Enterprise and Regulatory Reform Bill

Memorandum submitted by the Publishers Content Forum (ERR 33)

Introduction

1. Publishing in the UK is the largest media sector, and the biggest creative industry. The Publishers Content Forum (PCF) is an informal alliance of some of the major publishers and publishing industry associations within both the UK and the EU. It was formed in March 2009 to give a collective and representative voice to the publishing industry on a broad range of regulatory and legislative issues affecting the future of print and digital content including issues such as intellectual property and digital standards.

2. PCF’s members include the Publishers Association, the Professional Publishers Association, the Data Publishers Association, the Association of Learned and Professional Society Publishers, the European Publishers Council, the Newspaper Society, the Publishers Licensing Society, the British Association of Picture Libraries and Agencies and the Music Publishers Association. PCF also includes representation from individual publishers.

3. PCF welcomes this opportunity to contribute to scrutiny of Clause 56 of the Bill, the enactment of which could have major ramifications for the publishing and broader content industries. In doing so w e re s erve our position in relation to other amendments whi ch have been tabled to the Bill proposing further changes to the copyright framework.

Clause 56

4. The Intellectual Property Office has stated that the primary purpose of Clause 56 of the Bill is to prevent possible downward adjustment of criminal penalties should existing exceptions to copyright be amended via secondary legislation. Without this, the effect of the European Communities Act would be to limit penalties to a maximum of two years.

5. Whilst we would support Government’s efforts to ensure existing penalties for copyright offences are maintained wherever possible and not reduced, we are concerned to note that the IPO’s stated intention is not reflected in the accompanying explanatory notes to the Bill. Additionally, as currently drafted, Clause 56 appears to equip Government with wide-ranging and far-reaching powers to amend, remove or introduce exceptions to copyright via secondary legislation. As a solution supposedly designed to meet a specific and technical need, the language and scope of the proposed Clause seems entirely at odds with the problem it is intended to address.

6. Taken at face value therefore, a Clause which bestows such wide-ranging powers is extremely concerning, and raises questions about what Government regards as necessary and sufficient for the policy-making and legislative process around changes to the copyright framework.

7. Whilst primary legislation is generally subject to extensive pre-legislative scrutiny, debate and approval by both Houses of Parliament, secondary legislation can be introduced without an equivalent level of oversight (as Parliament is denied the opportunity to debate or amend statutory instruments, and may only approve or reject them as drafted). This is inherently problematic in the context of complex policy-making, and fundamentally undermines a process which should be not only rigorous, but transparent.

8. We strongly believe that proper Parliamentary scrutiny should be applied in considering measures that, at the extreme, could potentially cause irreparable damage to vibrant, enterprising, competitive and world-leading free-market sectors.

9. The existing copyright framework in the UK is finely balanced, and the product of ongoing debate and re-evaluation, particularly in an increasingly dynamic marketplace. Seemingly minor amendments related to changes in the scope of exceptions can prove extremely consequential in the purest commercial sense for organisations that invest in content creation and preservation.

10. It is particularly surprising, therefore, that Clause 56 is the only part of the Bill without an Impact Assessment, even though it could allow the passing into law of contentious and complex proposals currently being considered by the Intellectual Property Office, as well as on other related matters arising in the future.

11. The Government was unable, during the debate at Second Reading, to clarify how the Bill will be used to enact any of the recommendations under consideration in the wake of the Hargreaves Review. This further clouds the aspirations claimed to be behind the drafting of the Clause, and has created concern that changes to exceptions may be bundled into a single SI, further limiting Parliament’s ability to subject any changes to proper scrutiny.

12. We recognise that in practice the EU framework circumscribes, to a certain extent, what changes the UK Government can introduce to the UK copyright framework, and that the three-step test in the Berne Convention imposes certain de minimis constraints on all limitations and exceptions to copyright. Nevertheless it does not appear, in summary, that the current wording of Clause 56 is either necessary or desirable.

Solution

13. We therefore call on Government to take the following steps before PCF can offer its support for Clause 56:

a. Clause 56 should be amended to more accurately reflect the stated intention of the IPO in bringing it forward, and we support any amendments that seek to narrow and clarify the intention of Clause 56 in line with the Government’s stated aims;

b. A full Impact Assessment should be introduced;

c. The explanatory notes to the Bill should clarify and reinforce Government's intentions behind introducing the Clause;

d. Government should bring forward a comprehensive proposal for how the Bill will be used to enact recommendations arising from the Hargreaves Review.

July 2012

Prepared 10th July 2012