It is good to be back discussing the Intellectual Property Bill.
We discussed the new clause in Committee and are returning to it on Report because, in the intervening period, there has been no progress. I will remind the House about this long-running saga.
The Government made proposals on copyright exceptions in 2012, during the passage of the Enterprise and Regulatory Reform Act 2013. In December 2012, the Government published “Modernising Copyright”.
One could be forgiven for thinking that that was a simple and straightforward means of implementing the recommendations of the Hargreaves review, as the Government try to maintain. I will come on to the crucial matter of implementation in a moment. However, the level of opposition from stakeholders and the delay in implementing the Government’s proposals suggest otherwise.
In “Modernising Copyright”, Ministers stated:
“The Government will publish draft legislation for technical review in 2013. It intends to introduce the measures in the smallest possible number of statutory instruments to minimise disruption to stakeholders, make best use of Parliamentary time and ensure that the revised system is implemented in a clear and consistent manner. The intention is that measures will come into force in October 2013.”
None of those plans has proved successful.
Major changes to copyright have usually been made through primary legislation. The Copyright Act 1911 placed provisions into one piece of legislation for the first time, and the Copyright Act 1956 put into statute the UK’s accession to the universal copyright convention, and protected for the first time media such as films and broadcasts by copyright. The Copyright, Designs and Patents Act 1988 provided a major reform of the copyright process, and currently remains the main legislative framework.
When modernising copyright, however, the Government do not intend to make changes via primary legislation but rather through statutory instrument. As is clear from the document I have already cited, the Government always intended to bundle up the proposals on copyright exception into
“the smallest possible number of statutory instruments.”—[Official Report, 4 February 2013; Vol. 558, c. 54W.]
On Report of the Enterprise and Regulatory Reform Bill in October 2012, the Minister stated that
“any proposed exceptions will be the subject of secondary legislation and will therefore be debated. Each separate element of a statutory instrument can be debated—that is the function of the secondary legislation procedure.”—[Official Report, 17 October 2012; Vol. 551, c. 406.]
That is certainly true; each element can be debated separately, but the key point that will concern the House is that it will not necessarily be possible to vote on each element separately, and that still seems to be the Government’s position.
On Second Reading the Minister stated that
“the regulations will not be completely bundled up.”—[Official Report, 20 January 2014; Vol. 574, c. 83.]
That is a curious phrase that I referred to in Committee, which gives rise to the strong possibility—even probability—that bundling will occur. In Committee, he said that he was not in a position to say how many different instruments there will be, and that the Government were still consulting on the matter with parliamentary counsel. It is six weeks or so since we discussed the issue in Committee on 30 January, but I do not think he is a position to provide much of an update. In Committee the Minister said:
“The problem with IP and copyright is not insufficient reviews, but insufficient implementation. We are implementing. That is what the Bill is about,”.––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 91.]
However, evidence shows that that is far from the case.
Let us be clear and put on the record the dither and uncertainty that the Government have provided to those stakeholders involved with copyright. As I said, the Government’s response to “Modernising Copyright” was published in December 2012. In early June 2013, documents were published in relation to new exceptions for private copying, parody, quotation and amendments to exception for public administration. Later that month a new exception for data analysis for non-commercial research was published, as were amendments to exceptions for education and research, libraries and archives.
In July 2013, further amendments to copyright exceptions for people with disabilities were published. All documents were subject to consultation periods that ended in the summer or early autumn of 2013. Since then, no tangible progress has been announced. On Second Reading the Minister pledged that regulations would be laid before the House in February, and in Committee I asked whether the Government still intended February to be the target date. The Minister responded:
“That remains our intention; I cannot put it more strongly than that, can I?”––[Official Report, Intellectual Property Public Bill Committee, 30 January 2014; c. 93.]
Well, he could. We are now into mid-March, and we have still not seen any white smoke from Victoria street. That delay is causing uncertainty among the creative industries, and undermining our competitiveness and attraction as a nation for this crucial sector in the new economy.
The hon. Member for Hove (Mike Weatherley) is knowledgeable and diligent about these matters. He is the Prime Minister’s adviser on IP and served on the Committee, and I am pleased to see him in his place this afternoon. Last week, he received a response to a parliamentary question that he asked about progress made by the Department on drafting changes to copyright exceptions. I hope he will not mind my quoting the Minister’s response, because it is important and helped shape my view about whether we needed an amendment on Report. In his reply to the hon. Member for Hove, the Minister said:
“The Government are grateful for the contributions of all those who responded to the various consultations and have continued to engage with stakeholders since the review closed. We have made a number of technical changes following the helpful input of stakeholders, and we consider the regulations have been improved as a result. So, the regulations will be different in light of the valuable consultation process.
The draft regulations are subject to final checking and in accordance with routine practice the Department is currently consulting the legal advisers to the Joint Committee on statutory instruments. This process can help to avoid difficulties about powers, drafting, etc. arising at a later stage, and assists both the Department and the Committee in minimising any delay in the passage of an instrument. Unless otherwise agreed with the legal adviser, Departments should normally allow a period of not less than two sitting weeks for this advance scrutiny. The regulations will be laid before Parliament and published as soon as this process is complete. The regulations will be subject to affirmative resolution and will be debated in both Houses of Parliament.
The Government will publish a response to the technical review, explanatory notes, guidance and other supporting documents alongside the regulations. This will explain the changes we have made to the drafts on which we consulted and why. Copies of all of these documents will be placed in the Libraries of both Houses and will be available on the IPO website.”—[Official Report, 6 March 2014; Vol. 576, c. 944W.]