My Lords, my noble friend has done well to raise the question of metadata in his amendment. I think that we need to be extremely careful about how we legislate on this, whether in primary or secondary legislation. Until such time as the technical means to counter the well known abuses of the intellectual property for digital photography by stripping metadata have been found, we should certainly be cautious, to say the least, about how we proceed to license digitally photographed works on the basis that they are orphan works.
My noble friend Lord Stevenson has also done us a good turn in fixing our attention on the question of what should be legislated in primary legislation and what should be left to secondary legislation. Will the Minister in due course comment on some questions of practicality and principle in this regard?
In what I am going to say, I make absolutely no criticism of the Minister personally. He has only just become Minister for Intellectual Property. I wish him very well indeed in that responsibility, and I hope he stays there until May 2015, and no longer. I wish him well during his incumbency, and the continuity that he may enjoy will undoubtedly be valuable for all concerned. Would it not have been more satisfactory if, when we came to consider clauses in primary legislation seeking to update the law on copyright, we also had before us at least an advanced draft of the secondary legislation to which the primary legislation would give authority? It is very difficult for us to know how to amend primary clauses and what view to take, all in all, about the Government’s proposals in the Bill if we do not know what the secondary legislation might look like as it will flesh out the relatively simple legislative propositions in the Bill.
I remember when it became clear that Clause 43 of the Digital Economy Bill was not going to make it to the statute book because of the imminence of the general election in 2010. I pleaded with the department that as it continued to wrestle with these policy issues it should move towards exhibiting draft regulations at the same time as it exhibited draft primary legislation
so that all this could be put out to consultation together once it had been considered with the expert groups, such as those that the Intellectual Property Office is meeting at present. That was three years ago, and it seems to me that the House, and Parliament as a whole, is entitled to expect that the Government had made better progress on preparing the primary and secondary legislation before they presented it to us.
I was the government Whip in the Commons on the Copyright, Designs and Patents Bill 25 years ago, and I think it is fair to say that that legislation was somewhat less bald, somewhat less framework, and attempted to contain a more substantial body of legislative provision. The spirit in which both Houses of Parliament worked on that legislation 25 years ago was entirely collegiate. There was no party politics in it at all. We were all simply seeking to work our way forwards to find an appropriate legislative solution. Our deliberations and conclusions were observed with very great interest in other countries. We can continue to legislate in that spirit, but it would have helped us if the Government had allowed us to know a little more about what the primary legislation would open the way to.
While I reject the suggestions that have been put to us in some of the otherwise very helpful briefings that we have received that Parliament virtually does not scrutinise secondary legislation, I think that the situation, at least in this House, is significantly better than that, and we ought to pay tribute to the committees of this House that examine the quality and appropriateness of secondary legislation. We all know that it cannot be amended, and a great fuss is made if a statutory instrument is rejected by the House, so although we are not quite presented with a fait accompli when we consider secondary legislation, it is not a particularly satisfactory manner of advancing the frontiers of legislation. Much more exposure in draft and much more consultation—I know we will have it in due course—would be preferable at this stage. The Minister has perhaps not had an opportunity to consider this question of process as yet, so I hope that, not today, but at some point, he will feel able to offer some comments on it.
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