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The Bill will not complete its passage through both Houses, and thus will not be subject to the scrutiny of Bills provided by the normal procedure. I am not in favour of using the super-alternative procedure as a routine device to enable statutory instruments to be modified. However, I ask the Minister to agree that these are exceptional circumstances. The content of the regulations will be fundamental to the operation of Clause 42. Nothing at present is known about the content or intentions of the regulations, and the 60-day consultation period available under the procedure would be a valuable extra means of securing debate on the structure of suitable regulations. It would go a long way towards allowing the misgivings on many sides about the efficacy of Clause 42. I am sorry that I have not been able to give the Minister more notice of the amendment and will be grateful for his views. I beg to move.
Lord Clement-Jones: My Lords, I will reserve most of my comments on Clause 42 for the debate on Amendment 167. I put my name to the amendment of the noble Viscount because Clause 42 covers the overriding issue of the content of the regulations and how they will be approved. This is the common theme of all the amendments in the group. I hope that the Minister will cast more light on that in the course of the debate, which will influence discussion on Amendment 167 as well.
Baroness Buscombe: My Lords, I rise briefly to support my noble friend's amendment, to which I have added my name. I also pay tribute to the Government, who clearly have listened through the stages of the Bill. However, I still see beyond your Lordships' House a degree of concern, as expressed by my noble friend, particularly at the speed with which we all have had to respond to the Bill-and the Government in turn are responding as well. Because of a lack of information, there is concern about what will be in the regulations. The amendments in this group are an attempt to enhance communication between creators and licensing bodies. We believe that the amendments should be supported because they are totally positive. We must reassure creators who may not have the influence of some large institutions, or the means to access professional advice to assist them in responding to Clause 42.
Lord Howarth of Newport: I will make some brief comments and raise some questions about the amendments in this group. I will start with Amendment 153A. How would a cultural institution, a museum or library, be accommodated under the rubric? The amendment is aimed at defending the legitimate interests of the commercial sector, but in so doing ignores the legitimate interests of the cultural sector and of the public. It would drive a coach and horses through the intent of the clause, which is to create a regime to deal effectively with the problem of orphan works.
Amendments 155A and 155B relate to proposed new Section 116B of the 1988 Act. If proposed new Section 116A depends on 116B, the amendments would be unacceptable. They would work when copyright owners could be identified, but with orphan works, where copyright owners cannot be identified, they would not. We must deal differently with the two
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Lord De Mauley: My Lords, my noble friend Lord Bridgeman raises important points, and I entirely agree with his amendments. Amendments 153A and 155B merely set out what the Minister has already promised. I hope they will be accepted in principle if not in the precise wording.
I also agree with the principle behind Amendment 155A. Copyright owners understandably have considerable concern about these provisions. If they see no benefit in this system, it is clear that adequate safeguards have not yet been put in place, and I suggest that we ignore their wishes at our peril.
On Amendment 172A, I share my noble friend's concerns. It is not good practice to leave so much pertinent detail about a code to secondary legislation. We can be forgiven for fearing that the Government are still making knee-jerk legislation rather than properly thought-through policy.
Lord Young of Norwood Green: My Lords, Amendment 153A argues for orphan works schemes to be limited to licensing bodies, an issue we debated extensively in Committee. The Government believe that there is no reason to exclude cultural organisations which have acted as foster parents to large numbers of orphan works from eligibility to run such schemes. It is possible that these organisations may find it more efficient to use licensing bodies, but that is for the market to decide. We should not rule them out in the first instance. For this reason we cannot accept Amendment 153A.
However, I bring your Lordships good news on Amendments 155A and 155B. The Government have always intended that extended licensing schemes should be run by representative licensing bodies. We therefore agree to consider Amendments 155A and 155B and will bring our proposals to Third Reading.
On Amendment 177A, the term "licensing body" is already defined in the Copyright, Designs and Patents Act 1988. It is used more widely than in the new provisions introduced by Clause 42. The addition of qualifying criteria to this definition could have serious implications for other areas of legislation dealing with copyright licensing.
The provisions of Clause 42 and Schedule 2, as currently drafted, allow the setting of requirements for any body wishing to become an authorising body, whether they wish to operate extended collective licensing or an orphan works scheme. It is already the case that we will be able to set the right entrance criteria to avoid unsuitable bodies applying for these extra powers. I reiterate that there is now an obligation on the Government to consult on the conditions for
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Amendment 172A would require regulations imposing codes of practice on persons authorised to license orphan works and licensing bodies to be subject to a super-affirmative procedure. I cannot accept that the noble Lord's proposal is the right or proportionate way to deliver scrutiny for two reasons. First, we are having a very full debate now as part of the scrutiny of this primary legislation; and secondly, we have provided that the order will be considered under the affirmative procedure, so there will be further parliamentary debate on any order. The affirmative procedure will apply to the first exercise of these powers. This was introduced by government amendment in response to a recommendation, after all, of the Delegated Powers and Regulatory Reform Committee. The committee is satisfied that this is a satisfactory level of scrutiny. We are committed to full consultation between all appropriate parties on the regulations, as I have said already, and the results of consultation can shape a workable proposal that takes account of the views of all parties.
Super-affirmative procedure is appropriate to very wide-ranging powers. In this situation, we are talking about codes of practice that are designed to maintain the balance of power between licensor and licensee, and to ensure minimum standards of fairness and transparency. In this circumstance we believe, as did the Delegated Powers and Regulatory Reform Committee, that affirmative resolution is adequate scrutiny. The super-affirmative procedure would simply add delay and cost.
I hope that in the light of the assurance that I have given to bring forward two amendments on Third Reading and my explanations on the other amendments, the noble Viscount will feel able to withdraw the amendment.
Viscount Bridgeman: I just say to the noble Lord, Lord Howarth, that we certainly did not intend to be disruptive in any way. I take on board the Minister's comment on Amendment 153A. Clearly, I am disappointed with his reply on the super-affirmative proposal. We all know the limitations of affirmative procedures and that they cannot be modified. However, I am grateful for his explanation and I beg leave to withdraw the amendment.
"(2A) Before granting any licence in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts, the relevant licensing body must publish guidelines on how to exclude a work by notice under subsection 2(b).
Lord De Mauley: My Lords, we have already had a useful debate with a gratifying number of government amendments about the safeguards necessary for an effective orphan works scheme. It is unfortunate that we do not have a similar number of government amendments to welcome in relation to collective licensing. Amendment 155C is intended to ensure a minimum safeguard for a proper system of collective licensing. The Bill contemplates the possibility of a copyright owner opting out from a collective licensing system, but gives no detail as to what sort of system might be considered acceptable. Unlike with orphan works, where the licence body has to undertake a diligent search before it can grant licences, the onus here is on the copyright owner to protect his material from being licensed without his permission.
As such, the opt-out system must be as transparent and as simple as possible. Our amendment is intended to engage copyright owners of the type who will be represented in the process of establishing what system would be most effective. The opt-out provisions must bring notice of that power to as many rights holders as possible, as well as making it easy for them to opt out should they wish to remove their work collective licensing. I hope that the Minister sees the wisdom of that point, and I beg to move.
The Earl of Erroll: I presume that publishing something under either creative commons, new public licence or something similar would be an automatic opt-out from some other collective licensing scheme.
Lord Young of Norwood Green: My Lords, we welcome the spirit of this amendment. One question that we must ask rights holders in our extensive consultation before any schemes are authorised or regulations made is how the opt-out mechanism should work for their particular sector. Our premise is that it should be designed to be as unburdensome as possible, but we need each sector to tell us how that should work. It is completely sensible that sectoral guidelines be published once we know how the mechanism works. As those issues will be covered by the Government's consultation and included in the regulations, we do not think we need to require licensing bodies to consult additionally. For those reasons, I hope that the noble Lord will feel able to withdraw his amendment.
"( ) The regulations must require all licensed bodies to publish and maintain a register of all works for which they are granting licences in respect of works in which the copyright is not owned by the body or a person on whose behalf the body acts."
Lord De Mauley: This amendment is again intended to impose the same level of transparency on Section 116B as the Government have conceded for the orphan works register. How is a copyright owner to know that his work has been licensed out without his express permission if there is not a clear and accessible register which he can check? Such a register would be a minimum criterion of any authorisation, and I hope the Minister will accept, if not the precise wording of the amendment, at least the principle behind it. I beg to move.
Lord Young of Norwood Green: My Lords, the Government are sympathetic to this amendment, which would allow bodies authorised to run extended licensing schemes to hold a register with details of the works of non-members from whom it does not have a specific mandate to license. It could be possible for such a licensing body to hold such a register, but it is unlikely that it would be accurate. Blanket licensing, even when the licensing body licenses in non-extended licensing mode, works so that the usage is only known after it has been reported by the licensee. Thus the register cannot be fully up to date at any time.
I would like to explain how the system could be designed to reach non-members so that they are aware that their works are being licensed. First, an authorised body may be required to give wide notice of the establishment and the parameters of its extended licensing scheme. This could include national and sectoral advertising aimed at bringing the scheme to the notice of rights holders in case they wish to opt out. Secondly, there is now an obligation to consult with those likely to be affected before the authorisation of the scheme. Thirdly, the authorised body will need to distribute royalties to both members and non-members, creating an obligation to seek out non-members whose works have been licensed to pay them their royalties.
We consider that these provisions will operate to ensure that an authorised licensing body does not license works that have been opted out of a licensing scheme and is fully accountable to the non-members whose works it licenses under these arrangements. The consultation requirements will ensure that regulations introducing extended licensing are structured so that the system functions properly. In the light of these comments and assurances, I hope that the noble Lord will be able to withdraw his amendment.
(a) has carried out a diligent search to find or, if necessary, to identify and find, the owner of, or of an interest in, copyright in the work, and
(b) has published the notice required by this section,
but has not found the owner.
(a) make such use as is reasonable of sources of information, including sources within subsection (4), relating to the work's apparent country of origin, and
(b) have regard to any presumptions under section 104 or 105 that would apply in relation to the work in any proceedings.
(a) licensing bodies;
(b) associations of publishers or authors;
(c) systems for identifying works of the type concerned;
(d) published library catalogues and indexes;
(e) public databases, including public records that may indicate successors in title.
(a) the country of the work's first publication, or
(b) if the work has not been published, the country with which its making is most closely connected.
(6) The notice required by subsection (1)(a) is notice of the proposal to enter the interest concerned in a register kept in accordance with section 116CB(1), published in a way designed to bring the proposal to the attention of the owner of the interest.
(1) Regulations made by the Secretary of State must provide for an authorisation under section 116A or 116B to have effect in respect of an interest of a missing copyright owner only if the interest is entered in a register kept by the authorised person (an "orphan works register").
(a) specify the form of an orphan works register and how it is to be kept, and
(b) provide for an orphan works register to be made available to the public.
(a) has taken the steps referred to in section 116CA(1)(a) and (b) and has not found the owner of the interest, or
(b) has reasonable grounds for believing that another person has taken those steps and that the owner of the interest has not been found.
(a) is aware that any of the steps referred to in section 116CA(1)(a) and (b) was not taken, or
(b) is aware of information that makes it no longer reasonable to rely on the steps taken,
the authorised person must as soon as possible take those steps or remove the entry.
(7) Where an interest is entered in an orphan works register, regulations under section 116A or 116B may provide for an authorisation under that section to have effect in respect of that interest despite a failure to take steps referred to in section 116CA(1)(a) or (b) or to comply with any of subsections (4) to (6).
(8) But a failure by an authorised person to comply with any of subsections (4) to (6) is actionable as a breach of statutory duty owed to the owner of the interest concerned (and see paragraph 3 of Schedule A1).
(9) Any guidance issued by the Secretary of State must be taken into account in deciding whether a person has taken the steps referred to in section 116CA(1)(a) or (b) or has complied with subsection (3).
"(a) the regulation of licensing bodies, and of persons other than licensing bodies who are authorised under section 116A;
(b) enforcement for the purposes of such regulation, or otherwise for the purposes of sections 116A to 116CB."
"( ) Before making provision as to requirements for a person's becoming or remaining authorised under section 116A or 116B, the Secretary of State must consult the persons the Secretary of State thinks likely to be affected (or persons who represent such persons) and such other persons as the Secretary of State thinks fit."
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