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Mr. Hoon: The Minister has mentioned the interests of record producers, but are not performers, record producers
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and, most significantly, record companies all united in asking the Government to reconsider section 72 because of those groups' clear concern about the impact on their income?
Mr. Taylor: There was pressure on us, but pressures would arise in following other courses. The retail trade, for example, is developing various ways of using music in their outlets. Repeal would be an extremely restrictive practice and, in the long term, it would not necessarily be in the interests of any of the parties concerned, which is why we have continued the exception in section 72, which was debated in the Standing Committee on the Copyright, Design and Patents Bill.
Mr. Hoon: Surely, if the retail trade or other organisation--restaurants, cafes, public houses, and so on--chooses to use music, particularly broadcast music, it should pay an appropriate fee for the use of that music. It paysa fee if it uses specialised music services. Why is there a distinction between the use of specialised services and the use of broadcast music?
Mr. Taylor: We should bear it in mind that, often, such organisations do pay a fee--to the broadcaster. We are not removing the exception in relation to the further reproduction of that music in any retail outlet. We consider that to be a sensible way forward, and therefore we have not made the changes that the hon. Gentleman has requested. It was a fine balance, but, having heard all the arguments, I decided that that was the right way forward. The Copyright Tribunal is considering the matter.
The hon. Gentleman talked about equitable remuneration for rental and how it is defined. The directive did not define "equitable", as what is fair in one set of circumstances may not be so in another. Nor, therefore, can the regulations set that out, but they do provide that remuneration is not to be considered inequitable simply because it is paid in a single sum or at the time an author or performer transfers his exclusive rental right to a producer--the directive says that the remuneration may be paid in either of those ways. Again, the matter will need to be tested by the Copyright Tribunal, were there to be a dispute.
Mr. Hoon:
I accept that the directive does not, in any event, define equitable remuneration, but I made the point to inquire of the Minister whether he thought it appropriate that performers in particular should have the means to ascertain the information that would allow them to find out whether they were receiving equitable remuneration--information about the number of times that the music in question was used, the circumstances of the user, the number of times and the form in which the music was reproduced, and so on. That would allow them to build the sort of picture of remuneration that is obviously available to users.
Mr. Taylor:
Obtaining the proper information is a matter for the traditional negotiations with producers. As we move forward, there will be cases in which producers may not have negotiated a particular package based on what they would regard as full remuneration, simply because of the commercial opportunity, but the regulations give performers increased rights to claim an
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Throughout, we have tried to err on the side of there being a proper way to get works to market without undue complexity. We certainly do not want to put a burden on any rental outlets, many of which are small businesses. We have had to make a decision about who are authors and about the respective rights of performers. On balance, I think that we have got it right. The statutory instruments were tabled on 11 July, and we have had extensive consultation since then. I am aware of the arguments.
The hon. Member for Ashfield raised a number of minor points on which he wanted guidance. For the sake of brevity, I shall write to him on those. However, he raised a serious point about the position of uplinks within the European Economic Area, from one area to another. It is a complex matter. We have attempted to apply the copyright law from the place from which the signal has been broadcast. Of course, there will be certain safeguards for countries if the uplinkers come from outside the EEA. Again, it is a matter of giving some comfort to the broadcasters about which copyright law applies.
I do not have details to hand about the specific case of how Cable News Network would be affected, but I am concerned about the possible effects on satellite uplinks. That point has been clarified in the regulations by reference to the use of the law of the country from which the signal originates.
Mr. Hoon:
It would be helpful if the Minister would say categorically that there will not be any effect on the ownership of copyright. There is ambiguity under the provisions as drafted. I am not questioning the underlying reason behind the drafting; it is simply that, because of the way in which the rather technical provisions operate, there is concern that the statutory instrument could be interpreted as defining British Telecom not only as the maker of a CNN or similar broadcast for infringement purposes--the point just dealt with by the Minister--but as the owner of the copyright in that broadcast. I hope that the Minister will say that that is not the case; that would resolve any ambiguity.
Mr. Taylor:
It is not the intention behind the regulations to affect authorship of broadcast or ownership of copyright, and we do not consider that they do so. Regulation 6 states not that the operator of an uplink station is the person making the broadcast, but rather that he is to be treated as such. In addition, we believe that it is clear from the manner in which the regulations are presented that the uplink operator should be treated as the broadcaster only for certain purposes--in relation to clearance of the rights in underlying works in broadcasts identified in regulation 6.
I stress that the regulations must be construed in the light of the directives that they are intended to implement, which similarly have no bearing on authorship or ownership of copyright in broadcast. That is also the approach that will be taken by United Kingdom courts in interpreting the legislation.
The key point is that, in attempting to implement the directives in UK law, we have tried not to disturb traditional relationships. We have tried to make it as
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The Copyright, Design and Patents Act was far-reaching in its vision of the future. It covers some of the problems relating to the new age of electronic interactivity--video on demand. We are comfortable that we have anticipated ways in which that may evolve as the information society progresses. An important point, which was raised by the hon. Member for Ellesmere Port and Neston (Mr. Miller), is that the European Commission has already published a Green Paper on copyright in the information society. Clearly, further directives that may emanate from that in due course will consider the way in which the electronic age will be accommodated. Before I conclude, I intend to deal with the wider issues that the hon. Gentleman raised.
Mr. Miller:
I am a little puzzled about the Minister's remarks relating to proposed section 144A(7) and the definition of cable re-transmission. I am not sure that the definition will meet what the Minister says is the intention. For example, in transmitting a compact disc that has been recorded digitally on to a network server, or in receiving a signal, encoding it oneself and putting it out on to a server through BT networks, who would be in breach of copyright? Clearly, the person doing that would be in breach, but there is some doubt whether responsibility would also lie with BT or the cable provider--or, in the case of mixed provision, a network of people. Will the Minister explain how the definition will work?
Mr. Taylor:
In some cases, such matters will have to be tested in the courts. We are talking about issues such as common carriers, whether there is a burden of proof that there was a knowing breach of copyright by a carrier, whether it be a telephone company or a broadcaster; whether rights have been properly obtained; and whether they were knowingly obtained. Quite honestly, it is not for me, across the Floor of the House of Commons, to anticipate how the courts will interpret such matters, but they will need to be tested.
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