Author: Tony Ballard
What is it about copyright law that makes Governments of both left and right try to reform it without Parliamentary scrutiny?
A few years ago the Labour Government included a clause in what was to become the Digital Economy Act that would have conferred wide powers on Ministers to amend copyright law. This was supposed to help deal with the vexed problem of online infringement. It was a controversial proposal, to say the least, with comparisons being made with the powers wielded by Henry VIII and with the Legislative and Regulatory Reform Bill of 2006, described by one commentator as the Abolition of Parliament Bill. The Government responded to the criticisms by proposing that a Minister’s amendments should be subject to a super-affirmative Parliamentary procedure as a safeguard but eventually the clause was dropped.
Now the Coalition Government has brought forward the Enterprise and Regulatory Reform Bill, clause 56 of which proposes to confer on Ministers unlimited power to add or remove exceptions to copyright. On one view, this would give Ministers even wider powers. On the face of it, however, the only safeguard is the lesser, ordinary affirmative procedure of resolutions by both Houses of Parliament.
Copyright exceptions are, of course, a topic on which the Government has already made its post-Hargreaves policy plain – it thinks that the widest possible exceptions within the existing EU framework are likely to be beneficial to the UK. Rights owners will not unnaturally ask how far the Minister might go. The answer in practice lies in the EU framework, that is to say the Information Society and Rental and Lending Directives, which circumscribe what the Minister can do. In particular the Minister cannot lawfully go outside the permitted exceptions that are listed in the Directives. The Minister must also comply with the Directives’ so-called three-step test, limiting the exceptions to special cases which do not conflict with a normal exploitation of the relevant work and do not unreasonably prejudice the legitimate interests of the rights holder. Quite what that means in light of recent cases is, to say the least, obscure but it will be some sort of constraint at some level.
So for all that clause 56 looks like another Henry VIII clause with only limited safeguards, the EU framework is something of a protection against Ministerial over-exuberance. But is this the best way to frame what is likely to be quite complex legislation?
Parliament’s only contribution to the reform of the copyright exceptions will be the ability to block a Ministerial order by declining to pass a resolution affirming it. It cannot propose or require its own amendments. The whole process of second reading Ministerial explanation and subsequent scrutiny and amendment at the committee, report and third reading stages in both Houses of Parliament is lost if it is all in the hands of the Minister. It ceases in effect to be a Parliamentary matter. The development of the legislation to give effect to the new policy will take place within a government department which, for all the no doubt valiant efforts of civil servants to consult, is vulnerable to lobbying and sectoral capture and to development behind closed doors.
The alternative is to include the proposed exceptions on the face of the Bill. It is not clear why they should not form part of the Bill instead of being developed out of sight in a departmental back room. There is room for more than one view as to the wisdom and appropriateness of removing the reform of this key feature of our copyright law from full Parliamentary scrutiny.
The second reading debate on the Bill is due to take place in the House of Commons on 11 June.