On the last sitting day of the Parliamentary session The House of Lords has just completed its consideration of the copyright exceptions Statutory Instruments on research, education & libraries, disability and public administration. There were, in the end only “contents” and no “not contents” to the motion, and so they have been duly passed and will come into force on 1 June. As previously reported, the private copying and parody & quotation SIs will be brought back to the House following further consideration. I attach a document prepared by Hugh Jones and Florian Koempel our Copyright Counsel outlining the major changes to policy from all of the SIs – including those not passed today. A full transcript of the debate will be available tomorrow, but in the meantime the “highlights” are:
In moving the SIs the Viscount Younger the IP Minister said that some of the exceptions will still “continue to require permission be asked of rightsholders” and there will be “safeguards to ensure rightholders” are protected. He repeated the statement made by David Willetts during the House of Commons debate that the Text & Data Mining “will not stop rights holders imposing controls on the way that researchers access material such as reasonable limits on download speeds.”
Lord Clement-Jones, quoted (ahem) extensively from The PA’s briefing notably on contract override. He said that clearly “the IPO does not understand the position on contract override – in the evidence session IPO officials did not make a relevant comparison with section 36 – which is critically based upon the licensing scheme alongside the exception…and fundamentally a different position to the contract override provisions in the SIs”
He stressed the point that “it is clear that certain terms won’t be enforceable. There is an element of confusion on this. The point remains inadequately answered that an existing contract will be rendered unenforceable. The government’s response only goes halfway – it does not deal with the rightsholders position. The government’s approach does seem to fall foul of the European Communities Act provisions: the CO provisions do act retrospectively precisely in the way.”
On TDM he pointed out that the explanatory memo says that publishers can maintain security, but the contract override provisions go against this. The two provisions contradict each other; and could he provide other forms of control, such as electronic verification. The setting of an arbitrary date of 1 June is wrong: Government should only bring into force once the explanatory memorandum and guidance are fully correct. 1 October all exceptions would allow the notes to be corrected.
He reiterated the need for there to be a Review no later than 2019 – and urged Government to review implementation and respond effectively if any negative potential is being realised. And to commit to repeal if there is overwhelming evidence of a negative impact. He said that “The Minister is a man on a mission to implement the Hargreaves Review. But new licensing and technology means there is only a limited case for the exceptions. There has been a great deal of development since Hargreaves reported, but government have insisted on ignoring the principle that exceptions should not be used where licensing exists.
Labour back-bencher Lord Howarth reiterated his opposition to copyright, intellectual property and indeed market economies. “Licensing costs are the costs of monopoly – the balance has swung too far in the interests of creators.” He urged a more radical approach to copyright reform, such as the government paying royalties directly to creators (I promise you, he said that).
Lord Erroll: spoke on the importance of preservation; Lord Berkley on the importance of changes for music publishers – and welcomed that sheet music photocopying would be better controlled following changes to the SIs following consultation.
Lord Stevenson (Lab front-bench spokesman): rightsholders claim that exceptions are unnecessary due to changes in licensing – this has merit. But consumers are not served if arrangements are complex; or if there is no scheme in place. If users do not think the law serves their interest they will ignore them. Copyright may be in need of serious recalibration. Only one substantive question: are proposed changes are relatively minor?
Re TDM provisions continue to cause concern, especially around private study. One can sympathise with rightholders who are concerned with the width of the provision: “we are a long way from malaria, my lords!”
Responding for the Government the IP Minister said:
· Government will consider views on revisions to the guidance notes;
· The economic benefits will come from cost savings to users, efficiency savings and the growth of new business;
· Continued to take a narrow view on retrospectivity, saying that existing contracts can be overridden.
· Unrestricted downloads: reiterated the reassurance that the exception won’t interfere with rightsholders’ ability to have measures to maintain security and stability – the guidance sets this out clearly, such as a restriction on download speeds.
And with that the process which began in October 2010 came to an end. Or rather, nearly has. There is much still to do:
· Government will have to come back to Parliament with revisions to the private copying and parody SIs. That debate will not be straightforward and indeed may not happen at all f they cannot square the problems raised with respect to EU law.
· The Government is open to revising the supporting guidance: this will remain a very strong focus for The PA, Alliance and all rightsholder groups.
· The Government committed to reviewing the SIs within the next 5 years. This entails the need for careful monitoring by rightsholders of any potential negative effects. Government will be seeking to claim the professed £500m benefit to the UK economy – but we will need to be vigilant to ensure that they do not overclaim and use growth which would have occurred anyway as being down to these exceptions.