Enterprise and Regulatory Reform Act 2013

A Bill [...] to make provision about copyright and rights in performances; [...]

Status 2013-06-25 Bill has received Royal Assent

• http://news.bis.gov.uk/content/detail.aspx?ReleaseID=428955&NewsAreaId=2

Introduced 2012-05-23 by Vince Cable MP, Department for Business, Innovation and Skills. Parts are said to be required for changes recommended by the Hargreaves Review particularly introducing exceptions to copyright. Copyright is covered in part 6. It is currently going through the Report Stage within the House of Lords. The sessions are being held on Tuesday 26 February, Monday 4 March, Wednesday 6 March and Monday 11 March 2013.

Reaction to the Bill

Design Rights

Organisations and companies including Design Council, Vitsoe and Elle Decoration, and individuals have voiced their support for the bill, on the grounds that it will support the UK design industry:

• Sir Terence Conran - "By protecting new designs more generously, we are encouraging more investment of time and talent in British design. That will lead to more manufacturing in Britain, and that in turn will lead to more jobs – which we desperately need right now. Properly protected design can help make the UK a profitable workshop again. We have the creative talent – lets use it."
• Tom Dixon - "Current copyright laws leave designers woefully under protected compared to similar creative professions. This initiative is a small step toward establishing much needed protection of valuable intellectual property."
• Ruth Aram - "This is great news for the design industry and will bring the UK in line with the rest of the EU. As retailers of genuine modern classic furniture as well as the worldwide licence holders for Eileen Gray designs, we are more aware than most that the market is swamped with a multitude of cheap copies. My hope is that this change will encourage design creativity to flourish once more as UK designers will feel more confident that their intellectual property is protected and that pursuing a career in design is worthwhile."
• Mark Adams - "However, furniture producers still need much more help with the process of achieving copyright protection in the first place. It is here that I would like to see more time and effort taken by the legislators. The copying of furniture is out of hand and, ultimately, it is the customer who loses out. Vitsoe would be able to support and service its long-term customers much better if its market position was not constantly being eroded by products that copy the look (of its shelving system) but fail to give the high product quality and careful service which genuinely allow customers to live better, with less, that lasts longer."

Criticism of the Design Rights extension

Critics suggest the extension is not necessary or may even extend design rights as far as tins of paint.

Equally, it has been argued that a by-product of the bill has been overlooked: Lionel Bentley of Cambridge University suggested that "there are lots of people that have been critically overlooked: from university lecturers teaching design history, to book publishers, to museums – everyone will now have to seek permission." He subsequently labelled the bill as a "bad idea."

Bill progress

House of Lords

Second Reading

The second reading for the bill took place on 14/11/2012. The key points covered include:

• The majority of Lords spoke of their support for increasing the protection for producers of copyrighted material.
• Lord Marland suggested that the bill would help enterprise flourish in the UK. "The UK's copyright regime needs to be brought up-to-date. The measures in this Bill will help to bring the law into the modern age and will be of benefit to creators and users of copyright alike."
• Lord Stevenson stated that Clause 65 has been widely welcomed by designers because it redresses a clear anomaly, but believes others have not been so welcoming.
• Baroness Warwick supported Clause 68, which will allow the government to licence so-called orphan works and also open the way to extended collective licensing: @"Both of these measures are badly needed. As the Hargreaves review pointed out in 2011, a system to allow people to access, preserve and use works where no author can be traced has the potential to open up what he called a "treasure trove" of material. This is of particular interest to universities, libraries and museums."
• Baroness Buscombe one impact assessment drafted by the Intellectual Property Office which said that an exception for free usage of copyright content for use in parody would lead to no monetary impact on the creators: "I am sure that television companies that license clips of footage every week to the likes of "Have I Got News For You", "Russell Howard's Good News" or "10 O'Clock Live" would dispute that.[...] In short, we fear that these provisions will threaten the success of British creative businesses large and small, reduce their ability to make a living from their work and thereby put into question the UK's proud position as the world's leading home for the creative industries. But the provisions are free-standing and losing them from the Bill would not impact on the other parts."
• Clause 66 would give the government powers to change copyright exemptions. However, Lord Marland suggested that these would not extend to visually impaired people.
• The issue of granting copyright to orphaned works was also discussed, with Baroness Warwick highlighting concerns on behalf on academic institutions in the UK by suggesting that the state of limbo regarding anonymous works made it difficult for some researchers. It was suggested that a copyright should be granted and funds collected until the author of the works emerges.
• Lord Razzall summed up the public mood: "Virtually everybody under 30 believes that everything should be free, but the creative industries want to ensure that proper value is given to their products and service."
• The bill proceeds to the Enterprise and Regulatory Reform Bill/Grand Committee.

Bill Committee

• Public Bill Committee
  • Clause 55
  • Clause 56

Copyright clauses

Clause 55: extension of design rights

55 Exploitation of design derived from artistic work

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) Omit section 52 (effect of exploitation of design derived from artistic work).

(3) In consequence omit the following—

(a) section 79(4)(g);

(b) in Schedule 1 paragraph 20.

Notes

This repeals a previous limits on protections of copyrighted works that have been subject to industrial reproductions, as stated under the Copyright, Designs and Patents Act 1988.

Clause 66: adding and removing exceptions to copyright

66 Power to change exceptions copyright and rights in performances

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In Chapter 3 (acts permitted in relation to copyright works) after section 28 insert—

“28ZA Power to add or remove exceptions to copyright

(1) The Secretary of State may by regulations amend this Chapter to provide that any act is or is not an act which may be done in relation to copyright works notwithstanding the subsistence of copyright.

(2) Regulations under this section may—

(a) make supplementary or transitional provision;

(b) make consequential provision, including provision amending any enactment or subordinate legislation passed or made before this section comes into force.

(3) The power to make regulations under this section is exercisable by statutory instrument.

(4) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

(3) In Part 2 (rights in performances) after section 189 (in the provisions about exceptions to rights conferred) insert—

“189A Power to add or remove exceptions to rights in performances

(1) The Secretary of State may by regulations amend Schedule 2 to provide that any act is or is not an act which may be done notwithstanding the rights conferred by this Chapter.

(2) Regulations under this section may—

(a) make supplementary or transitional provision;

(b) make consequential provision, including provision amending any enactment or subordinate legislation passed or made before this section comes into force.

(3) The power to make regulations under this section is exercisable by statutory instrument.

(4) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by resolution of each House of Parliament.”

Amendments

Clause 65

Suggested by Lord Lucas. Both withdrawn

• 28A Insert the following new Clause:
  • “Ownership of licences to copyright
    • Any natural person who acquires, for value and for his personal use only, the right to use a copyright may, for value or otherwise, transfer that right to any other person.
    • Any terms in any contract that purport to forbid, place restrictions on or require payment for a transfer under subsection (1) shall be null and void.
    • Any person who in any way controls the use of a copyright must do all things necessary, without undue delay and without recompense, to effect a transfer under subsection (1) above.”
• 28B Insert the following new Clause:
  • “Fair use
    • A person in legal possession of a licence to use or enjoy copyright material may freely make copies of that material for the purposes of—
      • backup;
      • the enjoyment of the copyright material in alternative media to the one for which the copyright was licenced.
    • A person may not, without express permission, make a copy made under subsection (1) above available to any other person.”

Clause 68

Following consultation the Bill was amended to incorporate Clause 68.

• New Section 116A enables the licensing of orphan works by an independent body.
• New Section 116B enables extended collective licensing (ECL) by collecting societies.
  • A collecting society applying for ECL would have to ensure:
    • it is significantly representative of the copyright owners affected by the scheme
    • it demonstrates that it has the support of its members for the application
    • it must implement a code of conduct to ensure minimum standards of governance, transparency and protection for non-member rights holders.
      • Non-members will always retain the capacity to opt out of a scheme.
• Lord Howarth of Newport put forward an amendment to Clause 68: Page 64, line 12, after “paid” insert “if deemed required.”

Schedule 21

New Schedule 1A, created by Schedule 21, would implement recommendations from the Hargreaves Report and impose minimum standards on collecting societies, should they fail to adopt their own voluntary codes.

Director General of Intellectual Property Rights

Lord Jenkin of Roding, Lord Clement-Jones, and Baroness Buscombe put forward an amendment that would create a new post to oversee Intellectual Property Rights. A Director General would be responsible for

(a) promoting the creation of new intellectual property,

(b) protecting and promote the interests of UK intellectual property rights holders,

(c) co-ordinating effective enforcement of UK intellectual property rights, and

(d) educating consumers on the nature and value of intellectual property.

In performing those duties, the Director General must also have regard to the desirability of—

(a) promoting the importance of intellectual property in the UK,

(b) encouraging investment and innovation in new UK intellectual property, and

(c) protecting intellectual property against infringement of rights.

Reactions to the Amendments

In October 2012, Consumer Focus released a brief detailed their response to the announced amendments. They welcomed the Government's move to update and reform copyright licensing, particularly in relation to 'orphan works,' (Clause 68 116A) and suggested that these reforms represent workable solutions.

• The supported licensing by an independent body. 'It is suitable to facilitate the licensing of individual orphan works and guard against abuse.' Moreover, 'without oversight by an independent body there is a risk that works are declared orphan prematurely.'
  • They declared their opposition to 'orphan works' being licensed by collecting societies, as these type of works tend not to be represented by collecting societies.
• Consumer Focus 'strongly' support the licensing of orphan works for commercial, as well as non-commercial use

Consumer Focus also lauded Clause 68 116B:

• The plans to extend collective rights managements where it is feasible as it would make the legal mass use of copyright protected works more financially viable.
  • However, collective rights managements should only be implemented where appropriate.

A key consideration Consumer Focus mentioned was also the need to create an even playing field for UK collecting societies.

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More information

Links

• Bill tracking
• Explanatory Notes
• Copyright in industrial art - more protection, Francis Davey, 2012-05-24 (covers the impact of clause 55)
• Dept. for Business Innovation & Skills - Enterprise & Regulatory Reform Bill