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I welcome the fact that there will be consultations and that the affirmative procedure will be used, although I would have preferred the super-affirmative procedure suggested by the noble Viscount. When the regulations come back to this House they will be extremely carefully scrutinised and I hope that, unlike in certain circumstances, all Benches will feel free to vote as they see fit on the merits of the regulations. I beg leave to withdraw the amendment.

Amendment 167 withdrawn.

Amendment 168

Moved by Lord Lucas

168: After Clause 42, insert the following new Clause-

"Protection of the right to link to publicly available information on the internet

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) After section 116 insert-

"116A Protection of the right to link to publicly available information on the internet

(1) A URL (Uniform Resource Locator) is not copyright material.

(2) A short extract of copyright material used to explain the significance of a URL may be permitted under 'fair use' provisions.

(3) Any copying of copyright material required to create the link and text referred to in subsections (1) and (2) shall not constitute an infringement of copyright if destroyed immediately afterwards.""

Lord Lucas: My Lords, Amendment 168 suggests that we should take a position on the current dispute between publishers, internet search engines, news aggregators and others in order to defend and make clear where the boundaries of copyright should be in this area.

Noble Lords may have seen briefing from publishers, newspaper publishers and magazine people on the amendment. They are happy to concede that a link in itself is not a breach of copyright; they also do not

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seem to quarrel with subsection (3) of the amendment which refers to a process of copying the copyright material in order to make the link and then disposing of it afterwards. What seems to cause a problem for them is the use of a brief extract of the copyright material to describe the link. A typical example of this would be to use Google images to search for images on the web. Google images display a small thumbnail of a picture so that you can flip through many pages while looking for a picture of Lord Lucas, or whatever catches your fancy-I am sure the Minister would never do such a thing-until you find one which is of the right Lord Lucas or is sufficiently horrible to suit your purposes. The newspaper publishers say that you should not be able to do that. Nor should you be allowed to take a short text extract-for example, the headline or half of the first sentence or whatever-sufficient to give an indication of what the link leads to. They claim that is copyright.

I can see the argument. They are saying that the current fair use, which is limited to things such as reviews and research, does not cover the activities of search engines or news aggregators, and perhaps it does not. That is the reason for the amendment. It is time we debated this. We, as Parliament, ought to draw the boundaries at a fair place for copyright owners and in a proper place for users of the internet. A link should be properly described, and it should be possible to use an equivalent of the right to make short extracts from reviews in order to describe that link. The publishers' associations should get back in their box. I beg to move.

The Earl of Erroll: My Lords, the amendment is essential, particularly in view of Amendment 112 which replaced the original Clause 17. Under that clause, a court can give an injunction where a substantial proportion of the content is made accessible via a specified online location-in other words, it will catch search engines.

I declare an interest in that I have an association with a search engine called Pingar which aggregates information for business purposes into small reports, with headings, URL and a short description-which is exactly what the noble Lord, Lord Lucas, is talking about-so that businesses can use that URL to drill down and find possibly copyright material. They would then pay for that material because they would be going through a proper place where they can be charged accordingly. This acts as an advertisement, effectively, for copyright material and I cannot understand why many people would object to it.

Newspapers will themselves have to be careful. When they quote chunks of a report or other articles-which they do from time to time-that is surely bringing things together, aggregating and introducing copyright material into an article that they are publishing. Therefore, in trying to protect themselves, they will probably make it so that they cannot carry out reporting in the way that they do at the moment.

As I have always said, it would have been better to tackle this through a rewrite of the Copyright, Designs and Patents Act 1988, but that is not going to happen in the near future. Whoever becomes the next Government will not tackle the issue because they will probably feel that they have tackled enough of it in the Digital

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Economy Bill. However, the Bill is not nearly sufficient to begin to touch the surface of what we should be doing in a digital age. Unfortunately I do not think anything else will be done in the near future, in which case the amendment of the noble Lord, Lord Lucas, is absolutely essential; otherwise the search engines and other people will get into a huge amount of difficulty. It will all end up in a very expensive test case and it will be left to judges to sort out the mess. I agree with the noble Lord, Lord Lucas, that this issue is for Parliament to decide; it is not for people to interpret bits of law, particularly bits written in haste without adequate public consultation. If the Minister does not accept the amendment, I hope that he will give a guarantee to bring one back at Third Reading which covers protections for search engines, aggregators and news sites.

Lord Young of Norwood Green: My Lords, the Government agree that copyright should not impair people's ability to link to content which is intended to be publicly available on the internet. However, it is not clear that the activities listed in the amendment would constitute copyright infringement. To the extent that they do constitute infringement, the law already has an exemption for temporary copying which is designed to facilitate browsing the internet and caching. This is covered in Section 28A of the Copyright, Designs and Patents Act 1988. It is unclear how the new provision would work with this existing exemption. It would simply create confusion.

The noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, also referred to search engines and content aggregators. These face additional challenges in linking to web content, in particular, those associated with automatic provision of excerpts. However, it is right that they should face the restriction of not copying a substantial part of a work. Search and aggregation are both important but so, too, are the rights of content creators. Some of these issues are currently the subject of litigation before the Copyright Tribunal in Meltwater v the Newspaper Licensing Agency.

There was also a question about whether it is possible to use short excerpts of a work without infringing copyright. Ownership of copyright in a work gives the owner exclusive rights to do certain acts in relation to that work. Infringement occurs if a person does any of those acts in relation to the whole or a substantial part of that work without the consent of the right holder. It is possible to use excerpts of a work without the permission of the right holder and without infringing copyright if those excerpts are not substantial, or if one of the statutory exemptions applies.

Unfortunately, we do not believe that this amendment helps the situation. I have tried to be clear and to give some further assurances in my comments. We will look at the situation, but, at the moment, we feel that this amendment is not the right one. I hope that, in the light of my comments, the noble Lord will feel capable of withdrawing the amendment.

Lord Lucas: My Lords, I am grateful for that reply. It seems to me that the Minister is coming from very much the same position as I am. Doubtless, if we get troubles with the cases in front of the tribunal, I will

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come back to him to ask if we can put the law back where we thought it was, but, for the moment, I beg leave to withdraw the amendment.

Amendment 168 withdrawn.

6 pm

Amendment 168A

Moved by Viscount Bridgeman

168A: After Clause 42, insert the following new Clause-

"Effect of electronic rights management information material gathered by an automated process

(1) The Copyright, Designs and Patents Act 1988 (the "1988 Act") is amended as follows.

(2) After section 296ZG (electronic rights management information) insert-

"296ZH Effect of electronic rights management information material gathered by an automated process

(1) This section applies where electronic rights management information is associated with a copy of a copyright work, or appears in connection with the communication to the public of a copyright work, and a person (G) in the course of a business makes a copy of, or performs, any other restricted act in relation to that work by an automated process.

(2) If the conditions in subsection (3) are satisfied, G is deemed to have notice of the contents of that electronic rights management information ("the information") for all purposes relating to his further use of, or access to, the copyright work.

(3) Those conditions are that-

(a) it is reasonably practicable for G to instruct the equipment or software which conducts the automated process to recognise, read and interpret the information;

(b) the meaning of the information may be ascertained from published standards which G knows about or ought to know about; and

(c) the meaning of the information is sufficiently clear that it is reasonably practicable to instruct G's equipment or software to comply with any restrictions contained in the information regarding the further use of, or access to, the copyright work.

(4) Where, apart from this section, G would be regarded in law as having notice of any of the information, nothing in this section prevents F from having such notice.

(5) Subsections (1) to (4), and any other provisions of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication rights and database right.

(6) Section 296ZG(7) (definition of certain expressions) extends to this section.""

Viscount Bridgeman: My Lords, my normal courtesies have deserted me. I omitted to thank the Minister for meeting us on Amendments 155A and 155B. Also, in accordance with the provisions of this House, I am required to declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive.

In Committee, I and other noble Lords tabled substantial amendments on moral rights and metadata. However, in their fact-sheet dated 22 or 23 February, the Government stated that they had not considered the question of moral rights or metadata in the Bill and that accordingly, they had not carried out any detailed research. I must first congratulate the Minister on being so well briefed on these two subjects at this

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stage, but it does indicate, if that is so, that the consideration of those two subjects is essential, either in the regulations or in other legislation.

As the noble Lord, Lord Clement-Jones, and, indeed, the Minister have agreed, metadata is of particular importance to the photographic industry, since it is a valuable tool in ensuring that potential users and licensees are continually made aware of, among other things, the ownership and source of individual works. The obligatory linking of metadata with its relevant material is also fundamental to the creation of an orderly procedure for extended collective licences. Importantly, it also has the potential to play a significant role in inhibiting growth in the number of orphan works, a goal which we all share.

These two amendments, Amendments 168A and 168B, originally put forward in Committee, are designed to address this fast-moving technology. Amendment 168B, in particular, is designed to reflect the fact that the only way, in my view, to inhibit the illicit separation of metadata from the relevant image is by way of a meaningful financial penalty. This did not find favour with the noble Lord, Lord Davies of Oldham, in Committee, but I should be very grateful if the Minister could give us some indication of whether there is some other method of policing available, and whether the meaningful financial penalty can be recognised. This matter will require much further consideration and I would be grateful for an assurance from the Minister that this will be the subject of early consultation, preferably by incorporation into the regulations, or, failing that, by early legislation.

On the question of moral rights, when I introduced this amendment in Committee, the noble Lord, Lord Davies of Oldham, acknowledged that this is a very difficult subject and he undertook that his officials would look again at the issues raised, I hope not excluding the particular anomaly of creators of journalistic works who are unable, under current legislation, to claim ownership. I make the fundamental point that ECL is not acceptable unless every citizen has the enforceable right to be identified, and stay identified, as the author or performer of their works.

The Government have been frank about the fact that moral rights have not been addressed in the Bill, and I suggest that this omission has inevitably made the Bill somewhat less effective. It is all the more reason that this important subject is addressed at an early stage, and I would welcome the Minister's assurance on that point as well.

Finally-your Lordships will be pleased to know that this is the last amendment on Report-I refer to Amendment 168C on moral rights. This amendment was introduced by the noble Lord, Lord Clement-Jones, and with his agreement, I have brought it back because it contains a fundamental point; that of the unwaivability of moral rights. This is applicable in every other country in the European Union, with the exception of the United Kingdom and Ireland, and it is designed, again, to protect the small photographer. We must envisage scenes where a substantial user with substantial resources will say to the owner of the copyright, "Leave it to us; we will look after all the arrangements, all your finances, but leave it to us". The assurance

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that that right cannot be waived, whatever the transaction between the two parties, will be, in my view, a considerable reassurance to the photographic industry in particular. That is all I wish to say on that provision. I beg to move.

Lord Clement-Jones: My Lords, I support the amendments in the names of the noble Viscount, Lord Bridgeman, and myself. These are clearly of fundamental importance and I would say that there should be no orphan works scheme which applies to commercial photographers unless provisions of this kind are enacted-I feel as strongly as that both about the metadata provisions and the moral rights aspect. We need to ensure that creators can defend their work from inappropriate use and distortion, that works are clearly attributed and that further works are not orphaned. That is a very important point in view of the claim that thousands of works are being created orphans each week. This is fundamental to the concerns of the photographers and the photographic libraries.

Lord De Mauley: My Lords, I thank my noble friend Lord Bridgeman for returning to this important issue again. Our Committee discussions were cut rather short on these sorts of matters because of time constraints and, judging by the sudden increase in the number of noble Lords in the Chamber-which I regret, I fear, has little to do with the Bill-something similar might happen now if I do not keep my remarks brief. We entirely agree with my noble friend that the issues he raises need to be resolved. For example, as we have heard, it is far too easy for photographs to be stripped of identifying information and copied to many different users, denying owners any chance of controlling or benefiting from the use of their work.

I understand that the Government are intending to start the pre-legislative process to address these problems, and on these Benches, we will be holding a review of copyright law in view of issues raised by the internet. I look forward to hearing more from the Minister about the Government's intentions in this area.

Lord Lucas: My Lords, this is a desirable direction to go in, and I hope that the Government will treat it with sympathy.

Lord Young of Norwood Green: My Lords, the Government are sympathetic to Amendment 168A, which is to allow rights holders to control the terms of use of copyright works by, for example, web search providers. However, it is not clear that the amendment is needed: rights holders can already set these terms and infringement of their copyright is actionable in the courts.

There are also risks of adverse consequences to legitimate web search and other valued services. It would be wrong to legislate without having examined the full consequences of action. For example, I imagine some noble Lords might wish to see provisions for sanctions against any false claim of copyright through electronic rights management information or wilful failure to develop the capacity for machine-reading of electronic rights management information. Given that neither the need for, nor the effects of this amendment are clearly established, I urge the noble Viscount to withdraw the amendment.

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On Amendment 168B, the issue of removal or alteration of metadata is of great concern to many creators, for example, photographers. It is already the case that alteration of electronic rights management information, which may include metadata, is actionable in the same way as copyright infringement. Amendment 168B seeks to establish sanctions against persons who provide products or services that are designed for unauthorised metadata removal or editing.

In principle, the Government would support changes that helped to tackle unauthorised tampering with metadata, and I appreciate the effort that has gone into improving this amendment over its predecessor from Committee stage, Amendment 292A. However, it is unclear what "authorisation" means in this context. As a consequence, the amendment might call into question the legality of supplying assistance currently used by rights holders to edit their own metadata. That could force changes to existing legitimate products, with concomitant expense and potentially a hiatus in availability.

The current law concentrates on the act of unauthorised tampering with electronic metadata rather than the means of doing so. The Government's view is that this remains the most viable route of dealing with the real problem with metadata tampering that so concerns noble Lords. On that basis, I urge noble Lords not to move the amendment.

With regard to Amendments 168C and 168D, the Government remain alive to the concerns of many creators over the issue of moral rights. We understand fully that this is a concern for photographers in particular. We are continuing to look at this issue, and will do so in conjunction with the photographic community. For example, the Strategic Advisory Board for Intellectual Property Policy has organised a workshop for that very purpose on 23 March, in which many stakeholders, including the Royal Photographic Society and the Association of Photographers, will be participating. The objective of this workshop is to determine where the UK sits in international perspectives and what further research is required. We hope that it will help to guide further work in this area.

Amendment 168C would prevent the waiver of moral rights. There are real concerns about the impact of this in practice. Leaving aside the question of whether it is right to restrict individuals' freedom in this way, we would need to consider what adverse consequences there would be, including for creators of some works.

Amendment 168D would mean that the right to be identified as the author or director of a copyright work or as a performer applied automatically. It would also restrict and remove exceptions to this right. The Government do not want to introduce such fundamental changes without fully consulting on and considering the consequences.

We are committed to looking at these issues, but they are too complex to resolve with these amendments today. Although in some cases we support the spirit and principle, we do not believe that the amendments are right. There is a good deal of complexity in these areas. We have given a lot of assurances of consultation and we have brought up examples of that during the

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comments that I have just made. I hope, therefore, in the light of my comments and assurances, that the noble Viscount will feel able to withdraw the amendment.

Viscount Bridgeman: My Lords, I am grateful that the Minister has treated these amendments as probing, which indeed they are. My only comment is that the ingenuity of the electronics and software industry in circumventing regulations designed to inhibit, for instance, the separation of metadata, should never be underestimated. This is a huge challenge. I am grateful, though, and I beg leave to withdraw the amendment.

Amendment 168A withdrawn.

Amendments 168B to 168D not moved.

Schedule 2 : Licensing of copyright and performers' property rights

Amendments 169 to 172

Moved by Lord Young of Norwood Green

169: Schedule 2, page 60, line 30, leave out "may by regulations require a licensing body" and insert-

"(a) must, in the case of a licensing body or other person authorised under section 116A or 116B, and

(b) may, in the case of any licensing body that appears to the Secretary of State not to have a system of self-regulation protecting the interests of copyright owners, licensees, prospective licensees or the public,

require the licensing body or other person"

170: Schedule 2, page 60, leave out lines 33 to 38

171: Schedule 2, page 61, line 1, at end insert "or other person"

172: Schedule 2, page 61, line 5, at end insert "or other person"

Amendments 169 to 172 agreed.

Amendment 172A not moved.

Amendments 173 to 177

Moved by Lord Young of Norwood Green

173: Schedule 2, page 61, leave out lines 6 to 13

174: Schedule 2, page 61, line 15, leave out "such provision" and insert "provision under paragraph 1"

175: Schedule 2, page 61, line 16, at end insert "or other person"

176: Schedule 2, page 61, line 17, leave out "sub-paragraph (1)(b)" and insert "paragraph 1(1)(b)"

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