works authority. There is a question as to whether it is appropriate for the body to review itself. Of course it should always do so, but is that sufficient? I hope that whatever Government there is after 2015 will look again at the methodology for monitoring the progress of the orphan works licensing scheme and ensuring that it is fit for purpose and not producing unintended, unfortunate consequences. We all want it to succeed, and if it is not going to succeed we will need to take further legislative steps to get it right.
It would be helpful to have the second impact assessment that the Minister promised for 2015, but we will need subsequent impact assessments. They need to be proper assessments, not ones whereby you just press a button and the computer produces. Whitehall is getting adept at producing impact assessments. They need to be of high quality.
The noble Lord, Lord Clement-Jones, rightly suggested that the progress of the orphan works licensing scheme would be an appropriate topic to be in the annual report of the Intellectual Property Office. That is so, but a whole range of matters will need to be covered in that annual report and there will from time to time be the necessity for a document that is more particularly focused on the orphan works scheme, unless we can all be confident that it really is working according to our best hopes.
On Amendment 11, the noble Viscount again gave me some grounds for encouragement in his emphasis that a variety of options is possible. He did not explain why the Government do not simply accept that the money ought to be returned after a reasonable interval to those who have lodged it because no rights holders have come forward. Even if they subsequently come forward, of course, they will be paid by the licenced bodies. He did not explain why we do not simply and straightforwardly return the money after a reasonable interval. However, he does not rule it out and he promises full consideration, as well as promising to write to us to clarify what that full consideration may mean, and I am appreciative of that.
The Minister has, as my noble friend Lord Stevenson said, been a most abundant and generous letter writer. However, before he lays down his pen, it would also be helpful if he could bring himself to write one further epistle to us about what diligent search and extended collective licensing the Government envisage at this stage. I recognise that there is more work to be done by the working group, but he will know that probably the greatest anxiety of the cultural institutions, even greater than their anxiety about the requirement for up-front payments, is that the regulations may land them with an impossible task in terms of diligent search. It seemed to me that the Minister made helpful remarks on this subject on Report, but if he were willing to elaborate a little and clarify in another letter to us what he intended when he made those observations on Report, we would be particularly appreciative.
In view of the constructive and helpful tenor of the Minister’s response, I beg leave to withdraw the amendment.