I beg to move amendment 97, in clause 56, page 46, leave out lines 5 and 6 and insert

‘provide that any act which may be done under this Chapter notwithstanding the subsistence of copyright is pursuant to such regulations no longer permitted without regard to the subsistence of copyright.’.

With this it will be convenient to discuss the following:

Amendment 98, in clause 56, page 46, line 6, at end insert—

‘(1A) The power to make regulations under this section is exercisable only in making provision for the purposes mentioned in section 2(2)(a) and (b) of the European Communities Act 1972.’.

New clause 15—Sharing and viewing on the internet—

‘(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In Part 1 (copyright) after section 30 (in the general provisions) insert the following new section—

“30A Sharing and viewing on the internet

Where work is made available to the public at a particular web address with the permission of the owner of the copyright in that work, copyright shall not be infringed by—

(a) any circulation of that web address, or of its title, or of another web address that redirects to that web address;

(b) the downloading of any data required to display that work at that address, and any subsequent processing of that data, including processing for display, provided that it does not result in any publication elsewhere of the work or an adaptation of the work.”.’.

New clause 16—Material available to the public under freedom of information—

‘(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In Part 1 (copyright) after section 47 (in the provisions relating to public administration) insert the following new section—

“47A Material available to the public under freedom of information

(1) Where material has been communicated to the public, pursuant to a freedom of information provision, any copyright in the material as a literary work is not infringed by the copying of so much of the material as contains factual information of any description for a purpose which does not involve the issuing of copies to the public.

(2) Where material has been communicated to the public, pursuant to a freedom of information provision, copyright is not infringed by the copying or communicating to the public of the material, for the purpose of enabling the material to be inspected at a more convenient time or place or otherwise facilitating the exercise of the right conferred by section 1 of that Act.

(3) Where material which has been communicated to the public, pursuant to a freedom of information provision, contains information about matters of general scientific, technical, commercial or economic interest, copyright is not infringed by the copying or issuing to the public of copies of the material, for the purpose of disseminating that information.

(4) The Secretary of State may by order provide that subsection (1), (2) or (3) shall, in such cases as may be specified in the order, apply only to copies marked in such manner as may be so specified.

(5) In this section, “freedom of information provision” means—

(a) section 1 of the Freedom of Information Act 2000;

(b) section 1 of the Freedom of Information (Scotland) Act 2000; and

(c) regulation 5 of the Environmental Information Regulations 2004.

(6) The Secretary of State may by order add further provisions to subsection (5) above.

(7) An Order under this section shall be made by Statutory Instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.”.’.

The clause is important. I seek your guidance, Mr Brady, about whether we will have a clause stand part debate. My remarks will range widely around the issues involved, just as a means of explaining the rationale of the amendments, and I hope that, with your permission, I will be able to do that.

My guidance is that whether we have a stand part debate depends on how widely the debate on the amendments has ranged.

Thank you, Mr Brady. That is very helpful.

As I and my hon. Friends have often said, the Bill’s purpose is to try to improve the competitiveness of this country’s economy and, in so doing, to nurture the growth sectors of the global economy in which Britain has a competitive advantage now and might have in future. The sectors of the global economy in which we are strong are automotives and pharmaceuticals, and we are particularly strong—I know that the Minister of State has been to the Farnborough air show this week, as have I—in aerospace, defence and security.

I also think that we are strong in the creative sector, in which we play a leading role. Thinking about it, the creative sector makes an immense contribution to the British economy. We are the world leader in the music industry. It is fitting that we are talking about this on 12 July, because it is 50 years to the day since the Rolling Stones played their first gig at the Marquee on 12 July 1962—I think the Minister of State was there. But to return to the present day, our small island has had a remarkable impact on popular music throughout the world. We had almost 13% of global music sales in 2011. One in eight albums sold around the world is British. The UK has had the best-selling album artist anywhere in the world in four of the past five years.

Not the Stone Roses, please.

That’s next year.

The UK’s best-selling album artists were Amy Winehouse in 2007; Coldplay in 2008; Adele in 2011; and—I have left the Minister’s favourite till last—Susan Boyle in 2009. Those are tremendous achievements for the British economy and for the creative sectors.

I have not mentioned this before, but I am fond—too fond—of the Stone Roses. I do not think I have mentioned that I went to see them play at Heaton Park. Their three concerts in Manchester, attended by 225,000 people, boosted the Greater Manchester economy by some £23 million. Again, that is a tremendous achievement. It shows the links between great British iconic bands and the positive impact that they can have on the economy.

The publishing sector is a particular success story.

I thank my hon. Friend for giving way. Before he moves on from the great successes of the British music industry, is he aware that when I talk to many in the music industry—for example, at the creative industries summit that the Labour party held on Tuesday—I am told that they wish to be treated, particularly by the Government, as an industry that creates jobs and contributes to the economy rather than as an art form, as it were, and that they wish their contribution to be better recognised?

My hon. Friend makes a fair point. We would like to see an industrial strategy that identifies the growth sectors of the future and that works closely and proactively with those industries, such as aerospace, pharmaceuticals, automotives and the creative music industry, to ensure that their concerns are addressed.

I was moving on, Mr Brady, to the publishing sector—

Oh, I thought you were moving on to the amendments.

I need to set out the rationale. [ Interruption. ] The clause is important. I want to address the issues very carefully.

Does my hon. Friend agree that the Minister should want to hear about publishing, given his significant contribution to publishing in this country with his marvellous book?

Absolutely. I think it is currently the 480,000th most popular book sold on Amazon, which is quite impressive. I may be making up those figures. I have no empirical evidence whatever to support what I have said. I am taking a leaf—literally—from the Minister’s own book.

Publishing contributes £5 billion every year to our economy, and 41% of sector revenues come from export sales, which is a bigger proportion than any other country on earth. The UK book market is the fifth largest in the world and we are one of only four countries that produce more than 100,000 titles each year. I am sure the Minister is keen to wrap up the Committee and get on to his caravan holiday, where he can eat a pasty while reading “Fifty Shades of Grey”. It is not simply erotic fiction. I never thought I would use the phrase “erotic friction” in Committee. [Hon. Members: “Fiction.”] The friction is on page 115—[Laughter.]

Science, technical and medical journals employ more than 10,000 people in the UK and generate more than £800 million of annual export revenue. Given that one of our country’s growth sectors is education, particularly higher education, the supremacy of our academic journals throughout the world is an impressive example of dovetailing and mutual competitive advantage.

The third sector that I want to mention is the UK video games and interactive entertainment sector. It is worth £3 billion to the national economy and global growth is expected to exceed 10% per annum in the next decade. We lead the world with creativity in this sector. “Batman: Arkham City”, produced by Rocksteady Studios in north London, sold 2 million copies in its first week of release. There is also “Football Manager 2013” by Sports Interactive, which is based in Old Street, and online games such as “Moshi Monsters”, which is produced by Shoreditch-based Mind Candy and has 50 million registered users.

There are many reasons why we in Britain are so pre-eminent and successful in the creative industries. There is too much to go into here—certainly with your strict chairmanship, Mr Brady—but one of the reasons undoubtedly is the strong legislative framework that surrounds copyright and intellectual property, which gives the creator of works in this country confidence that such creative input will not be exploited or reproduced without some sort of recognition or reward. We jeopardise that strength in the legislative framework at our peril.

My hon. Friend makes a valuable point about copyright, particularly in terms of publishing. Does he think that the promotion of the Minister’s book has been enough compensation for me copying a few chapters?

I will see my hon. Friend in prison.

The World Trade Organisation forecast suggests that intellectual property value is growing faster than world GDP. Other countries are grasping the importance of the link between a rigorous copyright and IP regime and the facilitation of economic growth. South Korea is a good example of that. In 2004, South Korea was put on a watch list by the US Government for failing to protect copyright and IP. The South Korean music market collapsed in the first decade of the 21st century—I am afraid I have no idea about bands from South Korea. However, through tough legislation to clamp down on illegal file sharing the industry has returned to growth. In 2010, music sales in South Korea grew by 11.7% and the market has become the 11th biggest in the world.

I thank you, Mr Brady, for your indulgence, because it was important to set the context. We in the UK are leading players in the global creative sector. The sector will become an increasingly important part of the global economy, as well as our domestic economy, and Britain is well placed to exploit our competitive advantage. However, other countries are closely considering the link between copyright protection and growth in markets. With its ill thought-through proposals in clause 56, the Government risk undermining that potential success in the future. In its submission to the Committee, UK Music stated:

“The inclusion of copyright clauses in this Bill came as a surprise to many copyright stakeholders. We widely anticipated copyright legislation, but we did not anticipate that the copyright legislation would be attached to this particular bill. This ‘surprise’ generated a degree of confusion and alarm amongst our community. This was needless. Better communication between the Government and its key stakeholders would have prevented this.”

Such comments do not demonstrate a decidedly pro-business, pro-growth or pro-enterprise stance from the Government.

We have mentioned time and again that with this Government there is an absence of consultation with business and a subsequent lack of certainty for companies, whether it be the feed-in tariffs or the oil and gas raid by the Chancellor in the Budget of 2011or the lack of progress and certainty regarding the regional growth fund. The simple fact that the music industry, an important industry for the UK economy, has stated that the Government’s actions in this Bill are cause for “confusion and alarm” does not suggest a harmonious—do you see what I have done there?—productive and mutually beneficial relationship between Government and business that will allow for long-term stability and investment and the continuing supremacy for UK businesses.

The lack of an impact assessment on this part of the Bill, the absence of any intellectual property and growth White Paper on the back of the recent copyright consultation and the tabling of wide-ranging and significant new clauses a matter of days before the Committee is due to consider them all indicate a piecemeal, ad hoc and rag-bag approach to copyright legislation. Indeed, it seems that the Government are making policy up as they go along, with no consideration of the wider repercussions or the impact on competitiveness for an important sector.

As I understand it, the original intention of clause 56 was to maintain penalties to prevent breaches of copyright on such things as piracy. We would support the original intention and hope to work with the Minister to revise the wording of clause 56 to ensure that that intention is implemented into law. That is the basis of our amendments.

I want to set out the basis and rationale of the amendments, as they deal with concerns regarding the current wording of the clause. I say here and now that we will not press our amendments to the vote if the Minister agrees to withdraw clause 56 in Committee and pledges to return on Report with a form of wording that legislates for its original intention, rather than the wider, vague and ambiguous Henry VIII powers that clause 56 currently provides.

A generous offer.

It is still on the table.

My hon. Friend the shadow Secretary of State raised concerns on the matter on Second Reading, where the Chair of the Select Committee on Culture, Media and Sport also raised concerns. The Chair asked the Secretary of State to confirm first, and correctly, that

“copyright is the legal expression of intellectual property rights, and is not a regulation”.—[Official Report, 11 June 2012; Vol. 546, c. 65.]

The Chair of the Select Committee also asked the Secretary of State to reassure the House that changes to  copyright—specifically, extensions of copyright extension —would not be passed through statutory instrument and without full and proper parliamentary scrutiny.

Following Second Reading, the Secretary of State wrote to the Chair of the Select Committee, copying in my hon. Friend the shadow Secretary of State, and placed a copy of the letter in the Libraries of both Houses. He said, regarding the Chair’s concern on copyright exception, that

“if following careful consideration of responses to its recent consultation. the Government decides to make changes to copyright exceptions it would be our intention to do so via secondary legislation. This can already be done using existing powers in section 2(2) of the European Communities Act 1972.”

That is an important consideration, which forms the basis of one of our amendments, and I will return to the matter of the 1972 Act.

The Secretary of State also referred to clause 56 in his letter and the power that it will give to him. He said:

“This power will allow us, when necessary, to make changes to exceptions, while also ensuring that the current penalties associated with serious cases of copyright infringement are maintained and apply consistently to offences of equal seriousness. I can reassure you”— the Chair of the Select Committee—

“that the power is limited to the amendment of exceptions and does not allow any other amendments to copyright. As a safeguard, each use of the Order-making power must be approved by Parliament.”

Two issues form the basis of our amendments, and I will deal with each in turn. The Secretary of State maintains that he has the power to make changes to copyright exceptions via secondary legislation, using the powers provided by section 2(2) of the 1972 Act. Over the weekend, I read Hansard and the 1972 Act. Section 2(2) states:

“Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision…for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or…for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid.”

However, schedule 2 to the 1972 Act, to which section 2(2) refers, states in paragraph 1(1):

“The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2) (a) and (b) shall not include power…to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal”.

It is clear that the powers conferred on a Minister by section 2(2) of the 1972 Act are limited, confined to implementing EU directives. Moreover, the schedule to the 1972 Act expressly prohibits a Minister from having the power to legislate by order, other than for the rules of procedure for any court or tribunal. That is not applicable in the case we are discussing.

My hon. Friend is demonstrating the slight contradictory nature and confusion of what is being brought forward. That was emphasised on Second Reading. The Chair of the Select Committee on Culture, Media and Sport asked the Secretary of State:

“Will he assure the House that the Government will not change copyright in that way without proper parliamentary scrutiny?”

The Secretary of State replied:

“Yes, I can give assurances on that.”

But only 20 minutes later in the same debate the Select Committee Chair asked the Secretary of State exactly the same question:

“Can he provide an assurance that they will be introduced not by statutory instrument, but in proper, primary legislation?”

The Secretary of State replied:

“I am not going to give the hon. Gentleman a very precise answer because I will need to check on the exact legal position.”—[Official Report, 11 June 2012; Vol. 546, c. 65-74.]

Does that not highlight the confusion around these clauses?

As I said earlier, I think the Government are making this up as they go along. They do not have a very clear strategy on how to deal with such important matters for a growing and important part of our economy in terms of copyright legislation. We would suggest going back to the 1972 Act. In the interests of greater clarity and greater certainty, clause 56 should be amended to provide that the powers it confers on the Secretary of State apply solely in the context of restricting the operation of copyright exception and regulatory penalties for copyright infringement.

On a wider and very significant point, it is simply not correct to state that any law can be enacted in the UK by a Minister without full parliamentary scrutiny simply because the subject matter falls within EU law. I am sure some Government Members will agree with me on this specific point and about the relationship between this Parliament and EU legislation As I understand it, the original intention of the clause was to address concerns relating to penalties for copyright infringement.

When the Bill was published in May, the Intellectual Property Office explained the rationale behind the clause on its website:

“Currently, when section 2(2) of the European Communities Act 1972 is used to amend the exceptions to copyright and performance rights, this can cause difficulties as its use may require a downwards adjustment of criminal penalties in copyright legislation.”

An order-making power to allow amendment of any exceptions to copyright and performance rights via secondary legislation will enable the Government to preserve the level of penalties which are set out in the substantive copyright legislation. In some cases this includes penalties of up to ten years for copyright legislation on a commercial scale. It would not allow any reduction or increases in penalties.”

The submission from the Publishers Content Forum to this Committee put the situation rather succinctly:

“As a solution supposedly designed to meet a specific and technical need, the language and scope of the proposed Clause seems entirely at odds with the problem it is intended to address.”

The Minister said that he does not like loose, motherhood and apple-pie drafting of legislation and legal language but that is exactly what the clause uses. The Alliance Against IP Theft, in its submission to this Committee, said:

“We question why it has been felt necessary to use such generalised, loose language to address a very specific legal flaw”.

As a former Minister, I understand the importance of and need for secondary legislation. I agree with the use of statutory instruments as a means to implement EU directives where necessary, but full parliamentary scrutiny should be used when creating or amending substantive copyright legislation. There is also a risk that the Government may be tempted to bundle a whole range of reforms of copyright exceptions into a single statutory instrument. This would virtually remove Parliament’s ability to scrutinise, challenge and, where necessary, amend, proposed legislation.

The SI procedure is a clumsy and blunt device: the Committee can either agree or disagree with the motion. But a particular change may have differing impacts on differing industries; some changes may narrow exceptions while others could widen them. In those circumstances, how can hon. Members properly scrutinise the proposed legislation? Can the Minister outline what his policy will be on bundling groups of exceptions together? How could he ensure that each specific copyright exception would be subject to the fullest possible parliamentary scrutiny?

I can imagine a scenario where the House may be asked to consider a bundle of copyright exceptions in the interests of the efficient use of parliamentary time. The House may agree with exceptions (a) and (c), but not (b), for whatever reason. How would the opinion of the House, as set out in that debate, be accommodated by the Government in such a scenario, given the limitations of the statutory instrument procedure?

This morning we considered clause 49 and sunset provisions. Will the Minister outline the relationship between what is proposed in clause 56 and sunset provisions, as in clause 49? He mentioned insolvency this morning and how it would not be conducive to certainty and stability among the sector. Will he also cast his eye over investment in the creative sector? Does he anticipate that such changes to copyright will be for a period of up to five years and then be subject to sunset review? What impact does he think that such an approach will have on investor confidence and certainty?

Let me give some examples. The commercial archive sector is a growing industry with many organisations and innovation in the form of content digitisation and delivery, as well as, it has to be said, competitive pricing. There is a huge risk that many operators in the sector will simply move operations out of the UK and close their businesses in the event of an uncertain copyright and IP regulatory framework. Investment in digitising content to preserve it for future generations and make it available for use by producers and programme makers is only possible if organisations know that they can recoup investment from licensing content. Expensive digitisation projects will simply not happen if there is uncertainty about the protection of intellectual property, or if markets are destabilised due to extended collective licensing, meaning that there is no commercial incentive for them to make such an investment.

In late 2011, for example, 90% of the film and video archive owned by Associated Press was in analogue form, on old film and tape stock. In order to meet demand from creative users, AP has invested $3 million to digitise much of that and make it available via a new  platform, so that their footage can be licensed and downloaded in seconds. ITN has also just completed the full digitisation of its archive in a two-year, multi-million-pound project to digitise 30,000 film cans and tapes. Both companies have told me that that investment was justified by the belief that they can grow licensing revenue in the traditional broadcast market and from digital customers who have previously found analogue content inaccessible. Large contracts were awarded to London-based companies Prime Focus Technologies and Deluxe Digital to implement the projects, but such an investment is now at risk through the implementation of the clause as it stands.

That is the basis of our amendments. Amendment 97 aims to tighten up the clause to ensure that any measure carried out under this section of the legislation is appropriate. With that probing amendment, we intend to find out whether the Government have additional reasons for the provision, other than the specific and original intention to narrow copyright exceptions.

Amendment 98 would clarify the language and ensure that the powers contained in the clause are not Henry VIII powers, but can only be used to implement exceptions provided for specifically in the 1972 Act. Any other changes, such as the right of public performance, are not harmonised at EU level, so we believe that such provisions would require primary legislation.

This is an important clause for a significant and potentially growing part of the UK economy. I hope that the Minister accepts not only our concerns, but our wish to work closely with him on this matter in order to ensure that we have a tight copyright framework, to encourage and incentivise investment in this country, and to protect and nurture the growth sectors of our creative industries. I hope that the Minister sets out his rationale behind the clause, that he will clarify the policy stance contained in the clause, and that he accepts our amendments.

May I first of all disappoint the shadow Minister by confirming that I do not have a caravan, nor do I have “Fifty Shades of Grey”? He should not judge others by his own standards. He is obviously dreaming of his summer holidays ahead and his erotic literature, sitting in a caravan somewhere on the edge of Hartlepool. That vision does not inspire me, but each to their own.

I am grateful to the Opposition Members for their amendments and new clauses. The shadow Minister’s speech was impressive, but he somewhat misunderstood the Government’s purpose and intent. His speech was something of an assault on the Government’s approach to intellectual property, yet the Opposition supported the previous clause, which is a start. We have common ground on that particular aspect.

Clause 56 is not part of the wider Hargreaves work but arose as a specific consequence of our wanting to keep the strong penalties needed to remove exceptions. The shadow Minister talks about evidence-based policy making, proper consultation and proper consideration of the issues, which is precisely why the Government commissioned Hargreaves to undertake an independent review, during which he talked to many stakeholders representing a wide range of views. The Government  will make announcements about the outcome of that review and their response to it in due course, but the review is a proper basis for making policy.

The shadow Minister also said that section 2(2) of the 1972 Act does not give power to take powers, but we are not using section 2(2) today; we are using the 1988 Act to take powers for the reasons outlined. On that point, he is simply wrong.

The shadow Minister also raised concerns about the bundling of different proposals, which was raised by the Alliance Against IP Theft. Parliamentary counsel will decide whether and how statutory instrument changes should be bundled, but I can confirm that the Government will ensure that any proposed changes are presented to Parliament in a way that ensures proper consideration and scrutiny. Any use of the power must include an impact assessment before being laid before Parliament on an affirmative resolution basis.

Why is there no impact assessment for this clause?

Impact assessments are appropriate when using the power; they are not appropriate now. There is no impact to assess. The use of the power will be assessed if and when it is used. As I say, the power may have to be used as a result of judicial decisions that require changes. The power is a mechanism to do so without losing the important penalties in this country’s framework, which are widely regarded as important. The mechanism allows the preservation of those penalties when changes are made.

Given that logic, why have impact assessments been produced for other parts of the Bill, such as clause 50 on heritage protection? Those provisions will not be used until the relevant power is enacted.

In those cases, there is a clear route forward for what the Government seek to do through the measure. Here, we are simply creating an order-making power. Of course, when such powers are exercised, we will consult, do the impact assessment and lay them before Parliament on an affirmative resolution.

Is the Minister saying that, every time such powers are used, they will be accompanied by an impact assessment? What form will the impact assessment take, and how will it be brought to the attention of the House and stakeholders?

I can confirm that if and when the order-making power is used, it will be accompanied by an impact assessment each time, according to the normal principles, which have been strengthened by this Government, of undertaking such assessments. Let me make some progress.

The Government have carefully considered the amendments and new clauses and their potential impact. Amendments 97 and 98 would greatly limit our ability to change the permitted actions listed in the 1988 Act, while maintaining existing penalties for copyright infringement. If this Government or another were required  to legislate to clarify and update the law, they could be thrown back on the use of the powers of the European Communities Act 1972, which would have the effect of reducing maximum statutory penalties. Is that what the Opposition want? What they are seeking to do would have that effect.

The hon. Member for Hartlepool talks about the importance of this country’s regime, and the clarity and continuity that it provides, but his amendments would dismantle it, so that if changes were necessary, the penalties would be lost. I again ask whether that is really what he wants, because that would be the effect.

Does the Minister not accept that the proposals are causing confusion not only in the Government, as was pointed out by my hon. Friend the Member for Newcastle upon Tyne Central, but in the creative industries, as was pointed out by my hon. Friend the Member for Hartlepool? I appeal to the Minister. As the proposals are clearly causing concern, it would be more helpful to withdraw and reconsider them, which would reassure the creative industries, so that they are comfortable with what the Government are proposing.

Of course I understand that when any reform is proposed, the people who may be affected by it will have anxieties. There is no reason to withdraw the provisions, and I hope I can reassure Opposition Members and provide greater clarity to those outside Parliament about what we are seeking to achieve.

If we have to rely on the European Communities Act, as the Opposition seem to want, we would be in a more inflexible position, and I suggest that we do not agree to amendments 97 and 98. More specifically, amendment 97 would mean that the Government could only remove a copyright exception in its entirety, rather than being able to narrow, amend or broaden it. That would create a straitjacket rather than having the flexibility provided by the clause, which is surely worth achieving. At times, it will be necessary to remove an exception entirely, and clause 55, which the Opposition have supported, is an example of our doing just that. However, it is not only possible but probable that a copyright exception will need to be adjusted rather than entirely removed, perhaps as the result of technological changes and/or legal developments and judicial decisions.

Amendment 98 would mean that the Government could restrict only copyright exceptions that are covered by EU law. It would not, for example, allow us to change exceptions in response to domestic legal judgments on those parts of our law—the non-harmonised parts—that are not subject to control from Brussels. I am sure hon. Members will agree that it is better to retain what little flexibility we have in reacting to developments in a rapidly changing world. We would surely all agree that it makes sense to be able to react quickly to ensure that we are compliant with the law.

New clause 15 is an attempt to clarify what may be done with material posted on the internet with the permission of the rights holder. It would explicitly provide that it is not an infringement of copyright to circulate links to such material, or to perform the actions necessary to display it on a personal computer. The question of circulating links to, and extracts from,  material—specifically in relation to news stories posted online—was considered in the recent legal judgment in the Meltwater case, which may yet be subject to an appeal. In the light of this developing jurisprudence, the Government are not convinced that now is the right time to make changes in this area, as there could be an appeal and a judgment. It would also not be a simple matter to frame exactly what legislative changes are required. Bearing in mind the prevalence of EU law, any judgment could have an impact on the changes that the Opposition seek to introduce. If at some future date there is a need to return to the issue, I can assure hon. Members that we will, but we have to wait for the emerging judicial position.

The second point covered by the new clause, which is that it should be legal to perform the steps required to display on a computer material that has been legally published online, does not appear to be necessary. There is already legal protection under copyright law for a person making a transient copy of a work if that is necessary for a lawful use, such as display on a computer. [Interruption.] The hon. Member for Hartlepool seems agitated.

As a point of clarification and help to the Minister, I think he is moving on to new clauses 15 and 16, which my hon. Friend the Member for East Lothian has not yet moved.

As a point of clarification for the Committee, it is not possible to move them at this point, but I have indicated that we will debate them along with the amendments.

It makes sense for me to continue, and the hon. Member for East Lothian can come in afterwards. I absolutely urge her not to tear up her speech; we are keen to hear it.

New clause 16 would introduce new provisions into the Copyright, Designs and Patents Act 1988 dealing specifically with copyright works that have been issued to the public in response to a freedom of information request. I assume that the hon. Lady’s intention is to make it easier to reuse and give further publicity to information released under FOI provisions. As a general principle, I am a great advocate of freedom of information. The new clause would make it possible for information released under FOI to be communicated to the public, perhaps by being posted online. While the hon. Lady’s intention is laudable, the new clause may have unanticipated consequences. It could mean, for example, that material owned by third parties, but held by the Crown, is released under a copyright exception introduced under the provision and is freely usable, which would breach the rights of the third party.

Although that may sound like a good thing, it may not always be to the taste or preference of people who have consigned to the Government, in good faith, material over which they still own copyright to find it spread across the internet and the world. That is what her new clause would do. A third party that has copyright over some material that has been passed to Government to hold in good faith could then find that the Government  had distributed it, effectively to the world, without the third party having any control. That is an unintended and inappropriate consequence. Although there may be laudable intentions behind the proposed new clause, we may find it goes further, faster, than any of us might desire, and I ask the hon. Lady to consider whether it would be better not to pursue it.

In conclusion, the power in clause 56 to amend copyright exceptions is already significantly circumscribed and limited by EU law. Although the amendments and new clauses are intended to clarify the scope of the power, or to clarify the use of copyright works in particular circumstances, they do not add any meaningful safeguards and would undo the intention behind the Government’s proposals. I therefore hope that the amendments and new clauses will not be pressed to a Division.

It is lovely to see you back in the Chair, Mr Brady. I hope that it is not for the last time, as we head towards what will, I am sure, be an emotional ending to the Committee for us all. I am grateful to the Minister for his response on both of my new clauses—I think I am grateful. In a sense, the ball is back in his court: how will he address the issue? It is evident that the law has not caught up with new media and the worldwide web, and the Government must respond. He also spoke about problems due to legal actions that may be subject to appeal, but that can be a reason for delaying doing anything for ever. He spoke about needing to be compliant with EU law, but there are interesting debates going on in this place about our membership of the EU, so perhaps we should postpone until we are absolutely certain what the coalition’s position is.

Whatever one’s views about the European Union—positive, negative or whatever—the fact is that we are in the EU at the moment and subject to the copyright legal framework that exists across the EU and the single market. When court action is under way, and a decision may be appealed, surely it does not make sense to legislate. It could be overturned within months by an appeal decision based on European law.

I thank the Minister for further clarifying his thinking, but I want to press him, and test his thinking on the principle. Once the legal wranglings are resolved definitively, would he wish to take action? A Cambridge professor, Lionel Bently, said:

“there is something fundamentally wrong with a legal regime which renders the innocent acts of many millions of citizens illegal.”

Many of those citizens may be in Committee today. We all have websites—I hope we do—that we use to communicate with our constituents. We may also have Twitter accounts that we use to tweet links to published articles. In all innocence, we could be breaking the law. The Minister really has to come up with something better than saying “not yet.”

My hon. Friend is making a powerful speech. The legal judgments have been made, and they are being appealed, or other action may be being taken to resolve the matter, but at this moment, the websites of the Minister and of the Secretary of State for Culture, Olympics, Media and Sport are in breach of the provisions.

I thank my hon. Friend for his intervention. I did intend, at least, to draft the amendment tightly to remedy the problem. Two activities would be confirmed as legal: first, circulating links to lawfully published copy, and secondly, viewing that content in a web browser.

The hon. Lady referred to the concern that millions of citizens may be inadvertently breaking the law, but the change introduced by the new clause does not appear to be necessary. There are already legal protections under copyright law for a person making a transient copy of a work if it is necessary for a lawful use, such as display on a computer. There is the issue of the commercial interest, which is being played out in court, but in terms of individual citizens, her concerns may not be well founded.

I am grateful to the Minister for that reassurance. Of course, he has the benefit of “inspiration” on his side.

I am still confused by the Minister’s intervention. My hon. Friend referred to tweeting. I tweet regularly, but a tweet is not transient. It stays in the memory of machines—and hopefully of people as well—for a long time, so that is not a transient use of a link.

I thank my hon. Friend for her intervention. I am sure that her tweets are in no way transient, and are permanently burned into the minds and memories of the readers.

I refer the Minister to the Copyright, Designs and Patents Act 1988. My understanding is that it permits free linking to copyright material only when a copyright owner has made it available online, and it does not allow the work to be republished or adapted unless already permitted by the 1988 Act. If the Minister’s understanding of the 1988 Act is different, I would welcome an intervention from him, or his receiving inspiration from another source. I look forward to hearing from him on that point in his response. The Act does not permit any new republication or reuse of copyright material, nor does it permit anyone to link to infringing content. It does not allow web users to bypass paywalls.

As I said, this issue is relevant to many of us, if using our websites to post a link to an article infringes existing law. Without the new clauses, that will remain the case. To take examples from the Cabinet, such postings regularly appear on the sites of the Secretaries of State for Culture, Olympics, Media and Sport; for Work and Pensions; for Energy and Climate Change; and for Education. Perhaps they have licences; perhaps not. Either way, it does not seem right that they should need a licence for this fundamentally innocent activity. Nor should the Minister, who rightly shares links to coverage of his work with constituents and other interested parties, be at risk of breaking the law.

What is more, if the new clauses fail, or the Minister cannot give me assurances that these issues are covered—that the 1988 Act does not apply in this way—we will still be in the perverse position that we would breach copyright simply by visiting a public website in our offices. Luke Scanlon, from the legal firm of Pinsent Masons, wrote earlier this month:

“The UK Government is considering reform of copyright laws in the wake of the Hargreaves Review. One change that it must  make when reforming copyright law is to make it clear that the act of web browsing does not require permission from copyright holders.”

If the Minister can assure me that that is the case, and no amendment to the Bill is required to meet those criteria, I will be happy not to press the new clauses to a Division.

The new clauses also clarify the status of shortened web addresses, which is particularly important to those who tweet. For tweeting a link to legitimately published content online—a movie trailer on the studio’s website, for example—Twitter uses a short form, t.co, which forwards to the original address. Tweeting a link to a positive article about this Committee’s work, perhaps, should one appear in a newspaper tomorrow, should not breach copyright. We should all be able to further the mission of publicising the excellent work of the Committee.

The 1988 Act was drafted before the world wide web was proposed by Tim Berners-Lee, and its original provisions do not take account of the most innocent use of web technologies. This is therefore an excellent opportunity to bring legislation up to date. The Minister said he was grateful for our contributions, but it would be nice if on this occasion that gratitude could extend to his admitting that the Bill is not completely perfect.

In making this change Parliament would also be adhering closely to the information society directive. To quote Professor Bently again, this time looking at that directive, the fundamental point is that

“browsing—looking at a webpage—does not involve an infringement and is perfectly lawful (unless in breach of some sort of security provision). Article 5 is intended, amongst other things, to ‘enable’ such legal acts of browsing: temporary copies created to facilitate such browsing are deemed non-infringing.”

The new clause would be a limited way to realign copyright law with European legislation—that was the advice that I was given—and to render innocent acts legal, including the 1.3 million articles that British web users post to Twitter or Facebook each month. I look forward to the Minister’s response. I hope that he will acknowledge that there is an issue and that he will give an undertaking to deal with those concerns. At that point, I may consider withdrawing the new clause.

We do not feel that there is an issue that needs to be addressed. I apologise for repeating this point, but the issue is subject to litigation. There is a decision, and it may be appealed. It would make sense, as far as I can see, to await the outcome of any possible appeal that may be brought in the case.

Will the Minister give us a commitment that if the legal processes go one way or another, he will return to the House with some kind of legislative response, in order to ensure that the issues raised by my hon. Friend the Member for East Lothian do not come to fruition?

I absolutely agree that the issues raised by the hon. Lady are important and legitimate. The sensible thing to do is to await the outcome of any further appeal in the case—there may not be, but there  could be—and to review the position in the light of any decision that emerges. We are, as I have indicated, subject to European law in that area of policy. One therefore cannot simply legislate in ignorance—I do not mean that in any way rudely—of the overall European context, within which we have to operate.

Reference has been made to the question of an individual sending a short link. That in itself is lawful, but the wholesale copying of an article would be an infringement of copyright, unless the author has given permission.

Fiona O’Donnell:

That will be reassuring to the 1.3 million citizens whom I referred to.

I want to press the Minister to place categorically on the record that any individual posting the title of a published content on their website, Twitter or Facebook will not be found guilty of breaching copyright law.

That is a complex legal area. It is important that we get the correct answer. I will await my officials to give the hon. Lady an absolutely clear response to the question.

Let me quickly make one or two additional points. I am happy to allow an intervention in a moment if necessary. Circulation of links and tweets are not the same as transient copies for display. Links have been dealt with in the Meltwater case that we have referred to. We must await the outcome of the case.

May I give a rather depressing response to the hon. Member for East Lothian? Ultimately, the matter is for the courts to determine. As the law is evolving and practice is evolving, as we use the internet more and more, to a degree, one has to wait for judicial decisions on the basis of European law to determine whether any particular act is lawful. Ultimately, they are decisions for the courts.

The Minister is trying to clarify matters in a difficult and complex area, but his clarifications, and his Government’s clarifications, need to go much further. For example, he said that wholesale copying is illegal. Could he clarify what “wholesale” means in that context? When I forward a tweet, I am copying it to my 4,000 followers. Is that wholesale copying? On the general point that the law is evolving, the law comes into disrepute if the vast majority of people in this country do not understand what is legal and what is illegal. The points that my hon. Friend raised are important. The law needs to be seen to be in the 21st century, and I urge the Government to take further action.

Let me say a couple of things. First, we will reflect on the explanatory notes to ensure that they give as much clarity as possible. If they can be improved, we will ensure that we do that. Secondly, it will be worth my writing to members of the Committee to reflect on everything that has been said today, particularly the speech that the hon. Member for East Lothian gave in presenting her new clauses, so that we can give as clear a position as possible.

Unfortunately, we all just have to accept that the law on internet use—internet use is growing rapidly—is evolving, so one cannot give absolute clarity about which individual actions a court might conclude are  lawful or unlawful. It is simply impossible for us to give a clear view about the judgments that will be reached by courts in due course, but I will try to give as much clarity as possible on our understanding of the European law position by writing to members of the Committee.

The Minister is giving some assurances that the Government are taking this issue seriously, and we all appreciate that case law is evolving in regard to digital, media and the internet, but through the probing of our amendments and our interventions we are seeking—Parkins v. Sodexho Ltd was referred to during early parts of our consideration and the Government tried to legislate in primary legislation to mitigate the effects of case law—assurances that if we have to mitigate for the effects of case law, the Government will look seriously at it.

The critical question is that when one gets case law, it is inevitably appropriate to consider the implications of that case law. When one is dealing with an area of European competence, any response that one makes has to be in accordance with that European legal framework. I am sure that the hon. Gentleman understands that. People in this room will have different views on the EU, but a well-functioning single market is absolutely in the interests of the UK economy and having good clear copyright rules that apply across that single market is equally important. We would, of course, reflect on any decision and act, if appropriate, within the boundaries of what European law allows.

I realise that we could come up with thousands of scenarios, but would a UK citizen be performing an illegal act if they received an e-mail or a tweet from outside the UK which had a link that took them to published content and they downloaded it, given that the link originated outside the UK and would not be covered?

It depends on whether the content is in breach of copyright and the particular circumstances of the case. Most links are not copyright works, so circulating the link is usually acceptable. I fully understand and everyone recognises that it is not an ideal situation for an individual consumer—a user of the internet, as we all are. There is a lack of clarity because of this evolving European law. As I said, I will write to hon. Members to give as much clarity as we can in this highly complex area of law.

As I say, much of what we circulate is not subject to copyright law. But what about extracts from published works which appear in a paper, such as pages 10 to 12 of “Fifty Shades of Grey”? I have not read the book. I do not know whether I would want to post a link to that as I am more of an M and S girl than S and M. [ Laughter. ] However, many Members post links to something in a newspaper when the content of the newspaper is subject to copyright law.

The answer there is that it depends on the size of the extract from “Fifty Shades of Grey” that the hon. Lady was seeking to disseminate to her followers. I am getting extremely concerned about the activities of  Labour Members, particularly over the lazy summer months. It depends on the scale. To pass on a brief quote would not be a breach. But if one were to disseminate a substantial chunk of a copyright protected work it would be a breach of the law.

I am sure that the whole Committee will agree that we have strayed into a complex area. There are some worrying challenges out there. The Minister was talking about the extent of a passage in a book that we chose to post a link to. What is substantial? What is small in terms of literary works is something we may wish to ponder. He may have his lazy, hazy days of summer to do just that. I believe the Minister to be a good and honest man and that he will give this his attention. I therefore indicate my desire to withdraw the new clause.

Order. It might be helpful for guidance to point out that the new clauses will be reached at a later point so it need not trouble us at the moment.

I rise briefly to respond to what the Minister said about my remarks. I am not convinced by what he said. I said that we have a world-beating industry in the creative sector. We need to nurture that as much as possible because it will be a growing part of the global economy. One of the reasons why we have such a world-beating industry is because we have robust and stable copyright and IP legal frameworks in which people can create works. In a modern digital age where technology is moving quickly, we need to ensure that that is still the case.

Would the hon. Gentleman accept that the effect of his amendment would be to require us to rely on the European Communities Act for any amendment required as a result of a judgment under European law? That would result in us losing the ability to impose sanctions at the level that is deemed appropriate in this country, thereby putting at risk the very regime that he says is so good.

My concerns are fourfold. First, I am not convinced that we have empirical evidence on this. This is something that the Business, Innovation and Skills Committee mentioned in its report, “The Hargreaves Review of Intellectual Property: where next?” Hargreaves says that there could be £2.2 billion-worth of economic activity arising from the review. But it is difficult to drill down and provide robust, empirical supporting evidence for that figure. The head of the Intellectual Property Office is quoted in the report. He stated:

“Inevitably the estimates that the Hargreaves Review produced were broad-brush. Where we are now taking forward the recommendations, we are in any case required to produce much more detailed impact assessments. That is what we have been working on over the last few months and so our plan, for instance, in the copyright area will be to publish a consultation with much more detailed costs and benefits. Obviously, part of the point of that is to consult people on the policy, but it will also be to get people’s opinion on the strength of the analysis and of the cost benefit.”

If that had been done, we would be in a more secure place in relation to the drafting of the Bill, but it was not done—the Minister has put legislation before consultation—and that has unnerved the industry and undermined potential investor confidence.

As it is currently drafted, the clause is far too vague and uses loose language. It gives wide-ranging powers to the Secretary of State without providing for full parliamentary scrutiny, and I am incredibly concerned about that. We should always be concerned about Henry VIII powers, and I am convinced that the clause has such powers.

With your permission and guidance, Mr Brady, I wish to test the opinion of the Committee on my amendments. I want to put it on the record that, because the subject is of such importance to a growing part of the UK economy, we will return to it on Report and at other stages.

I rise briefly to repeat that the clause is not part of Hargreaves. I have sought to make that point very clear. Indeed, any use of the power will be accompanied by an impact assessment, proper consultation and the opportunity for Parliament to make a decision. I repeat that the amendments, which the Opposition seek to press to a vote, would undermine the framework of sanctions in this country. The only way we would be able to make changes required by judgments under European law would be to use the European Communities Act, thereby reducing our ability to impose fines or imprisonment for breaches. Do the Opposition really want to undermine that sanctions regime?

I reiterate what I said before: I want to test the opinion of the Committee.

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Amendment proposed: 98, in clause 56, page 46, line 6, at end insert—

‘(1A) The power to make regulations under this section is exercisable only in making provision for the purposes mentioned in section 2(2)(a) and (b) of the European Communities Act 1972.’. —(Mr Iain Wright.)

Question put, That the amendment be made.

The Committee divided: Ayes 6, Noes 11.

Question accordingly negatived.

Mr Wright, you sought my guidance earlier. I indicated that if we had a wide-ranging debate, it was my intention to treat that as a clause stand part debate. I think we have had an extraordinarily wide-ranging debate—at times, an entertaining one—so I propose to put the question on the clause.

Clause 56 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jeremy Wright.)

Adjourned till Tuesday 17 July at Nine o’clock.