My Lords, I shall speak also to Amendment 28DZD.
One of the difficulties about discussing the clauses on copyright in the Bill is that, although they are very important, they stand apart from important changes in copyright that the Government are making in parallel. I refer, of course, to the announcement on 20 December 2012, which prefigures the implementation of many of the recommendations of the recent Hargreaves review.
As many commentators have pointed out, making major changes to copyright has usually been done by primary legislation. The Copyright Act 1911 brought provisions on copyright into one Act for the first time; the Copyright Act 1956 covered the United Kingdom’s accession to the UCC; and the Copyright Designs and Patents Act 1988 is the current main legislative framework.
However, according to last month’s announcement, the Government will make changes by secondary legislation to private copying, education, quotation and news reporting, research and private study, access for people with disabilities, archiving and preservation, public administration, data analytics, and parody, caricature and pastiche. Many commentators feel that such a long list of copyright exceptions should be introduced by primary legislation; and I have some sympathy with that view.
When he comes to respond, I hope that the noble Viscount will explain in some detail the approach that the Government are taking. Pushing ahead with those measures in secondary legislation will, after all, not allow for the sort of debate and discussion that the torrent of representations that we are currently receiving would suggest is sensible.
The line being taken by the Government seems to be that, as they already have the power to make copyright exceptions under Section 2(2), they do not need primary legislation. With respect, I think that that misses the point. Those changes are important in themselves; they affect a major part of our economy; and they will interact with hundreds of thousands of people who work in those industries. If Parliament does not have a chance to debate those measures in detail, we are simply not doing our job.
I have tabled two amendments on the Hargreaves exceptions so that at least this issue can be raised. I shall make a couple of general points and then deal with the amendments, although not in any great detail. The first is that, in themselves, the new exceptions do a pretty good job of moving the situation forward from one where, over a period of decades, the focus of legislation with regard to copyright has been on either extension of duration or intensification of enforcement. On many of the copyright exceptions proposed, the Government have trodden a careful path between the contending views expressed in their consultation. Where an issue was uncontentious—such as copying for archive purposes—we have a clear and, to some people, radical
change to the proposed position to allow unrestricted copying, which is a very welcome move indeed for countless museums, libraries and archives. Many of the specific proposals, however, seek to trade off contending points of view and interests, and are all the weaker for that.
If I were to take a view on which of the proposed copyright exceptions is likely to be viewed by the public as simply limp, 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.
Turning to my amendments, there are two issues. My concern about metadata is that although it is good that the Government are moving on it, the fact that they will be doing it through is secondary legislation means that, despite the consultation, the SI, which we hope to consider, will come through in the usual way in your Lordships’ House and will have to be approved through the affirmative procedure. That is in no sense a complete answer to the question. This is a controversial move, especially for publishers, many of whom have expressed considerable concern to both the Government and those of us involved in debating the Bill. Treating the proposal through the secondary route is not doing justice to the issue, to the community or to the wider public. A Grand Committee debate, where no amendments are permitted, is not a substitute for primary legislation. Perhaps the Minister can comment on that when he replies.
4.45 pm
My second amendment deals with parody. My point here is that what the Government are proposing is extremely cautious. Perhaps the key point is that the proposal is that parody will be permitted only when it is fair dealing. In other words, this will preclude copying an entire work, and therefore, as the Government helpfully point out, there is a readily accessible licensing procedure available to pay for use of the work. Which original author will be happy to license to somebody else who is going to parody the work in question? They would have to have a very broad-minded view of what was going on here.
The Government also intend to leave in place the original author’s “moral right” so that they,
“will be protected from damage to their reputation or image through the use of works for parody”.
On reading this, I sometimes think that the Government have not understood what “parody” actually means. This does not even accord with the statement that the Government agree with the BIS Select Committee that,
“genuine political and satirical comment should be protected”.
The Minister nodded a bit at that point; at least I got something out of him.
The UK has a significant tradition in parody. It is also strong in pastiche and caricature. This includes literature, stage, film, fine art and music. Parody, pastiche, satire and homage have been an important vehicle for social and commercial innovation. These types of work are among the most commercially successful and well-known works in British history. Examples include T. S. Eliot’s The Waste Land, which recontextualises elements of various previous literary works, including Dante’s Inferno. Tom Stoppard borrowed liberally from Shakespeare characters and plots to create famous pastiches such as Rosencrantz and Guildenstern Are Dead and, with Marc Norman, the brilliant film “Shakespeare in Love”. He also used George Orwell’s 1984 and Federico Fellini’s “Eight and a Half” to create “Brazil”. Parodies frequently eclipse the work they are based on in popularity. For example, the BBC television sitcom “’Allo ’Allo!” is better known than the original BBC television drama, “Secret Army”, which it satirised.
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. Australia introduced a fair dealing provision for parody and satire in 2006. Belgium—believe it or not—Spain, Switzerland and France provide for a similar exception in their laws. 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 works available to the public face considerable risk of being sued for copyright infringement and hence having their works removed by internet hosts, and that is without considering the moral rights issue, particularly as UK courts have interpreted increasingly minute parts of a copyrighted work as constituting a “substantial part”, and that their use is therefore copyright infringement. This means that the Government cannot continue to defer the parody problem to the courts and the courts cannot be relied on for the continuous protection of a very important part of our culture.
My view is that there is a contradiction at the heart of the Government’s proposal—this is the reason for my amendment—that is the combination of moral right and fair dealing might easily mean that a wholly legitimate target of satire such as a politician or a celebrity would be able successfully to fight parody on copyright grounds in the courts. What a loss that would be. Can the Minister confirm that, for example, he is aware of the video done by soldiers and civilians in Afghanistan, “Gangnam Afghanistyle”? Or perhaps more topically, has he seen or even heard of the recent viral hit “Eton Style”, labelled on YouTube “Gangnam Style Parody”? A simple nod of the head would suffice. Even if he is discreet on this point, I am sure he would lament, as would many of us on this side, if such brilliant and incisive work was caught by this provision. I will send him the YouTube link if he would like to have a look at it.
I do not think the approach being taken by the Government is what is wanted. That is why I feel that my amendment would be the appropriate way forward. Only an out and out exception of the type contained in our amendment will get us to the right place. This may be the only opportunity to request a major rethink on this issue, which is why I ask the Government to look again at this proposal. I beg to move.