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5.31 pm
Mr. Geoffrey Hoon (Ashfield): I thank the Minister for his presence--and for his brevity, something that has sadly characterised too much of the Government's public contribution to this debate. As the Minister said, the regulations concern a complex and difficult area of law. Too often, the law relating to copyright is seen as a specialist subject of concern and significance to a particular and--possibly--rather narrow group of legal practitioners. Perhaps that feeling is reflected by the modest attendance in the House. Yet its importance underlies the entire provision of information and entertainment in this country. Without effective copyright laws, here and across the world, it is impossible to imagine how books could be commercially published, how music could be distributed and how films could be shown in cinemas.
Moreover, as the revolution in information technology gathers pace, copyright will become still more significant. As we move from mass media to the availability of films and music on-line and transmitted digitally into the home, effective copyright law around the world will be crucial. Copyright law will therefore be at the centre of a series
of commercial relationships, vital to the country's trading and financial interests, and vital to those who create, develop and distribute new ideas and information.
Although the Labour party will not be voting against the implementation of the draft regulations, Labour Members believe that there are significant problems with their content and, perhaps more significantly, with the timetable that has been followed. We have a series of concerns about the extent to which the draft regulations reflect the European directive on which they are supposed to be based and the fact that they are part of a comprehensive redefinition of the law of copyright in this country and at European level, to which I hope that the Minister will be able to respond.
I shall first deal with the timetable for the legislation. The draft regulations implement the European Union's duration directive, harmonising the term of copyright, which, if approved today, will come into force in this country on 1 January 1996, as the Minister said. The regulations are, as the Minister conceded, already six months late. Since the regulations are not amendable at this stage, we are left with the uncomfortable position of having to accept their general thrust--which we do--while not being able to make the necessary detailed amendments. In the interests of the greater good served by the regulations, we are at this stage prepared to accept them.
Having said that, it is important to place on record our reservations. In particular, why has it taken the Minister so long to lay the draft regulations before the House? He referred repeatedly to complexity, but a careful study of the timetable would be useful to Members. The regulations are based on a directive that was published on 29 October 1993. It took more than a year--13 months--for the Department of Trade and Industry to produce a consultation paper. That was produced on 5 December 1994. It was not the most sophisticated of documents, although I recognise that it was necessary to address certain questions.
The consultation paper, which as I said took 13 months to produce, simply asked a series of questions. It did not provide the answers--although it provided some guidance--yet it asked questions of those who were consulted. The consultation period went on for a further 12 months. The regulations were published on 6 December 1995. In my experience, draft regulations normally contain the precise date of publication. It is curious that in this case--Members will observe it if they look at the regulations--the regulations are somewhat coy about when they were published. It says that they were published in 1995. They were in fact published on 6 December 1995. I suspect that the reason why the precise date is absent is that the Government are embarrassed about taking so long to produce the regulations.
What that means to the House is that although the Department had some 13 months to issue its consultation paper--a series of questions without any particular answers--and then took a further 12 months to produce the regulations, it has given the House eight working days to consider what the Minister has described as a complex series of proposals. Indeed, before the proposals come into law on 1 January 1996, the House has precisely 10 days in which to consider their complexity, debate them and reach a conclusion.
I would be perfectly willing to give way to the Minister if he wished to explain whether the reason for that was simply Government incompetence or a deliberate and
calculated snub to the House. That is a serious question, given that we have to consider these matters, complex as the Minister acknowledges, in eight working days, and have not been given the opportunity that his own Department was given to consider them over years. I shall gladly give way.
Mr. Ian Taylor:
I reassure the hon. Gentleman and the House that no snub was intended, nor was there incompetence. There was, as I saw for myself, a whole series of very complex attempts at drafting the regulations, since their concept is not easy to express in succinct form in legislation. That is therefore what has taken so long--as well as my insistence that there was the widest possible consultation.
Mr. Hoon:
I am grateful to the Minister for his observations. I am sure that the House appreciates the difficulty that he has had with the complexity of this matter. However, individual Members also have to wrestle with that complexity in reaching their views, which cannot be done satisfactorily in a short time.
I invite the Minister's comment on another subject. He mentioned the consultation repeatedly. That consultation has gone on for 12 months. The Minister told us that some 200 responses were received by the Department. Of course, none of those responses is available to Members. They are available only to the Minister, and therefore no one else knows what balance of representation was contained in those responses.
Would it not have helped the Minister's case enormously if, when he was explaining the rather short time that Members have to consider the regulations, the results of the consultation had been made available in the Library? Then, we could have seen how the argument had developed in the same way that he and his colleagues could. That would have meant that we would have had some idea how the different arguments developed in the preparation of the regulations.
The Minister candidly conceded that certain aspects of the directive were not covered by the regulations. Practitioners and others in this area are concerned that, notwithstanding that the terms of the directive have been available for more than two years, we still do not have a comprehensive enactment of those terms. Can the Minister say clearly when the entire directive will be implemented, including article 4, and when the other aspects of the directive not mentioned in the regulations will be laid before the House?
I hope that the Minister will answer that question because, as he has repeatedly reminded the House, the point of the legislation is the need for European harmonisation. As one of the Ministers most enthusiastic about Europe, he knows that the purpose of harmonisation is to ensure that we do not have different levels of protection in the legal systems of different member states. That was the reason for enacting the duration directive, yet the Government, after more than two years, are able to enact only part of that directive. I hope that the Minister will clarify the timetable for other aspects of the directive.
The Minister properly made reference to some criticisms that have been made of the implementation date. A number of organisations concerned about copyright, notably the British Copyright Council, have expressed their anxieties about the date on which the regulations will come into force. The Minister failed to explain why 1 January 1996 had been chosen.
The criticism made was that 31 December 1995 would have been preferable. That date would have allowed a new, longer period of copyright to apply to the United Kingdom works whose copyright protection will expire under the present law on 31 December 1995. Although such works will clearly be governed by the regulations, there is concern that they will be subject to the regime governing revived copyright. Had the directive been implemented by the due date of 1 July 1995, they would have enjoyed the additional protection conferred by extended copyright.
I am sure that all the organisations concerned will be pleased by the Minister's assertion that the change of date will not change the legal position. However, I should be grateful if he could explain precisely why 1 January was chosen rather than 31 December. In giving that explanation, the Minister would be able to reassure those affected by the regulations that his and his advisers' understanding of the position is correct.
There has been some concern that certain United Kingdom works--previously in the public domain, but now returning to copyright protection under the regulations--will qualify under United States legislation for the restoration of copyright protection, in the USA, to certain foreign works that had lost it for largely technical reasons. One of the principal, qualifying factors affecting that restoration is that the work in question must be in copyright in its home state on 1 January 1996. I hope that the Minister can reassure the British Copyright Council and all those whom it represents on that point.
On the essential question of duration, the importance of harmonising the laws across the European Union is clear. The Minister has made the case very well. However, it is equally important that that issue is considered in the context not simply of European law, but across the world. Now that we have achieved a degree of standardisation in the European Union, can the Minister explain what efforts the European Union will make to ensure that its new, longer period of duration is consistent with the law of copyright elsewhere in the world? Clearly, it is not sufficient simply to ensure that there is standardisation in the European Union when countries such as the United States may be heading in a different direction on duration.
Article 6 establishes that the duration of copyright in a sound recording remains unchanged at 50 years. I am worried that some difficulties may arise--from the difference between 50 and 70 years--that will affect sound recordings used in films. Copyright in films is an especially difficult subject, and the Minister touched upon it. Although many people talk rather glibly about film being a director's medium, directors are given only what are described as moral rights in a film under UK law, because of the way in which UK law has historically viewed rights in films.
The approach in this country is to grant copyright to the person undertaking arrangements for the making of the film. In practice, that has meant the producer or his production company. He makes a series of contractual relationships with writers, composers, directors and performers, with the result that the producer owns the film in a legal sense. Therefore, the common law solution to a series of distinct copyright problems in the complex business of making a film has been based on contractual
arrangements agreed between the different parties. However, the person who bears the financial risk--the producer--is placed in receipt of the ultimate financial reward, and therefore the copyright protection.
That approach, as the Minister knows, is in stark contrast to the continental approach, because other legal systems subscribe to a different philosophical view. Those systems consider the rights of authors as central to the definition of who bears the risk and receives the benefit in the creation of a film. Copyright in a film, therefore, is held jointly by the artistic elements in the film, and copyright law recognises the artistic contribution of a number of collaborators.
Most importantly, the directors benefit from that approach in continental law in negotiations with producers over contracts, for example in the assignment of rights and the length of time for which they are hired to make the film. The directors are in a much stronger position, and that inevitably means that those rights are reflected in the price paid for their services.
The European directive on duration provides that the principal director of a cinematographic or audio-visual work shall be considered as its author or one of its authors. Member states shall be free to designate other co-authors. As I understand it, it would be necessary to amend section 9 of the Copyright, Designs and Patents Act 1988 to implement that proposal in the United Kingdom. Unless I missed it, the regulations do not appear to do that, so notwithstanding the idea that the directive seeks to harmonise European law, it will simply create the considerable legal discrepancy that I have described. That is a significant problem with the regulations.
Under the directive, member states are free to designate further co-authors of films. Can the Minister tell us whether the United Kingdom intends to do that as well? It seems likely that other countries will designate as co-authors others such as writers, so surely that will multiply the differences in copyright law between different member states. The draft regulations touch upon that problem in the provision on the death of an author, which refers to the period of time after the death of named individuals who participate in the making of a film. If we are to establish a consistent principle across the European Union, it is important that we should act consistently on the rights of authors.
It is important to consider the implications of revived copyright. The change in the duration of copyright means that copyright will be revived for a number of different works currently in the public domain, and thus are no longer subject to copyright. I have seen various lists of the copyright holders who will benefit from that change-- for example, those who hold the copyright on the work of James Joyce, John Buchan, Thomas Hardy and Rudyard Kipling. The list also includes Sir Edward Elgar and D. H. Lawrence, who once lived in what is now my constituency. All of the rights holders to those people's work will enjoy a benefit as a result of the implementation of the draft regulations. On a more serious note, the House should be aware that Adolf Hitler died on 30 April 1945, so any rights on "Mein Kampf" will be revived by the regulations.
Copyright protection will be restored to authors who died between 1925 and 1945. As the Minister said, the issue is who should benefit from the restoration of those
rights. The Writers Guild of Great Britain has consistently argued, perhaps not surprisingly in the circumstances, that revived copyright should vest in the author's estate rather than with the last copyright owner where there has been an assignment.
In a sense, revived copyright is a windfall--perhaps unlooked for when negotiations on assignment were conducted. It might be possible that revived copyright was anticipated when an assignment contract was made, but it is difficult to accept that argument. It is therefore at least arguable that the beneficiary of the windfall should be an author's descendants, because it could not have been imagined at the time of assignment that an extra 20 years of rights would subsequently become available. The Department of Trade and Industry has obviously considered that issue, and I would be grateful if the Minister could tell us in more detail than he spelt out in his opening speech why it decided that the benefit should go to those to whom the rights had been assigned rather than the beneficiaries under any will.
The revival of copyright has important implications for British heritage. It has been stressed to me that, in particular, the copyright on many works by British composers who died between 1925 and 1945 will be revived. The list includes not only Elgar, but Delius and Holst. In most cases, their estates are charitable trusts whose royalty income is spent on stimulating musical activity and the continuing development of British cultural life. With the anticipated rise in disputes and references to the Copyright Tribunal, as set out in the regulations, such income is likely to be depleted. That might also mean that proportionate income is not available to support and encourage today's composers and performers. The use of revived copyright works or arrangements could, however, pay for any loss suffered by those charitable trusts as a result of such legal disputes and legal costs. The extra income made available by revived copyright could therefore benefit the United Kingdom's cultural community, but that would not be possible by simply transferring rights to assignees.
At this stage, it might not be appropriate to study in great detail the detailed provisions governing rights in respect of revived copyright. The Minister must bear in mind, however, that the particular timetable he has chosen, which does not allow the House the time that it might normally expect to consider such regulations, means that we have not had an opportunity to table amendments--assuming the regulations to be substantive legislation--or to encourage the Minister to think again about certain aspects of the draft regulations.
The statutory licence regime has been subject to as much criticism as any of the other proposals contained in the regulations. That regime will reduce copyright in the circumstances anticipated to the right to remuneration as set by the tribunal, if not agreed upon. That is the cause of some concern because that regime appears to place the United Kingdom in a different position from Germany, for example, which offers a guaranteed right for the full 70-year period. I would be grateful if the Minister could provide us with more detail about the statutory licence regime, because the regulations revive a system that previous copyright legislation had abolished.
As I understand it, the regulations originally included a proposal that would have preserved the ability of composers and performers to object to recordings of their work and to prevent their performance. The Government
had given a formal undertaking that that right to object would be retained, but it does not appear in the regulations. The compulsory copyright licence system means that as long as a royalty is paid, the composer or performer of the original work will no longer be able to object to its further use. That is a matter of concern and it is unfortunate that the Government appear to have changed their mind in that respect. I am grateful that the Minister said that, in time, article 4 will be considered, and I hope that he will be able to tell us when that will happen.
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