New Clause 2 - Future of intellectual property

Intellectual Property Bill [Lords] – in a Public Bill Committee at 2:00 pm on 30th January 2014.

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‘(1) Subordinate legislation to implement the government’s policy statement entitled “Modernising Copyright” published in December 2012 will not be brought forward until the Secretary of State has published, and laid before both Houses of Parliament, a report setting out the government’s long term plans for the future of intellectual property in the United Kingdom.’.—(Mr Wright.)

Brought up, and read the First time.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

I beg to move, That the clause be read a Second time.

I still bear the scars on my back that I received during Committee stage of the Enterprise and Regulatory Reform Bill. I have fresh wounds this week, as a result of this Bill and I know that the Minister has, too. He will know that that Bill originally included clauses providing for secondary legislation to add or remove copyright exceptions. There was considerable concern in Committee, and from stakeholders, about the manner in which the Government dealt with that. The process whereby the Government introduced the proposals for copyright exceptions was universally condemned as mishandled and ill judged.

During the Committee stage of that Bill, I quoted the submission from UK Music, which 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.”

The phrase “confusion and alarm” is strong and does not give the impression of a Government with any clear vision of how they wish to move on IP generally and copyright specifically in this country. They did not originally produce any impact assessment for the copyright exceptions part of that Bill. The Minister, when he was discussing new clause 1, said that there was a grand vision and that the Government were moving in a stately manner towards its implementation, but that is simply not happening. It actually suggests that the  Government were making it up as they went along, without any due consideration of possible repercussions, the impact on stakeholders or the effect on the competitiveness of our UK creative industries.

The Government have had to backtrack and rethink, but significant problems remain. There are concerns about the lack of clear definitions in many parts of the exceptions. Stakeholders have found so many holes in the proposals that it seems inevitable that they will not be complied with. Perhaps that is why we are still waiting for them to be tabled and debated, as there is again a need to go back to the drawing board.

I am very much aware that some stakeholders believe that there is a strong business imperative to bring about certain copyright exceptions to help with their sectors. We will come to them when we consider the secondary legislation. Conversely, doubts remain in some quarters. I have referred on numerous occasions in Committee to the excellent Select Committee report on the creative industries, which concluded:

“We are not persuaded that the introduction of new copyright exceptions will bring the benefits claimed and believe that generally the existing law works well. We recommend that the introduction or amendment of copyright exceptions should be contemplated only following detailed impact assessments and after proper parliamentary scrutiny on an individual basis.”

I must stress that last point, because it is crucial. There remains a risk that the Government will bundle all the copyright exceptions into one statutory instrument, giving Parliament the opportunity only to say yes or no to the entire package. That is unacceptable given the nuances and differences in some of the proposed exceptions. What the Minister said on Second Reading was fascinating. To my mind, the language that he used appeared deliberately imprecise:

“What the Government intend to do on copyright exemptions is to lay down the regulations in February, and they will then be subject to a debate under the affirmative resolution procedure. We understand the need for individual consideration;”— this is the key point—

“the regulations will not be completely bundled up.”—[Official Report, 20 January 2014; Vol. 574, c. 83.]

The phrase

“will not be completely bundled up” leaves open the prospect of some element of bundling in the regulations. We need clarity on the issue. Will the Minister confirm in responding that none of the proposed exceptions will be lumped together, and that all will be subject on an individual basis—that is the key point—to affirmative resolution? What sort of preliminary stage will the Minister offer Parliament to ensure that both Houses are fully aware of the nuances and repercussions of the copyright exceptions?

This goes to the heart of new clause 2. All those things point to ensuring that the Government must set out a long-term vision for intellectual property, rather than undertaking piecemeal and ad hoc attempts to tinker without consulting this House or key stakeholders. It is insufficient to claim that the long-term vision for IP has been set—that Hargreaves has reported, and that the Government are merely implementing his recommendations. Both the BIS and CMS Committees have questioned the evidence used in Hargreaves, and the delay and dither that have characterised the  Government’s handling of the copyright exceptions does not give the impression of an Administration confident in their long-term vision and implementing in a stately, steady and certain way their plan for IP.

The Minister said today that the Government have produced reports. It is not necessarily a question now of producing other reports; it is about what they do with them. All the evidence in this part of the IP regime indicates that they have blown it in many respects. They have tinkered and been proved lacking. Before further mistakes are made, the Government should set out a formal and long-term plan. That is the purpose behind new clause 2, and I am interested in what the Minister has to say in response. I commend the new clause to the Committee.

Photo of David Willetts David Willetts Minister of State (Universities and Science) 2:15 pm, 30th January 2014

I very much disagree with what the hon. Gentleman has just said, and I have the evidence. I have here a pile of reports about copyright and IP. I have “Creative Britain—New Talents for the New Economy”, signed up to by a range of Secretaries of State in the previous Government, including the right hon. Member for Southampton, Itchen (Mr Denham), then Secretary of State at the Department for Innovation, Universities and Skills, or DIUS—we used to call it the Department for ironing underwear and shirts. I also have the final report of “Digital Britain”, which was published in 2009 with a foreword by the right hon. Lord Mandelson. The right hon. Member for Exeter also got his smiling face in the foreword. We had other reports, including that by Gowers. We have had a series of reports.

Photo of Ben Bradshaw Ben Bradshaw Labour, Exeter

I hope that the Minister has in his pile the much more recent Select Committee report to which my hon. Friend the Member for Hartlepool referred, which was supported unanimously—the Committee has a Government majority—was highly critical of many elements of the Hargreaves recommendations and advocated exactly what my hon. Friend has just suggested.

Photo of David Willetts David Willetts Minister of State (Universities and Science)

Let me complete what I was saying, because there is a roll of honour. Alongside the right hon. Gentleman I see the right hon. Member for Tottenham. His shining face is in another report, “The Way Ahead—a Strategy for Copyright in the Digital Age”. We have had many reports. We commissioned Hargreaves and we took the decision to implement it. The Government’s clear commitment—there will be a sigh of relief from many members of the Committee, and from others—is to no further broad reviews of the IP rights regime during the lifetime of this Parliament. Instead, we will get on and implement. We are not short of reviews. We do not need a new clause calling for another review. The problem with IP and copyright is not insufficient reviews, but insufficient implementation. We are implementing. That is what the Bill is about, and that is what the other measures we are bringing before the House are about.

Photo of David Lammy David Lammy Labour, Tottenham

The Minister makes a considerable point, but why, if he is taking action, are we discussing a Bill with 24 clauses, and not the substantive change that most people are waiting for, following the reviews on his desk?

Photo of David Willetts David Willetts Minister of State (Universities and Science)

No, we are moving to tackle specific issues one by one, and the big prize in the Bill, which I refer to but do not want to delay the Committee on, is better protection for people in the design industry. We are introducing other legislation in other areas. We have introduced some measures, and there are more to come. In my view, that is absolutely correct. There comes a point in any Government at which to stop reviewing and start deciding and doing.

We recognise the particular sensitivities around copyright exceptions. That is not the subject of the Bill, but let me give evidence of our continuing engagement with the issue since the original Hargreaves report. It is estimated that copyright exemptions have been discussed at more than 250 meetings involving Ministers, officials and outside experts since the formal consultation began in early 2012. We are not short of consultation and reviews, so we intend to introduce specific measures in 2014.

The hon. Member for Hartlepool asked questions and said that I had been deliberately imprecise. He asked how many different instruments we can expect, and whether they will be bundled. We are not in a position to say exactly how many different instruments there will be. We are consulting parliamentary counsel on that, but it is important for the accountability of Government and sensible that they be considered separately as far as possible. I was unable in the Chamber or here in Committee to give a 100% assurance that everything would be done separately. Sometimes with parliamentary scrutiny there are good reasons for combining one or more statutory instruments because of the nature of the interaction between the various parts of the law. It may sometimes be for the benefit of everyone to introduce together more than one regulation or statutory instrument for the purposes of more coherent scrutiny, and I hope the Committee understands that. However, our overall intention is that as far as possible there will be opportunities for separate consideration.

We will bring the statutory instruments forward over the next few months and give several opportunities for proper parliamentary scrutiny as we implement, not review, policies that have been clearly formulated.

Photo of Jim Dowd Jim Dowd Labour, Lewisham West and Penge

There is concern about considering the statutory instruments collectively, rather than individually. I am sure that a great deal of work has been done in the Department, and everyone knows the reasons why bundling may be appropriate, but can the Minister give any indication of how many statutory instruments there might be?

Photo of David Willetts David Willetts Minister of State (Universities and Science)

It is hard to say, when we are still consulting parliamentary counsel. As soon as possible, I will communicate to the Committee, or place in the Library, the proper guidance on how we plan to structure things. I fully understand that as there is a legitimate issue of parliamentary scrutiny, all parts of the House—everyone has an interest—are entitled to see the overall shape of the exercise: the different statutory instruments, how they interact, and how occasionally it might make sense for them to be considered together. I will undertake to share that information with the Committee as soon as possible.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

May I push the Minister further? Several of the issues are controversial—private copying springs to mind, as does parody. Will the Minister commit as  much as possible to ensuring that those two examples will be taken separately, so that we can have a proper debate?

Photo of David Willetts David Willetts Minister of State (Universities and Science)

I believe in proper parliamentary scrutiny. I undertake absolutely, wherever possible, to ensure that there are coherent bodies of regulation before the House. I cannot make a complete commitment that nothing will be bundled, but coherent bodies of regulation will give scope for proper scrutiny of those specific issues. I am also happy to set out as soon as possible, once we have the authority and advice of parliamentary counsel, exactly what we propose for the structure. I undertake absolutely to provide proper opportunities for scrutiny.

Given that we do not yet have the final advice of parliamentary counsel, and that it might be better for all concerned if some of the statutory instruments were considered together, the hon. Gentleman will understand that we cannot 100% guarantee that each one will be considered separately.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

To clarify, the Minister said on Second Reading that regulations would be introduced in February. Is that still the intention, because that does not seem tremendously far away? If so, they must be at quite a late stage in the process, and that would give us a greater idea of the thinking behind the regulations, their structure and their bundling.

Photo of David Willetts David Willetts Minister of State (Universities and Science)

That remains our intention; I cannot put it more strongly than that, can I? I will of course share with the House further information when we have parliamentary counsel’s advice on the overall structure. In the light of those genuine, sincere assurances about proper parliamentary scrutiny, I hope that the hon. Gentleman will withdraw the new clause.

Photo of Iain Wright Iain Wright Shadow Minister (Business, Innovation and Skills)

The point was well put by my right hon. Friend the Member for Tottenham that the Government have been tinkering, and that there is not a long-term view. The way in which they have had to deal with this issue shows that the Government ought to go back and think again. The Minister has not provided a great deal of reassurance. Industry and Parliament are calling out for the best possible parliamentary scrutiny. This is something that we will look at extremely closely, because it is incredibly sensitive to a whole range of creative industries. In order to make progress, however, I beg to ask leave to withdraw the new clause.

Clause, by leave, withdrawn.