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Copyright change again
THE UK government is having another go at changing copyright law. The Creators' Rights Alliance and its member organisations - including the NUJ - are asking you to write to your MP to stress the importance of copyright to you and thus to your contribution to the economy.
The aptly-titled ERR Bill, currently in Committee Stage in the House of Commons, includes a measure to allow Ministers to change the "exceptions" to copyright - the circumstances in which your work can be used without your permission - with only token Parliamentary scrutiny.
And there are strong signs that the government plans to introduce further copyright clauses to the Bill, either in the next two weeks or only when it reaches the House of Lords in the autumn. These are reinforced by the government's policy statement on copyright today stating that "The Government intends to introduce legislation to enable schemes to be introduced for the use of orphan works, voluntary extended collective licensing and codes of conduct for collecting societies as soon as possible."
"Orphan works" are those whose creators cannot be located. "Extended collective licensing" - would permit BBC and library archives to be put online without asking individual permission.
We'll write a shorter report as soon as we have time - and here it is.
‘The new legislative process’
A senior civil servant described this to us as "the new legislative process" - acknowledging that it would be highly unusual to bring in substantive new measures well after the Bill is published.
The provision on "exceptions" is currently numbered clause 56 of the Enterprise and Regulatory Reform Bill. It would allow changes to be made by a regulation called an "affirmative resolution" Statutory Instrument, which is technically "laid before Parliament" and voted on. But Parliament cannot make amendments, and only two Statutory Instruments have been voted down since 1945.
This proposal causes much puzzlement among seasoned copyright campaigners. The government already has the power to bring in any of the exceptions permitted by EU law, by a "negative resolution" Statutory Instrument under the European Communities Act 1972. So why a new power? Ed Quilty, head of Copyright at the Intellectual Property Office, explains to us that the IPO believes that if they made any change under the ECA, they would have to reduce all the criminal penalties for breach of copyright to two years' imprisonment. Under Section 107 of the Copyright Designs and Patents Act 1988 an infringer can be imprisoned for ten years - though we know of only one criminal conviction, in which only a fine was imposed.
We have suspicion that a major reason Section 56 is there is to pave the way for the introduction of the mooted further copyright amendments.
When the Bill was receiving its Second Reading in the House of Commons, before going into Committee, John Whittingdale, among other things Chair of the All-Party Writers' Group of MPs, asked:
Does the Secretary of State accept that copyright is the legal expression of intellectual property rights, and is not a regulation? Is he aware of the widespread concern among the creative industries about clause 56, which will allow copyright to be amended by statutory instrument without full parliamentary debate? Will he assure the House that the Government will not change copyright in that way without proper parliamentary scrutiny?
The Secretary of State, Vince Cable, replied that:
we have to strike a balance between access to information and copyright protection. We think we are striking the right balance, and we are proceeding to implement the Hargreaves report...
In a followup letter Cable wrote:
If, following careful consideration of responses to its recent consultation, the Government decides to make changes to copyright exceptions...
The Government published a summary of the responses to its latest consultation on 17 June.
Before publication, civil servants have told the British Copyright Council that this would be followed by a formal response; that would be followed by a further consultation on detailed proposals. Asked this week, they were vague about how the orphan works and extended collective licensing proposals could be brought in in the autumn, given this procedure.
The ERR Bill contains much else of concern to trades unions and others. We will have our work cut out to focus parliamentarians' minds on all the relevant parts.
It currently contains significant changes to how Employment Tribunal cases and redundancies would work, not in favour of workers. It merges the Competition Commission and Office of Fair Trading, and changes their terms of reference. It removes the duty of the Commission for Equality and Human Rights to promote good relations. And (to give a cuddly feel?) it opens with the establishment of a Green Investment Bank.
Stress how important this is
Given that the likely significant changes are not yet public, the Creators' Rights Alliance is encouraging authors and performers to send their MPs a letter in general terms. Detailed briefings for them and their assistants will be produced as soon as possible. Please write in your own terms, using the sketch letter linked here, and send the letter on paper for maximum impact.