Motion to Approve

Part of Copyright and Rights in Performances (Personal Copies for Private Use) Regulations 2014 – in the House of Lords at 5:30 pm on 29 July 2014.

Alert me about debates like this

Photo of Baroness Morris of Yardley Baroness Morris of Yardley Labour 5:30, 29 July 2014

My Lords, I am grateful to the Minister for presenting the statutory instruments but I agree with everyone else who has spoken. I have real doubts about what they will mean for the creative industries. I know that her predecessor noted how much consultation had taken place round the issue, and my noble friend Lord Stevenson made the same point. The history of this is very long, and we are left asking if after all those years of consultation and all those meetings, with everyone being opposed to it, what is it doing here in the House about to be passed? Consultation has an element of taking people with you, or persuading people and putting them in the position of seeing the strength of the argument. That has not happened in the sector, which is the sadness of today. As it is not primary legislation we know that it will go through at the end of this debate, and in terms of a responsible House and good-quality legislation that is to be very much regretted.

I have two points to make on a particular aspect of the statutory instrument, but before doing so I declare an interest as a director of the Performing Rights Society and, along with the noble and learned Lord, Lord Scott, as a member of the Secondary Legislation Scrutiny Committee, which considered this legislation. I agree with the Minister that we need to bring the position up to date. I can see that the legislation looks old fashioned and is not fit for purpose, but people are unwittingly breaking the law day after day. It is not an argument against bringing legislation to the Houses of Parliament but an argument against the detail. If we take the example that we have to make it legal for somebody to download or transfer information from their CD to their iPod, I cannot disagree with that. It is what happens and it makes sense. It is allowing the user to take advantage of new technology and I do not think that many rights holders would complain about that.

I want to concentrate on the fact that the statutory instrument extends the right to private copying to the cloud service. This is new technology. A lot of the other private copying exceptions that have been given as examples are not about new technology; it is legislation catching up with the past. With the cloud service—locker service being new technology—this statutory instrument will set the framework for this technology for many years to come. It is a golden opportunity. New technology is not within the legal framework of protecting rights, so this is our chance to ensure that the signals we give do not repeat earlier errors of a creative sector that is not in line with the technology and the way in which people want to use it.

I know that the statutory instrument says what is not allowed—but ask anyone in the film industry about how it has suffered from what was not legally allowed but what was easy to happen. In introducing the debate the Minister said that it is quite clear in cloud technology that it is for personal use only and does not allow friends, family or anyone else to use it. However, it is easy to happen. We will see exactly what happened in the film and music industries. Half the world will say it is illegal and the other half will say that it is easy and everyone does it, so it will continue. To introduce that for new technology with cloud services is a wasted opportunity. I wonder whether the Minister realises the full range of services operated by the cloud locker services. With Dropbox, which many people access now, it is so easy to share information and data with other people. It is almost possible to do it inadvertently or by accident. It is almost that easy that people will assume that that is what the technology is for.

Now is the time to give a message, but is there education on this? Is there any good-quality information in the guidance that goes with the legislation about how this should be interpreted and what should happen? There is not. Why have the Government not put an obligation on the people who run cloud locker services to provide information to customers about what they can or cannot legally do? None of that happens but there is legislation, which includes in its title,

“Personal Copies for Private Use”,

and which by its lack of understanding of the cloud locker services gives the message that it is possible. We have missed the opportunity to give a message about what is and what is not legal. Moreover, we have given the opposite message that copying is possible with this new technology.

Secondly, what makes this issue different is that these services are commercial. People are making money from them. They are monetised and revenue earning. Unlike many of the other new technologies, where the creative sector was very slow to act and to make it possible to legally download for personal use, on this new technology—to its credit—it has tried to get ahead of the game. Many of the cloud services are being licensed at the moment, so it is possible legally to pay money, return to the copyright holder and make, if you like, a legal market.

With this legislation there is confusion for the user over what is legal in relation to cloud services; and the Government are interfering in a new market that is building up, into which a lot of people have put a lot of hard work. They have tried for the first time to ensure that it is easier for people to use this new technology, while still providing a return to the licence holder.

Finally, I have a great deal of sympathy with the argument that the lack to compensation to rights holders is what the Government have wanted to do, and that they have looked through every bit of case law and every word in every directive to justify their decision. Rather than looking at the evidence and weighing up the different cases—which I know are contradictory—the Government have sought a few phrases with which to justify a decision that they wanted to make. The cloud will stand to benefit financially from this legislation. It will make it financially a more attractive service because of personal copying. Because of that, the people who will lose are the rights holders and the creators. If nothing else in this statutory instrument makes the Government pause to revisit the issue of whether compensation should be paid, their action on cloud locker services should do so.