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Lord Peston: My Lords, I thank the noble Baroness. I must also join with other noble Lords in a note of complaint. We are dealing with a matter of enormous importance. In particular, the restoration of copyright, with one notable and almost notorious exception, seems to me quite unique. The Minister is aware that I am grievously unhappy that we are dealing with such a significant matter in the dinner hour, late in the year. These matters deserve detailed and lengthy scrutiny.
I echo the remarks of the noble Baroness, Lady Hamwee. If this were a Bill, my guess is that it would take us a day to scrutinise it; in fact, a day merely in terms of asking the Minister to explain various matters. It is, to put it at its mildest, rather unattractive to be dealing with the matter as we are. The Minister persuaded me that it had to be done this way because of the 1st January date. I am advised that that is not the case but I must bow to the Minister's advice that we must deal with it.
I add a further complaint. We should never have been put in this position as regards a matter of this significance. I hope that it will not happen in respect of the other directives to which the noble Lord, Lord Brain, referred. I am responding moderately today but I shall not behave so well in future, in particular in relation to the rental and related rights directive, if we are not given ample time in terms of notice and availability to debate it. I say that without wishing unduly to criticise the department. In my judgment, within limits and given the difficulty of the issue, the department has done a good job. I agree with the Minister about that. But there is a difference between doing a good job and doing a perfect or an amendable job. That was the point made by the noble Baroness, Lady Hamwee. As she rightly said, we cannot amend any of the material before us, even when some of us believe that the advice given is wrong. The Minister does not have to agree but I hope that he will take on board the point that if some of it does turn out to be wrong in the sense that it does not meet the directive, is unworkable or has other flaws, we shall come back to it in some way or another and put the matter right because that is vital.
I have two further issues to raise. First, apart from the extension of copyright being mildly unusual, it is extraordinarily generous. To add 20 years to what is a generous form of law is extraordinary. Your Lordships may compare it with another branch of intellectual property--patent law. That is at the other extreme. Many inventors find it difficult to procure any years of patent protection. Therefore, the extension we are considering is very generous.
Nevertheless I take the point, although the bullying element had not occurred to me. If we are to harmonise, it would be much easier to harmonise upwards than to ask the Germans to come down to 50 years. I should be
The related question is: can we be assured that we have met all the points of the directive? I say that because on previous directives we were told we had but suddenly discovered that that was not the case. In particular, on the balance question, I understood the point of the directive was not merely to harmonise but also to protect the author and the next two generations of his or her family. That is the point at issue. Yet in no sense do the rights in the document revert to the author's heirs: they revert, as the Minister said, either to the current owner or to the last owner. That is quite a different matter. As the noble Baroness said, people may have sold their rights not realising that they were giving something away that was a good deal more valuable than it appeared at the time. Again, I shall be interested to know whether the Minister has been advised that there is no possibility of litigation in that respect. That is not something we would like to see arise.
I have talked about the problem of dealing with such a complex document in the manner that has been proposed today but I have to tell your Lordships that I find Regulation 23 completely incomprehensible. I have put in a good deal of work, but I do not believe that it could be comprehended by anyone. It is totally beyond me even to work out what the paragraph is trying to say, let alone what it actually says. If we were discussing a normal clause in a Bill, I would have tabled several amendments, the objective of which would be to see whether it made any sense.
I hasten to tell the Minister that I am not demanding that he makes an enormous speech telling me what Regulation 23 means--especially as I have already said that I do not believe that that can be done--but I have to say that Regulation 24 also concerns me. The Minister is entirely right to say that there is a question of balance involved. Certainly, someone--for example, a publisher--who in good faith published a work which was out of copyright should not be regarded as infringing because it has now been put back into copyright. However, I believe that Regulation 24 says that, from now on, such a publisher will have to pay royalties on the work. I am not, however, 100 per cent. certain in that respect.
I will give your Lordships a further example. A new publisher wants to publish exactly the same work which was out of copyright but is now back in it. That publisher will not treat the owners of the copyright as if the work were in copyright; as I understand it, the system under Regulation 24(1) will operate under the "reasonable royalty" rule which is a different matter. In other words, it is rather like the point made by the noble Earl, Lord Kinnoull. The owners will not be given back what they thought they had. Therefore, I believe that we may have the balance wrong in two different ways.
I shall not prolong the discussion any further except to put one further question to the Minister. If he is not able to answer tonight, perhaps he will write to me on the matter. We are, of course, dealing with intellectual property and, therefore, we are dealing with an asset. When the composer or author of the case that we have in mind died, I assume that the estate was valued for probate according to the copyright vested in it at that point based on the assumption that you looked forward 50 years, and no doubt tax was paid on that. My question is: what happens now when a greater value will be created? It was never a value that was there for tax purposes for probate. My probate lawyers tell me that the matter cannot be re-opened once it has been agreed. Nonetheless--putting it at its mildest--we have a very definite tax anomaly here; namely, that someone has got some value which, in a sense, ought to have been taxed earlier but which will now never be taxed.
I do not raise a purely intellectual argument; I raise a serious example of the consequences of going down the route suggested. I reinforce my point to the Minister. I do not expect that question to be answered tonight. However, if anyone in the Minister's department is able to sort out the matter for me, I shall be more than usually obliged. Having said that, we must of course agree the regulations. I do not believe that there is any point in delaying the matter further.
Lord Fraser of Carmyllie: My Lords, I am most grateful to those speakers who have contributed to tonight's extraordinarily erudite debate. I compliment them on their grasp of the detail of the statutory instrument now before us. I shall attempt to respond to most of the points raised, but, if I fail to do so, I shall look at the Hansard record of the proceedings tomorrow and write to noble Lords if there are any points that I fail to answer.
I was asked in general terms whether this was an appropriate way to proceed. Yes, in the circumstances, I do believe that it was right to have resort to such a procedure. There may be a complaint that the instrument has come forward to your Lordships at rather short notice, especially as the 31st December and 1st January crossover point is extremely important. However, in an area as arcane as this, I must point out that the critical aspect of it is that there should have been widespread consultation. I believe that the noble Lord, Lord Brain, indicated that as far back as two years ago he was engaged in consultation over the matter. It is possible that we have the balance slightly wrong. However, it is not often in your Lordships' House that the complaint is made that we have consulted too much rather than too little.
I was asked by the noble Lord, Lord Monson, whether Germany had bullied the United Kingdom into accepting life plus 70 years. I see that the noble Lord wishes to respond. I give way.
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