My Lords, I beg to move the lead order but will take the opportunity, if I may, to speak to both instruments before us today. First, I pay tribute to my predecessor, my noble friend Lord Younger, and applaud his great legacy as Minister.
Copyright legislation needs to be strong and respected to keep up with the pace of innovation and the digital revolution. The Government are committed to raising awareness and understanding of IP across all businesses large and small in order to protect innovation and originality and meet changing consumer needs. Many of you will be familiar with the long process that has brought us to this point. The Hargreaves review—like the Gowers review under the previous Administration—recommended that exceptions to copyright should be updated for the digital age. Since then this Government have conducted extensive consultation both formal and informal, including over 250 meetings with interested parties, and brought forward their proposals in December 2012. We conducted a further technical consultation on the draft regulations in 2013 and laid the final regulations before Parliament in March.
We are keen to ensure that copyright continues to act as an incentive to creativity and investment in our creative industries. These industries and our creators are an important part of the economy. We must continue to value the talent and creativity that is the envy of many other countries. We have taken forward a wide range of initiatives which support the creative industries, including extending copyright protection for sound recordings and performances, setting up the Police Intellectual Property Crime Unit and supporting the industry-led Copyright Hub. Only two weeks ago, the Government announced their support for Creative Content UK—a commitment of £3.5 million for a campaign to educate consumers about internet piracy.
The regulations are carefully and narrowly drafted to ensure that they give people greater freedom to use creative content, without undermining copyright’s important role in supporting our creators and creative industries. Parliament has already approved new exceptions for libraries, education, research, disabled people and public bodies. The two instruments before us today represent the remaining changes proposed by the Government and will provide exceptions for personal copying, quotation and parody. Taken together, these various exceptions would, according to last year’s impact assessment, contribute more than £500 million to the UK economy over 10 years. Copyright exceptions are an integral part of a balanced copyright framework. Every country has them and their benefits are widely recognised. They have always been part of British copyright law, which is based on the important principles of fairness and balance.
I turn first to the regulations on personal copies for private use, which will give consumers greater freedom to enjoy creative content in Britain in a modern way. For example, this change would allow someone to copy a CD they have bought, or been given as a gift, in order to listen to it on their iPad. It would allow someone to copy an electronic document or book which they own from one of their personal devices to another. This measure has wide public support, with consumer surveys showing that most people think this type of activity is reasonable. The Government agree. Copyright law should not stand in the way of people being able to use and enjoy their own property. The rule will be that if you lawfully own it, you can copy it, as long as you do not give copies to other people.
Consumers in countries such as Australia and Canada already benefit from similar laws, as do those in many European countries. By introducing this new law, British consumers will enjoy the same advantages. However, our personal copying exception will be narrow and carefully targeted. It aims to support reasonable use of copyright materials by law-abiding people. To accommodate the explosion of digital use, people will be able to copy the content they own on to any device they own, as well as to private cloud storage. Just as consumers would reasonably assume that they should be able to store paid-for content on a laptop or external hard drive, they should be able to do so if they choose to store their music or video for use in a private cloud. The current lack of legal clarity in this area may be an obstacle to growth in cloud services in the UK, reducing consumer choice and putting us at a disadvantage compared to the United States.
I am aware that some parties remain concerned about the scope of the change proposed and its impact on creators’ livelihoods. Therefore, I will spend some time on what this measure does not do: it will not allow someone to give or sell a copy they have made to someone else, or share copies from their personal cloud; it will not allow someone to obtain a copy from sources they do not own, such as rented copies, broadcasts or on-demand services; it will not prevent copyright owners from using technology to guard against copyright piracy, such as the copy protection for films found on DVDs and Blu-ray discs; and it will not prevent copyright owners from licensing additional services, such as cloud services which allow shared access to content.
The scope of the exception contrasts sharply with personal copying exceptions in other EU countries. Such exceptions often allow copies to be shared with family and friends, meaning that people can acquire copies without paying for them, so these countries have mechanisms designed to compensate creators for any sales lost as a result of the exception. Typically, levies are imposed on recording devices and media, which have to be paid whether or not they are used for private copying. French consumers pay a levy of €15 on top of the price of an MP3 player.
The Government do not believe that British consumers would tolerate private copying levies. They are inefficient, bureaucratic and unfair, and disadvantage people who pay for content. That is why the Government’s exception is narrow in scope. It will not allow you to give or sell copies to others, and therefore will not lead to lost sales to copyright owners, making the need for a levy unnecessary.
Some have questioned whether the Government are intra vires in this matter, and this is something we will discuss further when we debate the amendment of the noble Lord, Lord Stevenson. The Joint Committee on Statutory Instruments in its recent report acknowledged that only the European Court of Justice can authoritatively rule on such a question. It is right for the JCSI to alert the House to this point. However, the Government’s view is that EU law as it stands is sufficiently clear, and that EU member states have a wide margin of discretion in this area. In particular, member states do not need to provide compensation where an exception is likely to cause minimal or no harm, or where appropriate payment has already been made.
This view is supported by many, but perhaps most significantly by the UK’s most eminent intellectual property professors, including a former Court of Appeal judge, Sir Robin Jacob. In a recent letter, they said:
“We agree with the Government that in the light of the narrow scope of the exception envisaged, and the terms of the information society directive and case law of the Court, there is no clear requirement to pay compensation”.
Therefore the Government remain confident in their opinion that these measures are intra vires. This new law is an important and overdue step forward in building respect for copyright law. It will make it easier and simpler for ordinary people to lawfully use copyright materials.
I now turn to the second instrument, which covers exceptions for quotation and for caricature, parody or pastiche. Parody and caricature are a valued part of
our cultural heritage, from Swift and Hogarth to my particular favourite, “The Thick of It”. In particular we need to protect the right to mock the high and mighty. Many works that are made for the purposes of caricature, parody or pastiche involve some level of copying from another work. Unlike counterparts in countries such as France, Germany, Canada and USA, creators in the UK currently have no defence in law if even a small amount of copying takes place when making a caricature, parody or pastiche. Permission may be granted in some cases, but is sometimes refused or can incur significant costs. Failure to secure relevant permissions can run the risk of legal action and potential damages. This means these creations often do not get published or are quickly removed as a result of action by the original copyright owners.
The critically acclaimed video installation “The Clock” by internationally renowned artist Christian Marclay is a pastiche of thousands of time-related film and television clips. Galleries which exhibit the installation currently risk legal action for copyright infringement. Online creative sites, which are about building grass-roots creativity, have told us that they have encountered sometimes insurmountable issues with lawyers and copyright owners over the years. A generation of people who are the bright new talents in the UK’s creative industry started out by posting their work online, including Ben Wheatley, director of the hit film “Kill List”.
One of the ways that campaigners are able to highlight questionable business practice is by parodying a company’s own brand or slogans. Yet as the law stands, to do so carries considerable risk of legal action and with it the risk of campaign materials being blocked from publication. The Government believe it is time to change the law. The proposed change enjoys wide support: from British broadcasters, production companies, creators and performers; from campaigning groups; and from centres of learning, as the ability to re-edit copyright works in new and experimental ways is an important learning exercise for building creative skills.
The Government have, however, listened to some concerns about the potential for this new exception to harm the market for original works which might be used as part of the parody, caricature or pastiche. As a result, the exception is framed on the basis of “fair dealing”. This is a concept that has been part of UK copyright legislation since 1911. Fair dealing will act as a limitation. In almost all cases, fair dealing will mean that copying a whole work without changing it will not be allowed. For example, it would not be considered “fair” to use an entire musical track on a spoof video. This will mean the market for the original work should be unaffected.
At present, when a whole work, such as a musical track, is used in a parody the copyright owner will often allow this in exchange for appropriate remuneration. The fair dealing exception means that such licensing will still be possible. Fair dealing, therefore, brings with it important protections for copyright owners. People and brands will also continue to benefit from the protection of other laws, such as the laws of libel and defamation. The UK’s tough laws on libel are unaffected.
Copyright should incentivise creation, not obstruct it. It should allow people to voice their opinions, not stifle them. Digital technology has given rise to new types of creative works and copyright law needs to keep up.
I turn finally to the exception for quotation, which sits in the same instrument as the exception for caricature, parody or pastiche. I must own that when I looked up “copyright” and “quotation”, I found this remark of Mark Twain’s:
“Only one thing is impossible for God: to find any sense in any copyright law on the planet”.
With that caution in our ears, I believe that one of the joys of rhetoric and of composition is to be able to quote from the works of others. Many a speech made in this House would be poorer were we unable to quote the words and wisdom of other people. This is a privilege that we enjoy because, as parliamentarians, we have our own exception to copyright. General copyright law is, however, more restrictive.
The right to quote is one of the freedoms that we expect in a modern democracy and many countries allow fair quotation from copyright works. Indeed, the Berne copyright convention requires that all countries should allow fair quotation. However, UK copyright legislation currently allows quotations and extracts only for the purpose of “criticism or review”. So a whole range of activities which the average person is likely to consider reasonable risk infringing copyright because they fall outside the current “criticism and review” exception.
An academic paper or student essay which quotes a title of a journal, book or film, or uses a short extract to ensure proper citation, although likely to be considered fair by a court, is likely to fall outside the current “criticism and review” exemption. Small theatres and record companies have complained that they are often prevented from using quotes from newspaper reviews in their own promotional material. Newspapers themselves of course are able to rely on the “criticism and review” exception; for example, to quote a lyric.
Our proposed changes will remove this limitation and permit all types of fair quotation, as long as there is acknowledgement of the source of the quotation. There should be no obstacle to fair and honest quotation. British citizens should have no less a right to it than those of other democratic nations.
It is the responsibility of government to ensure that the law achieves an appropriate balance between protecting the rights arising from copyright and serving the wider public interest. The UK invests heavily in knowledge and ideas and has many IP-intensive industries. Protection of IP is an issue that dates back centuries, but the Government are committed to responding to the distinctly modern challenges set by technological advancements and to meeting fast-changing and fast-developing consumer needs. This is a delicate balancing act, but I believe that adoption of these regulations will bring us closer to that goal, and I commend them to the House.
Amendment to the Motion
Moved by Lord Stevenson of Balmacara