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

Clause 56 - A Trojan Horse (updated)

On May 25 2012 the Enterprise and Regulatory Reform Bill 2012-13 had its First Reading in the House of Commons. It contains a Clause, 56, which empowers the ‘Secretary of State’ to amend the exceptions to copyright in UK law by Statutory Instrument, up to the limits allowed by EU law, without recourse to Parliamentary scrutiny or debate:

‘This clause enables the exceptions to copyright set out in Chapter 3 of Part 1 to the CDPA 1988: and the exceptions to rights in performances set out in section 189 of, and Schedule 2 to, of the CDPA 1988 to be amended by secondary legislation.’

And there we were, waiting for the Copyright Consultation to wend its way to a close, and for it to Report, and for the Report’s conclusions to be incorporated into a White Paper, followed by draft legislation in a Communications Bill some time next year. Instead, the IPO has sneaked an extremely broad blunt-instrument clause into a general-purpose Bill which, if enacted unaltered, will enable many of Hargreaves’ recommendations to be implemented by civil servants without further Parliamentary oversight of the legislative process – MPs will only have the power to say no. Or, so it seems.

The IPO claims that the purpose of Clause 56 is extremely narrow and specific: ‘to enable the Government to preserve the level of penalties which are set out in the substantive copyright legislation’, the problem being ‘currently, when section 2(2) of the European Communities Act 1972 is used to amend the exceptions to copyright and performance rights, this can cause difficulties as its use may require a downwards adjustment of criminal penalties in copyright legislation.

In other words, if existing copyright exceptions are narrowed, extending the number of people caught by a criminal offence, and if the Government stuck with using the European Communities Act because it wants to do it by SI, the new penalties would be limited to a maximum of two years when existing penalties may be higher. It would appear that by introducing a clause which allows them to do what they say they want to, namely adjust criminal penalties, Government would be able to maintain the criminal penalties at the higher level which, for creators, would be a good thing.

Perhaps unsurprisingly, no-one else has interpreted the text of Clause 56, and therefore its primary purpose, in this narrow and specific way. The highly experienced and perceptive Tony Ballard of IP specialists Harbottle & Lewis certainly didn’t, and neither did ALCS. In a Parliamentary briefing paper released on Monday 11th June, the Law Society says:

’12. Clause 56: Power to change exceptions: copyright and rights in performances –Chapter 3 of Part 1 of the CDPA deals with ‘permitted acts’, that is, those acts which can be performed without the consent of the copyright owner. For example, criticism, review and news reporting or anthologies for educational use. Clause 56 creates a power for the Secretary of State to add or remove from this list of copyright exceptions by means of secondary legislation.

The Law Society considers that copyright exceptions are a sufficiently important issue, with ramifications across many sectors and industries, that changes to them should be subject to the full scrutiny of the primary legislative process. The Society therefore opposes the inclusion of this Clause.

ORG, needless to say, is cheering it on. Why does Clause 56 concern itself with copyright exceptions, and not penalties for infringement?


Stop43 would be grateful if Parliamentarians would ask the following questions during the Bill’s progress through Parliament:

  • There is no foreseeable need to change copyright exceptions to comply with EU law - all directives have been implemented, and no new EU copyright exceptions are proposed - so why is Clause 56 needed at all?

  • If the purpose of Clause 56 is to maintain criminal sanction levels if copyright exceptions are amended, why does the text of the clause not specifically refer to that, and limit itself to that purpose and no other?

  • Why is an overarching Ministerial power to change copyright exceptions needed, rather than simply a power to adjust criminal penalties, given that the latter is the stated aim of the clause?

  • Are we to believe that the IPO wishes to see enacted a law of very broad scope merely so that they can tinker with penalties for criminal breach of copyright, or do they have some other purpose or goal in mind? Let’s not forget that in legislative terms, ‘the Secretary of State’ does not actually mean ‘the elected Minister’. Rather, it means ‘officials from the Minister’s department’: in this case the IPO, and its unelected mandarins John Alty and Edmund Quilty. Yet again, the freetard-friendly IPO is marking its own homework.

  • At what point did the UK Government cede such power and sovereignty to Brussels that the default legislative position became that of assuming that any and all provisions within EU law can and should be enacted in the UK by secondary legislation, bypassing Parliamentary scrutiny and debate, and leaving MPs with the power only to accept or reject entire legislative texts at face value, with no amendment?

  • We’re told that copyright law must be changed so as to afford ‘legal certainty’ to those wishing to use intellectual property belonging to others, usually without the prior permission of or payment to its owners. What about the legal certainty of those whose businesses are built upon intellectual property ownership, and who could find ownership and control of their property removed from them without warning?

We hear a lot about the so-called ‘chilling effects’ on free speech, innovation, entrepreneurialism, growth, and so on, resulting from intellectual property owners trying to enforce their rights. In fact, if you do try to enforce your rights and stop your property being used without permission or payment you’re likely to be outed on, the Internet’s very own Big Bully.

Let’s look at some real chilling effects. The IPO’s Copyright Consultation document states the following, at 7.137:

'Restricting or removing this ability to license could therefore deliver significant financial benefits to educational establishments and free up their use of copyright works. However, there is a danger that going too far will undermine the financial incentives that encourage the creation of new educational works.

Too right. Who is going to risk creating works aimed at the educational sector, or usable by education, if there is a risk that a capricious Government could, without warning or consultation, kill their market stone dead?

‘Speaking as a photographer, who supplies the education market via books and suchlike on a regular basis, I find all this a tad worrying. Not only am I finding my market being eroded from the point of view of payment per use, but if educational use exceptions become extended I will lose much of my income. Already I suspect my income from DACS payback will be hit by this, but also my mainstream work. Where exactly does it end. Rarely if ever do I see educational exceptions properly explained and defined.’ - Pete Jenkins, Stop43 activist


All of the following are happening right now:

  1. creators weighing up the risks and options and deciding no longer to create, or to keep their creations to themselves;
  2. photographers taking their image galleries off the open Internet and password-protecting them; using https URLs that Google cannot index; or using https cloud galleries such as Dropbox to make their work available only to known, invited visitors;
  3. a move away from the Internet and digital sales & distribution, back to more traditional forms of business.

The author of this article has done all three. Now, when I create, I keep my creations to myself. I don't use Flickr, or Facebook, or any other social media. My Linkedin page functions solely as my online CV for this voluntary campaigning work. I've been urged by many of my clients to write a book. I won’t: given current levels of piracy, the costs of copyright enforcement, and the laughable penalties available, I can't see how I would make sufficient money from it to justify the cost of the time spent and income lost in writing it.

There’s your real chilling effect, bureaucrats and Ministers: the high-level professional work that will no longer be created or made available to the public, thanks to your unstinting efforts to deprive its authors of the means of recompense.

Is this really what you want, dear Government, Professor Hargreaves, and Google, in the Information Society era? We think it is.

POSIWID. The Purpose Of a System Is What It Does.

* Updated 2012-16-11 to include quotation from the Law Society briefing paper