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Digital Economy Bill [HL]

My Lords, what I have said throughout the Bill has not been about trying to hit rights holders. I think that that has been misunderstood by several people who are very concerned about the economics of this—particularly, and I fully agree, the economics of producing things that require a lot of capital input, such as films, sports, games and music, which are expensive to put together and put on. I am not challenging the idea of trying to protect copyright. My challenge comes when someone says, "We’ve got to do something". The law is not here for PR purposes. It is not about sending a message. Laws have to be effective or they are pointless. Sending messages that do not work merely debases the law in the public’s eyes, because then they just ignore it. It has always been realised that copyright is much weaker than other rights. Patents get only 30 years to recover because they are better protected and easier to enforce; the whole law is orientated that way. Copyright is a harder right to enforce, particularly because you can get copyright both in the original work and in derivative works. It is a much more complicated situation. That is why copyright now gets lifetime plus, I think, 70 years, which is probably excessive—a very long period in which to recover your initial investment. I worry, like the noble Lord, Lord Lucas, about effectiveness. Will this work or not? Unfortunately the noble Lord, Lord Fowler, is not here to hear my next point: camcorders are covered perfectly well. It is unlawful, it is a breach of copyright, to take a camcorder into a cinema and make a copy of a film. This Bill does not cover that at all; it is about communicating and distributing over the internet. If you put that camcorder copy out over the internet for free on whatever network, the Bill will cover it. If you sell that copy, it becomes a criminal offence and comes under the Fraud Act. The law is there already to deal with camcorders and I am delighted to hear that people who do these things have been prosecuted under it, as they should have been. The existing law is adequate. I agree entirely with the noble Lord, Lord Puttnam, that the situation is a mess. That is our problem. I have said for a long time that we need to rewrite the Copyright, Designs and Patents Act 1988, which is not right for the digital age. It will be a complicated process; any new Act will have to balance a lot of rights and look at the international aspects, such as how other countries do it and what is effective, so that we are not just doing our own thing. That needs to be done at a parliamentary level, not just by a Minister in consultation with people whom he thinks should be consulted. I come on to the wise words of the noble Lord, Lord Clement-Jones. What exactly is modifying that Act going to do? It is not going to cure technical points, because I do not think that the Act deals with such points—unless we want to put a whole technical section into it, which would be a very strange thing to do. The Act could in fact be used to loosen copyright, which might be a good idea, so that mashups, for instance, were no longer a grey area. I could take a short clip from one of the films of the noble Lord, Lord Puttnam, overlay it with a bit of music by one of the noble Lords here, put my own content underneath it and put it on YouTube, at which point I would have breached maybe three copyrights. This is going on the whole time. Because it is so general, at the moment the question is, "Where’s the copyright?". Maybe the Minister has secret ambitions to do that behind the scenes; I do not know. I cannot understand why the Act is modified in the Bill. The noble Lord, Lord Triesman, talked about Napster, but Napster was always unlawful; it was always covered by the law. Trying to change the copyright Act would have made no difference to Napster at all. The 1988 Act predated Napster, so it was covered. We did not have to change any part of the law. If we had had to change it, Napster would be operating in Britain right now quite legally, because we have not changed the law to cover it. It has always been unlawful to download stuff in that way. That is exactly what we are dealing with now. The Copyright, Designs and Patents Act 1988 is adequate for dealing with these things. The challenge arises because rights holders could not keep up with the variety of material that was being transmitted over the internet. That is what the Bill is for: to try to introduce some measures whereby it is easier to offload some of the problems of trying to catch up with the people responsible on to those who can track them—that is, the ISPs—and then use some legal process in order to crack down on them, doing in a different way some of the things that are normally done through the civil courts as a breach of copyright. The Government have started to interfere in civil law by producing measures where they are going to mandate a crackdown. That is an interesting precedent because it can be used elsewhere for other things that the Government do not like, which is why I do not like the provisions between Clauses 4 and 16. Clause 17 is even more dangerous. The noble Lord, Lord Puttnam, has talked about Britain almost as if it were a sea of piracy in an otherwise law-abiding world: if we do not pass a law that lets us crack down on this, Britain will be isolated, all the creative people will abandon it and so on. But America is just as bad, as is the rest of the world. The French have failed to get a similar measure through. They still hope to, but it got knocked out by the French Parliament—Sarkozy did not get his way. I may have the right players in there, I may not, but it does not matter; I do not think that the French got the "three strikes and you’re out" clause through, although they are hoping to bring it back and get it through. Sweden does not have such measures—it did not dare go that far. It sent some letters and there has been a bit of a crackdown, but levels are back up where they were. We are not an isolated case. It will make zero difference where anyone locates themselves. Our creative people will still face the challenges that they do now: to get the right contract from day one with the people who will sponsor them or, if they do not get a nice contract or do not get someone to sponsor them, how to get out there into the wider world, get their stuff on to the internet and find other methods of distribution. Now I come on to Clause 17. I wanted to put in context why the clause is totally unnecessary and may have all sorts of unintended consequences that will be very dangerous. Even the super-affirmative method of bringing statutory instruments is dangerous. Look at the Government’s general dismissive attitude to 90 per cent of our suggested amendments. Will that be any different just because there is a super-affirmative statutory instrument? No, it will not, because they do not have to amend anything. We cannot force any amendments through; at the end of the day, we have to accept it. The previous time when I ran into this business of trying to block statutory instruments, which was over the Regulation of Investigatory Powers Act when we forced through an amendment that meant that the Government would have to come back within a year with a better statutory instrument, there were mutterings off that this was a constitutional crisis, this was not the way that things should be done, it was going against the whole way that Parliament worked and so on. We were threatened behind the scenes and told that we should not be doing it; it would bring the place down. The Minister was so frightened that he spent 25 minutes trying to introduce a minor statutory instrument. Anyway, these powers are far too wide, they are quite unnecessary and I cannot see any purpose to them—except possibly to start putting mandatory charges on people because it allows us to impose charges, fees and so on, but that is not the sort of thing that the Act should be for. If we are worried about amending things, I note that we manage to have a criminal justice Bill every year to amend huge tranches of legislation and we seem to have an education Bill about every two years. Maybe the Home Office could give up some of its Bills and we could just sort out copyright.