Digital Economy Bill [ Lords]

Part of Business of the House – in the House of Commons at 6:03 pm on 6th April 2010.

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Photo of John Whittingdale John Whittingdale Chair, Culture, Media and Sport Committee, Vice-Chair, Conservative 1922 Committee 6:03 pm, 6th April 2010

I rise with some sadness to speak about the Bill. There is an awful lot in it that I support and that I think is important for the future of the creative industries. However, in almost every case there are still big questions, potential flaws and probably unintended consequences. In each case we might have been able to discover some of those issues and put them right, had we had the opportunity.

I entirely agree with those who have spoken: there is no reason why this Bill suddenly has to have its Second Reading the day the general election is called. The Secretary of State says that there are precedents for that, but I simply do not believe that a controversial major Government Bill, which will have huge implications for so many industries, has ever had its Second Reading the day before wash-up, so that it has no Committee stage whatever.

Part of the problem is that the Bill does not command complete support. There are people out there who are profoundly unhappy and will try to resist some of its provisions. The fact that it will not have had full scrutiny by Parliament will mean that they will argue that it does not command full legitimacy; they will feel that that gives them more cause to oppose it and circumvent its provisions. That is sad and worrying because the measures in the Bill to protect the creative industries are important. Furthermore, for reasons that I shall come to, I have concerns that the provisions can be circumvented.

It is true that the Bill has had lengthy scrutiny in the House of Lords, and some amendments passed there have improved it. However, there are profound constitutional concerns about how we have handled this matter. Lord Puttnam has described the timetable as "almost insane". Our approach should be to ask ourselves what in the Bill is absolutely necessary-what is really urgent that we have to pass now. I am not sure that we should pass any provision that does not meet that test.

As my hon. Friend Mr. Hunt said, the first few clauses of the Bill, which give new powers to Ofcom, are not necessary. They could also be confusing. Ofcom is primarily an economic regulator. If we give it other duties, that will cause confusion about what its priorities should be. My hon. Friend is right to say that we should not proceed with that particular element of the Bill.

The measures on file sharing are in a different category. There is no question but that piracy of creative content is doing huge damage to our music, film, television and games industries. It is already undermining the economic viability of those industries, yet we are still only in the early stages of the broadband revolution. We all share a desire to move to a world in which broadband speeds are much faster. Derek Wyatt suggested that 100 megabits would be involved, but we are some way short of that. Clearly, however, it is going to get faster, so the potential for piracy will increase dramatically.

At the moment, it takes a long time to download an HD movie, but when we move to a world in which such a movie can be downloaded in a matter of minutes, we will see real problems with piracy. It is terribly important that we take measures to deal with that. However, there are real problems with each of the measures proposed. On file sharing, culprits are to be identified by asking internet service providers to identify their customers through their internet protocol, or IP, addresses. Nobody has yet explained to me how we will deal with university halls of residence; one has to suspect that a large proportion of the occupants of those are likely to be involved in illegal file sharing. Nobody has explained how we are to deal with internet cafés and wi-fi zones, all of which are proliferating. It cannot be right for us to cut off the whole of Starbucks just because one person went in for a cup of coffee and illegally shared files.

The second provision, on site blocking, was introduced at a very late stage. Again, there is no question but that piracy is taking place not only through file sharing but through the accessing of illegal websites. The provisions that have now been introduced, which I assume will also pass, still raise serious questions. Is it proposed that a rights holder will have to take out individual injunctions against every single internet service provider? Unless they do, as soon as one ISP blocks access, the people who want to obtain illegal content will simply transfer their business to the next ISP. It is very simple to set up a proxy server. If access to a website is blocked, those in the business of distributing illegal content will set up a proxy server somewhere else; instead of going through the front door, everybody will simply come in through the back door. If that proxy server is cut off, another will follow.

I support the measures because we need to send a signal that we take the issue of piracy seriously and we want to tackle it. However, let us not think that they will put an end to it. Those who are technically literate will very quickly find a way around them. I hope that the Secretary of State is right and the vast majority of people will mend their ways on receipt of a warning that they are doing something illegal, but I am not wholly confident. In the long term, we will have to look for other solutions. There may be technical means-technology such as content ID, which can identify the individual data coming down the network, might be a way forward. However, the real way forward is to educate people that they should not be doing something, and one has to say that we are failing in that challenge at the moment. We have to get the message across that pirating created content is not only illegal but will put businesses in real jeopardy unless people desist. I support the proposals, but I am not at all convinced that they will achieve the objective that the Government have set.

I now turn to DAB radio. Commercial radio and the BBC have invested huge amounts in moving to DAB, and commercial radio in particular is now in real economic difficulties, as the report that my Select Committee-the Culture, Media and Sport Committee-issued this morning explains. There is no doubt that one burden on it is having to broadcast in analogue and digital simultaneously, and it would provide some help if it had a firm pathway to a future in which it need only broadcast in DAB.

I believe that the 2015 date, which I know is not in the Bill, is unrealistic. It is sensible to set a date, but most people believe that that is probably too ambitious, because of the single problem of car radios. Yes, some manufacturers are beginning to fit DAB radios in cars, but there is a huge reservoir of cars that will not have them for a very long time. We must get to a point at which an in-car radio can easily be converted to DAB. The device that is on the market at the moment, which I have in my car, has so many wires, antennae and bits of equipment that I do not believe it will be taken up with great enthusiasm.

My hon. Friend the Member for South-West Surrey is quite right to hope that one day we will have local television news services. That is the objective, but we are still some way off. The Government brought forward the proposal for independently funded news consortiums, in which my Select Committee saw some attraction, but clearly that is not going to get through this week. There is, perhaps, an alternative way now. The new chairman of ITV has indicated that he might be willing to continue to provide regional news, which is a welcome development, but he will need some help if he is to do that. It is clear that the public service obligations and regulatory burdens of contract rights renewal are imposing real costs on ITV. If we are to help it continue to provide the public service programming that we want to see, such as regional news, one way we can help is to lift those regulatory burdens, including CRR.

I share the enthusiasm for Channel 4 and welcome the fact that its remit is being updated. The Culture, Media and Sport Committee drew attention to the lack of accountability in the current structure of Channel 4, and I welcome the provisions that will require it to give greater detail to Ofcom about how it is meeting its public service remit. I am concerned that it is not subject to the same provisions as the BBC, for instance, on the potential impact of its activities on commercial competitors. Although it does not receive public subsidy, it is nevertheless owned by the state and needs to look carefully before moving into areas in which commercial competitors are already present. I should like there to be at least some recognition of that.

There are provisions in the Bill relating to video games classification. Many Members who are currently in the Chamber will have participated in long debates about whether that should be responsibility of the British Board of Film Classification or whether the pan-European game information system should be used. That has now been resolved, although there are still one or two issues of some concern. I would be grateful if the Minister confirmed the Government's intention to recognise the potential loophole that exists in the case of sport and music videos, which are a method by which wholly inappropriate content can sometimes be viewed by people who are under age. The Government have suggested that they are willing to address that. In general, I will be pleased if the important provisions on video game classification pass on to the statute book.

Clause 43, on orphan works, and the subsequent clauses dealing with extended collective licensing, have been mentioned. That is another terribly sad subject, because the wish to use some of the creative content currently locked in libraries, museums and the BBC is absolutely right. The motivation behind clause 43 is entirely admirable, but again, it was not properly thought through and there are genuine concerns about the conditions in which it will operate. There is supposed to be a market rate, but what is the market rate for a photograph that has never been used? Photographs have hugely varying costs depending on who took them, their content and their age, yet it is suggested simply that there should be a market rate. There is also concern about the so-called "diligent search" that the collecting agency is supposed to carry out, and how diligent it will actually be.

Photographers have also expressed concerns to us about how metadata can fall off a photograph accidentally, or perhaps even deliberately through the actions of those who want to exploit it. It is sad, but there is no question but that clause 43 in its current form is not fit for purpose. In the circumstances in which we find ourselves today, without any ability to consider properly how the clause can be amended, my hon. Friend the Member for South-West Surrey is right to say that it should not be passed. That is a missed opportunity, because we have not had time to go through the Bill properly.

I welcome the provisions to extend public lending right into the area of e-books, which may become much more popular in the near future. Mr. Foster is quite right to say that they will be universally supported.

The final clause about which I have some concern is clause 46, which has not been mentioned this afternoon. In the House of Lords my party rightly identified what was then clause 17 as giving the Secretary of State sweeping powers to amend legislation by order and, essentially, bring in whole new areas of copyright law without proper debate. Clause 46 appears remarkably similar in that it provides the Secretary of State with general powers to amend legislation by order. I hope that that is not right, and that it is not a Henry VIII clause. I would be grateful if the Minister could confirm that, because if it is a Henry VIII clause, providing such wide powers, we should not pass it.

Although there is a great deal in the Bill that I support, I still fear that some measures that will go through have considerable flaws, and that we may well have to revisit them in future. There are other clauses, which my hon. Friend the Member for South-West Surrey identified, that we should not be prepared to pass.

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