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I say to the noble Lord, Lord Howard of Rising, that the present section will commend itself because it is permissive. The designated authority does not have

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to act, but if it felt the need was there to act, it has the power to do so, which is why I want to defend the section as it stands and to resist Amendment 255.

Lord Howard of Rising: I give belated but sincere congratulations. I was so worried about the out-of-character action that I completely forgot to give my applause, which I now do belatedly. I hope that the Minister will accept it. I also bow to his much greater knowledge of video games than mine. I do not know when he finds time to play them, but I accept his explanation and beg leave to withdraw the amendment.

Amendment 254 withdrawn.

Amendment 255 not moved.

8.15 pm

Amendment 255ZA

Moved by Lord Howard of Rising

255ZA: Schedule 1, page 53, line 25, at end insert "and insert-

"(2) Regulations under this section may require content advice issued with the classification certificate by the designated authority to be shown in a manner so specified.""

Lord Howard of Rising: My Lords, this amendment would ensure that consumer advice is added to every video work, along with the classification. The inclusion of voluntary consumer advice has become widespread and provides a useful tool for consumers.

The type of material a person finds offensive or unpleasant varies enormously. Some people object to watching violence while finding explicit sexuality acceptable. Others are exactly the opposite. Many parents would not mind their children being exposed to a single use of a swear-word but would find a profanity-filled film too much. Consumer advice is a quick and simple way to see what sort of material triggered the classification. Since the BBFC automatically writes consumer advice for every work it classifies and the size of the classification label remains the same whether or not the advice is included, it is no surprise that the majority of major producers include the advice as a matter of course. Indeed, it is hard to think of a reason why a producer would not include the advice except where, as has happened occasionally, it is to the production company's commercial advantage that people do not know the full story about what they are buying. I beg to move.

Lord Davies of Oldham: My Lords, once again the noble Lord is reflecting his authoritarian instincts and seeking to make compulsory that which at present is mainly advisory and permissive. The Government are, of course, concerned that the BBFC and the VSC need to make their classification on DVDs and games clear. Additional advice is at present permitted and often welcome as a way of providing additional information to consumers. Most DVDs and games provide sufficient information about the contents to allow the consumer to make an informed choice. After all, if the consumer buys something which he did not intend to buy, his reaction is likely to be very critical of

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the provider. There is absolutely no evidence to suggest that making additional advice compulsory would provide any additional protection.

There was no call for compulsion in this area during the extensive consultation we undertook before drawing up the legislation. It is an extra imposition on industry, especially given that there is no restriction on what the designated authorities might impose. So the noble Lord might, in fact, be proposing an excessive demand on the industry because he is leaving it to the designated authorities to make that judgment. We believe that there is some benefit in additional advice and it is often provided to the advantage of the consumer. However, we do not see the case for making it compulsory beyond the necessary certification advice which is already provided for. I hope, therefore, that the noble Lord will return to his normal bent and feel that his amendment ought not to put an extra burden on industry where it is not necessary.

Lord Howard of Rising: I thank the Minister for his remarks. I do not think it would be a burden on industry but I am so upset about him calling me authoritarian that I cannot put my argument very well. My amendment is meant to provide a form of practical assistance with the proliferation of unsuitable material which we have been talking about quite a lot recently. I beg leave to withdraw the amendment.

Amendment 255ZA withdrawn.

Schedule 1 agreed.

Amendment 255A not moved.

Clause 42 : Extension and regulation of licensing of copyright and performers' rights

Amendment 255B

Moved by Viscount Bridgeman

255B: Clause 42, page 46, leave out lines 4 to 42 and insert "30 insert-

"Extension and regulation of acts permitted in relation to copyright works

30A Orphan works

(1) The Secretary of State may by regulations provide that acts in relation to an orphan work which would otherwise require the consent of the copyright owner may be done notwithstanding the subsistence of copyright.

(2) A work shall become an orphan work when the copyright owner cannot be found.

(3) The burden of proof that the copyright owner cannot be found shall be on the person who publishes the orphan work, and the burden shall be discharged by proof that a diligent search to identify and locate the copyright owner has been undertaken and has not been successful.

(4) Fair dealing with an orphan work shall not infringe copyright.

(5) The work shall cease to be an orphan work when the identity and location of the copyright owner becomes known.

(6) The regulations may provide for determining the rights and obligations of any person if a work ceases to be an orphan work.

(7) The copyright owner shall be compensated in an amount equal to the licence fee he would have received had he been identified at the time of publication and he shall be entitled to aggravated damages if the person who publishes the work is unable to discharge the burden of proof described in subsection (3).



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(8) The regulations may provide for the Secretary of State to determine whether any requirement of the regulations for a person's becoming or remaining authorised has been met or ceased to be met.

(9) In this Part references to a work as, or as ceasing to be, an orphan work are to be read in accordance with regulations made by the Secretary of State.

(10) Regulations under subsection (6) may operate by reference to guidance published from time to time by any person.""

Viscount Bridgeman: My Lords, as this is the first time I have spoken at this stage of the Bill, I declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive, and a member of the British Association of Picture Libraries and Agencies and the Creators' Rights Alliance, both of which have briefed me but not on this amendment. I shall not be pressing Amendment 255B in the name of my noble friend Lady Buscombe and myself since it is a probing one, but I wish to speak briefly to it because some important points are associated with it.

In addressing the orphan works problem, there are some honestly held differences of opinion between the licensing approach in new Clause 116A and the exceptions route represented by Amendment 255B and new Clause 30A. It is clear from contact that I have had with interested parties to the Bill that the licensing route is the option favoured by the majority, but by no means all, of stakeholders. I am well aware that all sides of your Lordships' House wish this Bill to pass into law in this Parliament, which is the basic reason why I shall not press my amendment at this stage. I am also cautiously reassured by the intentions expressed in the Government's recent briefing paper that there will be wide consultation in connection with the framing of the regulations and the code of practice that will derive from them. I thank the Minister for facilitating a meeting with his officials and the Intellectual Property Office, which I gather will be responsible for drawing up these regulations. However, some important aspects are associated with this amendment, which I hope that the Minister will take note of for possible considerations in the later stages of this Bill and in the crucial task of framing the regulations.

The proposed Clause 30A would be an additional permitted act to set beside those already set out in Chapter 3 of the Copyright, Designs and Patents Act 1988. It is effective, inexpensive and entirely consistent with a cornerstone and the existing structure of copyright law, which goes back centuries, in that it preserves the integrity of the exclusive right to copy. This is the foundation of copyright. As it stands, Clause 116A alters the basis of copyright law, which confers on the first owner an inalienable right until he voluntarily parts with it. The exceptions route achieves the objective without depriving the owner of his or her property rights. Secondly, it places the burden of proof for establishing orphan status where logically it should belong-with the user-and not in the hands of a third party, a licensing body. In this, it contrasts with Clause 116A, in which a third party, namely a licensing body, can be interposed between copyright and owner. The owner can lose control of his copyright. It is a basic point, which this House should be aware of. I am also aware that that point is addressed in a new clause recently tabled by the Government, so I am grateful for that.



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I make it clear that the ambit of the exception should be confined to institutions approved by the Secretary of State and would be aimed at those who hold the major collections of orphan works. The composition of those collecting societies is covered in amendments about to be discussed. There is nothing to prevent these institutions from combining together to create their own licensing body. Clause 30A is but one of a number of alternative solutions to the orphan works question. In not moving it, I am pleased to put my name to those amendments in the range Amendments 260 to 272, in the names of the noble Lords, Lord Clement-Jones and Lord Razzall, which should have the laudable effect of improving certain aspects of the clause as currently drafted.

I make two further important points. The first is that straightforward procedures are put in place to enable the rights owner to assume control of this work once he or she has made himself known. The standard of proof required to establish title should be reasonable-and again I have to concede that the new government amendment refers to that.

In the Times of the past week, there have been two letters, one from the curators or leaders of the majority of the major museums in this country, supporting the present proposal. It was followed today by a letter written by the executives of institutions representing a large body of creators who have grave concerns about this Bill due to the possible exploitation of their members' rights by unscrupulous users. I know that my noble friend Lady Buscombe will speak further on that matter. Those settling the secondary legislation must bear in mind that monopolies or quasi-monopolies by collecting societies should be tolerated only as long as such structures are the only means of protecting effectively the rights of individual owners. I beg to move.

The Deputy Chairman of Committees (Baroness Fookes): The point is probably academic, but if this amendment were to be passed, I could not call Amendments 256 to 282AZA by reason of pre-emption.

Baroness Buscombe: My Lords, I rise to speak in support of Amendment 255B, to which my name is added. Clause 42 delegates to the Secretary of State the power to settle regulations which will transfer a property right, the right to copy, from one person to another without consent. This is, in jurisprudential terms, a very significant derogation from widely accepted principles of law.

I entirely accept, and indeed very much support, strong arguments for broadening public access to art works which are currently restricted by copyright law. However, unless the regulations are created with clear and adequate safeguards, the impact on the creation and dissemination of visual arts will be significant.

8.30 pm

A very positive aspect of Clause 42 is that it has generated considerable discussion and debate beyond your Lordships' House, and highlighted some crucial aspects of copyright law which have been referred to by my noble friend Lord Bridgeman, and which I very much hope the Government will address in drafting the regulations.



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My noble friend referred to two letters published in the Times: one of 3 February with the headline, "Unlock collections for digital access to all", and another from today, "We must not jeopardise the fundamental rights of their creators". These letters explain why my noble friend Lord Bridgeman and I believed it important to propose a route to broadening public access to art works which are currently restricted by copyright law, while seeking to protect the fundamental rights of their creators. To those who care only for freeing up access for all, without regard to the future commercial viability of creators, I say, "Be careful what you wish for". As it stands, Clause 42 does not achieve this necessary effect.

While I am conscious, as all in your Lordships' House are, of the desirability of seeing this Bill passed, we must do all in our power to avoid unintended consequences which may do more harm than good-particularly in the longer term, given that none of us can predict where technology will take us and thereby test the boundaries of copyright in years to come.

Lord Shutt of Greetland: My Lords, my noble friend Lord Addington and I did not make ourselves available for the digital economy tour, but we turned up and therefore were pressed into service in the absence of three of our noble friends.

These amendments in the names of the noble Lords, Lord Clement-Jones and Lord Razzall, endeavour to enhance this clause on the licensing of orphan works. Clearly, my noble friends are unhappy with the looseness of proposed new Section 116A, and believe that it needs strengthening.

The noble Lord, Lord Davies of Oldham, will recall that we dealt with orphan assets on a previous occasion and another Act: the Dormant Bank and Building Society Accounts Act. Much of the discussion during the passage of that Act was over the worry and concern about assets being reunited, and in Amendment 272 to this Bill, for example, there is reference to the orphaned work and the copyright owner being "searched for".

There are now several amendments to Clause 42, and there is real concern about whether and how, once the author returns, these matters will be dealt with. These amendments are the work of my noble friends, not me, and I place them before the Committee.

Lord Howarth of Newport: My Lords, I am very grateful to the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Buscombe, for acknowledging that we have here a problem that needs a sensible, civilised and practical resolution. It is very important that masses of material that is in some of our great national collections should be released so that it becomes available for scholarly, educational or other cultural uses in the public interest. I do not think that anybody desires to deprive rights holders of their legitimate rights, but we are talking about orphan works that are, by definition, works where rights holders cannot be identified or traced. We need to acknowledge that this is a very large-scale problem.

In a speech to the ALAI congress last year, the chief executive of the British Library, Dame Lynne Brindley, explained just how significant this issue is to the

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British Library, which has estimated that over 40 per cent of its archive collections may be orphan works. That figure was corroborated by a recently released international study entitled In from the Cold, which found that up to 50 per cent of works in large archives were orphan works and, indeed, that in excess of 50 million orphan works were held in somewhat more than 500 organisations which were surveyed. A huge amount of content is thus effectively off-limits under the way that copyright law is at present constructed. It is hence accessible only with difficulty, providing little value or benefit to anyone. I am sure that the Committee will agree that it is highly desirable to find a workable solution to this problem, while balancing the legitimate rights of rights holders.

British Library staff, the chief executive said, have spent literally thousands of working hours trying to identify rights holders who often cannot realistically be found and probably do not exist. For example, in one oral history project involving a series of unpublished interviews held in the 1960s and 1970s at St Mary-le-Bow church in the City of London, 302 hours were recorded as being spent by British Library staff and their paid contractors in looking for 259 rights holders. Some of those rights holders were famous and easily identified, but many were local teachers, bankers, clergy or professionals who, all those years afterwards, could not be tracked down.

Despite all the time and trouble that the library took, it was only able to locate 14 of those rights holders, all of whom then gave permission for their material to be used freely. Much of that material is of considerable potential educational and scholarly value, but of no commercial value; it was never created with commercial value in mind. Spending so much time on fruitless searches for rights holders is really not a sensible or, I would suggest, a proper use of public resources-a very important question in these times of financial stringency. It is not surprising, then, that much of the cultural sector is agreed on wanting an exception in copyright law for orphan works.

It is essential to maintain legal and reputational certainty for libraries, archives and museums, which are putting parts of their collections on the web, and to enable that material to be released into use. It therefore seems to me that whereas collective licensing and collecting societies are important for commercial purposes, we are talking of non-commercial, educational, scholarly and cultural purposes. Those should be treated differently in the public interest, and it is right that an educational or cultural body should be able to receive a licence from the Secretary of State, as the Government propose-and, as I thought, was compellingly argued in the letter in the Times of 1 February, signed by 26 leading figures from the educational, research and cultural sectors.

I was surprised by the tone of the letter in today's Times from the distinguished writers and publishers, who said that the Bill would allow any individual or institution, regardless of their motivation, to conduct a rudimentary search, decide that a work appears to be orphan, and license themselves on that basis to exploit it. However, Clause 42 envisages that the Secretary of State would use regulations to govern the manner

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in which those licensed may proceed. Schedule A1 would confer on the Secretary of State power to provide for codes of practice relating to licensing bodies and the regulation of licensing bodies and of other persons authorised.

It seems that the Government have recognised a real problem, put forward a sensible and decent solution, which will allow important cultural resources to be released and made widely available for the public benefit, while not jeopardising legitimate copyright interests. I am happy with the government amendments. I personally hope that the House will reject amendments that seek to unravel this well constructed measure.

We are not talking of fly-by-night pirates but of the professional staffs of the British Library, the National Libraries of Wales and Scotland, the national museums, the Wellcome Foundation: people of profound scholarship and professional scruple, who naturally respect copyright as essential to the academic edifice, the creative endeavour and the publishing industry. It is very odd to suppose that they would play fast and loose. They have powerful protections for copyright carefully built into their operational systems and have been wrestling strenuously and conscientiously with copyright issues in the digital era.

Within the framework proposed by the Government, if a rights holder turns up after their work has been exploited as orphan, they will receive fair compensation. The licence would only be granted on this basis. Libraries, knowing the background of their collections, may well be better placed to search for a rights holder of, say, private diaries, a locally published history or hand written letters or notes than a collecting society representing-very competently and appropriately as they do-mainstream commercial material. The Government's proposals seem well balanced.

Viscount Bridgeman: My Lords, I take issue with the noble Lord, Lord Howarth. He was suggesting that we did not have orphan works in mind at all. In fact, the exception proposal is exception from copyright. So, at that stage, anybody using an orphan work would not, in that respect, be infringing copyright. The requirements to search are common to both routes. I would be delighted to continue elsewhere.

Lord Howard of Rising: My Lords, the Government have finally accepted, late in the day, that something needs to be done to address a long-running problem. However, unfortunately, they have failed to work out a solution or done the necessary preparatory work before coming to Parliament to demand extensive new powers. The question of whether orphan works should be licensed and used and the best way to do that has been around for many years. For some time, there have been calls for government action on this point. There has been plenty of opportunity to produce properly thought-out legislation rather than what we debate today.


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