HC Deb 10 February 2004 vol 417 cc389-96WH 3.58 pm
Tom Brake (Carshalton and Wallington) (LD)

I am aware that in the next minute or so we are due to have a Division, so I hesitate to embark on the meat of what I am here to say. I welcome the opportunity for this debate. What was most interesting as I drafted my speech was the fact that though I have held many debates in Westminster Hall over the past seven years on a whole range of constituency issues—local train services, local hospital provision and so on—no issue has ever seen me receive as many approaches from different organisations as this one. The issue is clearly of interest to the media, so one would expect them to pick up on it and contact hon. Members seeking to raise it in Parliament. However, intellectual property rights are also a hot topic for the industry as a whole, which is why I have been contacted.

I told the Minister that the main purpose of this debate is to raise an issue that a constituent has brought to my attention. However, because a number of organisations that are concerned about such matters as counterfeiting have made approaches to me, I seek to raise some more general industry issues. I apologise if he has not had much notice of that and shall quite understand if he needs to respond to me in writing on those issues at a later date.

4.1 pm

Sitting suspended for a Division in the House.

4.14 pm

On resuming—

Tom Brake

There are a number of general issues that I shall raise, but in the first part of what I say I shall focus on one constituent's case. I am going to describe it as Alan Brunwin v. Chatsworth Television's "Busy Buses" children's programme. In 1988–89, my constituent wrote a series of children's stories called "Hoppy the Hopper Bus". He sent his work to, he estimates, about 40 television production companies to try to get it animated for television. He also let a number of local people—myself included—see copies of it, with copies of the bus characters that he had devised for the proposed animation. One of the people to whom he had shown his stories told him in February last year that they were being screened on Living TV under the name "Busy Buses".

Having seen pictures on Chatsworth's website and compared them with pictures that Mr. Brunwin has drawn of his bus characters, I can say that there are clear similarities. He says that a large number of people in the media knew of his work, given that he had circulated it widely. On learning that it was being broadcast on Living TV, he wrote to the channel immediately, and it replied saying that the stories had nothing to do with it, and that he should talk to Chatsworth TV about the matter, which he did the following day.

Mr. Swan, who is Chatsworth Television's solicitor, made contact with Mr. Brunwin allegedly saying that he did not represent Mr. Terry Ward, who is the writer and creator of the "Busy Buses" programme and a company director of Chatsworth Television. The solicitor asked my constituent to send him proof that Chatsworth Television had copied his work. Apparently, three hours after this contact was made, Mr. Ward made contact with my constituent and informed him that the solicitor had contacted him, and he then told my constituent that he had no more to say on the matter. The solicitor told my constituent in that initial contact that he had no relationship with Mr. Ward, but within a matter of hours it was confirmed that he did. Because of that fact, my constituent does not feel able to trust that company.

Subsequently, Mr. Brunwin sent a number of e-mails demonstrating what he believes to be sufficient proof that he had the idea several years ago, and that there are clear similarities between his work and that of the "Busy Buses" programme. He received frequent replies from Mr. Swan, but they stressed that there was insufficient evidence and that the only point at which the company would engage in further discussions with my constituent would be if he employed a solicitor to take up his case—something that he is not in a position to do. Mr. Swan and Chatsworth Television then told him that they would have no further contact with him.

Mr. Brunwin also had concerns about the BBC's involvement in the case, stating that one of the 40 recipients of his proposal was a BBC producer, but the BBC said that it had no knowledge of the proposal. However, he has found that BBC Worldwide sells "Busy Buses" books and DVDs all over the world. He raised the matter with the then director-general, Greg Dyke, in August 2003, and was apparently told that an investigation would be carried out into his claims, but apart from a telephone call from the director-general's office asking whether the BBC had been in touch with him—to which the answer was no—there has been no further progress on that matter. No doubt that will be one of the tasks that the new director-general will have to take on.

My constituent has tried to initiate contact with Chatsworth Television, but it seems his e-mails are going into a black hole. He has set up a website called "Justice for Hoppy", in which he sets out his version of events and challenges the company to take issue with it if it disagrees with the content. It is worth noting that it is alleged that last year Mr. Ward, the director of "Busy Buses", sent him an e-mail, saying: I hope we can sort this matter out amicably. My constituent has interpreted that as a concession on Chatsworth TV's part that it had prior knowledge. Otherwise, why would it respond in that way, given that most of the contact had been simply to rebuff him?

It is clear from the description that I have given that this case can be resolved only in court, as there are allegations and counter-allegations. I believe that my constituent would welcome that, because he feels that it is the only way in which the matter can be sorted out.

What options are available to ensure that such altercations do not arise, and that if people develop an idea, they maintain rights over it? I want to quote, first, from issue 8 of Media Magazine. I am indebted to Sean Egan, the writer, who has set out what actions he thinks writers can take to ensure that they maintain rights over an idea that they have developed. My constituent's case seems to fall neatly into the description that he gives of an aggrieved writer, having submitted material to a broadcaster or producer on a speculative basis and having heard nothing or been rejected, finds that a television show is broadcast by the same company"— there is a problem about being able to make a clear link between Chatsworth TV and the material sent out by my constituent, but a link could possibly be made through third parties— which is similar to, or at least bears a strong resemblance to, the writer's original material. There follow a number of tips that people should seriously consider, such as registering the material in one form or another or putting their name on the cover page. Mr. Egan also suggests that they should try to enter into a confidentiality agreement when they enter into correspondence with possible broadcasters or producers. If they cannot do that, letters should be clearly marked "In confidence". They should keep an accurate record of when the material was started, when it was sent out and whom it was sent out to, and should ensure that it is as detailed as possible. There are measures that people can take to reduce the risk of such disputes occurring, although it is not clear whether they would be sufficient to stop a dispute of this kind.

That is the main focus of what I want to say, but as I said before the Division, other industry issues involving intellectual property rights have been drawn to my attention that I want to touch on briefly, including counterfeiting, the ownership of formats and the power relationship between large corporations such as the BBC and small independent producers. In some ways that last point mirrors what my constituent alleges happened to him, where someone with more clout took over his idea. That is what independent producers say happens in relation to the BBC.

Those issues may have been addressed by the Communications Act 2003, and I should be grateful if the Minister said today or later whether he believes that the core principles of the code of practice are working well. They include

  1. "that a reasonable timetable is applied to negotiations…
  2. that there is sufficient clarity…about the different categories of rights to broadcast…
  3. that there is sufficient transparency about the amounts to be paid in respect of each category of rights".
There are a number of matters running from (a) to (g) in the code of practice that need to be addressed. We need to know whether the feedback that the Minister is getting from the industry confirms whether the code is up and running and working well.

It could be argued that the idea proposed by my constituent might fall into the category of a format. Typically, however, programmes such as "I'm a Celebrity, Get Me out of Here!", which are described as format programmes, can be transferred to another country in a very similar format or production. It would be interesting to find out the Government's thinking on the issue, particularly as the UK industry producing such programmes is very strong. The matter clearly has very significant financial implications for the industry.

Others have looked at the matter. The Minister may be aware of a speech given by Dr. Miriam Meckel, Permanent Under-Secretary for Europe, International Affairs and Media in the state of North Rhine-Westphalia in Germany. I will forgive him if he is not. In her speech, she gave a definition of a format as the core idea of a programme, the main framework and structure and all the characteristic features that make a show what it is. She believes that the way to solve the problem is to hand the matter over to the European Union. This would ensure both that the issue was finally addressed and a solution found, and that the legislation would be uniform across Europe. Individual reforms in each country would only lead to an array of different rules and regulations which could leave some countries at a serious disadvantage. I hope that the Minister will be able to clarify whether her strategy is a way forward for formats.

The idea of Europe as the way forward is not necessarily a commonly held view in the industry. One of the organisations that contacted me prior to the debate was the Alliance Against Counterfeiting and Piracy. It is quite concerned about the negotiations of the draft EU copyright enforcement directive, about which I knew nothing until about 12 hours ago. It is particularly concerned that the directive will leave UK businesses exposed and that it will impact negatively on their ability to protect intellectual property.

The alliance has three specific concerns: the proposals will hamper the ability of UK businesses to take appropriate action against intermediaries found to be infringing intellectual property rights; the proposal for intermediaries to be entitled to claim for compensation is an issue, given that that is already permitted under civil procedure rules; and the proposal to eliminate a rights holder's ability to seek double damages from an infringer seems dubious. Its view is that the penalties for counterfeiting are not sufficient and must be made much tougher, but it is worried that they will not be. Its concerns are exacerbated by the 12 accession states, which may not have the same regard for intellectual property rights as the existing EU members. I would appreciate either a written or a verbal response to those concerns.

There is no doubt that copyright law needs to catch up with the 21st century. A lot of business is about ideas rather than concrete designs and new inventions. To promote potential UK creative talent, we must clarify copyright law and we must safeguard and enforce intellectual property rights. In that way we could avoid controversies such as those generated by the "Busy Buses" programme. I hope that the Minister will be able to explain how that can be done.

4.30 pm
The Minister for Energy, E-Commerce and Postal Services (Mr. Stephen Timms)

I congratulate the hon. Member for Carshalton and Wallington (Tom Brake) on securing the debate, which raises some important issues and the particular concern of his constituent, as he explained. The Government are acutely aware of the need for effective protection of intellectual property rights in material created for and exploited in the media nationally and internationally.

It is also important that that protection should be balanced with the interests of others in society, whether from the perspective of freedom for users of protected material to make reasonable use of it for purposes of reporting, education, study and so on, or from that of enabling legitimate competition, or for other reasons. That balance has to be maintained in the Government's approach.

The most important form of protection in relation to the media is copyright. There are ever more challenges to the protection of intellectual property with the advances in digital technology in recent years, particularly through the internet. The hon. Gentleman is right to draw attention to the scale of the new issues that arise as a result of its spread, but provided that intellectual property protection keeps pace with technology development, the new and emerging environments also provide new opportunities for creators and producers to exploit and benefit from their material.

UK copyright law, as enshrined in the Copyright, Designs and Patents Act 1988, was already relatively well adapted to meet many of the challenges of technology. Of course, much has changed since 1988 and it is now the case—as the hon. Gentleman mentioned—that UK copyright law, like that elsewhere in the European Union, is strongly influenced by EU legislation. Since 1992 there have been seven directives in this field.

The most recent directive on copyright in the information society was implemented in the UK last October. It strengthens the protection of copyright in the digital environment. In particular, although the original UK legislation already gave rights owners extensive rights to control electronic dissemination of their material, the directive has required an amendment to the law to make those rights more clear and comprehensive.

The internet and services that deliver material on demand to consumers are important. The directive means that rights owners now have greater legal redress against those who seek to defeat technological measures such as copy-preventing devices. Rights owners need to be able to use such devices to protect their property, given the possibilities for unlimited copying and dissemination that modern technology affords.

The directive also provides for a number of exceptions to rights in areas where limited use of copy right material without permission should be permissible. The need for an essential balance between the interests of rights holders and the users of copyright material has been recognised for a long time in UK law. We have welcomed the recognition of that balance in the copyright directive and as far as possible we have preserved existing exceptions in the new regulations.

Last year we brought into force two new exceptions to copyright specifically designed to benefit visually impaired people who have difficulty reading copyright material in the form in which it is produced. Those new exceptions mean that difficulties and delays in obtaining copyright clearances will no longer be a bar to the production of much-needed alternative formats of copyright material, such as Braille or audiotape, by organisations such as the Royal National Institute of the Blind and the National Library for the Blind.

I do not make those points because they are specifically relevant to the case of the hon. Gentleman's constituent, but it is useful to place those concerns in the context of the recent changes to the law, because they illustrate our commitment to ensuring that rights are kept up to date, that they are enforceable and that their scope is balanced against the interests of others in society. That is particularly relevant in ensuring that copyright law continues to be balanced against the need to permit appropriate competition.

On the case that has been drawn to hon. Members' attention today, I need to make the point that copyright does not protect ideas as such. Such protection could be seriously anti-competitive. Many of the new programmes on television, and new ways of presenting material more generally in the media, might not have been possible if copyright protection had extended to an idea. For example, the idea of a cartoon based around characters of a certain broad type is not protected by rights that would prevent others from producing a different cartoon based around the same type of characters, and in our view it should not be so protected. The idea of a children's cartoon involving buses with faces is not protected by copyright any more than the idea of a book about trains with faces is protected by copyright.

Were copyright to protect such ideas, we probably would not have been able to enjoy both Warners' Daffy Duck and Disney's Donald Duck, or Warners' Sylvester and MGM's Tom. Creativity has always been inspired by what has gone before, and always will be. The cycle ultimately benefits us all by leading to a richer range of new media and other creative products, as those examples amply illustrate.

Tom Brake

My constituent's allegation is not so much that he had an idea, but that he had story lines, pictures and characters, and therefore that he had something with much more content to it than an idea.

Mr. Timms

I accept that point entirely. Copyright certainly does provide protection for sufficiently elaborated original expressions of ideas. A fully developed cartoon involving buses with faces that has not been copied from someone else is likely to be a copyright work that attracts all the rights granted to copyright owners, which enable the owner to act against those who copy that protected work without permission.

Copyright is infringed only if one person has copied from another's work. It is perfectly possible for two people working completely independently to create very similar cartoons. In that case, both could attract copyright protection and the creation of neither one would infringe the rights relating to the other. In the case that we have been considering this afternoon, it would be necessary to show that the cartoon known as "Busy Buses" copies at least a substantial part of the "Hoppy the Hopper Bus" series. Not only is it necessary to show that "Busy Buses" incorporates material that is the same as at least a substantial part of "Hoppy the Hopper Bus", but it has to be shown that that is the result of copying rather than independent creation. It is for the person alleging infringement of copyright to prove both those things. As the hon. Gentleman said, that would need to be done in the courts, where the burden of proof is that the evidence must show those things to be true on the balance of probabilities.

I have explained that copyright protection for media ideas is not appropriate, given the anti-competitive effect, but when someone has come up with a new idea that is not yet in the public domain, it is possible—the hon. Gentleman mentioned this point—to use the protection arising from the law of confidence to have a right of action against those who pass the idea on to others without permission. In this case, I think that it is too late, but it may be helpful for others to be reminded that they could agree non-disclosure on the ground of confidentiality with those to whom they disclose their new idea, when the idea is not yet in the public domain. A breach of that agreement could be pursued as a breach of confidence.

The hon. Gentleman raised more general issues. He is absolutely right that the dramatic and spectacular growth in use of the internet, which is continuing, poses new challenges for copyright law, and that we must ensure that the law keeps pace with the changes. Many companies already trade online successfully. We welcome very much the enthusiasm with which media companies use the internet to disseminate information widely and quickly. The UK's creative computer games industry is one of the strongest anywhere. The internet offers many opportunities for the content industry, and those opportunities will certainly develop further as broadband is increasingly used.

There are also threats to content industries from the development of the internet. A mature debate is needed about both the opportunities and the threats. I am aware of some issues that the hon. Gentleman raised—for example, the concerns about the EC draft directive on enforcement of intellectual property rights raised by the Alliance Against Counterfeiting and Piracy. Those concerns have informed our recent approach to negotiations on that proposal. We hope that an acceptable and workable solution on intermediaries and damages can be achieved as a result of those discussions. On the relationship between the BBC and independent producers, we hope that acceptable voluntary solutions can be found. We keep that matter closely under review.

The protection of formats is a difficult issue that has been examined in the past. It is not clear at this stage that further protection beyond that already available is needed. Again, we do not want to introduce legislation that would be seriously anti-competitive. However, we recognise that that issue also must be kept under review.

All content industries, including media interests, are concerned about illegal use of their material online. We are committed to effective enforcement of intellectual property rights and have taken several steps on that in recent years, including as part of the UK implementation of the copyright directive to which I referred improving the structure for enforcing rights. The protection given by intellectual property rights is an important part of the framework to encourage innovation and wealth creation, but rights that cannot be enforced are of no value.

Enforcement of rights must be pursued differently, depending on the circumstances. Lumping together commercial piracy on the one hand and private copying on the other is unlikely to be helpful in the longer term. Private downloading of material that has been put on the internet illegally is an infringement of rights, but it does not constitute a criminal offence. Efforts to increase the understanding of and respect for intellectual property rights, particularly copyright, is not helped by branding illegal downloaders as pirates. We must educate consumers about the downside of sharing copyright works over the internet, but we must not accuse them all of being criminals.

It being sixteen minutes to Five o'clock, the motion for the Adjournment of the sitting lapsed, without Question put.