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Copyright exception law could be changed without full Parliamentary scrutiny

The Business Secretary will have the power to add or remove exceptions to copyright and add or remove exceptions to rights in performances through new laws that would not be subject to the full scrutiny of Parliament, under Government plans.12 Jul 2012

The Government has outlined proposals to change UK copyright law to allow the Business Secretary to draw up any future laws affecting exceptions to copyright and rights in performances in the form of new regulations. The regulations would be contained in a statutory instrument, a draft of which would need to be "laid before and approved by resolution of each House of Parliament" before it could come into force.

A spokesman for the House of Lords confirmed to Out-Law.com that future copyright exception and rights in performances changes would not be subject to committee scrutiny or Parliamentary debate and may not even require to be voted on by each House.

The plans are contained in the latest amendments to the drafting of the Enterprise and Regulatory Reform Bill which is currently being scrutinised by a House of Commons committee. The copyright provisions within the draft law would be inserted in to the Copyright, Designs and Patents Act.

Last month the Bill was debated in the House of Commons and Business Secretary Vince Cable was asked by Culture, Media and Sport Select Committee chair John Whittingdale MP for assurances that changes to copyright law would not be introduced through "statutory instrument, but in proper, primary legislation" instead.

Acts of Parliament must be read, subject to further scrutiny and debate and approved by both the House of Commons and the House of Lords before they can come into law. However, new regulations in the form of statutory instruments can often be introduced without the same level of scrutiny or debate.

Whittingdale had said representatives from the creative industries had expressed "real concern" about plans to further liberalise the use of copyrighted material. During the debate, though, Cable was unable to give that assurance to Whittingdale.

Earlier this month the IPO outlined the Government's 'policy statement' on collecting societies and 'orphan' works. Cable had admitted during the previous Commons debate that the Government would "want to move swiftly" to introduce reforms in the two areas when they had been finalised. He had suggested that the ability to introduce the reforms through a statutory instrument under the powers included in the Enterprise and Regulatory Reform Bill could be utilised to bring in the changes.

However, at the time of the Commons debate technology law expert Luke Scanlon of Pinsent Masons, the law firm behind Out-Law.com, warned of the dangers of implementing changes to copyright law too quickly. He said that without proper Parliamentary scrutiny the Government risks introducing changes to the UK's copyright regime that are outside the scope of EU copyright laws from which member states' laws are supposed to be implemented.

"The Government's proposal may therefore, in the greater European context, increase the problem that it is trying to solve – create more, rather than less, uncertainty for businesses as to what they can and cannot do with a copyright work," Scanlon said.

On Wednesday the European Commission published a new draft Directive that would set European-wide requirements on the transparency and governance of collecting societies.

Expertise in Copyright

Copyright is an extremely valuable, often unrecognised or misunderstood right which protects a whole range of original materials including written materials, software, artistic materials, music and dramatic works. It arises automatically without the need for registration in most countries and protects these materials from unauthorised copying. It is essential in business to identify such rights, ensure they are owned by the correct entity, properly protected, enforced and exploited.

More about Copyright