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Copyright (Public Administration) Regulations 2014

Volume 753: debated on Wednesday 14 May 2014

Motion to Approve

Moved by

That the draft regulations laid before the House on 27 March be approved.

Relevant documents: 41st Report from the Secondary Legislation Scrutiny Committee, 26th Report from the Joint Committee on Statutory Instruments

My Lords, in moving the lead regulations I will take the opportunity to speak to all three instruments before us today, which deal with exceptions to copyright.

In today’s digital world the process of copying is intrinsic to new technologies that are used by vast sections of our society, from researchers and curators to teachers and consumers. Yet under current UK copyright law a great many activities that are intuitively acceptable to any reasonably minded person are unlawful or at best uncertain simply because they involve some element of copying. It is the responsibility of government to ensure that copyright law achieves an appropriate balance between protecting the rights and interests of creators and serving the wider public interest.

These statutory instruments are part of a process that dates back to the publication of the Hargreaves review in May 2011—and in fact similar recommendations were made in 2006 by the Gowers review of copyright under the previous Administration.

I feel it is appropriate at this stage to comment that the Government are proposing two other statutory instruments: first, on personal copying for private use; and, secondly, on parody, caricature and pastiche and quotation.

The Joint Committee on Statutory Instruments has asked for some further points of clarification. It is not unusual for the committee to want to spend more time considering SIs but it does, unfortunately, have implications for the timetable for these exceptions, given where we are in the parliamentary cycle. While this delay is disappointing for the Government and many members of the public, the Government remain firmly committed to implementing each of these important exceptions to copyright law as soon as possible.

I turn to the three SIs before us today. One makes changes to the exceptions for research, education, libraries and archives. This instrument includes a new exception for text and data mining for non-commercial research. The other two instruments make changes for the benefit of disabled people and public administration. In most cases the instruments make small changes to existing exceptions—for example, by expanding the types of copyright works that the exceptions apply to or the types of institution or user that can benefit from them.

I am pleased to report that the Joint Committee on Statutory Instruments considered the three instruments we have before us today and had no comments to report. This means that the committee has not identified any issues that it feels need to be brought to the attention of Parliament. Noble Lords will also be aware that my officials and I provided oral evidence to the Secondary Legislation Scrutiny Committee on 6 May, and the committee reported its views on 9 May. I welcome this consideration of the regulations, and I very much welcome the opportunity for further consideration today.

The potential benefits of these SIs are significant. At a conservative estimate, based on the Government’s impact assessments, the measures in the three instruments are predicted to benefit the United Kingdom by nearly £250 million over 10 years. For the avoidance of doubt, the majority of uses of copyright materials will continue to require permission from copyright owners. The regulations have been carefully and narrowly drafted to contain safeguards that ensure they do not prejudice the legitimate interests of creators and rights holders. Indeed, many of the changes simply modernise existing exceptions that have been part of UK law for many years.

Over the past few years, the Government have consulted extensively on these proposals and the Secondary Legislation Scrutiny Committee recently commended the Government on their “sustained efforts” to consult on these measures. There is no doubt that the Government found it enormously helpful to hear the full spectrum of viewpoints, including those of individual creators, businesses, researchers and consumers.

I turn first to the new copyright exception to permit UK researchers to use text and data-mining technologies as part of their research. Data-mining techniques allow researchers to analyse large amounts of text and data using computers. This is extremely efficient and makes it easier for researchers to make interconnections within the vast amount of data being produced in the digital age. This new exception for text and data mining contributes to the Government’s overall goal of making the UK one of the best places in the world to do science.

This measure is necessary because current copyright law does not allow us to realise all the potential benefits of text and data mining. This is because the technology usually requires copies to be made of the material that is being analysed, and making these copies risks infringing copyright. At the moment, only 11% of articles in the European database of biomedical research papers can be electronically analysed without seeking specific permission from the copyright owner. This is the case even where the researcher or their institution may have already paid for a licence to read these articles.

The evidence submitted to the Government’s consultations showed that requiring individual researchers to seek specific permission from each rights holder is a significant obstacle to the uptake of data mining. One case study found that a simple exercise to mine all papers with the term “malaria” in their title could require a researcher to spend between four and five weeks seeking permissions—time far better spent on actual research. The changes proposed will allow researchers to make copies of any material they already have the right to read, without obtaining additional permission from the rights holder. This will apply only to text and data mining as part of a non-commercial research project.

Researchers in the US and Japan already have this freedom to carry out text and data mining. This exception will give similar freedoms to British researchers, and give Britain greater competitive strength internationally. To ensure that researchers are fully able to benefit from the exception, the legislation makes contract terms that seek to prevent or restrict text and data mining for non-commercial research unenforceable. It is important to add, however, that it will not stop rights holders imposing controls on the way in which researchers can access material, such as reasonable limits on download speeds.

I turn now to other research elements of this same statutory instrument. The regulations will extend the existing fair-dealing research exception to cover all types of copyright works, not just literary and artistic works. Researchers will be permitted to carry out reasonable, limited copying for non-commercial research and private study, without permission from the copyright holder. The amount of copying that can occur is limited by fair dealing, which means that copying a whole work is extremely unlikely to be allowed. Institutions such as libraries and universities will also be able to offer access to copyright works on the premises at electronic terminals for research and private study. That will reduce costs and improve access.

The instrument also modernises existing exceptions for education to allow schools, colleges and universities to make photocopies of copyright works. As is currently the case, the exceptions will continue to operate in tandem with licensing schemes. That means schools do not need to worry about accidentally infringing copyright if they have a licence, and they do not have to spend time and money checking whether a particular use is included in their licence.

Another change will permit copying of small amounts of material where necessary to illustrate and explain a point, so teachers and lecturers will be able to do things such as displaying web pages or images on interactive whiteboards and in presentations. That change will not remove the need for educational establishments to hold licences such as photocopying licences and broadcast recording licences. Taken together, these modernised exceptions help define basic copying permissions for providers of education, ensuring that education is not constrained by copyright law.

The instrument also contains regulations to make it easier for libraries, archives, museums and galleries to preserve their collections. It would remove unnecessary regulation that hinders the preservation of our cultural heritage. Preservation techniques will often involve copying a cultural work or artefact—for example, digitising a book to transfer it to a more durable medium. The current law allows preservation copying, but applies only to books, and can be used only by libraries and archives. If an archive needs to preserve a film, sound recording, photograph or other work it risks copyright infringement. If a museum or gallery needs to preserve any item from its collection, it also risks infringement. By removing those barriers to preservation, these changes could save up to £26 million per year for libraries, archives, museums and galleries from reduced administration and transaction costs.

I now turn to the second instrument before us today, which focuses on changes for the benefit of disabled people. The change will mean that if any type of copyright work is not available commercially in a format that can be accessed by a disabled person, an accessible copy can be made for them. The changes would mean that anyone who has an impairment that prevents them accessing copyright works would be able to benefit from the exception.

Finally, the third instrument before us today makes changes to the existing exception for public administration and will enable more public bodies proactively to share certain third-party copyright materials online. Most information held by public bodies is already available for public inspection. Some of that material will have been submitted by businesses or members of the public. Currently, copyright law prevents any of the material being published online. Instead, third-party material can only be issued to the public in paper format or viewed on the premises of public bodies. Allowing it to be made available online will reduce administrative burdens for public bodies and save the public money and time.

This is a package of reasonable and common-sense changes to copyright exceptions. It will deliver significant benefits to the UK. First, it updates copyright law in line with the digital age. Secondly, it supports research by enabling text and data mining. Thirdly, it updates exceptions for educational purposes so that they are suited to modern teaching technology and practices. Fourthly, it makes it easier for libraries and archives to preserve our cultural heritage. Finally, it allows a greater number of disabled people to have access to a greater range of copyright works.

The Government have committed to promoting a modern, robust and flexible framework for copyright. These reforms are an important part of that. I commend the instruments to the House.

My Lords, I do not wish to oppose any of the three sets of regulations that the noble Viscount has recommended we approve. However, there are one or two aspects of the Government’s approach to copyright that I find a little worrying, and perhaps I may ventilate them with the Minister. They may arise particularly when the last two sets of regulations, which are not before the House at the moment, come to be considered.

It has to be borne in mind that copyright has been the subject of legislation for a long time. I cannot remember when the first Copyright Act was enacted, but it was enacted for the purpose of providing proper regulation of the protection that the producers of copyright works—artistic, musical, literary or whatever—were entitled to expect. Generally speaking, they were professionals earning their living from the works that they produced for those who were able to benefit from them. It became apparent that legislation was needed in this sphere and it has been thus ever since.

The Minister referred to a benefit that the current spate of regulations will produce of, I think, £250 million over 10 years. I was wondering out of whose pocket that would come. Does it mean that the proprietors of the copyrights will be subsidising the use of their work by receiving lower sums for that work, and for the copyright licences that they were granted, than they were previously receiving? If so, it is a sort of compulsory donation by the proprietors of the copyright works in question to the benefit of the country, which I am not sure has any precedent elsewhere. I began to think of the relevant law applying to patents. If an inventor produces a very valuable patent which the Government of the day wish to exploit for their own entirely proper purposes, the Government can apply to the courts and obtain a compulsory licence but they will not get it for nothing. The compulsory licence will have a term under which some remuneration for the use of the patent is paid to the proprietor of the patent—the inventor.

Here, we have amendments to the copyright regime that will apparently save a great deal of money, but, as I have asked already, at whose expense will that be? If it is just a saving in time for administrators, that is one thing, but if the copyright holders will receive less, that is entirely different. I wonder whether the patent analogy of a compulsory licence on appropriate terms that can be fixed by the court ought not to be preferred as the means of dealing with the problems that have been identified.

As I said, I do not object to any of the regulations. They are all for worthy purposes, but to the extent that their effect is to require copyright holders to be compulsory donators to, in some cases, charitable purposes and, in some, just general public purposes, I wonder whether it is fair to do so without providing for some compensatory element to recompense them for the loss to their pockets—which, according to the Minister, will be substantial—over the next 10 years.

These points are going to arise particularly when the last two sets of regulations—one relating to personal copies for private use and the other relating to copying for the purposes of quotation and parody—come to be considered. Nothing there could be described as remotely charitable or for the public benefit, which is a shield under which these three sets of regulations can all shelter. I think that the Minister needs to tell the House to what extent the savings that the Government anticipate from the five regulations taken as a block will fall upon the pockets of the copyright holders who have created these works of arts, pieces of music or literary masterpieces that enjoy copyright.

To follow up the point made by my noble and learned friend, perhaps I may briefly ask the Minister whether these welcome modifications to copyright law will in any way have an impact on or amend the procedures followed by the Authors’ Licensing and Collecting Society, which provides modest sums for authors if their works are subsequently copied through libraries or other mechanisms. Will they affect that procedure of the ALCS?

I thank the Minister warmly for his introduction. Whatever comments I may have on the substance of the exceptions, I thank him for his careful navigation and assiduous consultation and communication in the run-up to these SIs being tabled, including for the way in which the regulations have been presented to Parliament. I also thank him for his willingness to debate the issues, as we did last December and before the Secondary Legislation Scrutiny Committee recently. We should thank both the Joint Committee on Statutory Instruments and the Secondary Legislation Scrutiny Committee for their careful scrutiny. I am pleased to hear from the noble and learned Lord, Lord Scott, and to see that the noble Baroness, Lady Morris, is in her place, as is the chair of the Secondary Legislation Scrutiny Committee, the noble Lord, Lord Goodlad.

There were some very good reasons for this careful scrutiny. After all, copyright is the foundation of our creative industries’ success and the economic driver of growth for this sector, which contributes £71.4 billion to the UK economy. The reform of copyright should be handled sensitively, with the value of the creative industries and any negative impact caused by changes to the law firmly in mind. Wrongly formulated, the exceptions could potentially deter investment in the industries and weaken performers’ and creators’ ability to benefit financially from their work.

It is also an extremely technical area of law. It has been pointed out by many experts that the Government’s proposed changes to primary copyright law implemented by way of secondary legislation risk not being compliant with our obligations under EU directives and incorrectly implement related legislation. It is notable that the Secondary Legislation Scrutiny Committee remarked from the outset in its report on the strength of opinion on the question of contract override, which I attempted to highlight in our December debate. It also said that,

“we flag up the possibility that the changes will have a greater economic impact on producers and creators than the Government have so far envisaged”—

a point made by the noble and learned Lord, Lord Scott. The committee expressly says that it is not persuaded by the Minister’s statement that the changes are relatively minor. This particularly applies to the personal copies for private use exception, to be debated in future.

The Government cannot have it both ways. They cannot say that these exceptions will have minimal effect and then claim that there will be a benefit of a total of £500 million to the UK economy over 10 years for all five of the exceptions and £250 million for those that we are discussing today. In fact, in the Commons committee, a number of MPs drew attention to inadequacies with the impact assessments and sought to probe further how the figure of £500 million was arrived at. Where does this figure come from? Can we have a complete breakdown? Are the Government certain that this benefit is without any loss on the other side of the equation, a point raised by the noble and learned Lord, Lord Scott? How do the Government plan to monitor whether this benefit is achieved?

As a result of one of the key conclusions, where I wholeheartedly agree with the SLSC, the instruments are to be reviewed by the Intellectual Property Office no later than April 2019. The committee said:

“We would urge the Government to monitor the impact of the changes from the point of implementation, and in particular to respond effectively if it becomes clear that any negative potential is being realised”.

Can the Minister give that assurance? Can he commit to repealing these regulations if there is overwhelming evidence of a negative impact?

In the end, it has to be recognised that the Minister is a man on a mission to implement the Hargreaves recommendations, as he admitted to the scrutiny committee. There is a major division of opinion here. I and many among the rights holders believe that, with significant commercial developments in licensing made possible especially by new technology—the creation of a copyright hub, the Global Repertoire Database and so on—only a very limited case can be made for these copyright exceptions. Moreover, there have been significant developments since the Hargreaves report was published. Exceptions should not apply where a commercially available alternative already exists. Sadly, the Government have not accepted this important principle or, let it be said, the flexibility contained in the information society directive. Rather, they have insisted on driving these exceptions through, as the memorandum from BIS to the Joint Committee on Statutory Instruments makes clear, using what they believe is the legally sound option of contract override.

David Willetts’ rationale in the Commons committee, in the light of research showing that 90% of research-focused requests for text and data mining are granted within a week at little or no cost to those seeking permission, for why the exception was needed, was barely credible. It appears that filling in a form—that is, asking for permission—is now an “unreasonable imposition”. Is that what the Government’s justification for introducing this exception amounts to?

There are many issues to do with contract override and it is clear that even the Intellectual Property Office does not fully understand the position. The IPO has said that,

“the exception for photocopying by schools cannot be overridden by contract, so this is not us taking an unprecedented step”.

I do not believe that this is a completely accurate interpretation of the relevant section, Section 36 of the Copyright, Designs and Patents Act 1988, which applies to reprographic copying by educational establishments. The provisions of this section introduce an exception to copyright to permit photocopying by schools, but critically also provide that copying is not authorised,

“if, or to the extent that, licences are available authorising the copying in question”.

This provision is often referred to as an exception subject to licence, so the contract override provisions with which the IPO sought to make comparison are highly limited and apply directly and specifically to the terms of contracts of the licence working alongside the exception. This is a fundamentally different proposition to that being proposed in these statutory instruments, which seek to impose contract override provisions on any and all contracts.

It is also far from clear that the exceptions will not prove to be retrospective in the way they override contract. In the notes published by the IPO accompanying the exceptions, Exceptions to Copyright: Guidance for creators and copyright owners, it is stated that:

“Where a licence granted under the old law gives wider permissions than the new law, the licence will be unaffected. However, where the new law permits more than the licence, the licence holder will be able to rely on the new law. The licence will still be valid, but a licensee cannot be made to comply with any term in so far as it seeks to restrict something that the new law allows. E.g if an individual purchases a work on terms which prevent the copying of the work for any purpose, it will not be a breach of the licence if the purchaser makes a personal copy”.

It is clear from the guidance that, for any existing licence, certain terms will no longer be enforceable, and of course there was an element of confusion before the Secondary Legislation Scrutiny Committee, in answering the noble Baroness, Lady Morris, on this point, but that is indeed what my noble friend confirmed in his subsequent letter dated 12 May to the chair of the committee. But the point posed by my right honourable friend David Heath MP to the universities Minister in the Commons Fourth Delegated Legislation Committee remains inadequately answered by the Government. He said that:

“A previously agreed contract that conflicts with the new regulations will effectively cease to be enforceable. That creates a retrospectivity issue, so I would be grateful if the Minister would explain his view on the setting aside of contractual arrangements that are already in place”.—[Official Report, 12/5/14; Commons, Fourth Delegated Legislation Committee; col. 11.]

The Government’s response, both in my noble friend’s letter and in David Willetts’ comments to the committee, goes only half way to meeting the point. Their first line of argument is that it is not retrospective because it will not render a person liable for an action committed in the past. That is all well and good as far as it goes from a user’s perspective, but it does not deal with the perspective of the rights holders. The second line of argument from the Government is that retrospection does not come into play with regards to contracts because the effect will be in the future, but the Government’s approach does seem to fall foul of paragraph 1(1)(b) in Schedule 2 to the European Communities Act 1972. This states that a provision should not take,

“effect from a date earlier than that of the making of the instrument”.

However, the contract override provisions do precisely that. Their effect is to render unenforceable a contract made at an earlier time. What can my noble friend say in response to this?

Then of course there is the question of whether these exceptions should have been introduced by primary or secondary legislation. They in fact could perfectly well have been proposed during the passage of the recent Intellectual Property Bill as substantive amendments, fully debated and, if necessary, amended. It is very regrettable that we have not had that opportunity in view of the controversy surrounding them. The Minister claimed before the Secondary Legislation Scrutiny Committee that 50 copyright exceptions have been dealt with by statutory instrument rather than primary legislation. Is that really correct? I do not think there are 50 copyright exceptions; I think he meant the number of amendments to the Copyright, Designs and Patents Act.

What can the Minister say about the guidance material which will be used to brief and educate the public, consumers, intending researchers and so on? Multiple inaccuracies have been pointed out to the Minister and to the IPO by rights holders. I will not highlight the particular problems with the personal copying and parody exceptions guidance, as they are not subject to debate today, but they are considerable.

As regards data and text mining, the Explanatory Memorandum says:

“Publishers will be able to impose reasonable measures to maintain stability and security of their computer networks as long as researchers are able to benefit from the exception to carry out non-commercial research”.

This is followed by the government response to the technical consultation and the guidance note. However, the contract override provisions in the relevant SI itself state that any part of a contract which seeks to restrict the act of reproduction is unenforceable. Since one of the reasonable measures publishers would seek to impose is a restriction on the speed and level of “crawling”, these two provisions contradict each other. Can the Minister resolve that contradiction? If so, can he confirm that other examples may be valid as well? Does he envisage publishers being able to operate an “electronic handshake” procedure, or other form of formal verification, to ensure that the text or data miner is who they say they are? If so, this should be clearly stated in the guidance.

What assurance can the Minister give generally that the vital material explaining each of these exceptions will be revised and only then published? Surely, the setting of an arbitrary date of 1 June—not on a common commencement date—militates against this. The Minister’s rationale before the Secondary Legislation Scrutiny Committee for the commencement date was that,

“we had had such a long consultation and that certain stakeholders were really pushing us to get on with it, if I may put it that way. We thought we should do that and go for 1 June rather than delay further, until October, which would be the next window”.

Mr Willetts was equally circular in response in the committee. He basically said that it was included among the key domestic measures in the Government’s seventh statement of new regulations. Instead of adhering to the common commencement date programme, the Government are implementing early simply because they want to. Should the Minister not revise the implementation date to the common commencement date of 1 October for all new exceptions and take the opportunity to revise and correct the consumer-facing material at the same time? I look forward to the Minister’s reply.

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. People 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.

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 rigorous 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.

My Lords, I shall be brief and shall stick to the three regulations. I think they are essential because, first, of the problem of the preservation of things for history. My father is a great genealogist and historian, and one sees so many things lost and destroyed. I have archives going back to the 1200s, because they are written on vellum. Unfortunately, that does not apply to the modern stuff, which can disappear all too easily. Most of the media it is in will decay over time. Therefore we need to do what they call format shift and move it around. One of the problems with the current copyright restrictions is that you cannot format shift legally. The ridiculous thing is that you find that you have bought a piece of music that you can play on one thing, or you may have downloaded something on to your Sky box that you can watch any time, but actually you want to watch it on your iPad—this is not a iPad, it is a Microsoft Surface—and you are meant to buy a copy of it, even though you have it sitting there on your device at home.

That is not about these regulations, because that is coming up later, but the same sort of thing applies to the British Museum and other people who are trying to preserve stuff. They will allow them to preserve things which they cannot legally at the moment. As a private individual, personally, I would break the law, but you cannot do that as a public body. That is the challenge.

The Wellcome Trust is very interesting on this subject. It is interested in research that is going to save lives. At the moment, to try to what they call data mine—to research across many bits of information across the internet from many different sources—you have to clear every bit of it. I think that it was the noble Lord, Lord Clement-Jones, who asked what that costs and where the money comes from. Someone asked that. The answer is in sheer time of people trying to track down the sources to get every one cleared before you can look at it. That is absolute madness and is delaying research. As a result, people are dying, in some cases, because we cannot do research that we should be able to do.

At the same time—this is a bit of a red herring, but it is not meant to be—we are talking about releasing everybody’s personal health information to save lives. It will be all right to data mine that under Care.data, but here we are with stuff that is perfectly public and is not sensitive information, but we cannot mine it because of the copyright laws.

The challenge comes because the copyright springs out of the Statute of Anne—Queen Anne—of 1710, I think, as amended. Of course, it was all built around written work. I think it actually came from Charles II’s licences for the printing presses. It was all about printed work but the world changed when, suddenly, entertainment could be broadcast and then with the general availability of entertainment over the internet.

The trouble is that it is not usually the creators who own this higher value or more expensive stuff but the people who bought up the rights very early on. They own the rights. The big rights holders are not the creators and we should not mix the two up. Some creators still have their copyright but an awful lot of them do not. This would be to defend a distribution system which is rooted in the past. I am afraid that it is not going to survive in the long term, whether your Lordships like it or not. It needs to evolve and the question is how. Yes, you have to have fair reward—for the creators in particular, because that is where innovation comes from—but the way to do that is not by having such complex systems as the noble Lord, Lord Clement-Jones, laid out for us. There is such complexity in those for an ordinary human being who is not a lawyer, such as a researcher or any person who is not a specialist in law. You need to be a lawyer who is used to representing copyright interests to understand all the ins and outs and be able to do anything with it. That is wrong, in my idea, and is what is holding things up.

These three regulations are very much to be welcomed. They will help enormously the good people who are trying either to do research or to preserve our history. They are not going to do any damage whatever to the people who own a lot of entertainment and other copyrights.

My Lords, I, too, congratulate the Minister on being extremely constructive in his attention to comments made by the music industry. Speaking as a composer, I sometimes feel on the horns of the dilemma that he faces. I would love to make my music completely free to schools and educational institutions but my publishers say, “It costs us money to produce it”, and the record people say, “It costs us money to record it”. That in a sense is the balance we have to strike here.

In the debate on 5 December 2013, which was mentioned by the noble Lord, Lord Clement-Jones, I spoke about what was then the forthcoming education exception and noted that the introduction of a “fair dealing” exception for the purposes of instruction was at that point of great concern to music publishers in this country. To them, the sale of sheet music for use in teaching is a key income stream. The chief concern was that fair dealing is a vague term and unlikely to be understood by consumers of sheet music. As such, music publishers were delighted to see improvements made to the drafting of the education exception, in particular the narrowing of the fair dealing element of the exception to be,

“for the sole purpose of illustration for instruction”,

in line with the EU directive. This is a helpful and necessary amendment and goes some way to allaying the concerns of the music publishing community.

In addition, music publishers welcome the inclusion of the frequently asked questions on sheet music in the education and training guidance notes which accompany the statutory instrument. However, those frequently asked questions could, I respectfully suggest, be further strengthened to give greater clarity to music teachers and music students, who will benefit from the new exception. The suggested improvements to the guidance notes include a specific reference to the Government’s published interpretation of the new education exception: that copying of sheet music by private music teachers is unlikely to fall under the exception,

“as it is not non-commercial, and is unlikely to be considered either illustrative or fair dealing”.

Music publishers would also like the frequently asked questions on copying material for use in exams to state clearly that making a copy of a musical work for use by an exam candidate when performing the work is not allowed under this exception. This protection for sheet music publishers is explicit in Section 32(4) of the current CDPA and its removal from the new Section 32, with no clarification in the frequently asked questions on exams, could lead to confusion.

My Lords, I thank all those who have contributed to this short but important debate today, which goes to prove that this is an interesting area of activity. As the noble Lord, Lord Clement-Jones, said, it bears on one of our key industrial sectors, which we must be careful to ensure is given protection and support. In some of the earlier debates on these issues in other places, where perhaps not so many people would crowd in as have done today, we had thought that we were a lonely band, a small group of complete nerds who were interested only in the very detailed minutiae exemplified by the brilliant speech from the noble Lord, Lord Clement-Jones, on the wide issues relating to copyright contracts, to which I will leave the Minister to respond. Of course, I am wrong; many issues are coming up now that we will return to with pleasure as we go through the other statutory instruments, and indeed as we wait for further measures to come forward as a result of the ERR Bill, particularly extended collective licensing and orphan works. Those who do not know these things might want to get themselves ready for it, because that too will be great fun.

The argument that we have heard today from the Minister is that these “small” changes to the UK’s copyright regime are vital to supporting innovation and growth in the UK. In fact, to my mind they bear more on individuals, particularly those with disabilities, and on the not-for-profit libraries and archives in the digital age, helping them to serve their patrons more effectively and to reduce costs. It is therefore likely that they will lead to greater efficiency, innovation and improved research, which is a good thing, and there seems to be no independently validated evidence that any of the proposed new exceptions will damage the legitimate commercial interests of rights holders.

Rights holders often claim, as the noble Lord, Lord Clement-Jones, suggested, that exceptions are or soon will be rendered unnecessary by the existence of licensing schemes. That argument has some merit and good progress has been made on this, particularly through the copyright hub, but consumers will not be well served if the licensing system is overly complex or expensive or withdraws works and therefore makes them inaccessible. It is also true, at least at present, that many copyright works are not, and in some cases cannot be, covered by licensing schemes. There is, for instance, no scheme for unpublished literary works such as private letters, or one for private films or photographs. It may be, as I have mentioned, that the mooted extended collective licensing schemes and action on orphan works will address many of these issues, but until then archives and libraries have no choice but to rely on exceptions in order to provide a service to the public.

My first point is that I do not think that the impact of these SIs will be quite as significant in the wider economy as the noble Lord makes out. In any event, it is important that both sides in this argument do not overclaim. We should also bear in mind that if, in a digital world, citizens do not feel that the law appropriately supports their own personal and educational needs, it will simply be ignored, which is in no one’s interest. Indeed, the noble Earl, Lord Erroll, rather hinted that that was the way in which he approached matters.

The Government believe that the changes contain safeguards to ensure that a reasonable balance is maintained between the interests of creators, owners, performers, consumers and users of copyright works. We have some concerns on this point. What is important is that we have a balanced copyright system that respects the legitimate interests of both the rights holders and the users of copyright works. Copyright law should work for everyone. There should be incentives for people to invent and create, appropriate protection for the output that they produce and a right to a reasonable return on that investment.

These instruments update the framework of exceptions to copyright in performance and expand the freedoms in copyright law to allow third parties to use copyright works for a variety of purposes without permission from copyright owners. We broadly agree with this approach and have supported the Government through this seemingly endless and tortured process. However, I should put on record that we wonder whether utilising exceptions is in itself the best way of making changes to a regime that in some respects is creaking and, as the noble and learned Lord, Lord Scott, suggested and my noble friend Lord Howarth agreed, may be in need of some serious recalibration.

We should recall that in Modernising Copyright Ministers stated:

“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013”.

I observe October as a rather crucial date. It is one of the two CCDs referred to by the noble Lord, Lord Clement-Jones. Well it is May 2014, and we have only three SIs, although, of course, there are actually six exceptions contained in them and, as we know, there are more to come. It is fair to say that the Government have had a bumpy ride on this, and I think it is partly because they seem to have difficulty in opening up to proper debate and discussion with the industry and consumers not only about the principles under which they are operating but on the detailed drafting. As has been said, there is more to come in terms of public explanations of what is being proposed. However, there has been a public consultation, there was also a very brief general discussion on a QSD in your Lordships’ House, and further work and technical reviews have been undertaken. We are where we are.

I have only one substantive point to make about the regulations, although there are a number of questions I should like to put to the Minister. The question that underlies some of the points that have already been made is about the exchange in the Secondary Legislation Scrutiny Committee when the Minister was adamant that this packet of measures involved minor changes. In introducing the exceptions today, he said that they are “small changes to existing provisions”. However, the committee stated in its report:

“We pressed the Minister on his statement to us … that the changes proposed were ‘relatively minor’: we are not persuaded that this is an accurate assessment of their impact”.

I should be grateful if the Minister could expand on that when he responds. I struggle with his description “relatively minor”. I probably agree that they are quite small, but I do not know what reference point he is taking on this. What is the relativity?

I now turn to the exceptions themselves, the first of which is disability. It must be right that all print-disabled learners should have the right to have information provided in an accessible format. Indeed, this is required under Section 20(6) of the Equality Act 2010. Amending the existing exceptions for visually impaired people so that they cover all impairments that prevent a person accessing and making use of all types of copyright work will achieve this. We agree with what the Government are trying to do here and support it.

The public administration regulations will allow more public bodies proactively to share online unpublished third-party material from businesses and members of the public. We agree that the Government are doing the right thing here, and we support it.

The third SI is a bit of a plum pudding of an exception because the Government have tried to wrap a controversial issue—to overcook my metaphor—in the middle of three brown-bread and apple-pie proposals—sorry about that. This was the issue that got the most flak during the consultation process, and it continues to worry a number of industry personnel, as we have heard today. It is said that a new text and data-mining exception will dramatically boost non-commercial research by allowing computers to read material that consumers have already purchased or have legal access to. It is also said that the lack of such an exception means that UK research continues to lag behind countries such as the United States, which already allow text and data mining. My main concern is that the exception is designed to assist people who wish to make use of copyright works for the purposes of non-commercial research and private study. Non-commercial research I can sort of understand, and that seems to be an appropriate way to provide an exception, but what exactly is private study? The Government’s position on this seems vague and may well be open to legal challenge. I should be grateful if the Minister could return to this when he responds. I have looked at the accompanying information booklet, which says that this exception is not restricted to those studying at school, college or university. The guidance states that,

“this also applies to those carrying out their own private study but you must be genuinely studying (like you would if you were studying for a college course) to qualify. An example of this could be when you are learning to identify birds in your garden or simply learning more about a particular hobby”.

We seem to be quite a long way away from malaria. One can empathise with copyright holders who fear that a qualification such as,

“simply learning more about a particular hobby”,

might be seen to be driving a coach and horses through this provision. I should be grateful if the Minister could explain the position a little better when he comes to reply.

On the other exceptions within this SI, I particularly welcome the exceptions for libraries and archives and declare my interest as a former director of the British Film Institute, whose national film archive will benefit considerably from these changes.

Finally, I turn to common commencement dates. According to the Better Regulation Framework Manual, new domestic measures, both regulatory and deregulatory, must come into force on a common commencement date, either 6 April or 1 October each year. The guidance says that by requiring regulatory changes to occur at set times, CCDs inform business and other stakeholders about forthcoming regulatory changes, helping them to plan and budget for new measures and to minimise any additional costs. That seems a good and sensible suggestion. I point out that this is advice to officials but presumably also to Ministers. It goes on:

“You should always assume that your policy will be implemented on a CCD unless you have received explicit RRC”—

Reducing Regulation Committee—

“clearance for a waiver on one of the grounds below … clear emergencies … anti-avoidance measures … measures which remove significant risk or detriment from business … instances where the costs of timing a measure to meet a CCD would be wholly disproportionate to the public purse and … orders which commence other measures on a CCD”.

Can the Minister explain to the House into which particular category these exceptions fall? There is mention of,

“limited flexibility for deregulatory measures to come into force on a date other than a CCD if there would be demonstrable benefits to business”.

However, it says:

“This would require agreement to a waiver by RRC at write-round”.

Can the Minister confirm that his department has obtained this waiver? If so, perhaps we could have sight of the letter? It would be interesting to read it.

Finally, I draw the Minister’s attention to paragraph 1.10.9 of the guidance, which states:

“If an unanticipated delay means that your measure will not be ready for the planned CCD”—

which seems to be the sort of case we have here—

“you should wait until the next CCD”.

However, the Government are trying to introduce three of the five SIs on 1 June. The next CCD is 1 October. Can the Minister at least confirm that the two delayed exceptions will be scheduled to come into force on 1 October? If it is not 1 October, can we please be allowed to know why?

First, I will say how pleased I am that so many people have contributed today. What the noble Lord, Lord Stevenson, said is true: there is a greater number of noble Lords here than there has been for many of the copyright debates. I should quickly say that, although I did not agree with all the comments that were made, I greatly appreciate your Lordships’ presence.

As I said at the outset, this is a package of reasonable and common-sense changes to copyright exceptions, which will deliver significant benefits to the UK. I am sure that the noble and learned Lord, Lord Scott of Foscote, will understand when I say that I will not be focusing on private copying, parody and pastiches, as we are not ready for those particular SIs at the moment.

I also thank the noble Lord, Lord Howarth, for his kind words. He spent quite a bit of time focusing on the consultation process. It is true that, rather unprecedentedly, we engaged with a great number of people across the spectrum, looking at the rights-holders and consumer-and-user ends of the copyright process. In my case, it involved more than 250 meetings, so what the noble Lord said is true: we really have engaged. I hope that, as the noble said, this has been helpful. He was also right to say that there comes a time when the consultation process, which has been extremely long, has to come to an end. I think, again, that he is right that we need to move forward with that.

A lot of questions were raised today; I hope that I can get through them all. I will address a couple of them to begin with. The first was raised by the noble Lord, Lord Berkeley of Knighton, who asked about the amendments to public guidance in relation to copying sheet music for exam use, which is an extremely interesting point. I thank him for his kind words and the recognition of the changes that the Government are making. We have welcomed the written submissions from some stakeholders setting out their thoughts on the guidance; these will be considered in due course.

The second point was raised by the noble Lord, Lord Walton, who I notice is not in his place. I beg the noble Lord’s pardon; he is now in his place. He asked whether schools and universities would now not need any photocopying licences. He used the example of the ALCS to this effect. I can reassure him that schools and universities will still need to hold photocopying licences. It would not be right to allow schools to copy textbooks without payment in order to get them for free. Authors will still be properly remunerated. However, where works are not licensed, a teacher will be able to make photocopies without worrying about copyright infringement, so I hope that that clarifies the point.

I will spend the majority of my time focusing on the questions raised by the noble and learned Lord, Lord Scott of Foscote, who essentially questioned the principles of the copyright exceptions. I will take some time to focus on what we have in mind and on the impact, which he also mentioned in his question. He will know that copyright exceptions have long been part of copyright law. They exist for many reasons, but essentially to ensure that the copyright framework both properly takes into account the public interest and balances the interests of rights holders and users, which I alluded to earlier.

The noble and learned Lord asked where the benefits will come from. Economic gains are likely to come mainly from cost savings through reducing the complexities of the copyright system and from new business creation. Therefore those cost savings will be to copyright owners as well as users of copyright, and should be of benefit to the whole economy. I will produce some figures in a moment to support that.

Many of the benefits that arise from these exceptions are due to savings in time, effort and money spent clearing minor uses of copyright materials. For example, if a museum or archive wishes to preserve a film in its collection by copying it, currently it needs to identify each of the owners of the copyright in the film, contact them, and ask for their permission to make the copy. That can be time-consuming and costly—and, if the copyright owner cannot be identified, it may be impossible. When the copyright owners are identified, they will usually agree to the copying, as it is reasonable, but it takes a disproportionate amount of time and effort to get to that point. The noble Lord, Lord Howarth, eloquently made those points as well.

My noble friend Lord Clement-Jones and the noble and learned Lord, Lord Scott, asked me questions about the evidence base, and I will spend some time on that. The Hargreaves report on copyright exceptions estimated that between £0.4 billion and £2.6 billion would be added by 10 years from implementation. Those numbers were calculated by assuming that the growth benefits would not be realised immediately but would accrue over 10 years—hence the 10-year estimates.

At a conservative estimate, based on the Government’s impact assessments, the measures in the three SIs before us today are predicted, as I said, to benefit the UK by nearly £250 million over 10 years. The Government’s overall changes to copyright exceptions will add £0.5 billion to the UK economy over 10 years at current prices, with additional benefits of £0.3 billion per year identified. That figure is broadly consistent with the Hargreaves review, although it is not directly comparable.

As was mentioned by the noble Lord, Lord Howarth, the Government have worked hard to ensure that the proposed changes are based on evidence. The impact assessments are based on the best evidence available, and were reviewed and validated by the independent Regulatory Policy Committee. I promised to provide some figures on that. For research education libraries and archives, it represents £222.9 million as regards the impact—which, as I said, is of benefit to the economy and largely the result of bureaucratic savings. Those are quantifiable and monetised. Equally, for disability the figure is £0.66 million, and for public administration it is £13.8 million. As mentioned, that is over a period of 10 years.

However, it should be noted that the methodology for the impact assessment process from which the figures are derived can result in conservative estimates. Illustrative examples in the impact assessment, which are not reflected in the headline numbers of the text and data-mining impact assessment, indicate strongly that efficiency savings could be in the region of more than £124 million per year. They reflect evidence contributed by the creative industries and a range of other sources—and, again, were approved by the independent Regulatory Policy Committee.

To take disability as an example, the exception does not apply if accessible copies are commercially available; therefore, there is no impact on the copyright owner’s sales revenues which might be expected. More disabled people will benefit from access to the copyright works. The accessibility technology market and industries that produce accessible copyright works could benefit as a result of increased demand for accessible works, and increased demand is also likely to act as an incentive for copyright owners to provide their own accessible copies. I could go on to focus on public administration in the same way, but I have made my points; I hope I have done so for the noble and learned Lord as regards going into the figures.

I now pick up on the points raised by my noble friend Lord Clement-Jones on contract override. He spent some time focusing on this and stated at one point that he was concerned that the contract overrides would not be retrospective. When we say that a law is retrospective, we mean that it takes effect in the past. For example, if a law introduced this year said that last year it was illegal to cycle without a helmet, that would be retrospective. We are not allowed to do that with this legislation, and we do not intend to. However, that does not mean that the new law will apply only to new contracts; it will apply to contracts, regardless of the date on which they were formed, but will take effect only after the new law comes into force. Contract override provisions simply ensure that where the law provides for an exception to copyright, people are able to rely on that law without having to work out whether there is a contract term to the contrary

My noble friend also asked about currently existing contract override provisions, saying that they were fundamentally different to the new approach and exceptions. The contract override provisions already exist in copyright law and in other areas of law—for example, in property and consumer law. The Government are not therefore doing anything radical here; they merely wish to ensure that the full benefits are delivered.

My noble friend also asked whether there really were 50 copyright exceptions, as I had said, or simply 50 amendments to the CDPA. The answer is that, yes, there really are 50 copyright exceptions. It depends slightly on how you count them, but there are 50 exceptions already in Chapter III of the copyright Act, which sets out the exceptions in approximately 50 sections. I hope that that reassures the noble Lord that what I said was accurate.

My noble friend asked, too, whether the exception would damage publishers’ business models by allowing unrestricted downloads from servers; he stated that the legislation contradicts the guidance and that publishers will not be able to impose reasonable controls. I reassure the noble Lord that the exception will not interfere with the ability of rights holders to impose reasonable measures to maintain stability and security, as long as researchers are able to benefit from the exception to carry out non-commercial research. Guidance that accompanies the draft legislation sets that out clearly. For example, a reasonable restriction on download speed would be acceptable. Furthermore, the exception applies only when a user has lawful access to the material. The ability of rights holders and researchers or their institutions to freely enter into a contract to supply material is unaffected.

There are a number of other questions that I would like to address, notably from the noble Lord, Lord Stevenson, who asked whether I could confirm that the other SIs would come into force at the next Commons commencement date in October. Yes, that would be our aim. My noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson, asked specifically on this subject why it should be 1 June and not the next Commons commencement date. We announced our aim to bring the changes into force a long time ago, as they will be aware, and we know that businesses have started to prepare for this—as the noble Lord, Lord Howarth, alluded to. We did not want to delay further, as we want to realise the benefits of these changes as soon as possible; it is because of this that we agreed to a waiver of the normal process.

The noble Lord, Lord Stevenson, asked me to qualify the copyright exceptions in terms of their being defined as minor changes. It is true that I said in Committee that they were minor—“relatively minor” were the words that I used. This is in the context of the extent to which the law is being changed. There is only one brand new exception in these SIs, on text and data-mining; all the other changes modernise and build on existing exceptions. We are clear, however, that the potential benefits are indeed significant.

The noble Lord also raised the issue of private study and its definition. I hope that I can reassure him by saying that the term “private study” is present in the current Act and that the Government do not believe that it has been misunderstood or widely abused. Accordingly, they do not think it desirable or necessary to define this term in the Act or the Explanatory Memorandum.

There may well be other points I have not addressed but I hope that I have attempted to answer all the questions raised by noble Lords this afternoon. I will conclude by saying that we believe that these are important statutory instruments. As I said, they update copyright law in line with the digital age; support research by enabling text and data mining; update the exceptions for educational purposes so that they are suited to modern teaching technology and practices; make it easier for libraries and archives to preserve our cultural heritage; and allow more disabled people to have access to a greater range of copyright works. This Government have committed to promoting a modern, robust and flexible framework for copyright, and these reforms are an important part of this.

Motion agreed.