My Lords, I join the noble Lord, Lord Clement-Jones, in congratulating the noble Viscount, Lord Younger, and thanking him for all his courtesy and assistance to noble Lords in making himself and his officials available to us so that we have had the opportunity to be informed about the Government’s thinking and to ask questions. He has been impeccable in this regard. Equally, I congratulate him on the extent of the consultation that he has undertaken. Any interests that still find themselves in disagreement with what the Government propose cannot reasonably say that they have not had the opportunity to put their case and to be heard. I agree with him that this process, which has been very long drawn out, does now need to be brought to a conclusion.
The Minister and the Intellectual Property Office have had to make their way forward through hurricanes of lobbying, and they have persisted in their purpose to achieve a better balance—what he just now called an “appropriate balance”—between the interests of creators, of rights-holders, and those of users and the wider public interest. He has also sought to modernise these aspects of the intellectual property regime to take account of technological change, which of course has been very great since the enactment of the Copyright, Designs and Patents Act in 1988. In this respect, he is catching up with progress that has been made rather earlier in a number of European countries, where perhaps established interests have less of a stranglehold on policy development. However, established interests are fighting a rearguard action. A managed retreat is a very difficult manoeuvre, and we have just seen a very fine example of it in the speech of the noble Lord, Lord Clement-Jones. I fully appreciate the right of the noble Lord to make the case that he does, and I think that many people will be grateful to him for doing so, but not all those who have raised objections are as scrupulous as the noble Lord.
Publishing was once considered a gentleman’s occupation, but I fear that all too extensively in the modern publishing industry it is a fairly cut-throat business. Publishers are among those who have sought to use contract to negate existing exceptions. The British Library told us not very long ago that 90% of contracts offered to it for licensing electronic content restricted the public interest exemptions that were
already permitted under copyright law. The Alliance for Intellectual Property, the British Copyright Council and the Motion Picture Association have all complained to the Secondary Legislation Scrutiny Committee about the contract override provisions in these statutory instruments, but I do not think that it is reasonable for them to do so. It seems to me, having listened to what the noble Lord, Lord Clement-Jones, said, that we are entirely accustomed to changes in the law modifying the enforceability of existing contracts. No one would be surprised if we reformed the law of tenancy if the situation remained that existing tenants had to carry on under the preceding contract. If we were to reform employment law to make changes, as I hope we might, in zero-hours contracts, for example, and what is permitted there, I do not think that we would find it acceptable if the employees who have to operate according to zero-contracts were required to carry on with the same contract indefinitely. It is therefore entirely reasonable that legislation in the public interest should modify the enforceability of existing contracts in the field of copyright.
The Minister has on various occasions described these reforms as “relatively minor”, “de minimis” and “modest”. He explained to us just now that he anticipates that the three statutory instruments before us will yield some £250 million of saving or advantage to the economy over 10 years. Some people think that that is a lot; I am inclined to think that it is a little. I appreciate the force of the points made by the noble and learned Lord, Lord Scott of Foscote, but I invite him to consider the other side of the balance sheet. There are vast costs to our economy of compliance with the copyright regime. There are vast opportunity costs arising from the restraint on people being free to use material as they would wish. There is an enormous apparatus of administration and bureaucracy associated with this regime. Huge amounts of time have to be spent on compliance. There are policing costs. It seems to me increasingly unrealistic to suppose that the enforcement of our traditional historic regime in the digital era can be successful and the attempt to sustain it is probably going to be futile. Innumerable lawyers, consultants and lobbyists are making a good living, perfectly legitimately, out of the complexity, impenetrability, imprecision and futility of the existing regime.
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Has the Minister commissioned a serious and thorough cost-benefit analysis of the copyright regime in this country? If not, will he do so? If policymakers are to achieve the balance that he very rightly talked about at the outset of his remarks as the Government’s aspiration, we need a vigorous assessment of the costs and benefits. That is a large task and I hope that in the mean time he will write to noble Lords about the specifics of the savings he anticipates will be made and how that figure of £250 million—and the larger one of £500 million that he hopes will arise from the five statutory instruments—will be broken down. How will that be achieved, going beyond the very limited information provided in the impact assessments?
The costs imposed on the economy and society by the existing copyright regime are excessive and unnecessary. They are the costs of monopoly. It is of course legitimate
and proper that creators should have a property in their work and be rewarded for it, but let us recognise that copyright is a form of monopoly and as such should be kept to the necessary minimum. The balance has swung too far not only in this country but across the world in favour of the interests of creators. What has happened over many decades is that, naturally enough, those with a direct and personal interest in sustaining their intellectual property rights quite aggressively lobbied the Government to make sure that those rights were preserved and extended as far as possible. It also seems that over those many decades Governments were insufficiently resilient in resisting these cases in the wider public interest. That is very typical of what happens in politics. Those directly affected, if they see some possible detriment to their own interests, cry foul and are very vociferous. The wider public, who do not understand how their interests might be affected, stay quiet. Governments are driven pell-mell to concede to those who shout loudest.
It seems quite extraordinary that copyright in literary, dramatic, artistic or musical material extends not just to the life of the creator but for another 70 years beyond. I cannot imagine a reasonable justification for this very long extension of copyright. We are in a situation in which material that originated not in the 20th century but in the 19th century may still be in copyright. We have not seen anything like this since Jarndyce v Jarndyce and in a sense the copyright lawyers are to be congratulated on that but we need to think about whether this has not become excessive.
As I said, there must be due reward for innovation and creation. A copyright regime is absolutely essential and has long been regarded as such. The noble and learned Lord, Lord Scott of Foscote, tried to recollect when copyright law originated. Unless my memory deceives me, it goes back to the reign of Queen Anne. It has certainly been around for a very long time and I do not lightly suggest that we should assault the principles of it. However, I wonder whether, in the digital age, it will be practical to sustain this regime, to police it and to enforce it. I doubt whether that can be done by way of a regulated market in the circumstances in which we now find ourselves. We should look at the case for dismantling at least large parts of this vast apparatus of protection.
My suggestion is that creators should be rewarded through a royalty payment made by the Government on behalf of taxpayers. Of course, that will be difficult to bring about, but I do not think that it should be regarded as entirely in the realm of fantasy. I think that circumstances will force us in some such direction and there could be enormous savings for law-abiding institutions and individuals in the procedures that they have to undergo. The benefits to society and the economy, including the creative economy, of the unconstrained and undistracted transmission of ideas would be immense.
As it is, there will be significant benefits from the regulations. Disabled people will cease to suffer from what has been a kind of indirect discrimination. The obstacles that exist at present in the way of text and data mining are positively Luddite. The Joint Information Systems Committee, the JISC, has calculated that no
less than £123 million of researchers’ time would be saved by the change that the noble Viscount proposes. The instance that he offered the House of malaria was very compelling. It is right that schools should not have to suffer the burden in time and cost that existing requirements lay on them. It is right that libraries, archives, museums and galleries should be able to save about £26 million. It is right that the changes in the public administration regime should extend freedom of information.
These are minor changes indeed. Perhaps regrettably, the noble Viscount will not be creating new rights through the regulations; he is extending and modernising existing rights. As Mr Willetts put it in another place—with, I am sure, intended irony—the Government are simply trying to keep up with technological change. I applaud them for doing that. I note that the regulations are due to be revisited in 2019, but I think that the pace of technological change might make it desirable to revisit them rather sooner. In the mean time, I urge the Government and the Intellectual Property Office to develop a much more radical approach to the reform of copyright.