Draft Copyright and Rights in Performances (Disability) Regulations 2014
Draft Copyright (Public Administration) Regulations 2014
Draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
The Committee consisted of the following Members:
† Austin, Ian (Hartlepool) (Lab)
† Doughty, Stephen (Cardiff South and Penarth) (Lab/Co-op)
† Dowd, Jim (Lewisham West and Penge) (Lab)
† Evans, Jonathan (Cardiff North) (Con)
† Gillan, Mrs Cheryl (Chesham and Amersham) (Con)
† Glen, John (Salisbury) (Con)
† Gyimah, Mr Sam (Lord Commissioner of Her Majesty's Treasury)
† Harris, Rebecca (Castle Point) (Con)
† Heath, Mr David (Somerton and Frome) (LD)
† Henderson, Gordon (Sittingbourne and Sheppey) (Con)
† McDonald, Andy (Middlesbrough) (Lab)
† Reid, Mr Alan (Argyll and Bute) (LD)
Simpson, David (Upper Bann) (DUP)
† Stuart, Ms Gisela (Birmingham, Edgbaston) (Lab)
† Uppal, Paul (Wolverhampton South West) (Con)
† Willetts, Mr David (Minister for Universities and Science)
† Winnick, Mr David (Walsall North) (Lab)
† Wright, Mr Iain (Hartlepool) (Lab)
Kate Emms, Committee Clerk
† attended the Committee
The following also attended ( Standing Order No. 118(2) ) :
Fourth Delegated Legislation Committee
Monday 12 May 2014
[John Robertson in the Chair]
Draft Copyright and Rights in Performances (Disability) Regulations 2014
6 pm
The Chair: It might be helpful if I briefly outline the procedure for this Committee. In a moment, I will ask the Committee whether it is content to debate the regulations together. If there is no objection, the Committee will have a single debate not longer than an hour and a half covering all three instruments. If there is an objection, the instruments will be debated in turn for no longer than an hour and a half each.
Is it the wish of the Committee that the regulations be taken together?
6.1 pm
The Minister for Universities and Science (Mr David Willetts): I beg to move,
That the Committee has considered the draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014.
It is a great pleasure to serve under your chairmanship, Mr Robertson. This is by far the most substantial of the three instruments, but I am happy to discuss all three sets of regulations separately.
The regulations before the Committee will bring UK copyright law up to date and make it fit for purpose in the 21st century. In today’s digital world, copying is intrinsic to new technologies that are used by vast sections of society, from researchers and curators to teachers and consumers. Under current UK copyright law, a great many activities that are intuitively acceptable to any reasonably minded person are unlawful or, at best, uncertain simply because they involve some element of copying. It is the Government’s responsibility to ensure that copyright law achieves appropriate balance between protecting the rights and interests of creators and serving the wider public interest. The three statutory instruments are part of a process that began with the publication of the Hargreaves review in May 2011, although arguably similar recommendations were made under the previous Government in 2006 by the Gowers review of intellectual property.
The Government have proposed a range of regulations. We are not bringing forward today the regulations on personal copying for private use or the regulations on parody, caricature and pastiche in quotation. The Joint Committee on Statutory Instruments had some questions on the private copying and parody exceptions that it would like to discuss further.
Jim Dowd (Lewisham West and Penge) (Lab): On a point of order, Mr Robertson. I do not wish to interrupt the Minister’s flow, but he mentions the wonderful words “bringing forward.” I feel I have to bring to your attention that when I went to the Vote Office earlier today, I asked for a copy of the relevant statutory instruments and I was given three of the five that the Government originally tabled. The three I was given included the draft Copyright and Rights in Performances (Disability) Regulations 2014, which we will discuss today, but I was also given the draft Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014—which I am led to believe have now been withdrawn—and the draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014, which have also been withdrawn. I also received the explanatory memorandum, which is perfectly fair because it includes all five instruments that were before the House when it was published. I did not, however, see the other two statutory instruments, the draft Copyright (Public Administration) Regulations 2014 and the draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014, until I arrived in the Committee Room this evening.
I would be most grateful if you would, as they say in the fabulous language of this place, cause inquiries to be made as to why the Vote Office was not more au fait with the business before the Committee. If I catch your eye later in proceedings, I will refer obliquely and fleetingly to both the draft Copyright and Rights in Performances (Quotation and Parody) Regulations 2014 and the draft Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014.
Mr David Heath (Somerton and Frome) (LD): Further to that point of order, Mr Robertson. I was given a different selection of three statutory instruments by the Vote Office. I have the quotation and parody regulations but not the disability regulations. The selection on offer in the Vote Office seems to have been infinitely variable.
Mrs Cheryl Gillan (Chesham and Amersham) (Con): Further to that point of order, Mr Robertson. My staff went to the Vote Office and got a perfect selection of all the documents.
The Chair: I thank the hon. Member for Lewisham West and Penge for his point of order. I think that it is more down to the Vote Office that the documents were not available; it will be taken up with the Vote Office. Of course, he could have tried another place to get them and he should probably have made me or a member of the Whips Office aware that the documents were not there. I have had the documents for some time, but then again they are sent to me.
Jim Dowd: I had no more reason to believe that my bundle was inaccurate than the hon. Member for Somerton and Frome did. I traditionally trust the Vote Office, and nearly every Member of this House does, to provide us with correct material. It failed to do so, but I was not in a position to know that until I came here this afternoon.
The Chair: Then the error is yours for not checking that you had received the right documentation in the first place.
Mr Willetts: I am relieved that I am not responsible for the decisions of the Vote Office; I am responsible for quite enough things that go wrong anyway without being responsible for other things that go wrong elsewhere.
Of course, the irony is that all this goes back to assurances that I gave in the Chamber at an earlier stage of this process that we would try to construct our statutory instruments in such a way as to distinguish between distinct issues that Members from all parties wanted to consider. So we have five distinct proposals, three of which have gone straight through the Joint Committee on Statutory Instruments. The other two have not been withdrawn, but we understand that the Joint Committee has asked more questions. We are, of course, still very happy to oblige it, but I will try to restrict my remarks to the statutory instruments that this Committee is considering today, which is the only right way to proceed, although I will of course be guided by you, Mr Robertson.
As I said, it is not unusual for the Joint Committee to spend more time considering SIs, but unfortunately it has implications for the timetable for these exceptions, given where we are in the parliamentary cycle. Our aim is that, if the three SIs that we are considering today pass this Committee, they should come into force on 1 June.
These instruments cover changes to copyright exceptions to research, education, libraries and archives, which includes a new exception for text and data mining for non-commercial research; changes to copyright exceptions for disabled people; and changes to the copyright exception for public administration. In most cases, the instruments make small changes to existing exceptions, for example, by expanding the types of copyright works that the exceptions apply to, or the types of institutional user that can benefit from them.
The potential benefits of these three measures brought together are significant. We estimate that the measures in the three instruments that the Committee is considering today will benefit the UK by around £250 million over 10 years—approximately half of our estimate of the overall benefits of all the measures.
Let me briefly touch on protection for rights holders. For the avoidance of doubt, the majority of uses of copyright materials will continue to require permission from copyright owners. The regulations have been carefully and narrowly drafted to contain safeguards that ensure that they do not prejudice the legitimate interests of creators and rights holders. Indeed, many of the changes simply modernise existing exceptions that have been part of UK law for many years.
Jonathan Evans (Cardiff North) (Con): Dealing specifically with the proposal in relation to research, education, libraries and archives, paragraph 7.11.6 of the explanatory memorandum says:
“The regulations amend section 36 so that: it is no longer confined to certain types of copyright work”
and the copying limit is increased. We have heard through all-party groups in this House from modern composers who say that in educational establishments an awful lot of their work gets photocopied in this way and that rights holders miss out. Perhaps the Minister can explain to me how they would be protected.
Mr Willetts: As I was explaining, we are trying to protect the rights of copyright owners. The provision that my hon. Friend referred to simply tries to take account of technological change. There are already permissions for a teacher to photocopy passages from a novel to discuss them in an English class, and the proposal will enable people, using new modes of communication, similarly to take an extract or use something that is available in another technological format and enjoy the same kind of permission. It is not a very large extension, but if someone is in an art class, doing a piece on performance art on video, the thought is that there should be a similar degree of freedom. On the specific issue of music, I should make it clear that the fair-dealing exception will only allow small illustrative uses, such as copying and displaying a few bars of musical notation to a class studying musical composition.
The changes are cautious and narrowly drafted. They simply try to keep up to date with technological change and permit illustrative uses.
Mr Iain Wright (Hartlepool) (Lab): The Minister talked about fair dealing, which is very important. However, to take the example from the hon. Member for Cardiff North, if a class is studying, say, the Beatles, would it not be entirely reasonable for all of “Abbey Road” to be copied for educational purposes? To what extent is fair dealing appropriate in that guise?
Mr Willetts: I do not think it would be appropriate to copy all of “Abbey Road”, nor would it be appropriate to photocopy all of “Bleak House”. The aim is not to permit that, but to allow someone to use passages for educational purposes. That is the crucial difference. We are not trying to create a new right. In this case, we are trying to ensure that existing rights of copyholders are properly protected with narrow and carefully drafted provisions.
Let me try to explain what our thinking is on the three measures. In light of the intervention from the hon. Member for Lewisham West and Penge, I will talk specifically about text and data mining. The new copyright exception will permit UK researchers to use text and data-mining technologies as part of their research. Data-mining techniques allow researchers to analyse large amounts of text and data mining using computers. That is extremely efficient and makes it easier for researchers to discover new connections between facts. Making sure that the public can read and access the results of publicly funded research through the Government’s open access policy is something that I have personally championed as the Minister for Universities and Science. The text and data-mining exception contributes, therefore, to the Government’s overall goal of making the UK one of the best places in the world to do science.
The measure is necessary because current copyright law does not allow us to realise all the potential benefits of text and data mining. That is because the technology usually requires copies to be made of the material that is being analysed. Making those copies risks infringing copyright. At the moment, only 11% of articles in the European database of biomedical research papers can be electronically analysed without seeking permission. The rest require researchers to seek specific permission from the copyright owner, even though the researcher
or their institution may already have paid for a licence to read the articles. That imposes a huge burden on researchers.The changes proposed will allow researchers to make copies of any material that they have the right to read, without obtaining additional permission from the rights holder. That will only apply to text and data mining as part of a non-commercial research project—that is the point I was trying to make earlier about how narrowly defined the arrangements are. Researchers in the US and Japan already have the freedom to carry out text and data mining, and the exception will give similar freedoms to British researchers.
To ensure that researchers are fully able to benefit from the exception, the legislation makes contract terms that seek to prevent text and data mining for non-commercial research unenforceable. It is important to add, however, that that will not stop rights holders imposing controls on the way that researchers access material, such as reasonable limits on download speeds. It has been estimated that permitting text and data mining may benefit UK researchers by £124 million a year.
In addition to introducing this new exception, the regulations will extend the existing fair-dealing research exception to cover all media covered by copyright works, not just printed media. Researchers will be permitted to carry out reasonable limited copying for non-commercial research and private study without permission from the copyright holder. Institutions such as libraries and universities will also be able to offer access to copyright works on the premises at electronic terminals for research and private study. That will reduce costs and improve access.
Let me now turn to education exceptions. Existing exceptions for education will be modernised by these regulations to allow more extensive use of materials in conjunction with educational licensing schemes. Another change will permit copying of small amounts of material where necessary to illustrate and explain a point. Teachers and lecturers will be able to do things such as display web pages and images on interactive whiteboards and in presentations. These changes will not remove the need for education establishments to hold licences such as photocopying licences and broadcast recording licences. Together these modernised exceptions help to define basic copying permissions for providers of education, ensuring that education is not constrained by copyright law.
Finally on this provision, the regulations will make it easier for libraries, archives, museums and galleries to preserve their collections. They will remove unnecessary regulation that hinders the preservation of our cultural heritage. Preservation techniques will often involve copying a cultural work or artefact, for example, digitising a book to transfer it to a more durable medium. The current law allows preservation copying, but applies only to books and can be used only by libraries and archives. If an archive needs to preserve a film, sound recording, photograph or other work, it risks copyright infringement. If a museum or gallery needs to preserve any item from its collection it also risks infringement. By removing those barriers to preservation these changes
could save up to £26 million for libraries, archives, museums and galleries per annum.As these provisions form a single logical entity, I would briefly make the point, Mr Robertson, that the changes to the exception for disabled people will mean that, if any type of copyright work is not available commercially in a format that can be accessed by a disabled person, an accessible copy can be made for them. The changes would mean that anyone who has an impairment that prevents them accessing copyright works would be able to benefit from the exception.
On public administration, the other provision, the changes will enable more public bodies proactively to share certain third-party copyright materials online. Most information held by public bodies is already available for public inspection, but currently copyright law prevents any of this material being published online. Instead, this third-party material can only be issued to the public in paper format or viewed on the premises of public bodies. Allowing it to be made available online will reduce administrative burdens for public bodies and save the public money and time.
I believe that overall these provisions form a package of reasonable and common-sense changes. I hope, Mr Robertson, you will forgive me for trying to cover them together because they are a coherent whole. However, I am happy to answer questions on any specific provision, in whatever order the Committee wishes.
The Chair: Let me try to work out the order in which we are going through the regulations, so that hon. Members know what is happening. I thought that we were going to take the disability one first, but the Minister spoke more about education than disability and that threw me somewhat. Can we go back to the original order because the Opposition are working from the order on the paper? Is that correct? The rules are that we should stick to the actual document that we are discussing and try not to cross over. As Members wanted to take the instruments separately, we will take them separately. We gave the Minister a bit of leeway, so that he could set things out generally and give an overall picture.
6.19 pm
Mr Wright: It is a pleasure to serve under your chairmanship, Mr Robertson, and I am grateful for the clarity you have given the Committee.
The saga of copyright exceptions continues. To remind the Committee, the Government made proposals on copyright exceptions in 2012 during the passage of the Enterprise and Regulatory Reform Act 2013. In December 2012, “Modernising Copyright” was published. In that document, 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.”
It is fair to say that the Government have failed to achieve their objectives. There has been a public consultation and a Government response to that consultation, and further work and technical reviews were undertaken. A
number of draft exceptions were laid on 27 March, with a common commencement date, as the Minister rightly said, of—hopefully—1 June. With your permission, Mr Robertson, I will come to the principle of common commencement dates in a moment, because it is an important point that the Committee must outline.Last week, at the Secondary Legislation Scrutiny Committee, Viscount Younger was adamant that these were minor changes, and the Minister said this afternoon that they are small changes to existing provisions. However, as the Minister said on the following day, the exceptions on private copying and parody were withdrawn without explanation. With beautiful understatement, their lordships said:
“We pressed the Minister on his statement to us in an earlier letter that the changes proposed were ‘relatively minor’: we are not persuaded that this is an accurate assessment of their impact.”
If at all possible, can the Minister outline further what on earth is going on? Does he agree with Viscount Younger’s view that these are minor changes, which will have an impact of only £500 million or so on the economy? Given that we have had more than two years to consider them, why were they withdrawn at the last possible moment? Will they be brought back? If so—I think that the Government’s intention is to bring them back—what will be the time scale? Will the common commencement date be 1 October 2014, given that we are now going into the last Session of this Parliament?
With your permission, Mr Robertson, that brings me to the general principle of common commencement dates. My understanding was that for about a decade, the use of common commencement dates was to be adopted for all domestic regulations bearing on business made in the House and the other place. I also thought that the coalition Government had reaffirmed their commitment to the common commencement date process shortly after taking office. Is that no longer the case? Has there been a change in policy? Should we expect common commencement dates to be scrapped and regulations for business to be implemented at any time the Government feel free to do so?
Ministers and the present Government had decided that exceptions to common commencement dates would be, in the words of guidance issued by the present Government on coming to office—the document was issued in August 2010—
“extremely limited…These rare circumstances may include…clear emergencies; for example those involving public or animal safety or health, which demand urgent action…anti-avoidance measures necessitating urgent closure of loopholes…measures which remove significant risk or detriment from business…instances where the costs of timing a measure to meet a CCD would be wholly disproportionate to the public purse and/or business…orders which commence other regulation on a CCD.”
Will the Minister explain under which of those criteria the regulations before us come? Is he seriously suggesting that there is an urgent and pressing need to do this now? What precisely are the rare circumstances or danger to health or business necessitating this approach, given the extraordinary amount of time spent in planning—more than two years—and several consultations involved in getting to this stage? Even now, at the eleventh hour, they are scrapping two exceptions. It is farcical. I would like to say that it is beyond parody, but I am not allowed to, because they have scrapped the parody exception.
Let me turn to the exceptions proposed today. With your guidance, Mr Robertson, I will deal first with
disability. I think everybody would agree with the objective of ensuring that all people can access cultural materials regardless of any disability or impairment they have, and I agree what the Government are trying to do with regard to that. What impact does the Minister think that will have on the market? I think that the exception is sound, as I said a moment ago. It is designed to address current market failure for wider important and beneficial social and cultural reasons, but what will happen if the market, as it inevitably will, develops? Does he think that through the use of technology and the development of, say, apps, the market to aid people with disabilities will expand and evolve? What assessment has been undertaken to see the extent to which the market is dealing with that, and does he plan to review it again at a certain time? I think I am right in suggesting that this will be looked at, as with all the other copyright exceptions, in 2019. I hope I am right.Given the fast-moving nature of the technology market, should a review on this particular copyright exception take place faster than that? It might be helpful if the Minister states something more than the vague Whitehallesque, “We always keep legislation under review.” Where does he think the market might develop, and what impact will it have on the copyright exception?
I need your guidance, Mr Robertson. I have asked my questions on the disabilities exception. I am happy to go on to the public administration one. I see from your stern stance that you do not want me to, so I hope the Minister will be able to respond to my concerns.
6.25 pm
Mr Heath: I am a little confused by the procedure today. Having decided that we were going to have separate debates on the three regulations before us today, both the Minister and the Opposition spokesman then proceeded to talk in generic terms about the bundle, including about measures that are not before us. It is hard to distinguish the specific arguments about the disability regulations.
I support the Government’s intentions, and I think the regulations will benefit a lot of people. Having said that, I have three specific concerns that I would like the Minister to address. The concerns are not, as the hon. Member for Hartlepool said, that other orders have been withdrawn, because, as I understand it, they have not been withdrawn at all. They are merely before the Joint Committee on Statutory Instruments, and the Joint Committee will take the time that it needs to do its work properly. That is not a function of the Government; it is a function of the legislature.
The Chair: Order. I think we are getting away from what we should be talking about. The Minister has been asked a question about the other regulations, and he will supply the answer in due course. Can we please try to stick to the regulations on disability?
Mr Heath: I am most grateful, Mr Robertson. That is indeed a precedent in this debate so far.
I have three questions that apply to these regulations, but they will also, pari passu, affect the other ones, which we will consider later. The first is on the matter of
impact. We have not separated out the impact of the separate regulations. We have an impact assessment that suggests that the overall impact of all five orders, two of which we are not considering today, will be £500 million. That is the estimate. The Minister said earlier that the three orders before us today cumulatively will represent about half of that.Jim Dowd: Can the hon. Gentleman briefly explain—I know he cannot go too far from the orders—the components of that £500 million?
Mr Heath: No, I cannot, because I am not the Minister. That is what I was about to ask the Minister. I am finding it a little difficult to understand where the benefit to the economy is without any loss on the other side of the equation. I appreciate this is not a zero-sum game, and there may be benefits due to an increase in the volume of work within the creative industries that is a genuine benefit to the UK, but will the Minister explain how we reconcile those two issues? For people with disabilities, the benefits of these specific regulations are clear, but I doubt whether they can be quantified in the terms of the overall assessment.
On my second point, what is the Minister’s assessment of the vulnerability to legal challenge of the regulations, especially the ones we are discussing now? I read the memorandum to the Joint Committee on Statutory Instruments in which the Government take the view, as any Government always do, that if a challenge were to come along, they would successfully fend it off. Indeed, I recall having given similar reassurances to people some time in the past on behalf of Her Majesty’s Government. However, being confident of the outcome of proceedings is not the same as being confident that proceedings will not be forthcoming, which may put in doubt the provisions before us and, indeed, their commencement date. I would be grateful for the Minister’s assessment of that.
Thirdly, contract override is a key part of the proposals. A previously agreed contract that conflicts with the new regulations will effectively cease to be enforceable. That creates a retrospectivity issue, so I would be grateful if the Minister would explain his view on the setting aside of contractual arrangements that are already in place.
I am convinced that the Government, in good faith, are bringing forward measures that will benefit many people and solve some unaddressed issues. Having said that, this subject is complex—I hasten to add that I am certainly no expert on it—and some fundamental questions remain on the table about which I hope the Minister can help us in our deliberations.
6.31 pm
Mike Weatherley (Hove) (Con): It is a pleasure to be here under your chairmanship, Mr Robertson. While I look forward to the format shifting and parody exception debates, I will stick to the disability exception. As a general rule, this is a good exception. If I were able to vote today, I would certainly vote in favour of it. However, I have one question for the Minister. It is right to encourage commercial alternatives. It is also right that there should be an exception if there is no such alternative, but what happens if a commercial alternative
becomes available in a year or two? People may have done their due diligence in advance and found no commercial alternative, only for one to appear. Will those people face penalties, or will there be some latitude in that respect?6.32 pm
Mr Willetts: Let me try to respond to those points. The hon. Member for Hartlepool leapt in to ask for three separate debates, but it is proving hard to keep these three subjects apart because they are all closely connected. However, it was his idea and we are all doing our best in our circumstances.
First, let me make clear that, as my hon. Friend the Member for Somerton and Frome said, no measures have been withdrawn. Two statutory instruments are not before the Committee—they are still being discussed with the Joint Committee on Statutory Instruments and we intend to bring them forward for consideration as soon as possible.
Jim Dowd: For the avoidance of doubt, the JCSI went back to the Department to seek further information and to reconcile the position advanced by the Department with the advice that it had been given. Do the Government not recognise that, because all five regulations were submitted together, the three we are debating could not have been considered today and in the other place on Wednesday if the Government were not prepared to reconsider the two that were rejected?
Mr Willetts: I think that that is a hypothetical question about measures that are not before the Committee, so I do not feel obliged to answer it; I am trying to focus on the regulations that we are considering.
Let me make it clear that we intend that the regulations should commence on 1 June. They were highlighted as one of the key domestic measures in the Government’s seventh statement of new regulation, the period for which runs from April until the end of June, and we are keen for them to come into force during that period, as is expected by business and the public.
The hon. Member for Hartlepool asked what review would take place of the regulations’ effect. Let me make it clear that we are committed to reviewing and evaluating the impact of the changes within five years of their coming into force.
When the hon. Gentleman turned specifically to disability, he asked about the possible impact on the market. As I think I said in my opening speech, the changes to the exemption for disabled people will mean that if any type of copyright work is not available commercially in a format that can be accessed by a disabled person, an accessible copy can be made for that person, but if it were to become available commercially, the provision would cease to have effect at that point. Our aim is to ensure that there is wider access to material that it is not commercially available, an example of which might be a film with an audio account of what is happening. We believe that that is a sensible way of proceeding.
I was asked about impacts. Throughout my speech, I tried to give an estimate for substantial impacts. However, we have not provided a specific estimate for the disabled impact because we accept that that will be one of the more modest financial impacts.
My hon. Friend the Member for Somerton and Frome asked about judicial review. Several stakeholders questioned the vires to make statutory instruments under the copyright directive and the European Communities Act 1972. We responded to that, and the JCSI has not indicated that it disagrees with the Government’s arguments, so we could not be given more confidence than that.
My hon. Friend also asked about the contract override question. I realise that these are deep waters, and we are fortunate that Viscount Younger has written to the Chair of the Secondary Legislation Scrutiny Committee today—12 May—explaining further what that means. The crucial statement is:
“Schedule 2 sub paragraph 1(b) to the European Communities Act says that the powers conferred by section 2(2) shall not include power to make any provision taking effect from a date earlier than that of the making of the instrument containing the provision”—
I could not have put it better myself. The statement continues:
“you cannot create a new law that has effect in the past…the law cannot be retrospective”—
so it cannot be backward looking—but
“this does not mean that the law will only apply to new contracts. The change applies to”
“regardless of the date on which a contract was formed”.
The change applies for the future, but that does not mean that it applies only to new contracts. That letter is in the Libraries of both Houses to help Members with this important issue.
Jim Dowd: I have had representations that the explanatory notes—not the memorandum, but the notes that go with the legislation—are ambiguous on this very point which, as the Minster says, is critical, as the hon. Member for Somerton and Frome reiterated. Would the Minister be prepared to insert an addendum, codicil or amendment to the notes that go out to the general public regarding implementation of the regulations, including that guarantee from the Minister for Intellectual Property on behalf of the Government?
Mr Willetts: I will certainly consider the hon. Gentleman’s point, but we have already provided guidance to the public that covers this, and some of our explanations may help the Committee. Regarding existing licences, the guidance states:
“The licence will still be valid, but a licensee cannot be made to comply with any term in so far as it seeks to restrict something that the new law allows.”
If further elucidation is required, we will happily consider it.
Mr Heath: My right hon. Friend has been helpful, but there is still considerable latitude for interpretation in this area. It would be far better for the Government to expand on their understanding, with illustrative examples, of how a licence can remain in force, but be inoperable in terms of its provisions, before the matter gets before a commercial court. It would not be sensible for the matter to be determined in the courts rather than the Government providing guidance on how a licence will operate.
Mr Willetts: While I respect my hon. Friend’s advice, I must say that I do not find the position too perplexing, perhaps because I have been able to study so carefully the excellent letter than has been placed in the Library of the House of Commons. Let me have one last attempt at explaining, because clearly there are concerns on both sides of the Committee.
The regulations could not affect liabilities that have been incurred in the past—were they to do so, that would be a retrospective measure—and nor could they entitle customers to refunds for goods or services provided in the past. They affect the enforceability of terms in existing and new contracts going forward, so that those terms cannot prevent a person from doing acts falling within a copyright exception on or after the date on which the regulations come into force. In the light of comments made by my hon. Friend the Member for Somerton and Frome and Opposition Members, if further, better public guidance is needed to explain that point, I will happily provide it.
The measures on disability are modest but useful. We hope that they will ensure that disabled people are able to benefit from being helped to enjoy copyright works that are not available commercially through innovative new technologies. I hope that the Committee will support the regulations.
That the Committee has considered the draft Copyright and Rights in Performances (Disability) Regulations 2014.
Draft Copyright (Public Administration) Regulations 2014
6.42 pm
That the Committee has considered the draft Copyright (Public Administration) Regulations 2014.
I understand your strictures, Mr Robertson, so I will not detain the Committee by repeating the wider points that I made earlier.
The regulations will allow more public bodies proactively to share online unpublished third-party material from businesses and members of the public. They will also enable the sharing of materials through e-mail, as well as through the existing mechanism of paper copies. The changes apply only to works that are unpublished or those that are already available for public inspection through some statutory mechanism. Copyright will continue to protect any further dealing with relevant works, just as it does now. The exception will not therefore promote the publication of commercial works. On that basis, I hope that the Committee will support the regulations.
6.43 pm
Mr Wright: I agree with what the Government are trying to do, which seems perfectly reasonable in the context of their digital agenda. What the Minister said about proactively sharing public administration works through different media is entirely uncontroversial, so the Opposition have no issue with it.
6.44 pm
Sitting suspended for a Division in the House.
6.59 pm
That the Committee has considered the draft Copyright (Public Administration) Regulations 2014.
Draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014
7 pm
That the Committee has considered the draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014.
As we have already considered the wider issues, let me briefly tell the Committee that this statutory instrument helps researchers carrying out non-commercial research to use text and data-mining technologies to analyse copyright works without copyright law interfering. Where researchers have lawful access to copyright works—for example, through a subscription to a journal—they will be allowed to make copies of those works to carry out computational analysis of the data and text contained in the works. Publishers will be able to impose reasonable measures to maintain the stability and security of their computer networks as long as researchers are able to benefit from the exception to carry out non-commercial research. We believe that that will provide significant benefits to researchers.
The provisions in the statutory instrument will also be of value to schools, which currently need as many as 12 copyright licences. The total cost of educational photocopying licences, for example, is more than £25 million per annum. The costs associated with administering licences across the higher education sector were estimated to be at least £7 million per annum in terms of staff time, software requirements and compliance training. Often, these are works that can be used for these purposes, but people have to go through a complicated administrative procedure, which we are removing the need for in the future. This is a good example of how the measures bring a net benefit, without creating losers. We believe that the measures will encourage licensing of copyright material, as well as allowing minor and illustrative educational uses without the permission of copyright owners. On that basis, I commend the statutory instrument to the Committee.
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Mr Wright: I contend that the exception in respect of research, education, libraries and archives is probably the most contentious of the three before us, given that private copying and parody have been withdrawn. These regulations are essentially four exceptions, in respect of research and private study, archiving and preservation, education and text and data analysis, bundled into one. Given the discussions that we had about the risks of bundling during the passage of the Enterprise and Regulatory Reform Act 2012 and of the Intellectual Property Bill, why have the Government now gone ahead and bungled—sorry, that was a Freudian slip—bundled these areas together? Some aspects in research
and education could be non-controversial, but text and data mining will need further scrutiny. I am interested in the rationale behind bundling the four areas together.The Minister knows very well that Britain’s reputation for research is particularly strong, and we would all wish to maintain that. However, one recurring theme throughout this Government’s intellectual property policy and the way that they have botched the handling of a lot of copyright exceptions is the question of evidence. That is clear in the regulations. The impact assessment says that it has not been possible to monetise the costs or benefits
“due to lack of available data, despite seeking additional evidence through consultation.”
“absence of strong quantitative data”.
So why go ahead? Is evidence-based policy now dead, like common commencement dates? Is the Minister advancing policy on a gut feeling that it will be good for research, science and education in this country rather than on the basis of empirical evidence? Why go ahead without real, strong quantitative data?
The exception is designed to assist people who wish to make use of copyrighted works for the purposes of non-commercial research and private study. How will that be assessed? The Government’s position seems vague and open—we touched on that in our earlier discussion. In the frequently asked questions section, answering whether the exception is confined to those studying at school, college or university—quite a reasonable question, I would suggest—the guidance states:
“No, this also applies to those carrying out their own private study but you must be genuinely studying (like you would if you were studying for a college course) to qualify. An example of this could be when you are learning to identify birds in your garden or simply learning more about a particular hobby.”
Those two things do not seem complementary. Studying for a college course is much more formal and structured, and, frankly, subject to an audit trail, than
“simply learning more about a particular hobby”.
I have already mentioned the Beatles and am happy to talk about them for any length of time; what if my particular hobby is film, and I am interested in learning a lot more about the films of Martin Scorsese—can I legitimately copy “Casino”, “Goodfellas”, “Mean Streets” and others as part of learning about my particular hobby, without obtaining permission from the copyright holder? How will rules on that be enforced?
This next example was included in the impact assessment and, given that England’s World cup team was announced this afternoon, it is particularly interesting. Like many other hon. Members, I am a student of the beautiful game. [Interruption.] Did someone say that I was a Sunderland supporter? How dare they? I am insulted beyond belief. The example is a serious point that was put forward by the Premier League: should I not be able to gain access to premiership matches without the permission of the copyright holder? How could fair dealing be applied if, for example, I demanded the need to copy the full film or football match for real analysis, so as to think about particular extracts that could be important for the purposes of education and private study?
On education, I understand the need to provide exceptions to allow copying that may be put on a blackboard to be extended to incorporate new technologies.
Putting a website on a whiteboard is an example of that, and seems very sensible. I believe that the British Film Institute and the Association of Colleges agree with the exception, and I can understand why. Any means of using technology to enhance the educational experience is to be encouraged. However, I have a number of questions.The Secondary Legislation Scrutiny Committee last week proposed what I thought was quite a neat and tidy distinction:
“reproduction for commercial purposes would not be acceptable but the reproduction for educational purposes, even if it were for educational purposes that were being carried on commercially, would not”.
Will the Minister confirm if that is correct? It seems to be somewhat of an anomaly.
At this stage I wish to raise the matter of contract override. It has been mentioned before, but I raise it here because the Secondary Legislation Scrutiny Committee mentioned it specifically in relation to photocopying in schools. It was stated in that Committee, in the other place, by an official from the Intellectual Property Office, that
“the exception for photocopying by schools cannot be overridden by contract, so this is not us taking an unprecedented step.”
However, members of the Committee will have received a briefing from the Alliance for Intellectual Property, which states that this not a fully accurate interpretation of section 36 of the Copyright Designs and Patents Act 1988, which applies to reprographic copying by educational establishments. I am disappointed that I am keeping the Minister awake.
Section 36(3) of the 1988 Act states:
“Copying is not authorised by this section if, or to the extent that, licences are available authorising the copying in question and the person making the copies knew or ought to have been aware of that fact.”
“The terms of a licence granted to an educational establishment authorising the reprographic copying for the purposes of instruction of passages from published works are of no effect so far as they purport to restrict the proportion of a work which may be copied (whether on payment or free of charge) to less than that which would be permitted under this section.”
The Alliance for Intellectual Property states that the contract override provisions are therefore highly limited and, in its words,
“apply directly and specifically to the terms of contracts working alongside the exception”.
That is a very different provision from that proposed in the statutory instrument, which seeks to impose contract override provisions on any and all contracts. I know that the Minister talked about this before, but will he respond to those fundamental concerns?
On the matter of text and data mining, I would like the Minister to respond to two broad issues. First, what is the problem that the exception is trying to solve? A recent study by the Publishing Research Consortium stated that about 90% of research-focused requests for text and data mining are granted within a week at little or no cost to those seeking permission. In those circumstances there does not seem to be market failure so, on that basis, what is the rationale for the intervention?
Will the Minister respond to the conclusions made in the March 2014 report, “Study on the legal framework of text and data mining”, produced by De Wolf and Partners for the European Commission, which states
that the exceptions would not be permitted under the terms of the information society directive? It is essentially outside of what member states are allowed to have. Over the weekend, I tried to read the 116 pages of the De Wolf report, and I had to lie down with a cold towel over my head afterwards, but it seems to me that the Government are not acting with respect to EU law on that matter. Will the Minister respond to that? Has he read the report and what is he doing to respond to those particular recommendations? I am interested to hear what he has to say.7.9 pm
Jim Dowd: I must apologise for accusing my hon. Friend the Member for Hartlepool of being a Sunderland supporter. He is, of course, a famous supporter of Hartlepool United, although there is a far more pejorative term for those who pursue that particular activity.
I wanted to say a few words on the regulations. They are not the culmination, of course, and I do not intend to go too far down the route of parody, quotation and private copying because those regulations are not before us today, as we finally established. This is not the final part of the post-Hargreaves implementation; it is an interim stage.
I do not think there is much between Members on either side of the Committee on these issues. This is about the technicalities, which, as the hon. Member for Somerton and Frome said, seem arcane and strange to most people not directly involved but, for creators, innovators, authors and composers, this is their bread and butter. This is their livelihood. Equally, we must balance that with the need to ensure this nation’s reputation as a centre of great intellectual effort and originality. We have, over many generations, created an intellectual background that we have benefited hugely from as a nation. We must balance the need to ensure that we can innovate and exploit, in its best sense, the originality of the people in these islands with the need for an adequate reward to ensure a steady stream of new material. If it becomes impossible for people to earn a decent living as authors and composers, they will stop and the flow will stop.
I strongly support what my hon. Friend the Member for Hartlepool—whichever football team he supports—said regarding text and data mining and contract override. I suspect that we might all want the same thing, but how we express ourselves might divide us, so as much clarity as the Minister can bring would benefit all concerned. This has been a long process, and I congratulate the Government in so far as they have listened to the reservations of those with IP interests and have attempted to introduce a reasonable range of measures to implement what Hargreaves recommended—the Minister also mentioned Gowers—before the issues were identified for reform.
The other reason why we must take this so carefully is that it is only virtually once in a generation that we overhaul the IP legal framework in this country, whether for trademarks, patents, originality or intellectual property more generally. This opportunity will not come back to the House in the same form again for some considerable time.
I accept that, for the libraries and those who create collections and archive them, there are technical reasons why the regulations are beneficial, particularly with
older manuscripts and originals, to ensure they can safely steward their collections. However, libraries are only one interest in the matter. To some degree, libraries and archivists are only really concerned with ensuring that they have something to shepherd and provide; they are less concerned with ensuring the constant supply of such materials into the future. However, I accept the general thrust of the regulations.I know that the Minister cannot possibly comment on the regulations that are not here. I would perhaps just say to him and his colleagues at the other end of the building that addressing compensation might not go far wide in achieving what everyone wants in this suite of secondary legislation.
In conclusion, I want to ask the Minister about one point that was made by the hon. Member for Somerton and Frome. He and I, as I expressed in an intervention that he kindly took, would love to know where this £500 million, which is the net result of the measures, comes from. Can the Minister give us a brief outline? I noted the figures that he mentioned earlier. I added £250 million over 10 years, £124 million and £26 million per year, which only makes £400 million in a year, so £100 million has gone missing. In fact, the first was £250 million over 10 years, so that is only £25 million a year, which comes nowhere near £500 million. Although I am sure that everyone has the best of intentions, I think that someone is over-egging the pudding. However, I do not object to the regulations, particularly not these.
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Mr Willetts: Let me briefly respond to the speeches from the hon. Members for Dudley North and for Lewisham West and Penge. I think the latter was almost an endorsement of the statutory instrument, although he may have problems with other ones that are not before us at the moment.
Turning to the bundling, I noticed that the Opposition spokesman, the hon. Member for Hartlepool, tends to resort to complaints about process because I cannot believe that he really objects to the substance. I gave undertakings to the Committee to provide the provisions in sensible bundles to enable us to consider them rationally. We put them in five bundles—I will not list them again—and three of them are before the Committee today. They are Goldilocks bundles. We did not want to have a completely fragmented discussion, but we heard what the House said about having not just one aggregate discussion. Five has got it about right. We have bundled up the provisions on research, education, libraries and archives because they rely on many of the same definitions in the Copyright, Designs and Patents Act 1988, impact many of the same institutions and are strongly linked in both legal and policy terms.
The hon. Member for Hartlepool asked about the economic justification. We have provided considerable evidence on that. People are raising concerns about it, but let me make it clear that there are substantial administrative savings. The quoted £500 million is over 10 years, so substantial savings can be achieved. We believe that administration costs, for example, are considerable and will be a significant benefit. The £250 million was also a figure for savings over a 10-year
period. The education saving is £23 million, and the figure for archives and preservation is something around £200 million.Jim Dowd: The Minister is citing those things in good faith and not from detailed knowledge. My colleagues on the all-party intellectual property group have looked at this issue, and we have found it most difficult to understand how those figures are derived. I do not dispute that they are asserted, and neither do my colleagues, but where are they actually from? I do not expect him to answer that now—that would be ridiculous—but if somebody from the Intellectual Property Office, his Department, or anywhere else would just put them together and say where the money is being saved, what is being spent now that will no longer need to be spent and what investment in intellectual property can be made in the future that is not being made currently, it would make far more sense.
Mr Willetts: I will happily share with the hon. Gentleman the regulatory impact assessment calculations that underlie the figures that are being bandied about. They add up to substantial sums.
Mr Wright: Why does the impact assessment say in relation to education and other parts of these regulations that it has not been possible to monetise the costs and benefits of these exceptions, despite asking for more consultation?
Mr Willetts: It is not possible to monetise everything because there are some uncertainties, and because of those uncertainties, cautious estimates had to be given. Whenever we can make a rigorous estimate, we do. Some of the savings in administrative costs, for example, apply in the area of regulation. That enables me to give some examples that respond to the hon. Gentleman’s question. When he talked about monetisation, he asked why we should go ahead. I very much hope that was a rhetorical question, because a lot of people who care about implementing the Hargreaves review will be very unhappy if he actually tried to stop these measures going ahead.
On text and data mining, I said earlier that only 11% of the medical research papers currently published have an automatic right to text and data mining. People have to fill in a form and send it off to someone, saying they are a researcher and do not need to use the material for commercial purposes, and they get a letter back saying okay. It is a purely administrative process. In pursuit of fair-dealing provisions and other provisions, they are allowed to use the material, but they have to ask, and they have to be given permission. We are trying to sweep away such unnecessary bureaucracy—the process of asking for permission, where permission will be granted in minor cases. I am surprised education institutions and museums have not raised the administrative burden with the hon. Gentleman; they certainly raise it with me. That is why there is a real economic benefit here, and we need to go ahead.
The hon. Gentleman asked about Martin Scorsese. The law remains clear that people will not be able to copy the whole work for the purposes of research and private study. That is part of the underlying logic of the
fair-dealing provisions, which have been behind copyright law for a long time and which we continue to honour, although in a rather different technological environment.The hon. Gentleman asked whether we could be clear that education exceptions will not apply to commercial use. I thought that I had made this clear, but, again, let me be explicit: the regulations are clear that the education and teaching exceptions concern only non-commercial use.
The hon. Gentleman asked what the problem was on text and data mining. I think that I have probably answered that already. We believe that the administrative costs involved when people have to ask specifically for permission to access data for mining are an unreasonable imposition on non-commercial researchers.
The hon. Gentleman asked about EU law. If he really read 116 pages, or whatever it was, I could have saved him a lot of trouble. To summarise, the study by De Wolf and Partners says that the best way to permit text and data mining across the EU would be a mandatory harmonised text and data-mining exception. It did not say that individual member states should not go ahead
on their own; it just said it would prefer an EU-wide route. However, the impatience, resolve and energy for which the coalition is famous mean that we are getting on with things, rather than waiting for an EU provision. The study went on to describe an EU provision that is remarkably similar to the one that the Committee is about to decide on. The hon. Gentleman need not have worried about those 116 pages—that is the argument, and that is why we are going ahead.The provisions make sense. They are in the spirit of Hargreaves and, I would even claim, the spirit of cross-party unity. They are also in the spirit of Gowers. In the light of those comments, I very much hope the Committee will accept them.
That the Committee has considered the draft Copyright and Rights in Performances (Research, Education, Libraries and Archives) Regulations 2014.