Lord Willetts
Main Page: Lord Willetts (Conservative - Life peer)Intellectual Property Bill [Lords]
Lord Willetts Excerpts(10 years, 2 months ago)
Commons ChamberRead Full debate Read Hansard Text
Mr Wright
It is good to be back discussing the Intellectual Property Bill.
We discussed the new clause in Committee and are returning to it on Report because, in the intervening period, there has been no progress. I will remind the House about this long-running saga.
The Government made proposals on copyright exceptions in 2012, during the passage of the Enterprise and Regulatory Reform Act 2013. In December 2012, the Government published “Modernising Copyright”. One could be forgiven for thinking that that was a simple and straightforward means of implementing the recommendations of the Hargreaves review, as the Government try to maintain. I will come on to the crucial matter of implementation in a moment. However, the level of opposition from stakeholders and the delay in implementing the Government’s proposals suggest otherwise.
In “Modernising Copyright”, Ministers stated:
“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013.”
None of those plans has proved successful.
Major changes to copyright have usually been made through primary legislation. The Copyright Act 1911 placed provisions into one piece of legislation for the first time, and the Copyright Act 1956 put into statute the UK’s accession to the universal copyright convention, and protected for the first time media such as films and broadcasts by copyright. The Copyright, Designs and Patents Act 1988 provided a major reform of the copyright process, and currently remains the main legislative framework.
When modernising copyright, however, the Government do not intend to make changes via primary legislation but rather through statutory instrument. As is clear from the document I have already cited, the Government always intended to bundle up the proposals on copyright exception into
“the smallest possible number of statutory instruments.”—[Official Report, 4 February 2013; Vol. 558, c. 54W.]
On Report of the Enterprise and Regulatory Reform Bill in October 2012, the Minister stated that
“any proposed exceptions will be the subject of secondary legislation and will therefore be debated. Each separate element of a statutory instrument can be debated—that is the function of the secondary legislation procedure.”—[Official Report, 17 October 2012; Vol. 551, c. 406.]
That is certainly true; each element can be debated separately, but the key point that will concern the House is that it will not necessarily be possible to vote on each element separately, and that still seems to be the Government’s position.
On Second Reading the Minister stated that
“the regulations will not be completely bundled up.”—[Official Report, 20 January 2014; Vol. 574, c. 83.]
That is a curious phrase that I referred to in Committee, which gives rise to the strong possibility—even probability—that bundling will occur. In Committee, he said that he was not in a position to say how many different instruments there will be, and that the Government were still consulting on the matter with parliamentary counsel. It is six weeks or so since we discussed the issue in Committee on 30 January, but I do not think he is in a position to provide much of an update. In Committee the Minister said:
“The problem with IP and copyright is not insufficient reviews, but insufficient implementation. We are implementing. That is what the Bill is about,”.––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 91.]
However, evidence shows that that is far from the case.
Let us be clear and put on the record the dither and uncertainty that the Government have provided to those stakeholders involved with copyright. As I said, the Government’s response to “Modernising Copyright” was published in December 2012. In early June 2013, documents were published in relation to new exceptions for private copying, parody, quotation and amendments to exception for public administration. Later that month a new exception for data analysis for non-commercial research was published, as were amendments to exceptions for education and research, libraries and archives.
In July 2013, further amendments to copyright exceptions for people with disabilities were published. All documents were subject to consultation periods that ended in the summer or early autumn of 2013. Since then, no tangible progress has been announced. On Second Reading the Minister pledged that regulations would be laid before the House in February, and in Committee I asked whether the Government still intended February to be the target date. The Minister responded:
“That remains our intention; I cannot put it more strongly than that, can I?”––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 93.]
Well, he could. We are now into mid-March, and we have still not seen any white smoke from Victoria street. That delay is causing uncertainty among the creative industries, and undermining our competitiveness and attraction as a nation for this crucial sector in the new economy.
The hon. Member for Hove (Mike Weatherley) is knowledgeable and diligent about these matters. He is the Prime Minister’s adviser on IP and served on the Committee, and I am pleased to see him in his place this afternoon. Last week, he received a response to a parliamentary question that he asked about progress made by the Department on drafting changes to copyright exceptions. I hope he will not mind my quoting the Minister’s response, because it is important and helped shape my view on whether we needed an amendment on Report. In his reply to the hon. Member for Hove, the Minister said:
“The Government are grateful for the contributions of all those who responded to the various consultations and have continued to engage with stakeholders since the review closed. We have made a number of technical changes following the helpful input of stakeholders, and we consider the regulations have been improved as a result. So, the regulations will be different in light of the valuable consultation process.
The draft regulations are subject to final checking and in accordance with routine practice the Department is currently consulting the legal advisers to the Joint Committee on statutory instruments. This process can help to avoid difficulties about powers, drafting, etc. arising at a later stage, and assists both the Department and the Committee in minimising any delay in the passage of an instrument. Unless otherwise agreed with the legal adviser, Departments should normally allow a period of not less than two sitting weeks for this advance scrutiny. The regulations will be laid before Parliament and published as soon as this process is complete. The regulations will be subject to affirmative resolution and will be debated in both Houses of Parliament.
The Government will publish a response to the technical review, explanatory notes, guidance and other supporting documents alongside the regulations. This will explain the changes we have made to the drafts on which we consulted and why. Copies of all of these documents will be placed in the Libraries of both Houses and will be available on the IPO website.”—[Official Report, 6 March 2014; Vol. 576, c. 944W.]
The Minister for Universities and Science (Mr David Willetts)
That was a very good speech.
Mr Willetts
I am grateful for the opportunity to respond on the amendments and new clauses proposed by the hon. Members for Hartlepool (Mr Wright) and for Perth and North Perthshire (Pete Wishart), and to respond to the important contribution by my hon. Friend the Member for Hove (Mike Weatherley).
Amendment 6 relates to the Freedom of Information Act. The new exemption in clause 20 should give substantial reassurance to the academic community that important research and related information obtained or derived from ongoing research programmes will receive appropriate protection under the FOI Act. Indeed, in the spirit of respect for Scotland, which the hon. Member for Perth and North Perthshire called for, we are implementing the so-called Scottish exemption. The provision already applies in Scotland and we are applying it to the rest of the UK. That is what we were asked to do and we are doing it.
However, I understand that there are still some concerns about whether the Act provides effective protection in relation to premature release of information created during the planning stages of research programmes—for example, information contained in grant applications, plans and licences. The Government recognise the significant value that material may have to researchers and institutions. I want to place on the record why we believe the Act is capable of protecting such material.
Section 22 of the FOI Act allows any material to be withheld if it is held with a view to future publication and it is reasonable and in the public interest to withhold it. That means that research material intended for future publication can already be protected. Also, clause 20 builds on the protection offered by section 22 by providing specific protection for material that is part of a research programme whose results are intended for publication. But the protection it offers is not just for the results; it extends to any information that is obtained in the course of, or is derived from, a research programme.
Mr Iain Wright
We discussed this matter in Committee. Does the Minister think that, as a result of the implementation of clause 13, the ratio of registered designs to unregistered designs would change? In a nutshell, does he think that more people would register their designs as a result of clause 13?
Mr Willetts
It is hard to give an estimate on that. I believe that the hon. Gentleman has underestimated the significance of registered designs. He suggested that their scope was quite narrow in comparison with unregistered designs. Let me give him the figures. There are already a large number of registered designs in existence. The UK’s and EU’s publicly accessible registers hold about 728,000 design registrations that are in force in the UK. That is a substantial number. I do not want to try to forecast whether it will become even greater, but we are extending criminal sanctions to cover those 728,000 design registrations. That is a significant step towards protecting our design community.
It would be difficult to extend those sanctions further to include unregistered designs, given the uncertainties involved, but let me assure my hon. Friend the Member for Hove that we will evaluate the effects of this legislation. Following its conclusion, a suitable framework will be developed to evaluate its measures, including the criminal sanctions for copying a registered design. The evaluation will include an assessment of the effectiveness of this measure, and we will keep an eye on whether further changes need to be made to its operation and scope, and whether there might ever be a case for including unregistered design rights.
Mr Willetts
I do not want to give a time scale. The hon. Gentleman has already referred to one that I gave upstairs that has come back to haunt me, so I am wary of offering him any more time scales when faced with his blandishments. All I can say is that it will take time for the new system to take effect, and we will need to monitor it. We will undertake to do that.
I will now move on to the hon. Gentleman’s amendments 2 and 3. Having sought to broaden the criminal sanctions to cover unregistered designs, he is seeking in the same group of amendments to narrow the scope by effectively restricting the sanction to exact copying only. That would be the effect of amendments 2 and 3. That would go too far in narrowing the scope of the provision.
I remind the House that the clause was introduced to assist designers who told us of the problems they had in dealing with copyists who set out to copy their designs intentionally and blatantly. That is what we are tackling in this important legislation. They believed that such copyists were skilled at playing the legal system and counted on smaller businesses running out of time and money to pursue them. They told us—as I am sure they told my hon. Friend the Member for Hove and others—that the issue was not restricted to exact copying. Copyists are clever enough not to implicate themselves in that crude way; the issue often involves tweaking an existing design. The sanction protects against that by referring not only to exact copying but to the copying of
“designs which differ only in immaterial details”.
The amendments would in effect restrict the penalties for copying to exact and counterfeit copies only. The sanction would therefore fail to address the very problem the designers have told us about.
The combined effect of the amendments would be to create greater uncertainty by extending criminal penalties to unregistered designs, and to fail to tackle a genuine grievance by narrowing the provision to cover only exact copying. We are tackling that grievance in the Bill. I hope that, in the light of my comments, the hon. Gentleman will not press his amendments.
Let me now turn to the hon. Member for Perth and North Perthshire. I always enjoy his speeches, in which he proudly talks of the contribution of Scotland, not only to the UK but to nothing less than world history. He is absolutely right about that. For me, the Scottish enlightenment is one of the great events in the history of ideas, and I always enjoy hearing celebration of it.
I understand the principle behind the hon. Gentleman’s amendment and the importance of the issue to legal services and innovative businesses in Scotland. We have been working closely with the court services in Scotland and in Northern Ireland, as well as with Her Majesty’s Courts and Tribunals Service in England and Wales, so that we can take account of their views. Let me make it clear to him again: the Government will look favourably at any proposal to site a local division wherever there is a business need, and a local division can be located in Scotland should there be enough cases to support one. I said on Second Reading that it was very possible that there could be one in Scotland, and I stand by that.
I assure the hon. Gentleman that the Government will consult with the devolved Administrations in Scotland and Northern Ireland and with the court services in those jurisdictions. It is not necessary to legislate to ensure that the consultation and co-operation will happen, because we are already doing it. It is also not necessary to legislate nationally in order to set up a local division, because the process for doing so is purely administrative. That process is set out in the unified patent court agreement. We will be following it with consultation.
Pete Wishart
I am reassured by what the Minister has said. He has been consistent in his responses on the issue. Let me try to put it in another way. Does he foresee any reason why the Court of Session in Edinburgh could not acquire one of the divisional courts of the unified patent court?
Mr Willetts
The only reason I can imagine for that not happening is if there were a conspicuous lack of demand for the services of a local division. That is the issue: if there is no demand for it, there is no point setting it up. The hon. Gentleman, however, assures us and we are hearing a lot of people say that there is a demand for it. We are saying that, if there is a demand, it is likely to go ahead, but we do not need to legislate for what is an administrative process to set something up in response to demand. If demand is substantial, it will happen. I hope that I have made our position clear.
New clause 1 was tabled by the hon. Member for Hartlepool. On this, he is in a bit of a muddle. We have set out our plans on copyright exemptions, following the Hargreaves review. Some hon. Members may recall the large volume of reports and consultation exercises that I wielded in Committee. We have had an enormous amount of consultation and engagement with stakeholders on the planned copyright changes. We do not need a new clause such as this to provide for yet more consultation and consideration. We are grateful to all those who have responded to the various consultations and we have continued to engage with stakeholders since the timetable for the last review came to an end. We have made a number of technical changes following the helpful input of stakeholders, and we consider that the regulations have been improved as a result. They will be different in the light of the valuable consultation process.
The hon. Gentleman read out at great length my response to a parliamentary written question last week— I do not think there are any copyright exemption issues in quoting at such length from parliamentary answers—in which I said that the draft statutory instruments are now being finalised, and we anticipate that they will be laid before Parliament
“as soon as this process is complete.”—[Official Report, 6 March 2014; Vol. 576, c. 945W.]
I will go a tiny bit further for the hon. Gentleman and say that probably, and I very much hope that, they will be laid next week.
I fully recognise that laying the draft statutory instruments next week, if we are able to do so, still means that this process will have taken longer than we forecast and expected. That is a source of great frustration, but we are dealing with parliamentary draftsmen, and they need time to sharpen their quill pens, to get the right parchment out and to prepare their processes. Nevertheless, we will be laying the draft statutory instruments very soon indeed.
Pete Wishart
The Minister simply cannot get away with that. I am not leaping to the defence of the hon. Member for Hartlepool (Mr Wright), which I am sure he can do for himself, but the Labour Government did bring in the Digital Economy Act 2010, which the Conservative party said it would support and implement. Whatever happened to that?
Mr Willetts
We are talking about the copyright exemptions covered in new clause 1. Let me be absolutely clear that, by comparison with any previous Government, we are now moving on to implementation. I have said to the House that we will be aiming to lay the draft statutory instruments before Parliament soon.
Mr Iain Wright
When I was discussing new clause 1, I asked about the commencement date. Given the imminent and fast-moving laying of the draft regulations, does the Minister anticipate that the commencement date will be 1 April?
Mr Willetts
I have the experienced and wise Leader of the House beside me on the Front Bench, and I think that things are reaching the stage where, arithmetically, once we remove the weeks in which the House is not sitting, it will be hard to have the commencement date as 1 April. We recognise that it might be some time shortly after 1 April. That will depend on how the timetable pushes out.
A paradox in the position of the hon. Member for Hartlepool is that we are here getting on with something that the Labour Government were not able to implement, but he is standing up to say that it is taking us too long, while bringing before the House a new clause that would make things take even longer. We do not need any more delay, we want to get on with it and we are trying to get on with it. The only effect of his new clause would be to bring the process to a grinding halt so that he can have yet another review, when the last thing we need is more reviews. I hope that in the light of that he will withdraw the new clause and not press his other amendments.
Mr Wright
It has been an interesting debate on this group of amendments. I thank all right hon. and hon. Members for taking part.
The Minister started with amendment 6. He said, rightly, that the Government are implementing the Scottish exemption. The whole purpose is to provide as much reassurance as possible that, despite any premature disclosure, research plans are protected under freedom of information. I am not entirely certain that he has provided that to the satisfaction of the research community, but this is something that we will need to look at.
The Minister went on to talk about clause 13, and I still maintain that there is a huge inconsistency between the approaches on the infringement of registered design rights and on the infringement of unregistered design rights. Looking at the body language and the eyes of the hon. Member for Hove (Mike Weatherley), I would say that he thinks that too. I cannot understand why having criminal sanctions in respect of unregistered design rights would have a chilling effect on innovation but such sanctions in respect of registered design rights would not. Surely the position is inconsistent. My other concern is that this is hindering and penalising micro-businesses and small businesses. Registering a design is a huge cost to business. The cost of registering a single design or the first design in a multiple application with the Intellectual Property Office can be £60. For every additional design in a multiple application the cost can be £40. That cost and the time scale can be particularly prohibitive to design businesses, which is perhaps why we see only a relatively small proportion of designs being registered.
The Minister may recall that in Committee I mentioned the different lengths of protection. Although registered design rights provide 25 years of protection compared with the 10 to 15 years of protection provided by unregistered design rights, registered design rights need to be renewed every five years. The cost of re-registering a design increases on a sliding scale by about an additional £100 each time, up to a cost of £450. So on a five-yearly basis the cost of re-registering a design for small businesses and micro-businesses could be in excess of £1,000. That seems to be penalising small businesses and micro-businesses, and inhibiting innovation as much as possible. That is not what we should be doing. I maintain that the costs of employing and commissioning a lawyer to deal with this process are prohibitive now and will be in the future. All this is costing designers a fortune and I am not convinced that the Minister has a consistent position.
The Minister finished by discussing new clause 1 and saying that I am in a bit of a muddle on it. If I am in a bit of a muddle, most experienced stakeholders in the copyright business are, too. The Government have floundered. They have taken far too long, floundering in the dark. They are not providing the certainty and long-term vision that is so important to the future of the UK economy—it needs that. We need to show our lack of appreciation for what the Government are doing. He has not been able to provide any real certainties. We may have the measures in a couple of days or we may have them in a couple of months, but there does not seem to be any great co-ordination and certainty. We are also still in the dark on the issue of bundling. It is not good enough for him to take more than two years on this and I want to show my dissatisfaction by testing the opinion of the House on new clause 1, although I will not press the other amendments.
Question put, That the clause be read a Second time.
Mr Willetts
I beg to move, That the Bill be now read the Third time.
I start by giving thanks to all those who served on the Committee and spoke on Report. I thank the hon. Member for Hartlepool (Mr Wright) for his lively scrutiny of the Bill and I congratulate my hon. Friend the Member for Hove (Mike Weatherley) on his close and constructive engagement with the Bill.
The UK is in a strong position. As recently as January this year, the US Chamber of Commerce ranked our IP framework as second only to that of the US, and our IP enforcement as the best in the world. We are now maintaining and improving that global position. According to the most recent United Kingdom trade and industry business barriers survey, one in four British businesses had been put off doing business abroad because of the risk of IP theft. That is why we are working with businesses to improve their understanding of IP protection and providing specialist IP attachés for overseas markets.
In the course of our debates, several Members have spoken specifically about China. On the basis of my recent visits to China, I can assure the House that we are noticing a significant change in China’s attitude towards IP. It is putting resources behind enforcement and we are engaging closely with it. Most recently, the Intellectual Property Office and City of London Police met senior Chinese police and customs officers and contributed to an Interpol training programme for 400 Chinese police managers.
At home, we have been equally tough on tackling IP crime, and £2.5 million has been invested in the police IP crime unit, which has made 17 arrests since its launch in September and helped to suspend 690 worldwide websites that were selling counterfeit merchandise online. The new crime unit is also leading on a ground-breaking initiative in collaboration with the creative and advertising industries to target infringing websites offering illegal downloads of music, films and books, and to disrupt the advertising revenue on such sites. We are also making it easier, quicker and cheaper for businesses to resolve their IP disputes.
My hon. Friend the Member for Hove and others have asked how we will ensure that businesses are educated appropriately about the changes that the Bill will introduce. We will be taking action in a number of ways to educate business. We will be building on existing guidance and we will incorporate education about the changes into our wide-ranging outreach programmes. We will be working with key organisations, such as Anti Copying in Design, to ensure that businesses are clear about what the new law means for them. But our focus will not just be on business. To raise awareness about the new criminal offence brought forward in the Bill, the Government will provide training for trading standards officers and engage in other measures.
The Bill has been broadly welcomed by industry and by Members of this House and the other place. It will offer real support to Britain’s 350,000 designers, which is long overdue. The design measures in the Bill will improve the legal framework for both small designers and large businesses. The introduction of a criminal sanction for the intentional copying of a registered design in the course of business has sparked the most debate in this House and the other place. Opinion remains divided on whether a criminal sanction for design copying is necessary, but I believe that the right balance has been drawn and I look forward to seeing how the sanction has deterred criminal activity from taking place.
Let me be absolutely clear. We believe that a culture of copying in design is not acceptable in this country. However, we have listened to concerns that the wording of the criminal sanction is not clearly enough defined. Amendments were made in Committee that were welcomed by industry organisations the Chartered Institute of Patent Attorneys, the Institute of Trade Mark Attorneys and the IP Federation. The Bill that we are sending back for the other place to consider has been further improved.
Other changes to the designs legal framework made in the Bill have been widely welcomed. They include clarifying who owns a design and removing inconsistencies between EU and UK systems. Clarifying the IP landscape increases certainty for industry and makes it easier to use IP in the course of business. That aim is also carried through into the patent changes, such as marking products with an internet link and increased work sharing arrangements with overseas patent offices.
In 2013 the total number of UK patents processed surpassed 2.5 million. Our numerous UK patent holders have benefited from the very successful patent opinions service, and the Bill provides a logical and useful extension of that service. The proposal to allow the Intellectual Property Office to initiate revocation proceedings has been welcomed by patent holders, with one SME stating:
“It makes absolute sense that revocation proceedings should be able to be started by the IPO....as clearly SMEs cannot afford the high legal costs to challenge patent validity.”
That is just one of the many ways in which the Bill will help SMEs.
Finally, I wish to touch on the Freedom of Information Act exemption, which led to some debate in Committee and on Report. The exemption provides the appropriate parity with Scottish legislation, and I am certain that the Ministry of Justice will wish to review how it operates in practice.
The Bill is not an attempt to solve every IP issue; it is part of a wider programme. Nevertheless, every measure in it is practical and desirable and reflects the views of our designers and creators. I very much hope that the House will support its Third Reading.
Mr Wright
Thank you; I thought long and hard about that. It is copyrighted.
The risk I mentioned will remain if the Government continue to provide such an unravelling policy with uncertainty, delay and lack of enforcement.
I thank hon. Members for contributing during the Bill’s different stages, particularly in Committee. I am delighted to see in their places the hon. Members for Hove (Mike Weatherley) and for Perth and North Perthshire (Pete Wishart), who made excellent contributions. I would like to think that the deliberations were good natured throughout. I thank the Minister, who was never less than polite—if occasionally grumpy.
Mr Wright
He knows it is true. I also thank the Minister’s officials.
In many ways, the Bill is brief and flimsy. However, like the issue of IP itself, it is important and often overlooked. We will continue to hold the Government to account, to ensure that we retain the No. 1 spot in something that gives us a significant comparative advantage in the modern economy, now and in the future.
Mr Willetts
I want briefly to make two final comments. First, several Members referred to the need for an IP tsar. Let me make it clear that we have something better than a tsar—a viscount. In Viscount Younger of Leckie we have a Minister who is already discharging those responsibilities very well. Of course, for those who say that it is not right that he is in the House of Lords, it is worth pointing out that under the previous Government the Secretary of State for Business, Innovation and Skills, Lord Mandelson, was in the House of Lords. Having a Minister in the House of Lords is a very reasonable way of proceeding, and Viscount Younger does an excellent job.
Finally, I am grateful for hon. Members’ contributions. I am not sure that I would describe the Bill as thin. I would certainly call it a slim but well-proportioned and effective Bill. On that basis, I hope that it will secure a Third Reading.
Question put and agreed to.
Bill accordingly read the Third time and passed, with amendments.
Northern Ireland (Miscellaneous Provisions) Bill: Programme (No. 3)
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Northern Ireland (Miscellaneous Provisions) Bill for the purpose of supplementing the Orders of 24 June 2013 (Northern Ireland (Miscellaneous Provisions) Bill (Programme)) and 9 July 2013 (Northern Ireland (Miscellaneous Provisions) Bill (Programme) (No. 2)):
Consideration of Lords Amendments
1. Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion two hours after their commencement at today’s sitting.
Subsequent stages
2. Any further message from the Lords may be considered forthwith without any Question being put.
3. The proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.—(Mark Lancaster.)
Question agreed to.