My Lords, this amendment would give the Secretary of State power by regulation to repeal Section 72 of the Copyright, Designs and Patents Act 1988 in part or in full. My noble friend the Minister will be only too well aware from the debate in Committee on 11 November that there are very strong views in the House on this subject. Although I was not able to be present for that debate because I was abroad, a great many noble Lords presented compelling and persuasive reasons why an outdated provision set up in the 1980s is now putting at risk the ability of commercial public service broadcasters to invest in original UK content and should be repealed.
The fact is that when Section 73 of the Copyright, Designs and Patents Act was put in place in 1988, the world was a very different place. Britain was an analogue nation. The overriding policy priority was, quite rightly, to encourage competition to analogue PSBs. In effect, those broadcasters were forced through measures like Section 73 to subsidise new entries to the TV platform market. The policy has been a great success. We have one of the most competitive media markets in the world at all levels: channels, production and TV distribution. But the provision has done its job. In a globalising internet age, subsidising nascent competition is not the issue. What matters now is maximising investment in original UK TV content to the benefit of viewers and the UK creative economy.
The PSBs invest around £3 billion a year in original UK content. ITV itself invests around £1 billion a year in programming, the vast majority of which is made up of original UK content. Ofcom has pointed out that the PSBs still account for the vast majority of investment in new programming. But to keep on making world-class content available universally and for free depends on the ability to make a commercial return on successful investment, hence the need to repeal Section 73. Successor legislation in the form of the “must offer” provisions in the Communications Act 2003, which is already in the PSB licences, already exists.
I am pleased that the Government recognise the importance of the issue and have promised a review to address it. Indeed, on 15 January the Secretary of State promised in the Commons that we could expect a consultation within weeks, but we have not yet seen much evidence of that. For many in this House, this is a hugely important issue and we are concerned about the lack of information available. I therefore ask the Minister if he can today provide me and other noble Lords who care deeply about this important matter with more detail on the review. Can he tell us when we might expect the review to start and to conclude? When time is of the essence, I cannot be the only one wondering if the consultation will be launched before the election. Can he outline what we can expect the review to cover and the range of issues it will include? I would also welcome more detail on what questions
are likely to be asked and what the terms of reference might be. Just as important is that he should indicate what he expects will happen to the findings of the review.
The noble Lord, Lord Grade, who sadly is not in his place, said that from what he had read in the newspapers, he had perceived a slight rumour about an election coming down the tracks, and clearly it is approaching fast. Can my noble friend outline the mechanism by which the Government plan to implement the recommendations of the review? I know that I am not the only one in the Chamber who is concerned that we should not lose momentum. I have therefore tabled this amendment, which is supported by many noble Lords. It does not pre-empt the findings of the review, but it would provide the Secretary of State with a mechanism to deal with the key issue before us: the repeal of Section 73. It would remove the need for primary legislation to repeal the section. Moreover, let us not forget that the European Union has started infringement proceedings against the Government on Section 73 as it believes that it is incompatible with EU law. The amendment would provide whoever is in power after May this year with a safety net by putting in place a mechanism to repeal the section.
I wonder whether my noble friend can go on to explain in his response why the consultation and the review also plan to look at whether other regulation around the PSB system on issues such as prominence is necessary. Electronic programme guide prominence not only ensures that people can actually find the public service content we require our PSBs to produce; it also enables those PSBs funded by commercial means to maximise viewing figures and thus maximise the value of the advertising they sell. It seems very odd to me that the Government would consider a key pillar of the PSB system to be something which can somehow be traded away. Prominence is part of a compact we make with the PSBs. Our commercial PSBs have all agreed fairly recently to new 10-year licences with Ofcom on the basis that they would continue to receive this prominence. It is in exchange for prominence that they agree to the public service obligations we place on them. If we are seeking to deregulate and remove this prominence, are we also seeking to get rid of public service content?
My noble friend Lord Grade outlined in Committee that the pay-TV platforms are arguing that if retransmission fees are introduced, the appropriate prominence regime for the PSBs on electronic programme guides should be abolished and they should be free to charge the full market rate to PSBs. In the light of what I have said, this is clearly a diversionary tactic and an attempt to deconstruct the whole of the public service broadcast regime. I hope that the Government have not been gulled by that approach.
I urge the Government to accept the amendment and, depending on the outcome of the review and/or the EU infringement proceedings, help to protect the television industry and the investment by PSBs in content. They should continue to invest in making the programmes that viewers love and of which of course this country is rightly proud. I beg to move.