Draft European Communities (Definition of Treaties) (WIPO copyright treaty and WIPO performances and phonograms treaty) Order 2005
Third Standing Committee
on Delegated Legislation
The Committee consisted of the following Members:
Chairman: Mr. Greg Pope
Column Number: 1
†Clarke, Mr. Tom (Coatbridge, Chryston
and Bellshill) (Lab)
†Corbyn, Jeremy (Islington, North) (Lab)
†Dhanda, Mr. Parmjit (Gloucester) (Lab)
†Evennett, Mr. David (Bexleyheath and
Crayford) (Con)
†Gardiner, Barry (Parliamentary Under-Secretary
of State for Trade and Industry)
†
Hammond, Mr. Philip (Runnymede and Weybridge) (Con) †Hendry, Charles (Wealden) (Con)
†Hillier, Meg (Hackney, South and Shoreditch)
(Lab/Co-op)
Column Number: 2
†Hurd, Mr. Nick (Ruislip-Northwood) (Con)
†
Jack, Mr. Michael (Fylde) (Con)
†Lamb, Norman (North Norfolk) (LD)
†Morden, Jessica (Newport, East) (Lab)
†Reid, Mr. Alan (Argyll and Bute) (LD)
†Robertson, John (Glasgow, North-West) (Lab)
†Stewart, Ian (Eccles) (Lab)
†Thornberry, Emily (Islington, South and
Finsbury) (Lab)
Sarah Ioannou, Committee Clerk
†attended the Committee
Column Number: 3
Third Standing Committee
on Delegated Legislation
Tuesday 15 November 2005
The Committee consisted of the following Members:
[Mr. Greg Pope in the Chair]
Draft European Communities
(Definition of Treaties)
(WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty)
Order 2005
4.30 pm
The Parliamentary Under-Secretary of State for Trade and Industry (Barry Gardiner): I beg to move,
That the Committee has considered the draft European Communities (Definition of Treaties) (WIPO Copyright Treaty and WIPO Performances and Phonograms Treaty) Order 2005.
It is the first time that I have served under your chairmanship, Mr. Pope, and I am delighted that you will preside over our proceedings. I understand that their lordships pleasured themselves for a grand total of nine minutes with the order before us. I am sure that, with your expeditious chairmanship, we may manage to better that.
The order declares that the World Intellectual Property Organisation copyright treaty and the WIPO performances and phonograms treaty, which were both signed by the United Kingdom on 13 February 1997, are to be regarded as Community treaties, as defined in section 1(2) of the European Communities Act 1972. These important treaties bring international standards of protection for copyright and related rights up to date with recent technological developments such as the internet and digital technology. The internet treaties, as they are known, make it clear that traditional rights to control literary and artistic works remain valid in a digital environment while maintaining the notion of appropriate limitations and exceptions to such rights. They established internationally, for the first time, that protection should be given against the circumvention of technological protection measures, such as encryption on the internet, and against the removal or alteration of electronic rights management information, which identifies the work, its creator, performer, or owner, and the terms and conditions for its use.
The treaties also deal with rights of distribution and rental, the right to receive payments for certain forms of broadcasting or communication to the public, and an obligation for countries to provide adequate and effective measures allowing rights holders to enforce their rights against infringement. The treaties were published as Command Papers Nos. 3728 and 3736 in 1997.
Most of the treaties' requirements were already provided for in UK law, and many of the remaining requirements were introduced with the UK implementation of directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of
Column Number: 4
copyright and related rights in the information society. Implementation came with the Copyright and Related Rights Regulations 2003, which came into force on 31 October 2003.
Only one requirement of the WIPO treaties remains to be introduced into UK law, namely moral rights for performers. Such rights protect the reputations of performers by giving them the opportunity to be identified as the performer in a performance and the right to object to any mutilation of a performance that is detrimental to their reputation. The rights are not economic and cannot be sold or otherwise traded. Such rights are already provided for authors in the UK.
The order does not introduce moral rights for performers; it prepares the ground for their introduction in a subsequent statutory instrument, which will be subject to the negative resolution procedure. A draft of that statutory instrument was made available to the House when this order was laid. If the order is approved, it will allow the Government to use powers in the European Communities Act to introduce the second statutory instrument.
In Council decision 2000/278/EC, it was agreed that the European Community and its member states would ratify the treaties. The intention was that all member states would ratify them together, but several of the recent accession states ratified them before their accession.
The order will allow the UK to deliver the next step in the process that will underpin high standards of legal protection for our creative industries in many other countries. Our ratification of the internet treaties will ensure that our authors and performers are entitled to similar rights abroad to those that they enjoy at home, since the treaties require reciprocal treatment for the nationals of other contracting parties. I am pleased to commend the order to the Committee.
4.35 pm
Charles Hendry (Wealden) (Con): It is a pleasure to serve under your chairmanship for the first time, Mr. Pope. I hope that it is the first of many such occasions.
I am amazed that the order was dispatched in nine minutes in another place because it takes almost as long as that to read the title. Whether it will take as long in this place remains to be seen.
I am grateful to the Minister for outlining the background and effect of the proposals. As he said, the order relates back to two treaties signed by the UK Government on 13 February 1997, and it will not be lost on the Committee that that was before the current Administration came to power. I suspect that my right hon. Friend the Member for Haltemprice and Howden (David Davis) signed those treaties, and as his career has not looked back since it would be churlish of me to do anything other than endorse the proposals. However, I have a number of questions on which I should be grateful for clarification from the Minister.
I welcome the fact that the two treaties recognise changes brought about by the internet and digital technology. The order seeks to pave the way for
Column Number: 5
recognition and protection of the moral rights of recording artists, which, as the Minister explained, relate to the right to claim identification in relation to performance and the right to object to multiplication or distortion of a performance that would damage a performer's reputation. I note that the Minister used the word ''mutilation'' of a performance. Sometimes it seems to me that performers mutilate their own works and that modification could only enhance their reputation. However, we realise what he is seeking to achieve.
The change brings the rights of recording artists into line with those already enjoyed by authors. What assessment has the Minister made of the disparity that the order will create between the rights of performers and authors? Is it not the case that after 50 years the sound recordings and performances of long-standing artists are then available for manipulation in ways that may be prejudicial to the interests of the artist, yet for authors that is 70 years? What is the reason for different time limits for performers and authors? Given that many of the performers to whom the order relates are young, should the protection not cover at least the rest of their lives, which is likely to be more than 50 years? I suspect that Sir Cliff Richard will still be performing in 50 years, along with Sir Mick Jagger.
I note that when the order was discussed in another place, the Minister referred to Sir Cliff as Mr. Richard, presumably because he thought that being a performing artist is not grounds for being given some form of honour, although giving one's home up for the Prime Minister is clearly suitable grounds for an honour. What are the reasons for the time limit not covering the rest of their natural lives?
Can the provision take effect only from the date the regulations come into force? If so, is there any protection for the vast catalogue of pre-existing works that can be manipulated digitally and perhaps prejudicially to the reputation of the performer? Can the Minister clarify the definition of a qualifying performance? Could it include, for example, Members of Parliament speaking in the House? Could it apply to mobile phone ring tones, given the increasing sale of ring tones and the growth in downloading them from the internet?
New section 205C(2)(b) of the Copyright, Designs and Patents Act 1988 states that a performer has a right
''to be identified in a manner likely to bring his identity to the notice of a person seeing or hearing the broadcast''.
Can the Minister clarify what that means? Would it have to be announced on air or would a reference in the Radio Times or the closing credits be sufficient? As the closing credits roll past so fast, usually because so many people are involved but perhaps because of my advancing age, does the Minister think that the identification would have to be shown for a specific time for the performer to achieve any genuine benefit?
New section 205F sets out the ways in which a performer's rights could be infringed. Who would decide whether such an infringement has taken place? Would that be left entirely to the courts when the cost
Column Number: 6
of such an action would preclude many performers from seeking to protect their interests in the way permitted by the order? If the only course of action was through the courts, would performers be entitled to legal aid? The order seeks to protect not just successful, wealthy performers, but those who are less well known and less financially secure. Similarly, who would decide whether an infringing article was prejudicial to the reputation of the performer as set out in new section 205H?
I should be grateful to the Minister for a response to these issues. I realise that he may choose to write to me about some of them as he may not have the answers immediately to hand. However, given the uncontroversial nature of the order, we do not propose to stand in its way.
