Enterprise and Regulatory Reform Act 2013/Grand Committee

The Grand Committee in the House of Lords analysed amendments to the Enterprise and Regulatory Reform Bill throughout January 2013.

Day 9

During Day 9 of the Committee Stage, amendments were discussed at length to the Bill. However, as it was being considered by the Grand Committee, no votes were held at the end of the session.

This Grand Committee debate focused on several amendments, including Amendment 28C which would create a new statutory role of “Director General of Intellectual Property Rights” with a duty to promote intellectual property rights.

The salient points of Day 9 are as follows:

Context

Lord Jenkin of Roding noted that over a year ago, owners of intellectual property rights, such as the Author's Licensing and Collecting Society had been voicing their fears “with increasing intensity” that proposed legislation would not adequately protect owners of intellectual property. He went on to state that “I assert very firmly that they [intellectual property rights] are property rights and have been seen as such by the courts for very many years.” He then quoted and personally endorsed the following statement from the Alliance for Intellectual Property;

"IP lies at the heart of every British success story. It is essential to the creative industries which support around 1.5 m jobs, contribute over £36 billion to UK GVA (DCMS Creative Industries Economic Estimates). IP is also the basis for the £16 billion which companies invest annually in the UK economy by building brands, and allows the UK's brand-building industries (including advertising, marketing and design agencies) to generate around £1 billion in Gross Value Added through exports alone. In addition, the design industry employs up to 350,000 people and UK businesses spend around £35 billion on design each year".

Furthermore, he stated that it was important to educate consumers on intellectual property “because it is clear that quite a lot of the public think that it is perfectly all right to download all sorts of things on their computers and telephones without paying for it – because there it is, after all, and they will not be found out.”

Director-General for Intellectual Property Protection

Lord Clement-Jones also put forward his thoughts on the subject of intellectual property rights and the Intellectual Property Office in particular:

“There is concern, however, extremely well reflected by my noble friend, that the IPO is not in fact a champion of intellectual property. I was a member of the All-Party Parliamentary IP Group inquiry into the IPO. From the evidence that I saw, officials did not see their role as being to champion intellectual property. Indeed, officials found it difficult to describe intellectual property as a property right even though nearly all creators believe that fundamentally.”

Lord Clement-Jones advocates the creation of an IPO tsar and states that the Intellectual Property Office must become a greater champion for intellectual property and that “the United States has obviously benefited from having an IP tsar...who is responsible for national strategy and works directly to the White House. Creating a director-general of intellectual property rights to sit within the Intellectual Property Office and serve as a champion of IP rights within and across government would increase the influence of the IPO across government.”

In terms of of the Hargreaves Report, Lord Clement-Jones stated that “the evidence base for...[the report] has been flimsy at best when justifying certain copyright exceptions. The impact assessments for most of the relevant clauses in this Bill are wholly inadequate as a result.”

Baroness Buscombe also endorsed the proposals for a director-general for intellectual property and referred to those who advocate an open internet as aimed their arguments “self-interestedly at compromising the value and the integrity of creative goods.”

Lord Smith of Finsbury also advocated a director-general for intellectual property.

Lord Howarth of Newport struck a more cautionary note: “everything that is proposed in the amendment for the director-general to do is directed towards advancing the interests of the creators and owners of intellectual property rights. That is fine in itself but there are also, very importantly, the interests of consumers and users. Ultimately, all of us believe that that is not intentional. If we have an appropriate regime for the promotion and protection of intellectual property rights, the whole of society will benefit...but in the near term or even the medium term, there are, as we know, tensions.

Lord Lucas agreed: “It is a bargain that needs to be kept balanced. A lot of good will flow from that balance. I would not have a director-general of copyright who looked after only the producers any more than I would have bank regulation that favoured only the banks. It is a matter of balance.”

Baroness Morris of Yardley came down in favour of intellectual property holders: “we are not starting from a level playing field and building in an imbalance: there is a feeling that intellectual property is not protected. The amendments seek to correct an imbalance...”

The amendment was withdrawn at the end of the session.

Lord Stevenson of Balmacara pointed out an issue with the current private copying exception: “I would say that the private copying exception, being confined to the individual rather than the immediate family, is the one that fails the basic test of realising where the consumer is on these issues. If my wife buys a CD, she cannot let me listen to it by copying it to my iPod. She can legally copy it to the music system of our car, but only if she owns the car and, by implication, the music system: it will not be legal if I am the registered owner. That will seem pretty daft to most people. There are of course arguments against a family private copying exception, not the least being able to define what is a family, but many will feel that an attempt should at least have been made.”

Parody Protection

On parady, Lord Stevenson stated that: “EU law provides that member states are free to introduce an exception for parody, pastiche or caricature in national law, but the UK is one of the few industrial countries which does not provide for such an exception...countries which, like the UK, do not provide for an exception in law have to rely on litigation. I suppose we should be glad that the Government now reject the argument that relying on litigation provides sufficient legal certainty for parodists for the reality is that parodists and those who make their work available to the public face considerable risk of being sued for copyright infringement and hence having their work removed by internet hosts...”

Baroness Brinton used a recent example to highlight her opposition to the amendment on parody: “there has been a traditional and proud history in this country of parody and caricature...Steve Punt and Hugh Dennis did a wonderful sketch a fortnight ago on UKIP and the referendum of Europe using the theme of Gollum in the film of Lord of the Rights. I do not know whether noble Lords heard it, but the theme of the programme was “We wants referendumses.” It was very effective. The problem is that proposed new subsection (3)(b) in Amendment 28DZA would mean that every sketch like that in a fast moving half hour show would have to stop to acknowledge that it was taking both a piece from Peter Jackson's original film and the style of the actor. Therefore, frankly, it would be unworkable. I apologise, but I am afraid that the stage manager in me immediately thought, “oh my goodness: this will kill comedy and light entertainment of the spontaneous type that this country excels in.”

The Earl of Erroll also endorses the need for parody to be protected and not decided by litigation in the court system: “Leaving the courts to decide what is fair in parody and what is not is very dangerous. As we know, courts are extremely expensive. If you are a small creative group trying to create parody and a big boy comes along and tries to hit you over the head in the courts, you will have to back down. That is bullying....we must be very careful saying that recourse to the courts is workable. Basically, unless you are very rich or very poor, you are outside the law. You are not protected by British law because it is too expensive.

Extension of Copyright

Lord Howarth of Newport went on the record with his opposition to the extension of copyright” “It seems to me that the extension of copyright design from 25 years to life plus 70 years is altogether excessive. That could amount to something like 120 years, and it would be particularly unfortunate if we were to extend the proposed provisions to apply to designs created before 1957. I entirely support the principle of a fair return to designers and to their estates but it seems to me that 25 years is sufficient.”

Copyright for Designs

Lord Clement-Jones criticised the factsheet on copyright protection for designs: “...with the best will in the world this was not adequate, especially in the absence of an impact assessment. The Government need to provide detail in the Bill on the transitional arrangements that they need to introduce.”

Baroness Warwick of Undercliffe criticised the Bill for those who want to use two-dimensional representation of a design that is subject to copyright: “it is obvious that one cannot teach design without being able to show images of designs to your students. If you want to do this by example, showing a Powerpoint slide of a design during a lecture and the item is in copyright, you need a licence. If the term for industrial designs is increased to 70 years plus life, that means that you will need a licence for almost all 20th century designs. Many of these will be orphan works, so securing a licence under the current law would be difficult if not impossible.” She went on to welcome to orphan works provision, soon to be enacted, as they will ease this problem.