stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

ERRB: Final Steps

On Tuesday 16th April the Enterprise and Regulatory Reform Bill enters its final Parliamentary phase before becoming law. This is our last chance to remove from it the damaging Orphan Works and Extended Collective Licensing Clause 79. Please contact your MP and other Parliamentarians, making the following recommendations:

  1. Remove the Orphan Works and Extended Collective Licensing Clause 79 from the ERR Bill
  2. Implement the EU Orphan Works Directive at the last possible moment, because it directs us to breach our obligations to foreign rights owners under the Berne Convention
  3. Revisit IP in an Intellectual Property Bill once the Copyright Hub is operational and the government has a metadata policy, which at the moment it does not
  4. Return responsibility for copyright to the Department for Culture, Media and Sport. Patents are limited formal economic rights granted by Government upon application, and rightly handled by the Patents Office (which is an Agency of the Department for Business, Innovation and Skills, and of which ‘Intellectual Property Office’ is an operating name). Copyright is an informal automatic combined economic, cultural and human right. It is far more appropriate for the Department for Culture to be responsible for this more subtle right than the Department for Business.

• Copyright is a property right

Those are the first 5 words of the Introduction to the Copyright, Designs and Patents Act. Stop43 never thought we’d see a Conservative-led government nationalise individuals' private property, yet exactly that is happening in a portmanteau Bill otherwise concerned with regulation. We need a proper Intellectual Property Act, not this dog's dinner.

• Orphan Works, Extended Collective Licensing and Hargreaves 'growth'

[What are Orphan Works? What is Extended Collective Licensing?]

The changes to copyright law are supposed to stimulate economic growth. According to the IPO’s latest estimates, these changes are unlikely to create any growth at all.

Stop43 notes that between the Hargreaves report and the IPO publishing 'Modernising Copyright', the IPO's estimates for UK growth as a result of implementing Hargreaves have been reduced by 97%. Yes, 97%: 'Hargreaves growth' is now estimated to be only 3% of that originally estimated and amounts to around 80p per UK taxpayer per year. This is risible. Once costs to rights owners ignored in the Impact Assessments have been factored in, we're probably looking at a net contraction of the UK economy:


Why on earth is BIS pressing on with this? Other orphan works solutions exist which will do less damage to rights owners than the IPO proposals: the EU Orphan Works Directive; Stop43's National Cultural Archive proposal; even the Legal Deposit Libraries regulations for archiving the UK Internet would solve the ‘orphan works problem’. They are directly analogous to the only orphan works scheme in operation in Scandinavia - that in Denmark.

• Who benefits?

David Cameron stated at the start of this process that changes to copyright law were necessary in order to help tech startups. What happens to tech startups? According to Demos, in general they suffer a similar fate to other startup businesses, with around half of them failing within five years. But what happens to the survivors? Again according to Demos the successful ones are mostly bought by US-based tech corporations. And so, the endgame of the copyright changes will be the draining of the economic value of UK’s creators’ property out of the UK and into the pockets of US corporations. Smart move, Dave. Well done.


• Extended Collective Licensing (ECL)

China is gearing up to legislate itself access to the word's IP under ECL for tuppence. We are about to legislate Berne-busting ECL without rights owners' safeguards being explicit in the primary legislation, as they are in the Nordic countries whose ECL schemes are being held up in every other way as a model for ours. Why? Why must we have 'Nordic' ECL without Nordic safeguards on the face of the Bill? The necessary legal safeguards are unlikely to change with time, and we are going to set a very bad example to the Chinese. How will we be able to object to their scheme if ours lacks primary safeguards in the Bill? A Statutory Instrument won't do - it's too easily changed, and the whole world knows it. The last time a Statutory Instrument was voted down was in 1979, and concerned the price of paraffin.


• Metadata and the ERRB

The ERR Bill legislates for the exploitation of orphan works without doing anything to prevent works from becoming orphan in the first place, and a major cause of orphaning is the stripping of metadata from digital images. The government is putting the cart before the horse in legislating for orphan works exploitation and ECL before it has a policy on metadata.


The Copyright Hub is coming together nicely and will probably render ECL obsolete. The Copyright Hub Metadata Workstream appears to be regarded as the Government’s inquiry into metadata and how it ought to be treated: “The Government are keenly aware of and sensitive to the concerns of creators in relation to metadata. They believe that an industry-led approach is most likely to identify the key issues and the most effective solutions. They warmly welcome the establishment of a metadata working group which brings together key players from across the industry, including the Association of Photographers, Stop43, the BBC, the British Association of Picture Libraries and Agencies, Getty Images and News Corporation. We will consider carefully any recommendations aimed at government and, if they are proportionate and effective, will certainly support them. I also commit to keeping Parliament informed on progress.

The Intellectual Property Office will also be working with the Technology Strategy Board to consider other options to tackle the issues around the misuse of digital images as well as search and stripping of metadata.”
- Viscount Younger, Hansard, 6 March 2013

• The ERRB copyright clauses were placed there by the IPO. The IPO is out of control.

We’re in good company with that opinion because it's shared by the All Party Intellectual Property Group: ‘We think that because intellectual property is often a specialised subject, the IPO has been allowed freer rein by senior officials and Ministers within BIS, who would otherwise have taken greater interest. We believe this must change, and the development of policy by the IPO must be given far greater scrutiny by officials within the Department… The IPO also needs greater ministerial leadership. We urge the new minister to place a firm grip on the IPO and lead its policy making rather than follow their lead.’ - The Role of Government in Promoting and Protecting Intellectual Property, pages 5 & 6

When it was first introduced, ERR Bill Clause 56 gave the IPO carte blanche to introduce whatever copyright exceptions they thought they could get away with. Why did it take them six months (and significant Ministerial pressure) to rewrite that clause, which they said was only to preserve penalty levels if copyright exceptions were varied under the European Communities Act 1972 Section 2 (2), until it became Clause 77 and did exactly that and no more? It's hard for us to form any other view than that the IPO were simply trying to pull the wool over their Ministers' eyes and grant themselves far greater powers than the BIS ministers realised, in order to implement Hargreaves by stealth. Clause 56 was a Trojan Horse, as we said at the time.