Lamb comforts Parliamentarians: to ERR is human

One of the legal developments which has been quietly creeping along in the wake of London's long summer of royal celebrations and Olympic festivities is the progress of the Enterprise and Regulatory Reform Bill -- in particular clause 55, which would amend, and clause 56, which would provide powers to amend, the Copyright, Designs and Protection Act 1988.  If the Enterprise and Regulatory Reform Bill were a piece of US legislation, everyone would be very sensitive about the fact that the initial letters of Enterprise and Regulatory Reform, omitting the word 'and', come out as ERR. Readers may have better ideas.

Anyway, since so many members of the IPKat team seem to have been spending the summer watching the royal celebrations and Olympic festivities unusually busy in their pursuit of IP excellence, this Kat is pleased to report that the following piece has been commissioned from his friend Melanie McGuirk (Intellectual Property Partner at Manchester Solicitors Pannone LLP). Melanie writes:

An update on clauses 55 and 56 of the Enterprise and Regulatory Reform Bill

Following some interesting recent debates in Parliament, I thought it would be worth providing a summary of the clauses and an update on their status. First I shall deal with clause 55, which would allow artistic works exploited through industrial processes the same copyright protection as other types of work, and then tackle clause 56, which would allow exceptions to copyright infringement to be amended by the Secretary of State, subject to the approval of Parliament. I will also make brief mention of some additional clauses which would further amend the  Copyright, Designs and Protection Act 1988.

Clause 55

Section 52 of the Act reduces the period of copyright available for works which are reproduced using industrial processes; in such cases, copyright exists only for 25 years from the date when such reproductions are first marketed, whereas copyright usually lasts until 70 years after the death of the author.

Alongside Romania and Estonia, the UK is only one of three EU Member States which makes such a distinction. If clause 55 of the new Bill is enacted, section 52 and all references to it would be deleted, bringing protection for copyright in items such as furniture and jewellery into line with the rest of the European Union.

When the provision came before Common’s Bill Committee, it was acknowledged both that the change has drawn the support of well-known figures in the design industry such as Sir Terence Conran. However, it has also caused concern amongst those who currently manufacture unlicensed replicas of classic designs. For the latter, Norman Lamb, Minister for Employment Relations, Consumer and Postal Affairs, offered reassurance. He stated that transitional provision would be made to allow sellers sufficient time to assess which replicas might infringe copyright, seek permission from copyright owners where needed, and sell any existing stock which would otherwise infringe.

Clause 56

Clause 56, which would permit the Secretary of State to amend the exceptions to copyright infringements, triggered more debate than clause 55 at Committee. It seems that the original purpose of clause 56 was to address a technical issue. There are occasions where the exceptions may need to be amended to implement EU law or to deal with matters arising out of such implementation; there is a power to make such changes using a statutory instrument under section 2(2) of the European Communities Act 1972.

The exercise of this power is subject to Schedule 2 of the 1972 Act. This provides at paragraph 1(d) that no new criminal offence punishable by more than two years imprisonment can be created; and therefore if such a power were used to remove an exception, creating an offence of the excepted act, in such cases only a maximum penalty of two years imprisonment rather than 10 would be available.

Will steakholders find Lamb to their taste?

Clause 56 as drafted would give the Secretary of State the power to implement EU-wide changes to copyright law without the risk that the criminal penalty for such clauses would need to be reduced to two years. While it might be expected such a provision would be welcome in the creative industries, a range of stakeholders had expressed concern that the broad drafting of clause 56 would allow exceptions to copyright infringement to be created and modified without full parliamentary scrutiny.  These stakeholders no doubt accept that the copyright exceptions can be and are amended by statutory instruments.  The argument could however be run that, were these statutory instruments to be used in order to implement a specific objective which had been scrutinised by Parliament, if the 1972 Act were used, that would be to implement an objective which had been scrutinised by the European Parliament. The statutory power referred to in clause 56 would however be to implement any objective which the Secretary of State decided on and Parliament had simply approved, rather than debated and amended in great detail.

The Committee considered two amendments aimed at limiting clause 56 to its original purpose. Norman Lamb successfully argued that such amendments would be too narrow. He reassured the Committee by confirming that an impact assessment would precede any specific amendments, reminding the Committee that any amendment would need to be approved by both Houses. He persuaded 10 of the remaining 16 Committee members that neither amendment should be made.

However, if the questions put to Baroness Wilcox (Parliamentary Under-Secretary for Business, Innovation and Skills) in the House of Lords are anything to go by, those copyright holders concerned by clause 56 are not short of sympathisers to voice their concerns in Parliament, and clause 56 may yet be amended either in the Commons or the Lords.

Additional amendments

The Committee also considered and accepted further clauses to amend the Act. These amendments followed the Government's response to the IPO consultation on modernising copyright and relate to the licensing of "orphan works"; the extension of collective licensing and the implementation of Directive 2011/77 (which amends Directive 2006/116 on the term of protection of copyright and certain related rights).