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9.15 pm

Lord Young of Norwood Green: My Lords, on Amendment 256ZA, there is no good reason at this stage to exclude, for example, libraries and archives from applying for authorisation to use or license the use of orphan works. I understand the concern expressed by the noble Viscount, Lord Bridgeman, about ensuring that libraries are properly defined. I must admit that in the light of our previous comments about commercial partners, I tend to share that aspect of the contribution of the noble Lord, Lord Lucas, though I am not sure that I would go quite as far as he did on the question of control.

These organisations have acted as foster parents to large numbers of orphaned works and may have specific expertise that could mean that they are best equipped to use or license the use of orphan works. They may ultimately decide to use licensing bodies to run their orphan works schemes if that proves more efficient, but that is for the market to decide. I know that the noble Lord, Lord Clement-Jones, has been concerned that we are not getting this right in terms of sufficient provision in the Bill for finding the copyright owner before a work is declared orphaned. He has expressed his concern about what is reasonable and diligent and I do not dismiss it.

However, the Government have tabled amendments to specify what must be done to satisfy the requirement for a reasonable search. Perhaps we will reflect on "diligent", but we have endeavoured to meet that. This includes looking at a number of sources, including licensing bodies, associations of publishers or authors, systems for identifying works of the type concerned, published library catalogues and indices, and public databases. The requirements for the search-this is very important in the light of what was mentioned-are in line with best practice, including the guidelines developed by the European high-level expert on digital libraries, as referred to by the noble Lord, Lord Clement-Jones.

Licensing bodies authorised to set up extended licensing schemes will be expected to give wide notice of the establishment of their individual schemes. Previous reference to this has been made, including, for instance, schemes concerning different mediums, one of which was photography. They will also be expected to give wide notice of the distribution of royalties. This should give copyright owners, including photographers, ample notice and opportunity to come forward. In addition, it is expected that authorised licensing bodies will have obligations to seek out copyright owners in order to reimburse them for the use of their works. It might be better to say that licensing bodies carrying on extended licensing can be subject to regulation, including requirements to operate a code of practice, and to have an ombudsman for dispute resolution. These safeguards will work to ensure that rights holders' interests are respected. I hope that this more detailed explanation is helpful.

I have dealt with Amendment 259A, which seeks to insert a requirement for diligent search. In response, as I said on the recommendations of the Delegated Powers and Regulatory Reform Committee, we have tabled amendments which include the insertion of a definition

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of orphan works into the copyright Act. They provide that a person may classify a work as orphan only after he has conducted an extensive search for the copyright owner. On Amendment 276A, I must stress that extended licensing, where it operates in the EU, is based on the principle of extending the repertoire of a licensing body which represents a critical mass of rights where it is in the public interest to do so.

On Amendment 280A, we do not see any justification for limiting the availability of licences to public libraries. We consider that licences available under extended licensing schemes should be available to all. Similarly, on Amendment 275A, there appears to be no justification for providing in proposed new Section 116B of the copyright Act that extended licensing cannot be used in relation to certain categories of works. I reassure the noble Lord by reiterating that the Government will consult fully on the exercise of these powers in proposed new Section 116B of the copyright Act before they are exercised. This consultation will include issues such as conditions for authorisation and the extent to which a licensing body is representative of copyright owners within a certain area. It would be premature to define representation requirements on the face of the Bill. For that reason, I would ask the noble Lord to consider not pressing his amendment.

Amendment 282A seeks to limit the exercise of the power to make different provisions for different purposes to proposed new Sections 116A and 116B and Schedule 1. That limitation already exists in proposed new Section 116D(1). I hope that this will reassure the noble Viscount, Lord Bridgeman, and persuade him not to press this amendment.

Viscount Bridgeman: I am grateful for the Minister's reply to a wide variety of amendments. I beg leave to withdraw the amendment.

Amendment 256ZA withdrawn.

Amendment 256A not moved.

Amendments 257 and 258 had been withdrawn from the Marshalled List.

Amendment 259 and 259A not moved.

Amendment 260

Moved by Lord Clement-Jones

260: Clause 42, page 46, line 14, leave out "may" and insert "shall"

Lord Clement-Jones: I must have spoken already to Amendment 260 and to some of the other amendments in this group. These amendments are designed to tighten up the way in which royalties will be paid. Sometimes debates on "may" and "shall" are somewhat fruitless but this House is very good at them. As we need reassurance for these rights holders, despite what the noble Lord, Lord Lucas, said, it is extremely important for the freelance writer, composer, creator, photographer and so on to have the reassurance that there will be a payment of royalties and that all these other amendments to the clause will be made. The

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Minister has so far been quite sympathetic to some of the points made. I hope that, as part of his review of this clause, this sort of detail will be considered. I beg to move.

Lord Lucas: In case I was not clear enough earlier, I entirely support the amendment.

Lord Howard of Rising: The lack of detail in the Bill regarding the money issue is worrying. The Government have indicated that the matter will be resolved by consultation. However, as earlier provisions in the Bill show, when it comes to the fair division of costs and revenues, sometimes there is no agreement. If there is a deep and irreconcilable conflict between copyright owners and wannabe licensees, the Secretary of State will have to pick a middle ground. Can the Minister give us any more details of what sort of principles the Government will follow when passing regulations in this area? Who will ensure that the administration costs charged by the licensing bodies are fair and not excessive? Will there be any process of checking that royalties are being collected and retained properly? How long does the Minister think that bodies should be required to hold on to those royalties?

Lord Young of Norwood Green: Amendments 261 and 262 seek to insert some of the detail on orphan works into the Bill. The Government have had ongoing discussions with stakeholders on this area of policy and have committed to a full and wide-ranging consultation to inform the detail of the orphan works regulations. This consultation will allow the Secretary of State to ensure that the use of the powers in Section 116(3) results in a workable system for the deduction of costs that are reasonable, and it will also deal with the issue raised in Amendment 262 as it will inform the correct determination of the period for which royalties should be held.

Amendments 264 and 267 seek replace the word "may" with "shall" to make it mandatory for certain matters to be included in the secondary legislation covering the operation of orphan works schemes. Permissive language has been used to reflect the Government's commitment to consultation before finalising the regulations.

On the specific points made by the noble Lord, Lord Howard, on royalties and costs, we shall write not just to him but to all who have participated in this debate to see whether we can put a bit more flesh on the bones. In light of those comments and assurances, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Clement-Jones: I thank the Minister for his interesting reply that the language cannot be in Bill so that the consultation can be that much more flexible. There are circumstances where having something in the Bill provides the kind of reassurance necessary, and I suspect that any rights holder consulted on this aspect would say that he would like to have some certainty. I do not think that the Government are doing anybody any favours by not having this language in the Bill. I hope-as with other aspects of this clause, and it is becoming quite a long list-that the

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Minister will consider this for inclusion despite the point he made about wanting to have permissive language, because that is not something that all those rights holders would want. I do not wish to torture the Minister any further, so I beg leave to withdraw the amendment.

Amendment 260 withdrawn.

Amendments 261 to 265 not moved.

Amendment 265A

Moved by Lord Young of Norwood Green

265A: Clause 42, page 46, line 22, leave out "a work ceases to be an orphan work" and insert "an interest in copyright ceases to be included in an orphan works register (see section 116BA)"

Lord Young of Norwood Green: My Lords, we now move on to a large group of government amendments to Clause 42 that take into account a number of discussions and comments. I shall not go through each and every amendment in detail as there is a substantial amount of repetition between the parts and I take into account the time, but I feel it is important to outline in brief the purpose of the amendments and their intended effect.

This clause as originally drafted was intended to strike the right balance, as we have said many times during this debate, between marking the limits of what the Government consider appropriate in this area and maintaining enough flexibility to allow full consultation with affected parties before details are fixed in the subsequent regulations. The Delegated Powers and Regulatory Reform Committee highlighted a few areas where it thought we had not quite got the balance right, and these amendments are intended to address those concerns.

In brief, these amendments provide for the inclusion in the Bill of a definition of an orphan work, subject to amendment by regulations made by affirmative procedure. This will provide greater certainty for those concerned about the scope of these provisions. The amendments remove the ability of the Secretary of State to refer to guidance produced by a third party when defining "orphan works" in secondary legislation. The definition is instead detailed in the Bill. The amendments limit the power in this clause for the Secretary of State to amend the Copyright, Designs and Patents Act 1988 by regulations, so that it can be used only to make consequential amendments. This ensures that the power is focused only where it is needed and appropriate.

The amendments require that the first regulations made under this power-that is, the creation of the first orphan works regulations, the first extended collective licensing regulations and the first exercise of the powers to introduce codes of practice and enforcement provisions for these codes and for the regulation of licensing of orphan works and extended licensing-are subject to the affirmative procedure. That was a long sentence and will need careful reading in Hansard. I think it makes it clear that all those regulations, codes and enforcement provisions are subject to the affirmative procedure, but noble Lords will have check Hansard.

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The amendments introduce a maximum penalty of £50,000 where the requirements for authorisation under Clause 42 are breached. Finally, there are equivalent amendments for performers' rights. Amendment 299D introduces the same amendment for performers' property rights.

The Government have listened to concerns and we have proposed some substantial amendments to address these. The amendments clarify the scope of these provisions and strengthen the safeguards that surround their use while maintaining the function and purpose that was originally envisaged, which is widely supported by our cultural and creative sectors. I beg to move.

9.30 pm

Viscount Bridgeman: I have two questions on Amendment 282AZA in this group. First, each licensing body has to maintain its own register, so will there be a central register accessible by all? Secondly, what period of notice is the licensing body required to give? I am envisaging a small photographer who may have just missed the announcement. How long will it remain on the public record?

Lord Howie of Troon: I apologise to my noble friend for entering this lengthy debate so late in the day. I do so at the instigation of the Periodical Publishers Association of which I am the vice-president. It is an unpaid post and not a very onerous one.

The PPA wants to draw attention to Amendment 282AZA. While it agrees that the licensing of orphan works is needed, it wants to know what an orphan work is. That brings us to the definition. The PPA thinks that the definition suggested in the amendment is vague and useless in any real sense. I had thought that since this relates to the Copyright Act 1988 there might have been a definition there. I could not find one, and I certainly do not remember one while the Act was being debated. The PPA considers that the definition should be much more precise than that proposed by the Government and that an orphan work should be a published copyright work where it is impossible after a reasonable search to establish the identity of or to locate the author or copyright owner of that work. That is not in the amendment. I do not want to go on about it but I hope that the Government will refer back to the PPA and discuss it.

While I am at it, let me say briefly that the PPA believes that the proposal to introduce extended collective licensing, which is in the same part of the Bill, is contrary to the fundamental principle that owners of literary and artistic works must consent to the exploitation of their work when the owner is known and can be located. I shall not detain the Committee any longer but I hope that my noble friend will reflect on the views of the PPA and reconsider the definition in the Bill.

Lord Howard of Rising: I thank the Minister for tabling the amendments which go some way to addressing the many concerns about the provisions. Amendment 277 is a probing amendment suggested by the British Library which is concerned that since much of the material it hopes now to be able to use has never been

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published, it will not be excluded from being designated ineligible under new Section 116A as it is under new Section 116B. I should be grateful if the Minister could give some guidance on that point.

Returning to the government amendments, I am interested to know what a reasonable search would consist of. How much time or money would a body have to spend to fulfil the requirements? Stakeholders have indicated that they spend a little less than half a day on seeking copyright owners. Is that the sort of effort the Government are thinking of? I should also welcome a clarification of proposed new Section 116BA(2)(b) to be inserted in the Copyright, Designs and Patents Act 1988 under Amendment 282AZA. What evidence will be required to meet this threshold?

As I understand it, there would be a multitude of registers, each one to be maintained by a single licensing body. Is that correct? Does the Minister have any intention of connecting the registers so that there is a one-stop shop for copyright owners to check whether their works have been mistakenly included? It would also be useful for would-be licensees to access the full range of the material that will I hope be opened up by these provisions. Finally, moving more of the regulations into the affirmative procedure is to be welcomed.

Lord Clement-Jones: My Lords, I welcome some of these amendments from these Benches. Obviously, a number of amendments already have formed themselves in the minds of Committee Members, as we have discussed, particularly in terms of the kinds of search required. I accept that the Government have addressed themselves to some of those issues, but I do not want to lull the Minister into a false sense of security so that he thinks that we have accepted these amendments and that they are completely apposite. A great deal more work needs to be done.

Lord Lucas: I support some of what my noble friend said. These days, it is not necessary to create a single register, but format requirements need to be imposed on the registers so that a single search engine can search them all with consistency.

Lord Young of Norwood Green: My Lords, I shall endeavour to respond to the points made, first, in relation to Amendment 277 moved by the noble Lord, Lord Howard. The amendment seeks to include unpublished works in the extended licensing scheme. Including unpublished works would mean, for example, that anyone who has ever written anything could have their work included in an extended licensing scheme unless they opted out. This could put a burden of opting out on a large proportion of the population. It would also create a risk of the system collapsing under the weight of the opt-out notifications. For those reasons, unpublished works were excluded.

I was interested in the point made by the noble Lord, Lord Lucas, on the central register and we will write to him on that. We will also write in relation to the period of notice and the licensing authority. My noble friend Lord Howie did not like our definition of an orphan work. He did not say that it was indeterminate, but he thought that it was too vague. We will look at a more precise definition.

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I may have here some inspiration from the Box, which might enable me to answer a few more questions. On the central registering body and the one-stop shop, the intention is that each authorised body will keep a register of orphan works which can be accessed by copyright owners. The point made by the noble Lord, Lord Lucas, now has even more relevance. Perhaps we will come back to him on that.

I have tried to answer all the points that have been raised. Perish the thought that we should ever be lulled either into a false sense of security or complacency. There is still some way to go. The sheer delights of Report stage loom ahead, which is why we welcome the comments that have been made. I hope that the noble Lord, Lord Howard, will feel able not to move Amendment 277.

Amendment 265A agreed.

Amendments 266 to 268 not moved.

Amendment 268A

Moved by Lord Young of Norwood Green

268A: Clause 42, page 46, leave out lines 26 to 30

Amendment 268A agreed.

Amendments 269 to 273 not moved.

Amendment 274

Moved by Lord Clement-Jones

274: Clause 42, page 46, line 34, at end insert "licensing"

Lord Clement-Jones: My Lords, it is so long since we started this Bill that I am not sure whether these two amendments are of any significance. I have no doubt that if they threaten the architecture of the Bill, the Minister will tell me. They are designed to clarify what kind of body we are talking about and to make sure that we are clear that it is a licensing body. Their intention is no more sinister than that. I beg to move.

Lord Howard of Rising: I declared an interest at the start of Committee but I should declare again that I am a literary executor. I have a great many concerns about the proposed new Section 116B and will be listening with interest to the Minister's responses to the next few groups. Proposed new Section 116A targets a known problem that everyone wishes to see resolved. I am far less convinced about the need for such broad powers as are set out in proposed new Section 116B. Is there any evidence that copyright owners are proving incapable of handling their own rights? Are these provisions designed to help copyright owners assert their rights or are they to make it easier for would-be licensees to override the restrictions and limitations copyright owners wish to put on their work? It would be quite wrong and contrary to the spirit of the first part of the Bill if a natural desire on the part of the public-even for unimpeachable reasons such as education-to use material that is owned by someone should ever be allowed to override a copyright

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holder's right to withhold the material. I am sure these provisions do not intend to do that but without stringent safeguards on the licensing bodies, on the types of material that fall under these schemes, and on the requirement to engage with copyright owners, it is quite possible that such abuses will occur. I believe, therefore, that a clear code of practice that covers these points is essential and I hope the Minister will agree.

Lord Young of Norwood Green: My Lords, proposed new Section 116B(1) comprises one sentence which begins by referring to a "licensing body". The sentence subsequently refers to the licensing body as the "body". It is the same. The addition of the word "licensing" is therefore unnecessary and I ask the noble Lord, Lord Clement-Jones, to consider withdrawing Amendments 274 and 275.

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