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Lord Clement-Jones: My Lords, I congratulate the noble Baroness, Lady Buscombe, on initiating this debate on a very important issue. I share her bafflement at the time limitsI see that she busted them quite successfully and I shall do the same probablybut I suspect that this is due to the Companion rather than to the Minister, who I am pleased to see is in his place today, contrary to the advanced billing.
This debate is extremely active, both between countries and within countries. I came back from the United States this morning and, as one does, I picked up the literature that was lying around in the airport lounge. I have the intellectual property issue of the Technology Review, produced by MIT, in which two extremely distinguished professors of lawone at Stanford and the other at the University of Chicago, who are heavily engaged in this areadebate the potential outcome of the Grockster case, which is before the US Supreme Court. This case concerns downloading peer-to-peer, as it is called, on the Internet.
In a sense, that case is a successor to the Napster case, although it is not about deriving a work from a central source but from other individualsknown as "file sharing". It is an extremely important case which, no doubt, will heavily affect us in due course. It is just one example of where the debate is raging.
Another area concerns the debate which is raging between countries. WTO accession has meant that China and India will have to observe copyright law to a much greater extent. Many of the arguments between governments lie in trying to persuade some of the developing countries that it will improve business confidence if they observe copyright fully and will help direct inward investment to those countries. So copyright is extremely important both for international trade and for domestic creative industries.
I have a long-standing interest in copyright. I used to work for a law firm which specialised in this area. We ran the Redwood casethe famous music copyright
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casebut unfortunately we lost it. I was also at London Weekend Television when, in the 1980s, it was involved in the thick of licensing and negotiating rights for what were then the new areas of video and satellite. The motto of copyright laws in those days was very much, "What is worth copying is worth protecting". Now, however, with new works that can be made from samples both of music and film, the world has become rather more complicated. We also, of course, had the debate over moral rights, particularly in the art world. They are now available under the EU copyright directive of 2000 and artists are entitled to payment on resale of their works.
Many debates are taking place. I shall come to the issue of product counterfeiting in a momentit is of extreme importance and of great concern to a number of industriesbut I believe that it is the Internet which will in future pose the biggest challenge to copyright law. Copying is now so much easier. First it was text, then graphics, and now music downloads are quite commonplace. Soon film works will be downloadable as a matter of course when compression software and computer memory improve.
This raises the issuethe subject of the US debate I mentioned earlierof how much, to use the expression of Professor James Boyle, "digital barbed wire" is needed to put round original works and, by contrast, what should be allowable under the fair dealing provisions. What level of protection is appropriate and what are the key problems that need to be combated? For instance, what lessons for the future does the original Betamax case have for us? Limiting technology too much may lead to infringement but may also lead to beneficial uses.
The newspapers in this country are currently full of details of the action that the British Phonographic Industry is taking against peopleoften very young peoplefor multiple copyright infringement through peer-to-peer music downloading. I believe that the BPI is right to take this action. Indeed, I believe that the action taken by the BPI, by FACT, by the Alliance Against Counterfeiting and Piracy and by other organisations is protecting in the correct fashion the rights of their members. But when it comes to enforcing judgments against parentsparticularly where, out of ignorance, they did not really understand what their teenage children were doingI hope that the settlements will not be too draconian. I believe that this is a very necessary form of public education but I hope that the BPI, in particular, is not too punitive when it enforces payment against these parents.
As to Grockster, I very much hope that the rights of the film companies will be firmly upheld but, by the same token, I hope that the film companies will begin to establishin the way that the music industry did with iTunes and other MP3 downloading chargesdifferent legitimate forms of licensing for film works. It may be that the very complicated release dateswhich go in stately fashion from theatrical release, to DVD, all the way through to terrestrial free broadcastwill need to incorporate a window which is applicable to the Internet and will allow people to download legally in the way that it is now possible to download music.
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It would be very useful to know whether the Government are considering the implications of these cases. I am sure the Minister will refer to this in the course of his winding-up speech and I look forward to it. I also hope that he will respond to the noble Baroness, Lady Buscombe, on the issue of the extension of the 50-year copyright rule on songs. We believe that the Government are favourably disposed towards it but we have not seen in hard black and white that that is the case. It is, of course, to some degree controversial, but I believe that there is a very good case to be made for international harmonisation. It seems fairly ludicrous that there is protection for 95 years in the United States and for only 50 years here.
Quite apart from these issues, there are two areas in which urgent government action is vital. I refer, first, to the area of counterfeiting. I am reliably informed that this costs the creative industries something of the order of £11 billion in the UK and that the businesses concerned employ 1 million people. One of the puzzles is why Sections 107A and 198A of the Copyright, Designs and Patents Act 1988 have not been brought into play. They would give trading standards officers analogous rights to those which are available over trademarks. I do not understand why the Government have not brought those sections into effect. It is all very well for film companies and others to bring copyright infringement proceedings, but if those rights cannot be enforced by trading standards officersfor instance, over counterfeit DVDsthen surely that means they are not nearly as powerful as they should be.
There are issues about what progress is being made regarding the EU harmonisation enforcement directive. I was interested that the noble Baroness, Lady Buscombe, mentioned this. The UK presidency will be important. The Secretary of State, Tessa Jowell, has said that the UK intends to use its presidency to have a debate about further rights and the enforcement of copyright for the creative industries. That will be extremely valuable. So I hope that progress will be made and that the Minister will address that point in his reply.
There is a further issue of great importance to composers, particularly those who compose music for television programmes. When they are contracting with television and production companiesthe BBC is an honourable exceptionthey have to contract with nominated publishers on rather disadvantageous terms. That is anti-competitive behaviour and it should be prohibited. I am in favour of copyright protection and contractual rights but not when there is not fair competition or there is coercive behaviour. That applies across the board. This is clearly an area in which Ofcom needs to be proactive; if it does not have the powers to be proactive, it should be given them. I should be grateful if the Minister could address that. What is probably needed is a code of practice prohibiting such behaviour.
Finally, we need a better mechanism for the Government to stay abreast of these issues in a joined-up way. I was very interested in the provisional conclusions on the review of the Intellectual Property Advisory Committee's work. Can a reconstituted
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committee play a really effective role? If we are to make this a priority for our EU presidency, we need the best possible advice and all the right people on board.
A few years ago, the creative industries intellectual property group, chaired by Kim Howells, produced an interesting report. It contained very interesting conclusions about public education in this area. That is important, and the noble Baroness, Lady Buscombe, rightly alluded to it, but it is only half the battle. We must ensure that those who wish to use samples to create further works of art on the back of existing copyright are not unduly disadvantaged. That will benefit the industry and ensure that the consumer is not overly burdened with rights. If we are to use our presidency to this end, there should be an effective body advising the Government in this respect. I hope that the Minister will address that in his reply as well.
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