Out-Law News | 19 Jul 2012 | 3:56 pm | 3 min. read
The process can currently only be used for laws that carry a maximum two year jail term.
Under the Enterprise and Regulatory Reform Bill the Business Secretary would be able to add or remove exceptions to copyright and add or remove exceptions to rights in performances by introducing 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.
Last week a spokesman for the House of Lords confirmed to Out-Law.com that the draft statutory instrument would not be subject to committee scrutiny or Parliamentary debate and may not even be required to be voted on by each House if they were introduced through that mechanism. Some MPs have previously raised concerns about the prospect of copyright law changes being introduced through secondary legislation for this reason.
However, a spokesman for the IPO told Out-Law.com that the Parliament already has the power to change the rules around exceptions to copyright through secondary legislation.
The spokesman said the purpose of the copyright law powers in the Enterprise and Regulatory Reform Bill is to ensure that Parliament could pass statutory instruments containing reforms to copyright exceptions where the maximum punishment for infringement of copyright under those new laws could be 10 years in jail. He said that Parliament can currently only approve statutory instruments containing such reforms in the form of regulations if the maximum penalty for infringement that could be levied is two years imprisonment.
The IPO spokesman said the Government could introduce changes to the rules around exceptions to copyright through a new Act of Parliament in order to ensure that the maximum penalty for infringement could be applied. However, he said obtaining a Parliamentary slot to introduce such a Bill can prove difficult and the process leading to the enacting of the law time-consuming.
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.
"The power to introduce, narrow or extend copyright exceptions through new regulations already exists under the European Communities Act," the spokesman said. "However, the maximum penalty that can be levied for any offence under regulations introduced through the powers of that Act is two years indictment. This is in contrast to the maximum penalty of ten years imprisonment that infringers can be sentenced to under the Copyright, etc. and Trade Marks (Offences and Enforcement) Act 2002."
"The Government needs to be able to react to decisions of domestic courts and those of the Court of Justice of the European Union and introduce any necessary changes quickly into UK law. Parliament cannot use a statutory instrument passed under the European Communities Act to achieve that compliance without reducing the maximum penalty for infringement to two years imprisonment," he said.
Under the European Communities Act Government ministers or departments generally have the right to introduce new orders, rules, regulations or schemes, in order to implement EU laws into national law in the UK.
The Copyright, etc. and Trade Marks (Offences and Enforcement) Act made amendments to the UK's Copyright, Designs and Patents Act. It raised the maximum penalty for the offences of sale or hire or dealing in material infringing copyright, illicit recordings infringing performers' rights and unauthorised decoders for conditional access services to 10 years in prison and an unlimited fine. Previously, the maximum penalty was two years in prison.
Last month the Enterprise and Regulatory Bill was debated in the House of Commons. 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. During the debate, though, Cable was unable to give that assurance to Whittingdale.
Cable did offer his "assurances" that future changes to copyright law would be subject to "proper parliamentary scrutiny" and that, in practice, the "order-making" powers would be used to "maintain the level of criminal penalties" for infringement.
Whittingdale had said representatives from the creative industries had expressed "real concern" about plans to further liberalise the use of copyrighted material.
The IPO spokesman said that some rights holders "understand" the purpose of the Government's proposals within the Enterprise and Regulatory Reform Bill.