[Campaign] Lord Howarth, Copyright, the Lords and Paul Ellis

Andre.Regini a.regini at kingbridge.co.uk
Fri Mar 8 12:19:08 GMT 2013


Apologies for a very long post, but what took place on Wednesday in the
Lords Report stage of the copyright clauses of ERRB was quite extraordinary.
First I report ( quoting Hansard ) Lord Howarth's attack on Paul Ellis and
Stop 43. Then, the superb reply Paul emailed to his lordship today:



1) From Wednesday's' Hansard, an extract  focussing on his attack on Stop43
of what Lord Howarth of Newport said:

" I also hope that the report will inform us as to how the Intellectual
Property Office seeks to gather views and reconcile different interests and
points of view. I have very much sympathy with it in the very difficult and
sensitive task that it has to carry out.

Let me give an instance. I saw in the British Journal of Photography
recently a story headed:

"News agencies go on the offensive, call for judicial review of copyright
changes".

I was surprised to learn that:

"The world's largest news agencies have delivered a Letter Before Claim to
the UK's business secretary Vince Cable in what is described as the first
step in the process of initiating a Judicial Review - a formal legal
challenge to governmental planned legislation".

The article goes on to suggest that the Government are proceeding quite
improperly. It challenges the Government's plans to introduce their proposed
changes through what they were pleased to call "Henry VIII
clauses"-secondary legislation which is not subject to the full scrutiny of
Parliament.

That is not very complimentary to your Lordships. We are engaged in quite
serious and intensive scrutiny of this legislation. We certainly will be
when we have the regulations in due course. What was completely bizarre was
then to read a quotation in the name of Mr Paul Ellis of the Stop43
organisation:

"The technology, academic and cultural heritage sectors want to be able to
use other people's copyright property without having to ask or pay for it,
and view copyright law as an obstacle. Under their intense propaganda and
lobbying onslaught several governments have fallen for this line and are
trying to introduce laws that weaken copyright, such as the Enterprise and
Regulatory Reform Bill now going through Parliament".

He then goes on to denounce,

"these lobbying-driven legislative attempts to confiscate our property".
It seems a bit of a case of the pot calling the kettle black. The serious
point is that the IPO is very vigorously lobbied from a multiplicity of
sources and by a multiplicity of powerful commercial interests; the noble
Baroness, Lady Buscombe, referred to some of them. It has always to be the
duty of the IPO, the Government and us in Parliament to ensure that workable
policies are arrived at that represent an appropriate balance between the
range of competing, relevant and, indeed, legitimate interests that are all
intensely concerned about what we do.

I hope that the annual report will include some account of how the IPO
weathers these storms and what its philosophy is in terms of receiving and
listening to representations and establishing working groups which allow
people to have the opportunity to contribute their thinking and remind
policy-makers of their legitimate interests but, at the same time, do not
cause the policy to be unduly tipped and biased in favour of those who shout
loudest. That would always be wrong. I have every confidence that that will
not be allowed to happen. However, it may be helpful to those who have this
arduous and difficult responsibility of developing the technical details of
policy in the copyright field that we have a better understanding of what it
is that they have to cope with. I support this amendment.


2) Paul Ellis of Stop43 replies to Lord Howarth:



" Dear Lord Howarth

I was astonished to see yesterday that you have immortalised me in Hansard.
I would be most grateful to you if you would allow me to comment on your
remarks.

You said:

'I also hope that the report will inform us as to how the Intellectual
Property Office seeks to gather views and reconcile different interests and
points of view. I have very much sympathy with it in the very difficult and
sensitive task that it has to carry out.' I agree with you. You then went on
to say:

'"The world's largest news agencies have delivered a Letter Before Claim to
the UK's business secretary Vince Cable in what is described as the first
step in the process of initiating a Judicial Review - a formal legal
challenge to governmental planned legislation".

The article goes on to suggest that the Government are proceeding quite
improperly. It challenges the Government's plans to introduce their proposed
changes through what they were pleased to call "Henry VIII
clauses"-secondary legislation which is not subject to the full scrutiny of
Parliament.'

The view that the Clauses are Henry VIII clauses is held not only by the
Tier One intellectual property lawyer who drafted this briefing paper on the
Bill (and its more than seventy signatories):

< <http://www.stop43.org.uk/docs/ERRB_Grand_Committee_Briefing_to_Peers.PDF>
http://www.stop43.org.uk/docs/ERRB_Grand_Committee_Briefing_to_Peers.PDF>

- but also by other legal experts to whom I have spoken. I, a layman, defer
to their expert judgement.

You go on:

'That is not very complimentary to your Lordships. We are engaged in quite
serious and intensive scrutiny of this legislation. We certainly will be
when we have the regulations in due course.'

It is my understanding that the regulations will be enacted as statutory
instruments; that SI's are not scrutinised and debated by the full House;
that they cannot be amended but must either be accepted or rejected as they
are; and that the last time an SI was rejected was in 1979, concerning the
price of paraffin. So I consider the statement 'secondary legislation which
is not subject to the full scrutiny of Parliament' to be true, but am
perfectly happy for my view to be demonstrated to be false.

You then say:

'What was completely bizarre was then to read a quotation in the name of Mr
Paul Ellis of the Stop43 organisation:

"The technology, academic and cultural heritage sectors want to be able to
use other people's copyright property without having to ask or pay for it,
and view copyright law as an obstacle.'

This is a pure statement of truth. They do consider copyright law to be an
obstacle - there is a profusion of evidence to support this view - and the
legalised 'use other people's copyright property without having to ask or
pay for it' is the precise purpose of these Clauses.

You continue: 'Under their intense propaganda and lobbying onslaught several
governments have fallen for this line and are trying to introduce laws that
weaken copyright, such as the Enterprise and Regulatory Reform Bill now
going through Parliament".' Again, there is abundant evidence in support of
this statement. Last year the French government very seriously weakened
authors' rights; the Chinese government is considering far-ranging 'orphan
works' and ECL measures; the US government is once again considering 'orphan
works' legislation which will be harmful to authors' rights and markets
based upon them, and of course most evidently the EU has introduced an
Orphan Works Directive. All weaken copyright. I could go on, at length.

You say:

'He then goes on to denounce, "these lobbying-driven legislative attempts to
confiscate our property".'

I most certainly do. Here is a report of an example:

< <http://www.theregister.co.uk/2012/07/23/google_lobby_why/>
http://www.theregister.co.uk/2012/07/23/google_lobby_why/>. Again, I could
go on, at length.

You conclude: 'It seems a bit of a case of the pot calling the kettle black.
The serious point is that the IPO is very vigorously lobbied from a
multiplicity of sources and by a multiplicity of powerful commercial
interests...'

The IPO most certainly is 'very vigorously lobbied from a multiplicity of
sources and by a multiplicity of powerful commercial interests', but it may
surprise you to learn that I am not one of them. I am not a lobbyist, but a
low income unfunded private individual campaigning in his spare time to try
to retain his property and human rights. I have no more than a laptop and an
Internet connection. In contrast the British Library and the BFI both have
staff whose functions amount to that of full-time lobbyists, and if you read
the article at the link above you will see the multiplicity of guises in
which Google lobbies for the weakening of copyright. If you would like to
understand why they do, I can recommend the documentary 'Google and the
World Brain', recently broadcast by the BBC, which provides a very good
introduction to the background of all of this:

< <http://www.youtube.com/watch?v=Km7f-DeG6KI>
http://www.youtube.com/watch?v=Km7f-DeG6KI>

I was astonished to be conflated with 'powerful commercial interests' and
their well-funded lobbyists, and would be grateful for an explanation of the
equivalence of professional lobbying and unfunded campaigning, because to me
your statement implies that private individuals should not lobby at all. Is
this really your view?

And if the IPO (an entire Government department) cannot withstand me and my
efforts, and quails under the onslaught of an unfunded citizen carrying out
his Athenian duty, then I wonder what it is made of. Perhaps it has lived
rather too cosy and sheltered a life.

I would be most grateful for the opportunity to discuss this further with
you before the next debate, if you can spare the time for this. Thank you,
Lord Howarth.


Kind regards

Paul Ellis
Co-founder, Stop43
<http://www.stop43.org.uk/> www.stop43.org.uk"
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