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PA's PA 9th May

PA's PA 9th May

Welcome to this week’s PA’s PA, a week in which the copyright debate entered its final straight, but then suffered a Liverpool-like stutter near the finish line.

Modernising Copyright

The House of Lords Secondary Legislation Scrutiny Committee duly met with the IP Minister and two IPO officials, and has subsequently published thetranscript of the hearing, and its report.  In its conclusions the report “flags up the possibility that the changes will have a greater economic impact on producers and creators than the Government have so far envisaged.  As a result the Committee urges the Government to carefully monitor the impact of changes from the point of implementation and in particular to respond effectively if it becomes clear that any negative potential is being realised.”

On the face of it, this is not game-changing stuff and serves as a salutary note to Government not just to “fire and forget” these provisions.  But away from the formal language, there was clearly enough of a whiff of discontent in the back channels that the IPO realised all was not well with all of the SIs.  Two of the Statutory Instruments, those on Private Copying and Parody & Quotation, have not made it through to the next round of scrutiny.  Viscount Younger put out a statement explaining that this was because the Committee wished to spend more time considering them and his IPO officials are stressing that the SIs have not been formally withdrawn, but will be subject to further discussion and reintroduced at a later time.

With the end of the session fast approaching this means that these two provisions will not make it to the statute book by 1 June.  Whether they are ever reintroduced is the burning question.  IPO insist that is still the intention but whatever it was which made the Committee raise an eyebrow at this juncture will have to be addressed first.  Committee members were clearly unimpressed with the Government comparing a cloud locker with a bookshelf (and hence running the logic that no compensation need to be paid for private copying in the cloud), but this policy problem is about more than the poor choice of similes.

So this means that the three remaining bundles (on Research, Education, Libraries & Archives; Disability; and Public Administration will go forward for scrutiny next week and – it might be assumed – will duly be passed on 1 June.

The House of Commons debates them in Committee at 6pm next Monday (12 May), and the Lords in the afternoon of Wednesday 14 May.  Both Houses need to give their explicit approval for them to proceed.  Our main point of concern and continued message to MPs and Peers is that Ministers (David Willetts and Lord Younger respectively) have to make clear in their statements some of the points which are ambiguous in the guidance.  Chief amongst these is how and whether publishers can protect material from being infringed or over-crawled with the Text & Data Mining exception; and whether the contract override provisions are retrospective.  IPO officials confidently told the Lords Committee they would not be, but the Guidance Notes are pretty clear that existing contract terms will become unenforceable.  There is a sophisticated mind-set at play when it can be argued that this Guidance does not point to retrospective effect. 

Labour Policy

We were delighted to welcome Shadow Culture Secretary and Deputy Leader of the Labour Party Harriet Harman MP as speaker at our AGM this week.  Ms Harman gave a strong message of support for intellectual property, saying that enabling creators to protect their IP was clearly a matter in the public interest.  IP is not, she said, a question of the competing rights between the creator and the infringer, but rather the creators’ rights to protection are pre-eminent.  “It is not democratic to take stuff for free”, she added.  Ms Harman also stressed that opportunities to access and engage in culture and creativity should not be limited to an elite, nor subject to luck, but be part of every child’s entitlement.  One cannot prescribe creativity, but one can establish the entitlement to enjoy it.    Talking on libraries, Ms Harman said that there needs to be a leap forward to see libraries as “creative hubs” in their communities.  The lack of funding for local authorities had allowed Government to “decentralise blame” for declining libraries, she added.  She discussed the work of the Creative Council Network which the Labour front bench has convened, bringing together key local authorities to understand and develop their responsibilities to promote creativity.  The PA will continue to engage with Harriet and the Shadow Business and Education secretaries in the run-up to next year’s Election and the preparation of the party’s manifesto.   The Bookseller reported on the AGM  and its story can be read here.


Last week we reported on David Blunkett’s report into developing education structures as part of the Labour Party policy review process.  The report is now available here .

Extended Collective Licensing

Aside from the turbulence over copyright exceptions, the IPO has published the result of its consultation on the secondary legislation on Extended Collective Licensing, which was established in the Enterprise and Regulatory Reform Act last year.  Generally, the main changes made have been in the direction of tightening up the conditions before which a collecting society can go down the ECL route in the following areas:

(i)                  Changing the membership consent threshold, so that the collecting society must provide evidence in its application that it has the informed consent of a substantial proportion of its voting members (this “high but non-specific” criteria replaces the previously mooted 75% threshold;

(ii)                The addition of provisions about the renewal and reviewing of authorisations

(iii)               Some amendments to the opt out provisions, and

(iv)              How undistributed monies will be used.

The revised SIs are now being scrutinised by our old friends the Joint Committee on Statutory Instruments and the Copyright and Rights in Performances (Extended Collective Licensing) Regulations, as they are known, will come into force on 1 October 2014.  The full response and proposed amendments can be read here 

Voluntary Copyright Alert Programme

The BBC somehow got hold of a draft agreement between music and film rightsholders and UK Internet Service Providers which is aimed at introducing a voluntary programme of notifying ISP subscribers of their alleged copyright infringement.  The proposal is for a Digital Economy Act – lite style approach, with rightsholders spotting the infringement and the infringer’s Internet Protocol address, reporting this to the ISP, who then resolves this to a subscriber identity and send them a notice.  However, unlike the DEA there are no repercussions to infringement and the programme is more of an education / marketing tool, than a punitive measure – which should be to its advantage.  The PA has been engaged in discussions on this but does not anticipate being involved in the first wave of activity.  The BBC story can be read here.

Who We’ve Met and Forthcoming Meetings

This week we met with Harriet Harman MP and team, DfE officials, and engaged with a number of MPs and Peers on the copyright exceptions; next week we are meeting with the IPO, Jim Dowd MP, attending a seminar on e-Lending and attending the Bookseller Awards.