London Olympics Bill

I am grateful for the Minister’s introductory remarks and some of the assurances that he has put on the record, which go a long way towards resolving our concerns. Nevertheless, I hope that he will accept that it is necessary for me to try to tease out a few more assurances from him as I discuss the amendments. I have no problems whatsoever with Government amendments Nos. 21 and 22. I do not think that I have a problem with Government amendment No. 23, but I might have. I would be grateful for some clarification of that amendment because its effect will depend very much on the way in which its words are interpreted. The phrase"““as an incidental inclusion in””" could have many different meanings. The amendment makes it clear that the wording comes from the Copyright, Designs and Patents Act 1988. Section 31 of the Act states:"““Copyright in a work is not infringed by its incidental inclusion in an artistic work, sound recording, film, broadcast or cable programme.””" However, the phrase ““incidental inclusion”” is not defined in that Act, and it is not being defined in the Bill. No doubt, the Minister has researched the matter thoroughly and will be aware that the leading case on the definition of ““incidental inclusion”” is the 2003 Court of Appeal judgment in the case of the Football Association Premier League Ltd. v. Panini UK Ltd. The court decided that the test of ““incidental inclusion”” should consider why a particular reference had been made, and whether that was for commercial or artistic reasons. Panini sold stickers of football players with photos showing them in their premier league kit, including the premier league logo. It was decided that that was not incidental, as the use of the logo was essential to the object for which the images were created. Although intentional and deliberate inclusion of copyright work may still be incidental, if the work in which it is included is intended to serve a commercial purpose it is unlikely to be deemed incidental. Will the Minister give us a clear indication of the definition that he has in mind for the word ““incidental”” in the legislation? He may find it helpful to look at that judgment, as it considers the motives for incidental inclusion. As he rightly pointed out, what matters is whether someone is seeking to make an unfair commercial gain for exploitative purposes. He may find that interpretation helpful and he may wish to put it firmly on the record. If that is the case, we would support him as long as we do not implement such an interpretation too harshly, as we could limit many activities if we are not careful. If we go too far down the commercial route we could create difficulties for television broadcasts. For example, a programme may be commercially motivated because it wishes to make money from advertising transmitted during the broadcast. It would therefore be helpful if the Minister provided clarification, either now or later. I wish to focus on the amendments on editorial content. The rules governing editorial content and the London Olympics association right are problematic because they are vague. The Minister provided some clarification today, and he had a second bite at the cherry in Committee, where he amended the wording of the Bill. However, there is still room for improvement. In Committee, the Minister explained that paragraph 8 of schedule 3 is designed to ensure that normal media editorial activities are not curtailed by the London Olympics association right. The provision describes editorial usage that is exempt from the rules governing the London Olympics association right—namely, the publishing or broadcasting of information or reports on the Olympics. The position appears to be clear until one considers the many permutations of editorial usage that are not included in the definition. Bona fide editorial activity could include news columns, features, readers’ letters, reviews, comment and analysis in newspapers. In broadcasting, it could include documentaries, drama, children’s programmes, travel programmes, panel discussions and news. To encompass all aspects of legitimate editorial usage, we tabled amendment No. 10, which refers to"““any editorial usage including without limitation””." Such usage would be exempt from the regulations governing the London Olympics association right. That is a simpler and more effective approach that prevents any form of editorial usage from being inadvertently omitted from the list. Time after time, the Minister has said that he does not like lists because something can always be added or removed from them. I have solved the problem with wording that removes the need for a list. However, the amendment does not risk opening the floodgates for illegitimate association with the Olympics, because it maintains a clear distinction between editorial and advertising usage. Amendment No. 13 follows on from amendment No. 10 as it, too, attempts to ensure that all legitimate editorial association with the Olympics is not regarded as an infringement of the association right. Paragraph 8 of schedule 3 permits representation of the Olympics in information about the London Olympics. However, in the course of their editorial activities, the media may publish information about other events and activities in which the London Olympics are mentioned but are not the subject. For example, a news item about London transport could refer to the Olympic games, although the games are not the subject of that information. Similarly, a feature article about sport in the national curriculum could refer to the Olympics, but such a report is not about the Olympics. Such usage should be covered by paragraph 8 by virtue of its editorial status, not by virtue of its content or the nature of the subject matter. Amendment No. 13 allows this by removing the requirement that information must be about the Olympics and, in order to ensure that all bona fide editorial usage is safeguarded, inserts"““including news and current affairs””." Amendment No. 14 builds on amendment No. 13 and allows information associated with the Olympics to be used specifically"““for the purposes of criticism and review””." Adding this category of editorial usage would ensure that further material such as comment pieces, readers’ letters and general reviews such as entertainment, leisure or travel are brought under the protective umbrella of paragraph 8. Amendments Nos. 11 and 12 have been tabled to remove the possibility that a statutory body, LOCOG, could have a say in determining what constitutes legitimate editorial content. The Bill confines exemptions to the London Olympics association right to representation"““as a necessary incident of publishing or broadcasting””" reports or information. As LOCOG is the grantor and enforcer of the association right, the Bill implies that LOCOG will apply paragraph 8, advising on and adjudicating editorial content. It is worrying that any statutory body should play a part in controlling editorial activities. How can such a situation pertain? The Newspaper Society is deeply concerned about it and states:"““For a statutory body to have any role in determining the content of a newspaper’s editorial material would be without precedent and would represent an utterly unacceptable incursion into the freedom of the press, and a breach of the Human Rights Act 1998 as being contrary to Article 10 of the Convention.””" The Minister looks surprised, but he has had meetings with representatives of the media. ITN believes the paragraph introduces"““an unacceptable level of external intrusion by a statutory body into editorial freedoms””." I hope the right hon. Gentleman takes those concerns seriously. We have tabled amendments Nos. 11 and 12 to remove the contentious wording and substitute the more neutral and legally certain specification that a representation must be ““in the course”” of publishing news or information. It is important that we clarify the legislation governing editorial content and the Olympics association right in order to allow the media to perform their crucial role of informing and inspiring the public. Stifling the media’s ability to report the London Olympics will damage the games as a whole and inevitably lead to a less successful games—a situation that we are all keen to avoid. I fully support amendments Nos. 8 and 9, which are practical and pragmatic. For a long time there has been uncertainty about when various provisions will come into effect. The hon. Member for Faversham and Mid-Kent (Hugh Robertson) proposes a sensible time scale. In Sydney, the time scales were even shorter. Knowing that the Minister is keen to get on as quickly as possible, the hon. Gentleman proposes a slightly earlier start date than I was expecting, but the amendments make eminent sense and I wish him luck in persuading the Minister to accept the good sense of what he is about to propose.