Copyright (Public Administration) Regulations 2014

Lord Walton of Detchant Excerpts

Wednesday 14th May 2014 Lords Chamber

[Lord Scott of Foscote (CB)]

My Lords, I do not wish to oppose any of the three sets of regulations that the noble Viscount has recommended we approve. However, there are one or two aspects of the Government’s approach to copyright that I find a little worrying, and perhaps I may ventilate them with the Minister. They may arise particularly when the last two sets of regulations, which are not before the House at the moment, come to be considered.

It has to be borne in mind that copyright has been the subject of legislation for a long time. I cannot remember when the first Copyright Act was enacted, but it was enacted for the purpose of providing proper regulation of the protection that the producers of copyright works—artistic, musical, literary or whatever—were entitled to expect. Generally speaking, they were professionals earning their living from the works that they produced for those who were able to benefit from them. It became apparent that legislation was needed in this sphere and it has been thus ever since.

The Minister referred to a benefit that the current spate of regulations will produce of, I think, £250 million over 10 years. I was wondering out of whose pocket that would come. Does it mean that the proprietors of the copyrights will be subsidising the use of their work by receiving lower sums for that work, and for the copyright licences that they were granted, than they were previously receiving? If so, it is a sort of compulsory donation by the proprietors of the copyright works in question to the benefit of the country, which I am not sure has any precedent elsewhere. I began to think of the relevant law applying to patents. If an inventor produces a very valuable patent which the Government of the day wish to exploit for their own entirely proper purposes, the Government can apply to the courts and obtain a compulsory licence but they will not get it for nothing. The compulsory licence will have a term under which some remuneration for the use of the patent is paid to the proprietor of the patent—the inventor.

Here, we have amendments to the copyright regime that will apparently save a great deal of money, but, as I have asked already, at whose expense will that be? If it is just a saving in time for administrators, that is one thing, but if the copyright holders will receive less, that is entirely different. I wonder whether the patent analogy of a compulsory licence on appropriate terms that can be fixed by the court ought not to be preferred as the means of dealing with the problems that have been identified.

As I said, I do not object to any of the regulations. They are all for worthy purposes, but to the extent that their effect is to require copyright holders to be compulsory donators to, in some cases, charitable purposes and, in some, just general public purposes, I wonder whether it is fair to do so without providing for some compensatory element to recompense them for the loss to their pockets—which, according to the Minister, will be substantial—over the next 10 years.

These points are going to arise particularly when the last two sets of regulations—one relating to personal copies for private use and the other relating to copying for the purposes of quotation and parody—come to be considered. Nothing there could be described as remotely charitable or for the public benefit, which is a shield under which these three sets of regulations can all shelter. I think that the Minister needs to tell the House to what extent the savings that the Government anticipate from the five regulations taken as a block will fall upon the pockets of the copyright holders who have created these works of arts, pieces of music or literary masterpieces that enjoy copyright.

[Lord Walton of Detchant (CB)]

To follow up the point made by my noble and learned friend, perhaps I may briefly ask the Minister whether these welcome modifications to copyright law will in any way have an impact on or amend the procedures followed by the Authors’ Licensing and Collecting Society, which provides modest sums for authors if their works are subsequently copied through libraries or other mechanisms. Will they affect that procedure of the ALCS?

[Lord Clement-Jones (LD)]

I thank the Minister warmly for his introduction. Whatever comments I may have on the substance of the exceptions, I thank him for his careful navigation and assiduous consultation and communication in the run-up to these SIs being tabled, including for the way in which the regulations have been presented to Parliament. I also thank him for his willingness to debate the issues, as we did last December and before the Secondary Legislation Scrutiny Committee recently. We should thank both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their careful scrutiny. I am pleased to hear from the noble and learned Lord, Lord Scott, and to see that the noble Baroness, Lady Morris, is in her place, as is the chair of the Secondary Legislation Scrutiny Committee, the noble Lord, Lord Goodlad.

There were some very good reasons for this careful scrutiny. After all, copyright is the foundation of our creative industries’ success and the economic driver of growth for this sector, which contributes £71.4 billion to the UK economy. The reform of copyright should be handled sensitively, with the value of the creative industries and any negative impact caused by changes to the law firmly in mind. Wrongly formulated, the exceptions could potentially deter investment in the industries and weaken performers’ and creators’ ability to benefit financially from their work.

It is also an extremely technical area of law. It has been pointed out by many experts that the Government’s proposed changes to primary copyright law implemented by way of secondary legislation risk not being compliant with our obligations under EU directives and incorrectly implement related legislation. It is notable that the Secondary Legislation Scrutiny Committee remarked from the outset in its report on the strength of opinion on the question of contract override, which I attempted to highlight in our December debate. It also said that,

“we flag up the possibility that the changes will have a greater economic impact on producers and creators than the Government have so far envisaged”—

a point made by the noble and learned Lord, Lord Scott. The committee expressly says that it is not persuaded by the Minister’s statement that the changes are relatively minor. This particularly applies to the personal copies for private use exception, to be debated in future.

The Government cannot have it both ways. They cannot say that these exceptions will have minimal effect and then claim that there will be a benefit of a total of £500 million to the UK economy over 10 years for all five of the exceptions and £250 million for those that we are discussing today. In fact, in the Commons committee, a number of MPs drew attention to inadequacies with the impact assessments and sought to probe further how the figure of £500 million was arrived at. Where does this figure come from? Can we have a complete breakdown? Are the Government certain that this benefit is without any loss on the other side of the equation, a point raised by the noble and learned Lord, Lord Scott? How do the Government plan to monitor whether this benefit is achieved?

As a result of one of the key conclusions, where I wholeheartedly agree with the SLSC, the instruments are to be reviewed by the Intellectual Property Office no later than April 2019. The committee said:

“We would urge the Government to monitor the impact of the changes from the point of implementation, and in particular to respond effectively if it becomes clear that any negative potential is being realised”.

Can the Minister give that assurance? Can he commit to repealing these regulations if there is overwhelming evidence of a negative impact?