Enterprise and Regulatory Reform Bill receives Royal Assent

Finally! The moment everybody was waiting for has come: today the Enterprise and Regulatory Reform Bill (ERRB) received Royal Assent.

This new piece of legislation (a detailed implementation timetable of which will be published on the BIS website shortly) contains a bit of everything: from directors' pay to whistle blowing protection, from the creation of a new Competition and Markets Authority (this shall bring together the competition functions of the Office of Fair Trading and the Competition Commission) to important copyright provisions.

Speaking of the latter, as explained in the BIS press release, the ERRB is intended to 

"modernise the UK’s copyright regime to promote innovation in the design industry, encouraging investment in new products while strengthening copyright protections. Creating a level playing field for collecting societies and the thousands of small businesses and organisations who deal with them by strengthening the existing regulatory regime. For the first time orphan works will be licensed for use; these are copyrighted works for which the owner of the copyright is unknown or can’t be found. There will also be a system for extended collective licensing of copyright works".

While this Kat and Merpel have not yet had the time to digest the new provisions, apparently (and among other things) the final version of the bill is such as to require UK museums to pay upfront for orphan images, or images whose copyright owners cannot be found, after an amendment to the ERRB to limit proposals was narrowly defeated in the House of Lords. 

If she manages not to fall asleep by 9 pm,
Merpel will spend the night
pondering the
Enterprise and Regulatory Reform Bill
As reported in the Art NewspaperAlan Howarth, Baron Howarth of Newport, a former Labour minister for the arts who proposed the amendment commented as follows: 

The great cultural institutions of our country hold tens of millions of orphan works in their collections”. Paying for each of them in advance “would be an impossible, as well as an inappropriate, burden”.

On the other side of the orphan work debate, it is worth recalling that a few days ago photographer David Bailey wrote to George Osborne MP criticising HM Government's approach and also asking a question which might have crossed the minds of others, too: "Why can't copyright be dealt with properly in a proper Copyright Bill?"
Enterprise and Regulatory Reform Bill receives Royal Assent Enterprise and Regulatory Reform Bill receives Royal Assent Reviewed by Eleonora Rosati on Thursday, April 25, 2013 Rating: 5


  1. As was debated in both Houses of Parliament, far too much detail on how these changes are to be effected will be contained in the secondary legislation (due to so-called Henry VIII clauses). There is a danger, which the IP Minister seemed to assure the House of Lords would not happen, that several largely beneficial changes (eg the inclusion of parody within the fair dealing exemptions) could be lumped together more contentious matters in the same draft statutory instrument, which Parliament may not amend, only to agree to or reject in its entirety.
    As for David Bailey's last minute interevention, it was not only too late to have any effect, some of its arguments were unhelpfully muddled and confused. For example,
    "They simply should not be allowed to get away with this [stripping of metadata from digital photographs]. They can because our government refuses to give us the right to our names by our pictures (Moral rights)"
    conflates a real existing problem with a bewildering ignorance of the law as it currently stands (vide s 77 CDPA 1988).

  2. I cannot find the act on the links your provided – does anyone know if it has been published yet? it’s not on http://www.legislation.gov.uk/ either

  3. I just hope that we will not end up with "coopyright trolls" which use the bulk of orphan royalties to fund their own existence raher than providing income to the owners when they are eventually traced. The presumption that copyright exists in an orphan work, meaning that you have to pay for something that is not atually in coyright, is rather worrying. We shall have to await the secondary legislation wherein the detail lies.

  4. anon @10:59
    I can confirm that the ERR Act is not yet available on the Legislation website. I imagine that, since it amends quite a lot of other primary legislation, they are making those changes, or at least adequately noting them, before putting the Act up, since it will need a lot of cross-linking too.
    The most up to date version of the Bill, and for the purposes of Chapter 6 which includes the copyright and performance right changes, virtually identical to the Act at Royal assent, can be found here

  5. "which Parliament may not amend, only to agree to or reject in its entirety"

    By "Parliament" do you mean your 'lower house'? and/Or your 'upper house'?

    What sort of bills can only be passed or rejected ?

    In Australia pas unamended or reject outright is only the case with explicitly tax Acts -and any Act that deals with both tax matters and non tax matters is in the very unambiguous words of section 55 of our Constitution "Void".

  6. The exact wording of section 55
    "laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect.

    Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only."

  7. @John Walker. Most secondary legislation in the UK comes in the form of Statutory Instruments - basically Regulations issued by the various Government Ministers, this power having been granted in the primary legislation.
    The draft SIs come before both Houses of Parliament and fall into two main categories: (quote from the Parliament.uk website):
    "Affirmative instruments: Both Houses of Parliament must expressly approve them.

    Negative instruments: become law without a debate or a vote but may be annulled by a resolution of either House of Parliament

    In both cases, Parliaments room for manoeuvre is limited. Parliament can accept or reject an SI but cannot amend it."

    However both types are usually examined by committees set up for that purpose and it is the duty of these scrutinising committees to recommend to their respective Houses whether the SI should be agreed to or not.
    There is a third type of Instrument which needs what is known as a Super Affirmative Resolution: this requres a Minister to submit a first draft of the secondary legislation to Parliament and if criticisms are raised, the minister may take this into account before submitting the final proposed instrument, but is not bound to do so.

  8. Andy thanks. mind... I don't quite get it- we also have 'regulatory instruments' but they are not Acts of parliament and regulatory instruments certainly do not lump together unrelated contentious/controversial things, in a like it or lump it way.

  9. John - Statutory Instruments can be used to fill in the details of something, so that the details can be changed without needing to get a whole Act through Parliament. For instance, in the UK we have the Patents Act, which is an Act of Parliament, and the Patents Rules, which is a Statutory Instrument. The Act says, for instance, that there is a set period for getting a patent application in order, and it dies if it is not sorted out in that time - but the Act doesn't say what the period is. The period is set out in the Rules.

    The assumption seems to be that, if Parliament has given the Governement authority to make SIs to deal with situations, then the Government can be trusted to come up with something sensible.


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