UK Government Wants To Give Itself Power To Change Copyright Law Without Full Parliamentary Scrutiny

from the henry-viii-would-be-proud dept

A common feature of democracies is that new laws are scrutinized and debated by representatives of the people before they are passed -- the hope being that bad proposals can be amended or discarded. Laws giving governments the power to change other laws with only minimal oversight are therefore generally regarded as a Bad Thing. But that's exactly what the UK government plans to introduce, as this article on the Out-Law.com site explains:

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.
However, that "approval by resolution" can be pretty minimal compared to the process required for passing new laws:
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.
This power to change laws without Parliamentary approval is known as a "Henry VIII clause", since that monarch also availed himself of their convenience.

Such a meta-law that allows other laws to be changed without full scrutiny is potentially a dangerous thing, but it does cut both ways. It's true that it would permit the UK government to make copyright law even more unbalanced, but it might also allow it to move in the other direction, something already raised during discussions about this new power:

representatives from the creative industries had expressed "real concern" about plans to further liberalise the use of copyrighted material.
Their evident fear is that the UK government might bring in new exceptions to copyright pretty much without debate, and therefore in a way that they could not so easily fight using traditional lobbying techniques.

Although that would be a welcome result in terms of updating copyright, its benefit is probably outweighed by the long-term risk of such a Henry VIII clause being used by a future UK government to make copyright worse. On balance, it's preferable to have laws discussed and debated in the normal democratic way, rather than simply trusting governments to use their absolute powers wisely.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    Hephaestus (profile), Jul 13th, 2012 @ 7:57am

    What a great way to over throw a government

    Rule 107.3.2-a) Any politician speaking the copyrighted words "Fish" or "Chips" Shall be immediately put to death with out trial.

     

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  2.  
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    Nathan F (profile), Jul 13th, 2012 @ 8:46am

    How exactly is this democracy in action?

     

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  3.  
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    :Lobo Santo (profile), Jul 13th, 2012 @ 8:51am

    Absolvent power!

    Mmm, nothing I'd like more than the power to change laws without some pesky do-gooders looking over my shoulder.

     

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  4.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:02am

    A politician always wants to direct more power towards himself/herself. That way those who want legislative favors will be willing to offer them more in return. Checks and balances mean that those who want legislative favors have to spread the cost of buying a politician among more decision makers and so each decision maker gets less in return.

     

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  5.  
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    Zakida Paul (profile), Jul 13th, 2012 @ 9:05am

    This government don't give a damn about Democracy or the wish of the people. They are only interested in their ideological agenda and, of course, self preservation.

    And, you know what? Anyone who changed their vote to Tory in the last election has no right to complain. They should have remembered what it was like under the last Tory government under Major and the one before under Thatcher. Before anyone says it, I know this government is a coalition but the Tories are the ones calling the shots and Clegg and his crew are no more than puppets.

     

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  6.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:05am

    Re:

    It's the people's democracy of the United Kingdom.



    *using communist goverment defintions of "the people" and "democracy"

     

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  7.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:10am

    i really would like to know who is fucking who in the relationship between the UK government and the entertainment industries. whichever way round, it's the people who are continuously losing out and the industries that are continually eroding peoples' rights. i hope someone takes this government to the EU court and damn quick!

     

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  8.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:14am

    Re:

    "when you get in bed with the goverment, you're in for more than a good night's sleep" Ronald Reagan

     

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  9.  
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    Crosbie Fitch (profile), Jul 13th, 2012 @ 9:18am

    The first such amendment

    The first rule of copyright is: "You do not criticise the law of copyright"

    That'll put TechDirt on the UK's list of websites blocked for copyright infringement or the inducement thereof.

    Piracy will also appear to have ceased completely.

     

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  10.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:18am

    No way can this go through. It's far too extreme.

     

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  11.  
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    Jake, Jul 13th, 2012 @ 9:32am

    Re:

    If the Party leadership like it, it'll go through. The joys of a political system where voting contrary to the party line can cost you your seat.

     

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  12.  
    identicon
    Bengie, Jul 13th, 2012 @ 9:51am

    how about...

    "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."

    Remove the ability to create new rights and leave in the ability to create new exceptions.

     

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  13.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:52am

    I can see this passing unless theres major public opposition, bloody government.

    Its times like these, i wished the uk had a site equivalent to techdirt, and at least as half as much the support.

     

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  14.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 9:58am

    History shows people in such positions tend to get bought off by the people they're supposed to be regulating.

    Look at the FDA. All but ONE of the heads have gone on to MUCH higher payer jobs after leaving the FDA, either to a food or prescription drug company.

    And the one guy who didn't go onto a higher paying job only did because they actually tried to do their job and put stricter regulations & warnings on food & drugs, only for the food and drug companies to run to congress and get them to block him from doing his job. After that guy left the FDA he wrote a book about all the dirty secrets with food & drugs that those companies don't want you to know about that he was trying to protect the American people from.

     

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  15.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 10:04am

    Not sure why the fuss. While I am not a UK lawyer, the concepts appears to track what is known here in the US as "Administrative Rulemaking" under the Administrative Procedures Act.

    It is not at all unusual for a legislative body to craft legislation with a somewhat broad brush, and then authorize (aka: delegate) filling in the blanks to the executive body. Of course, the executive body in crafting rules is constrained by the substantive provisions of the original legislation. Thus, within the US the executive may not expand the substantive provisions of the pertinent legislation. One example in the case of US copyright law is that the executive has the delegated power to craft exceptions to the anti-circumvention provisions of the DMCA, subject, of course, to the guidelines provided in the original legislation.

    The above is just a general comment concerning rulemaking procedures, and certainly not a detailed explanation of all facets associated with executive rulemaking.

     

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  16.  
    identicon
    Jason, Jul 13th, 2012 @ 10:25am

    Re:

    "The executive" being all those nice attorneys hired straight out of MPAA and RIAA and apparently guaranteed that if they tow the line then they get to go from being "the executive" to "an exuctive" when their term is up.

    Seriously, why would anybody fuss?

     

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  17.  
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    BeaverJuicer (profile), Jul 13th, 2012 @ 10:27am

    Nice play by the **AA.

    I want something passed that will make things a heck of a lot easier to get what I want. I know that my opponents will argue against anything I do to give me that.

    I pretend to be against what I want passed, forcing mine enemy to either fight with me, or pass what I want...

     

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  18.  
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    Anonymous Coward of Esteemed Trolling (profile), Jul 13th, 2012 @ 10:30am

    Worst thing is

    If it happened, I would not be surprised.

     

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  19.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 10:36am

    is this another idea by that thick prick Vaizey? i wouldn't be surprised. he seems to be having an affair with everyone in the entertainment industries. i hope his chuff is real sore!!

     

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  20.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 10:39am

    Re:

    The above is just a general comment concerning rulemaking procedures, and certainly not a detailed explanation of all facets associated with executive rulemaking.


    Executive rulemaking here has gotten out of hand.

    There is certainly some place for mundane rulemaking by the executive branch—even extending to rules that have public effect. The legislature has no need to concern itself with every petty detail. It would be ludicrous to pass a public law specifying the typography, color, size, and layout of a government form, for instance, yet a vast administrative apparatus requires such rules.

    When this rulemaking power intrudes into meatier areas, though, it should raise flags about separation-of-powers.

    It is obvious that legislatures (as presently constituted) do not have the expertise or manpower to fulfill all modern, 20th and 21st century responsibilities. But the solution should not be —should not have been— just to dump the power of making laws onto the executive. Instead, the legislative branch should have grown to keep pace with the increased size of the executive branch.

    It may not be wise or necessary to increase the size of elected memberships. When a parliamentary body grows too big, it may lose a sense of collegiality. But the staff assigned to the legislative branch should be less constrained.

     

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  21.  
    identicon
    Anonymous(ish) Lobbyist, Jul 13th, 2012 @ 10:51am

    Re:

    The politics of lobbying is a bit complex at the moment due to the UK government being split, and under pressure from different directions. Afaik:

    The big tech companies (Google?) seem to be pushing Downing Street for greater exceptions to copyright law so they can make their millions through new services. The entertainment industries have been heavily lobbying Ed Vaizey (junior minister in the Department for Culture, Media and Sport) to shut down large chunks of the Internet, give them new powers and force the big tech companies to do whatever they are told in terms of enforcement.

    The tech companies seem to be winning (Downing Street > DCMS), but as a concession the Government is pushing forward on its three-strikes program (although that may end up screwing the entertainment industry in a couple of years), and introducing "Extended Collective Licensing" stuff which would allow the big collecting societies to license out anything they wanted to.

    The entertainment industry and tech companies are sort of reaching a stable stand-off position, end users might be slightly better off (via new exceptions and more licensing), but only in as far as stuff they've been doing for years finally being legal, but artists, authors etc. are going to end up losing out, particularly through the ECL scheme.

     

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  22.  
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    Duke (profile), Jul 13th, 2012 @ 10:56am

    Re:

    No, this is Vince Cable over in dBIS, rather than Vaizey at DCMS. Vaizey hasn't been doing all that much with copyright stuff recently due to the phone-hacking stuff and now the Olympics.

    My impression is that this proposed power is more about implementing the Hargreaves Review recommendations and so introducing *new* defences rather then removing existing ones. However, the problem with major changes being done by secondary legislation is that we won't know what this power will be used for until it is used.

    Either way, though, it is constitutionally a bit dubious for the Government to be giving itself the power to make major changes to criminal law with only cursory approval by Parliament

     

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  23.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 11:14am

    Re: Re:

    @ #21

    Ed Vaizey is not the 'junior minister', he is The Minister for Culture, Communications and Creative Industries. mind you, he did some time ago say that there would be some changes that politicians and companies would welcome. those changes turned out to be the blocking of TPB and the announcement he made in Parliament was quite a while before the case went to court, so what does that tell you? the decision had been made already just to please the entertainment industries and the court case was a mere formality!

     

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  24.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 11:48am

    Re: The first such amendment

    First rule of cartel club, you do not talk about cartel club

     

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  25.  
    identicon
    Anonymous Coward, Jul 13th, 2012 @ 12:00pm

    Re: Re:

    To a large degree this is quite true. OSHA, EPA, Dept. of Education, IRS (especially with regard to the PPACA), etc., etc. Unfortunately, the transfer of legislative power to the executive was largely rendered a nullity when the Supreme Court abandoned the Non-Delegation Doctrine.

     

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  26.  
    icon
    Violated (profile), Jul 13th, 2012 @ 12:27pm

    Cannot be trusted

    No good will come of this for sure.

    Here we have a country that likes to obtain too many bad political ideas from the United States. Already they have gave us the 3-strikes DEA and these were the people all to keen to join ACTA had not the European Parliament stopped them.

    I don't know why they are bothering with this short-cut, beyond some future emergency use, when the UK is still a country where the Copyright Cartels, like with the BPI, have the upper hand. Public protest in growing along with the UK Pirate Party but more UK citizens sure need to wake up and to get mobilized.

    So they can already pass nearly any bad copyright legislation they want and the only people who have managed to stop them so far live in Europe. I would not say these MPs are the dumb kind but it is all too easy for Government to sucker them up.

    Yes copyright sure is the one area that requires lots of debate, along with careful and wise changes, but it is sure telling that these days countries can't even trust their own Parliaments which also means we have these Copyright Cartels on the run.

     

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  27.  
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    Violated (profile), Jul 13th, 2012 @ 12:40pm

    Re:

    This is not that uncommon though. For many years the UK Government just transposed EU directive after EU directive into UK law using the SI system with little oversight.

    That was all about harmonizing EU laws across all EU countries though where things can go out of sync if member countries start objecting.

    We can see though that more and more powers will shift to European level in the long term.

     

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  28.  
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    drew (profile), Jul 13th, 2012 @ 3:52pm

    Re:

    I invoke Stephenson's second law: any online discussion of UK politics will blame it on thatcher before the end of the first page of comments.
    Thank you for the data point.

     

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  29.  
    identicon
    Adolf Hitler, Jul 13th, 2012 @ 3:53pm

    Visa for the UK

    hi, this is Adolf. I'm still living in Ecuador and would like to inquire how I get a visa to immigrate to the UK. I'm quite proud of how they've taken my ideas and brought them to a new level. The plan of the UK government to strip citizens rights, bypass parliament, read every email and website you go to, they've taken it to a new level. Uber approved and a big heil me shout out to the UK government.

     

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  30.  
    icon
    drew (profile), Jul 13th, 2012 @ 3:56pm

    Re: Re: Re:

    The short answer to "who is fucking who" is "the government is fucking the people."
    The longer answer starts with the question of "when, in the last 30 years*, has copyright ever moved back in the direction of benefitting the public?"

    * With the honourable exception of Canada this week. Go you Canucks! No really, please go.**

    ** This is a joke, some of my best friends are Canadian***

    *** This is a lie.

     

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  31.  
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    drew (profile), Jul 13th, 2012 @ 3:57pm

    Re:

    I wish we actually had the defences of a written constitution.
    :¬(

     

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  32.  
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    drew (profile), Jul 13th, 2012 @ 4:01pm

    Re:

    Don't forget that this is the parliament that rushed through the Digital Economy Act in the wash-up and fucked us over royally on that score.

     

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  33.  
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    Zakida Paul (profile), Jul 13th, 2012 @ 5:12pm

    Re: Re:

    Did I blame Thatcher for the current problems? No I did not. I simply referred to her (and Major) as an example of what UK voters should have expected from a Tory majority. That is not blaming her for anything.

     

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  34.  
    identicon
    Mr Big Content, Jul 13th, 2012 @ 7:48pm

    "Henry VIII Clause"

    Ha-ha, that is so funny. Like these Brits run their country based on characters from history books! Get real, guys! We live in the REAL NON-FICTIONAL WORLD, not in history!

     

    reply to this | link to this | view in thread ]

  35.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:25am

    Re: Re:

    The People's Democratic Monarchy of South-Eastern England and associated subordinate counties and one-time independent countries.

     

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  36.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:26am

    Re: Absolvent power!

    If it weren't for those pesky kids and their dog!

    (Famous Five edition, not Scooby-Doo)

     

    reply to this | link to this | view in thread ]

  37.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:29am

    Re: Re:

    That was Labour in the dying days of their government, I think, not this one. But the Liberals should have been savaging it like a starving lion, rather than whining on about the Lords.

     

    reply to this | link to this | view in thread ]

  38.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:31am

    Re: Cannot be trusted

    This is one of the many reasons I want the UK to stay in the EU - it stops the government lurching even further into the US's bed/doghouse.

     

    reply to this | link to this | view in thread ]

  39.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:32am

    Re: Visa for the UK

    Maggie says "hi" and wonders if you can come here via Chile, where she'd like you to visit the grave of her old friend Pinochet.

     

    reply to this | link to this | view in thread ]

  40.  
    icon
    Niall (profile), Jul 16th, 2012 @ 4:33am

    Re: "Henry VIII Clause"

    Hey, we invented all that fiction, we just never left it!

     

    reply to this | link to this | view in thread ]

  41.  
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    Seegras (profile), Jul 16th, 2012 @ 6:43am

    Napoleon I clause

    Henry VIII clause? That sounds like this power to change laws without Parliamentary approval that is known as a "Napoleon I. clause", since that monarch also availed himself of their convenience.... Actually he had no parliament at all.

    Except, having been the enemy, I sure hope the British are not following that dictators example ;)

     

    reply to this | link to this | view in thread ]

  42.  
    icon
    Pwdrskir (profile), Jul 25th, 2012 @ 9:45am

    Orwellian moves by UK

    George Orwell saw this and more to come by observing the men who ran governments with strong central power and unchecked authority.

    He held particular contempt for factions within the govt who were not answerable to the people and not subject to scrutiny or Parliamentary debate (Ministry of Truth, Ministry of Peace, Ministry of Plenty & Ministry of Love).

    The UK is clearly moving down the 1984 path by using the likes of “The Business Secretary” to propose “to draw up any future laws affecting exceptions to copyright and rights in performances in the form of new regulations” & “…(new regulations) would not be subject to committee scrutiny or Parliamentary debate and may not even require to be voted on by each House.”
    http://www.out-law.com/en/articles/2012/july/copyright-exception-law-could-be-changed-witho ut-full-parliamentary-scrutiny/

     

    reply to this | link to this | view in thread ]


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