I support the amendments in this group. We discussed these issues when they were raised in a number of earlier areas. The Government must be in absolutely no doubt at all that these issues are large in the minds of those who have been corresponding with us. It would be useful if we could have a proper statement from the Minister on how things will go forward.

6.30 pm

Viscount Younger of Leckie: My Lords, I will deal with Amendments 28G, 28H and 28J first. These amendments are all interconnected.

As set out in the response to their consultation on copyright, the Government plan to make changes to copyright exceptions. They have said that they will make these changes via secondary legislation, and it is the Government’s intention to do so using the powers that exist under Section 2(2) of the European Communities Act 1972, a point that I alluded to earlier this afternoon.

I assure colleagues that the Government will not use Clause 66 to make these planned changes. Bundling any statutory instruments that are needed to implement the proposed changes to copyright exceptions is therefore an issue that goes beyondthis Bill.

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However, the Government recognise the concerns laid out in these amendments, particularly in eloquent speeches from the noble Lord, Lord Howarth, and my noble friend Lord Jenkin. Accordingly, in my capacity as Intellectual Property Minister with responsibility for implementing the Government’s policy decisions on copyright exceptions, I will commit to look at how the bundling of statutory instruments could be structured when they are brought to Parliament.

The Government appreciate and support noble Lords’ concerns about allowing adequate time for parliamentary debate and scrutiny. Detailed examination of legislation is the business of the House and I want to make sure that we can create that opportunity. In tandem, in relation to good practice with regard to statutory instruments, the Government are mindful of the views of the Joint Committee on Statutory Instruments, on which Members of both Houses sit.

The Government will also have to consider the potential need to ensure that where exceptions are inter-related they can be scrutinised together. For example, I understand that the copyright exception on private study links with the exception for research and that which permits libraries to copy for the researcher. In implementing these changes, I hope that noble Lords will agree that the Government will also need to be mindful of the administrative burden on creators, businesses and users of copyright exceptions, particularly private individuals, small and medium-sized enterprises, schools and academics.

Finally, when I bring forward the regulations on copyright exceptions, I will provide an explanation in an Explanatory Memorandum setting out the reasons for any bundling of statutory instruments.

Amendment 28JA seeks to ensure that the full effects of any use of this clause are made available for scrutiny. Impact assessments play an important role in the scrutiny of law making. Every statutory instrument laid before this House must be accompanied by an impact assessment. I therefore assure the noble Lord, Lord Howarth, that an impact assessment will be published for each and every use of this clause.

The Government are aware of and sensitive to the strength of feeling around some of the issues raised by these amendments. I hope that noble Lords can be assured that the Government have considered these amendments very carefully and that in light of the above they will be content not to press their amendment.

Lord Clement-Jones: My Lords, I think we are on a bit of a roll. We had better stay here for the rest of the evening and finish off Part 6. We seem to have gone from the beginning of Clause 66 and the Minister's assurances about looking at an amendment that will reflect the previous penalties amendment, to assurances that the Minister will look at this in his capacity as Intellectual Property Minister. He will look at how best these can be dealt with and they will not automatically be put into one bundle.

I understand exactly the point the Minister made about some being linked. Indeed, I made that point when I introduced the amendment.

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Lord Howarth of Newport: Does the noble Lord not think that we should be asking a little more from the Minister? We should be asking for an assurance that the presumption will be that statutory instruments will not be bundled and that they will be taken together only when there is a compelling reason by virtue of the interrelatedness of their contents.

Lord Clement-Jones: That is a very fair formulation. Certainly, I was also reassured that the Minister confirmed that there would be an impact assessment for each and every one of the uses of the ECA in these circumstances. I look forward to the proper use of House of Lords scrutiny in these circumstances, to which the Minister alluded, because our scrutiny would be extremely valuable. The interpretation that I put on the Minister’s very useful assurances is very much that formulated by the noble Lord, Lord Howarth, so perhaps if the Minister disagrees with that he could indicate that at the same time.

Viscount Younger of Leckie: That is not exactly how I see it. I confirm that we do not want to prejudge any consideration. This is an ongoing discussion. There will not be a presumption on bundling; we want to talk about this further. So I do not particularly adhere to what the noble Lord, Lord Howarth, was saying.

Lord Clement-Jones: My Lords, the Minister just said that there will be no presumption on bundling, which is a very useful assurance. If I can take that from the table, that might be the most useful way forward. It would be very helpful if, before Report, the Minister could consider this matter further. Then, if such amendments are tabled again on Report, he can consider precisely how he thinks the statutory instruments can be put together, giving us further information about the nature—I shall not use the word bundling—of how those instruments are put forward for these exceptions.

Viscount Younger of Leckie: Perhaps I could just clarify the situation by saying that there is no intention to deliberately bundle.

Lord Clement-Jones:I thank the Minister. So if I see deliberate bundling, we will know that this is completely wrong and should never have happened. In those circumstances, I withdraw the amendment.

Amendment 28G withdrawn.

Amendments 28H to 28JAA not moved.

Clause 66 agreed.

Clause 67 : Power to reduce duration of copyright in transitional cases

Amendment 28JB

Moved by Viscount Younger of Leckie

28JB: Clause 67, page 62, line 20, leave out from “unpublished” to end of line 21

Viscount Younger of Leckie: My Lords, before introducing amendments to this clause, I should like first to set out how the provisions in this clause will

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work. This is a complex area, and I understand some greater clarity may be helpful. At present, certain unpublished works that were created before 1 August 1989 remain in copyright until 2039. This is because of transitional provisions applying when the 1988 copyright Act was introduced. The transitional provisions mean that works such as centuries’ old unpublished letters or manuscripts remain in copyright until 2039. This is far beyond the standard terms of copyright required by the EU term directive 2006. Many of these works are orphan because it is not possible to contact the rights holder, possibly now a long-lost historical figure, to ask permission to reproduce them.

To illustrate the scale of the problem, the National Archives estimate that around 12 million or 42% of the 30 million archival items held in English and Welsh public archives predate 1891. The vast majority of these are thought to be unpublished and would therefore remain in copyright until 2039 under the current law. Clause 67 will allow the Secretary of State to reduce the length of copyright term for these works. But, and importantly, the length of term cannot be reduced beyond the minimum requirements of the term directive. I should like to stress that it is only when the date 2039 is later than the date that the term directive would produce that any reduction in term would occur, such as when 2039 gives more than life plus 70 years for an unpublished literary work by a known author.

For example, the only literary works that could have their terms reduced will be those where the known author died before 1969 or, in the case of unknown authors, where the work was created before 1969. This is because unpublished literary works by known authors will receive copyright protection for the duration of their life plus 70 years from the year they died. Unpublished literary works by unknown authors will receive protection for 70 years from the year the work was created.

In the case of photographs, the only ones which could potentially be subject to a reduction in term are unpublished photographs taken between 1 June 1957 and 1 January 1969. Where the photographer is known and died before 1 January 1969, the new term would become 70 years from the year the photographer died. If the photographer is unknown, the term would be 70 years from the year the photograph was created.

The term directive specifies different terms for different types of works in different circumstances so it is not possible to list them all now. I have a more detailed note available here today, which I will also place in the House Library, of what this means for different works. Many of the works that currently enjoy a longer term of copyright than that required by the term directive are orphan works. Reducing the term of copyright to the usual levels will bring many of these works out of copyright. This will reduce the overall number of works classed as orphan and is part of the solution to the orphan works problem.

The Government are bringing forward two amendments to Clause 67. This follows further consideration on the scope of the clause and in response to the observations made by the Delegated Powers and Regulatory Reform Committee report published on

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14 December 2012. We accept that the scope of this clause would benefit from clarification. The amendments will therefore remove the references to “published but anonymous or pseudonymous” works and clarify that the power is limited by the EU Term Directive 2006. We have concluded that most anonymous and pseudonymous published works are unlikely to be subject to the 2039 transitional provisions. As such, these types of work need not be included in the scope of the power. This amendment means that Clause 67 now applies only to unpublished works, subject to the transitional provisions that currently enjoy copyright protection for longer than the standard periods of protection specified in the term directive.

The second amendment makes clear that no work will receive a shorter term of copyright than set out in the term directive. This has always been implicit in this power; this amendment simply provides clarity by putting the matter beyond any doubt. I hope that in the light of what I have said noble Lords will support these amendments. I commend the clause to the Committee. I beg to move Amendment 28JB.

Lord Clement-Jones: My Lords, the Minister introduced his amendment very fairly but I must admit that Clause 67 still baffles me. I think that I understand the term directive. The Minister has produced a splendid schematic of all the different rights that might be affected in these circumstances, especially where copyright will be brought back from 2039. However, I am still baffled to some degree as to why we need to go the whole hog as regards Clause 67. Technically, I suppose that I am speaking to the clause stand part debate. Originally, the clause was much more objectionable. It is now much more clearly tied to the term directive. However, what is the real motivation of the clause? I think that all of us are very sympathetic to the idea of medieval manuscripts and other old material being taken out of copyright so that they can be digitised. However, the museums, the British Library and others have made the point—whether publicly or otherwise—that in practice there are no copyright claims or difficulties and that by and large they have gone ahead and digitised and have not had any problems in doing so.

6.45 pm

What is quite interesting and extraordinary is that the British Library notes that it has material from the fourth century that is still subject to copyright restrictions. I have no idea why that should be the case, but it surely shows that our laws have unintended consequences. Trying to get to grips with why this is needed, one could say as a good European that conforming to the European term directive is desirable, but there are always unintended consequences.

The two examples that I shall put forward are two authors who died before 1969. TS Eliot died in 1965. His published work is protected for 70 years from the end of 1965 and his unpublished work, in the ordinary course, would lose protection at the end of 2039. However, Clause 67 would give the Secretary of State power to curtail the term of Eliot’s copyright in his unpublished work. Such unpublished work exists. His late wife, Valerie, was editing her husband’s correspondence.

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What happens in those circumstances? A slightly longer- ago example is cited by the Society of Authors. Ford Maddox Ford, the author of the novel sequence

Parade’s End

, which was recently so well adapted by the BBC, died in 1939. What will happen to his unpublished work in those circumstances? There are prominent authors in these circumstances. Sometimes it is correspondence, sometimes it is unpublished work, and the consequences of Clause 67 and the application of the term directive will be large.

I wonder whether this was all thought through as well as it could have been. I do not know whether there was an impact assessment or consultation on the application of the term directive. I believe there was not, and perhaps the Minister will confirm that.

Baroness Brinton: My noble friend said that museums had found that managed risk had sufficed so far. Does he recognise that the directive is narrower in scope than the Bill and covers only certain works for certain uses by certain organisations? In addition, it does not permit the use of orphan works for commercial purposes, which is within the scope of the Bill, and therefore changes the scope of what is under discussion.

Baroness Blackstone: My Lords, I should declare an interest as chairman of the board of the British Library. The library supports this clause, and I hope that other speakers will do so as well. Unpublished works account for a very large proportion of orphan works and include very old material that remains under copyright. The British Library has examples, going back not to the fourth century, as the noble Lord said, but certainly to the seventh century, which are still subject to copyright restrictions. Much unpublished material is of enormous importance from the point of view of scholarship and some of it is of unique quality. It comprises a large part of the important digitisation project that the British Library has undertaken and wishes to continue. It is important that this clause is retained because it will produce a position where more work of this sort can be digitised and made available to a wider range of people than is currently the case.

Lord Stevenson of Balmacara: My Lords, given the mess that we were in on what constituted bundling and whether it was directed or undirected, I am sure that the Minister’s eyes alighted on this group, particularly the wonderful tables which he has provided for us and which we have read with interest, when he came to speak first on this. He cannot have been helped by the fact that his Chief Whip was hovering around his left shoulder as he was doing so, but he managed to cope with that and he is obviously learning fast on the job.

We have given notice of our intention to oppose the clause, because we were very concerned when reading it and seeing the wideness of the powers. The recommendations from the DPRR Committee have obviously stimulated the department to think again on that, and we are grateful for the amendments introduced by the Minister. But it tells the story that to get his narrative across he has to produce this 12 or 13-page document with tables that classify for us the conditions

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under which an unpublished opera whose author died in 1920 has to reduce the term by 49 years, at which point the work enters the public domain. I did not know that, and I do not think that many people did know that. Clearly a great deal of education has to be done about this area. I am still slightly uncomfortable that the analytics that have gone into this—and I can think of examples from films, which I am concerned about more directly, or unpublished monographs of engravings when the author has died—leave us with something more complicated than it needs to be, perhaps.

Nevertheless, the context of that is not the issue. The question is whether the power should exist with government to make reductions in copyright in transitional cases. That has been subsequently reduced by the comments of the DPRR, and we are now satisfied with that.

Viscount Younger of Leckie: I thank noble Lords who have contributed to the debate. First, I respond to the noble Lord, Lord Stevenson, to say—I am sure that he knows this, really—that the information that we produced on the illustrated works was for information. It was not our aim to beef up our argument, because we do not believe that we need to do that.

My noble friend Lord Clement-Jones asked whether there was consultation about reducing copyright on published works. I can confirm that this was in the copyright consultation exercise in 2012. An issue was raised about the published works of TS Eliot. We would need to know a considerable amount more information, and I would not be in a position to give legal advice on specific cases. The clause would not reduce the copyrights of published works. On that note, I feel that I have answered adequately the responses from noble Lords.

Amendment 28JB agreed.

Amendment 28JC

Moved by Viscount Younger of Leckie

28JC: Clause 67, page 62, line 22, after “expire” insert “—

(a) with the end of the term of protection of copyright laid down by Directive 2006/116/EC or at any later time;

(b) subject to that,”

Amendment 28JC agreed.

Clause 67, as amended, agreed.

Clause 68 : Licensing of copyright and performers’ rights

Amendment 28K had been withdrawn from the Marshalled List.

Amendment 28KA

Moved by Lord Clement-Jones

28KA: Clause 68, page 63, line 7, leave out “may” and insert “must”

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Lord Clement-Jones: My Lords, in moving Amendment 28KA, I shall speak also to Amendments 28LA and 28LB. These amendments provide for implementation of the EU orphaned works directive in substitution for the Government’s proposals. The directive provides for non-commercial use of orphan works by cultural institutions. Although the permitted use is non-commercial, the directive allows sales to recover costs. The major question here is why we are going further than the EU orphan works directive, which EU countries have to implement within two years of this September when the directive was passed. It specifically makes provision for museums, galleries, archives and libraries, educational establishments and public service broadcasts to make use of orphan works. These are all essentially cultural institutions. It may not be a perfect directive at this stage, but surely if it will apply in 27 countries, we should build on it. We can, of course, use the new digital hub to good advantage when applying the provisions of the directive.

The Government’s proposals under Clause 68 go much further by permitting exploitation for commercial purposes, which is a matter of real concern to many, particularly the creators of images, where the metadata has been stripped and attribution lost. That is the reason that equivalent provisions failed to get through Parliament under the Digital Economy Bill before the previous general election.

Has no account been taken of photographers’ strong concerns, voiced during the passage of the Bill and in the Hargreaves consultation? The impetus for orphan work licensing comes largely from cultural institutions. The provisions of the directive, therefore, should largely satisfy the need for orphan licensing among those institutions. On 13 September 2012, the orphan works directive was passed, and it must be implemented within two years. Digitisation for preservation and replacement of any work and supplying copies of unpublished work to other libraries, unless the author has forbidden it, is already permitted under current UK copyright law.

On the other hand, the proposed measure in Clause 68 is designed to make orphan works available for commercial exploitation. That measure would deprive rights holders of their property simply because they have not been found by the would-be user of their work, although the Government have not yet formulated the rules and do not intend to publish them until after the measure has been enacted. Being exercisable by secondary legislation, they will not be fully subject to parliamentary scrutiny.

Those are some of the problems which are not dealt with in the measure. Many works contain other copyright works, such as photographs or illustrations. Unlike the EU directive, there is nothing to protect the owners of those copyrights if the overall work is declared an orphan. Diligent search has been used in a number of fields for many years and produces a high level of false orphans. That is because copyright does not have to be registered and there are no definitive registries of the ownership of copyright works. Some types of works, such as photographs and illustrations, are especially easy to separate from the information about their creators—I mentioned the issues about metadata earlier.

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In particular, foreign copyright holders are likely to be unaware of the provisions and so will be more likely to lose out as others exploit their works commercially in the UK. Primary legislation should not allow orphan works provisions beyond the EU orphan works directive until it has been drafted to give the same standard of protection to creators as are provided under the directive.

Great concerns have been expressed not only by photographers but by a whole range of others, such as AP, British Pathé, Getty Images, ITN, the Press Association and Thomson Reuters, which are UK, European and worldwide news agencies and audiovisual archives; and FOCAL International, which is the industry body representing commercial and audiovisual archives throughout the world.

The provisions in the clause are premature and should not be introduced in the Bill. If there are flaws in the directive—there may well be—surely we should work on them rather than erecting a totally separate definition of orphan works, which will have few equivalents anywhere else in the world and will certainly be of no use in international rights clearance. I beg to move.

Lord Howarth of Newport: My Lords, I shall speak to Amendments 28LA and 28LB, which the noble Lord, Lord Clement-Jones, has introduced. I see these issues very differently from the way that he does. I am sure that he would agree that it would be a pity if we in the Committee excessively polarised the interests of contemporary creators against those of our great cultural institutions and the public, who benefit from the work of those institutions and could benefit so much more if a larger part of their collections were to be made accessible.

The simple answer to the question raised by the noble Lord, both on Second Reading and just now—why we should go beyond the provisions of the European Union orphan works directive—is simply that the directive does not go far enough; it is too limited. Only public sector bodies and educational establishments, not companies, can benefit. That means that public/private partnerships are prevented. Even cultural bodies, are prevented from working in partnership with the private sector. Mass digitisation, which would confer very great benefits for the public, is best carried out with private sector contractors and partners. In that way, the production is made possible for global educational markets.

7 pm

The directive sets the bar for diligent search too high. It requires diligent search for each individual copyright work, even if embedded in another. For example, a postcard could involve rights in the stamp on the postcard, the design of the postcard itself and the text of the postcard. It is absurd to require that every component of a single item, which is almost certainly an orphan work, should be subject to exhaustive diligent search. If that is to be the requirement, it will simply mean that large volumes of material will never be cleared for use.

Unlike the provisions of this Bill, the European Union directive does not facilitate payment to relevant

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owners. The use of orphan works in publications—books and articles, for example—would be prohibited. Limiting the scope of licences to non-commercial purposes would restrict the ability of universities, libraries and museums to raise revenue through exhibitions that included orphan works. It is not realistic to try to maintain a barrier between non-commercial and commercial activities and uses in cultural, educational and academic environments. I believe that there are risks to rights owners that would actually be averted by the provisions of the Bill.

Therefore, I was pleased to read on page 20 of the impact assessment—which has not had an altogether favourable press this afternoon—in the section that deals with orphan works:

“The UK Government is proposing a complementary scheme that would allow commercial and non-commercial use of a wider range of works and not limited to certain institutions ... Should the EU proposal be adopted, the UK scheme will operate alongside it”.

I think that that is entirely appropriate. I would say that rights holders have nothing to fear from academic and cultural institutions. They themselves are generators, as well as active users, of copyright. As users of copyright, they have a long history of respecting and clearing rights. They have no intention whatever of jeopardising the rights of creators. Indeed, libraries and archives, knowing the background of their own collections, will not infrequently be in a better position to search for a rights holder than would a collecting society representing mainstream commercial material. Orphan works licensing will provide a new incentive for institutions to search and secure a licence for assumed orphan works and so potentially will increase the number of rights holders who will benefit financially from their work.

As my noble friend Lady Blackstone briefly explained to the Committee just now in a previous debate, it is essential to find means of licensing orphan works. Many forms of expression—the speaking notes of the Minister or of the noble Lord, Lord Clement-Jones, correspondence, diaries, blogs, private photographs, the archives of clubs and societies, official archives and oral histories—are all covered by copyright and, of their nature, will not be represented by collecting societies, but they are potentially too important to stay in limbo. They need to be treated differently from material that was originally produced commercially. The noble Lord worried about depriving rights holders, but there is no question of that. Therefore, I hope that the Committee will not allow these amendments to find favour.

Baroness Blackstone: My Lords, I associate myself with what my noble friend Lord Howarth has just said. He put it concisely and succinctly, and I entirely endorse everything that he has just put forward. I shall not repeat what he has already said.

I do not believe that Clause 68 goes quite far enough, and I should like it to have gone further. I certainly do not want to see it restricted in the way that the noble Lord, Lord Clement-Jones, suggests. My noble friend is absolutely right when he points to the undesirability of polarising this debate between the needs of cultural institutions, scholars and researchers

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and the requirement in the 21st century that we should be able to digitise material en masse, which should include orphan works. Until now, it has required huge amounts of time and effort—pointless time and effort—to try to establish who the authors of these so-called orphan works are, usually with absolutely no useful result. Therefore, I very much hope that the Committee will reject these amendments and support Clause 68 as it stands. I hope that when the regulations are formulated, they will be able to maximise the extent to which it is possible for orphan works to be accessed and digitised in the interests of the wider public and of research and scholarship.

Baroness Warwick of Undercliffe: My Lords, while there is a danger of me saying, “Me, too” and sitting down, I would like to reinforce those points. It is worth reflecting on the fact that Universities UK, the British Library and the Wellcome Trust have all explained in considerable detail why the orphan works provisions must extend to commercial as well as non-commercial works. They have certainly convinced me that it is not possible to draw a clear distinction between commercial and non-commercial works—that is, commercial uses in the context of universities, museums and libraries.

We must remember that a very large proportion of orphan works were never intended for commercial purposes. Others have mentioned letters, but I would add personal notes, diaries and even sketches on napkins. Those are the kind of things that make personal archives so rich and such a wonderful source and rewarding ground for scholars. Therefore, I do not think that we should seek to put any barriers in the way of that material being preserved and shared.

Lord Greenway: My Lords, I have every sympathy with the aims of the British Library, the Wellcome Foundation and others. However, I should like to bring the debate back to the photography angle. I am a photographer and there was a time when I used to make my living as a photographer, although I no longer have the time to do that. However, I have a considerable archive of my own photographs and photographs that I have acquired over very many years. In effect, I have what could be termed a small photo library.

I am concerned about this measure because copyright is, and always has been, a minefield. To my mind, what we are doing here risks making it even more of a minefield. What will be the position for the large number of photo libraries which, after all, make their living from selling reproduction rights for photographs? They are worried that they will be badly affected by this Bill. They do not think that there has been enough consultation. There is a risk that, if the Bill goes through as it stands, some of them could go out of business.

I find this business of orphan works difficult to comprehend. I have lots of photographs that could well be orphan works. I have no idea who took them. Some of them are 100 years old and were taken in other parts of the world. Do I have to license all those photographs and pay money into an account that may well build up into a huge sum of money and will be

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sitting there, most of the time unused, when such money could be used, especially by photo agencies, to increase their business in other ways? I find the whole thing exceedingly confusing. I would welcome the Minister pouring some light on that.

Baroness Brinton: My Lords, I should like to add my voice to the “Me toos” of the noble Lord, Lord Howarth, and the noble Baronesses, Lady Blackstone and Lady Warwick. I do not support these amendments and I support the retention of Clause 68. I will not repeat the very helpful points that were made earlier. Some other points that have been made by the National Museum Directors’ Council show the real problems with making the amendments work. This is not just an issue of not being able to identify or trace the rights holders; any activity requiring permission from the rights holders cannot happen because that in itself infringes copyright. This severely impacts on what an institution can do with the work. For example, a museum may display an orphan work but it cannot digitise that work for display in its catalogue, put it online, advertise it in any other way or have it as part of a picture on a postcard, as was talked about earlier. That makes a much bigger problem. The practical problem is that the work will be put into store. There are 4 million orphan photographs and documents in the Imperial War Museum stores at the moment, and 11 million orphan works occupying 180 kilometres of shelf space—the distance between here and Bath. At the Natural History Museum, there are approximately 125,000 art works and 200,000 notebooks, which they suspect are orphan works, as well as 1.3 kilometres of manuscripts—that is, here to Buckingham Palace.

There is a real problem here, particularly in these times of austerity. Earlier, we discussed the borderline between what is commercial and what is not commercial, certainly for universities, where I have worked for more than two decades, as have the noble Baronesses, Lady Blackstone and Lady Warwick. In these times of austerity, universities and other public organisations are being encouraged to be as commercial as possible and to find other sources of income in order to help to minimise the reliance on public funds. That is also true for the museums, libraries and archives world. The problem with these amendments is that they would make it so complicated that the orphan works would just sit in those stores for ever. Even if we do not know who owns the work, that does not mean that it is culturally insignificant. I believe that the public would be horrified if they thought that such a large number of works were inaccessible and banned for ever because tracing the rights holder, their heirs and successors was impossible.

The orphan works solution is a helpful one that will allow UK museums, libraries, archives and universities to produce much better exhibitions and displays for wider public knowledge and education. I think it will also facilitate the more effective use of public funding and reduce the almost impossible task of tracing the rights holders of some of these works. I pick up the point made by the noble Lord, Lord Greenway, just now about what happens to accumulated funds, but frankly that is something that the Government need to address. It is right that there should be protection for

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rights holders, and I think that the organisations that we have mentioned this evening are more than happy to pay a licence fee that reflects the commercial nature of an item where it is clearly very commercial, but I remain concerned that where there is no commercial rate, even a very small fee for an item in a museum might make the museum decide not to display it.

Finally, I pick up on the point made by the noble Lord, Lord Clement-Jones, on the EU directive. It is only a partial solution to the orphan works problem. It does not allow, for example, the models of public/private partnership that would fund the digitising of large archives; nor does it allow for any revenue-raising activities using orphan works. The revenue raised is limited to the cost and preservation of the item, or to making it available to the public. The EU directive on its own does not recognise the reality of public-private boundaries in our top universities, museums, libraries and archives today.

Lord Lucas: My Lords, I am not going to give any comfort to my noble friend Lord Clement-Jones on this, I am afraid. There is an awful lot to be gained from the orphan works clauses in opening up our cultural heritage and allowing us to share it. We absolutely need that to be a commercial enterprise as well as a public enterprise. For those who are active and fear that their works, particularly photographs, are going to become part of someone’s orphan collection, I say that there are things out there on the internet. There is TinEye for photographs, Shazam for music and Turnitin for text. All you have to do—and presumably the Government will do this when they come to say what diligent research is—is to make sure that you have registered your photographs with TinEye and then they can be found. I can recommend Shazam to anyone who does not have it as an app on their smartphone. It listens to the music and will tell you who is playing what. The tools are there. We do not have to wait for the copyright hub, although that will be useful when it comes. It merely uses these tools as ways of identifying the music or the photographs. We have the means, as long as people declare themselves to be a copyright owner, to make sure that they are found.

7.15 pm

Lord Stevenson of Balmacara: My Lords, I find myself in agreement with everyone except the noble Lord, Lord Clement-Jones, on this point. I am not following his line on this one and will not be saying, “Thank you”, “Oh, yes” or whatever he wishes me to say at the end of the debate.

However, there are a couple of things that are worth picking out of this very good debate. The question of photography and photographers is not yet well resolved. That is true in general terms because, in particular, the metadata problem affects photographers more than anyone else, and we have to be very sensible about that. When he comes to respond, I should be grateful to have the Minister’s comments on whether he foresees any particular difficulty there.

Like other noble Lords, I have received a number of communications from photographers in recent weeks. One of them, from Leon Neal, struck me as being of

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particular interest because the argument being made is that the impact that this clause will have in relation to photography is substantial. I think we take that point, but he points out that a number of the decisions that will be affected will be very dependent on whether the copyright hub works. In saying that, he wonders whether the Government have in mind giving the copyright hub a chance to get going to see whether it has a solution for the particular problems of photographers that would decrease the requirement for this legislation to be as prescriptive as it is. I am not sure whether I can agree on the basis of this correspondence, but it is something that the Minister should reflect on, and perhaps he can come back to it at that stage. Leon Neal wrote: “I request that you please support the proposal to delay the directive implementation until the October 2014 deadline and then only implement it to relieve any of the restrictions that the copyright hub has failed to address”. That seems a very sensible suggestion.

In line with that, we are aware that the way in which the Government are progressing on this is to take the powers that are set out in Section 68, which we broadly support, and work out the details of the scheme to be brought forward through, presumably, secondary legislation at a later stage. In order to help them with that, they have set up a collective licensing working group, which is presumably also looking at orphan works. The group meets regularly, I understand. It has been going for four months, so perhaps it has not got very far in its discussions. The list that I have seen includes publishers, authors, visual artists, musicians, broadcasters and potential users of the schemes, which all seems very good. Of course, there is a missing group: photographers. When he comes to reply, will the Minister give us some assurance that photographers’ interests—perhaps he should co-opt the noble Lord, Lord Greenway, to his discussions—can be taken into account?

Viscount Younger of Leckie: My Lords, Amendment 28LA would limit the scope of the UK orphan works scheme to that of the EU directive on orphan works. The proposed UK scheme in Clause 68 is intended to complement the EU directive. The exception provided for in the directive is more narrowly focused on enabling the cultural use of orphan works, specifically the digitisation of, and cross-border online access to, orphan works in libraries and archives. The directive does not prohibit the UK developing a domestic scheme for licensing orphan works within the UK.

The noble Lord, Lord Howarth, raised the issue of whether the EU directive can be widely used. I agree that the range of the EU directive is extremely limited. The same sentiments were expressed by my noble friend Lady Brinton. It would not be adequate for the purposes of copyright licensing as proposed by Richard Hooper’s work. Use of orphan works under the directive is limited to publicly accessible libraries, archives and public-sector broadcasters. The directive also allows for the generation of revenue to cover only the costs of digitising orphan works that are made available to the public. This does not allow any kind of distribution, such as publication in a

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book or TV programme. The directive also does not cover photographs, which make up a significant proportion of the orphan works held by archives, libraries and museums.

The Government’s proposals are about opening up the commercial and economic potential of orphan works. It was clear from the responses to the Government’s copyright consultation that there are many desirable uses that could be made of orphan works which would have a commercial element—for example, reproductions in exhibition catalogues, books or television documentaries.

Because the UK scheme would allow broader commercial as well as non-commercial use, we are proposing a key extra safeguard which is not in the directive. This is the requirement for the diligent search to be verified by an independent authorising body. Allowing commercial use of orphan works will not undercut the market for non-orphan works. In many cases, there is unlikely to be a comparable non-orphan work that could be used instead—for example, unique records of historical events. In any event, the Government’s proposals will provide for remuneration to be set at a rate appropriate for the type of work and its proposed use.

Amendment 28LB would remove four paragraphs from Clause 68 in respect of the proposed orphan works scheme. These paragraphs set out various issues that the regulations either must or may cover and contain the key safeguards for rights holders that will underpin the scheme. This includes the fundamental safeguard that a diligent search for rights holders must have been undertaken before a work can qualify as orphan. My noble friend Lord Clement-Jones, asked whether foreign rights holders would lose out. I can confirm that a diligent search will be needed to check for foreign rights holders, too.

Another key safeguard that the amendment would remove is the requirement that the orphan works authorising body must be independent and therefore cannot license itself to use an orphan work. The regulations could still contain such safeguards even if they were removed from the Bill. However, the Government’s view is that these safeguards are such an integral part of the proposals for an orphan works scheme that they should be set out in the primary legislation.

I pick up the point that the noble Lord, Lord Greenway, raised about the future of photography libraries. The orphan works scheme will help photo libraries because it will enable them to use orphan works legally. The noble Lord, Lord Stevenson, also raised the issue of photographers, and I can assure him that photographers’ interests will be taken into account.

The noble Baroness, Lady Blackstone, recognised that there is a difficult distinction to be made between commercial and non-commercial uses, and I thank her for that helpful intervention.

In the light of the above, I ask the noble Lord to withdraw his amendment.

Lord Clement-Jones: My Lords, I thank the Minister for his reply, and other noble Lords for their not

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always helpful responses. I was very struck, however, and think it very telling that the noble Lord, Lord Greenway, raised the concerns of photographers. That is really at the heart of much of the objection to the proposals for the orphan works legislation, but it does go wider. As I mentioned earlier, it extends to the news agencies and photo libraries, which have very strong concerns, particularly because at the moment—and despite what the noble Lord, Lord Lucas, said—we do not have the copyright hub fully in place. That would make a huge difference to the ability to carry out diligent search and identify circumstances where metadata has been stripped from contemporary photographs, which have effectively been turned into orphans. This is one of the problems. Photographers are worried about the possibility of a cynical exercise whereby a photograph is turned into an orphan by stripping the metadata, and, lo and behold, the diligence search is inadequate and it is treated as an orphan. There are uses for commercial purposes, not just by cuddly museums, universities and cultural institutions making an honest penny out of books in their shops, but by fully commercial publishers. So there is considerable concern, and it is not a question of polarising the debate but recognising the concerns underlying these orphan works proposals, which are held by substantial numbers of creators and rights holders. The European directive is, as I said clearly, not perfect in every respect, but to allay the fears of many it is better to build on that than have legislation that explicitly goes far beyond what has been said.

Clearly, I will not win the argument today—certainly not in the light of the Minister’s response. I am worried about foreign rights holders; I do not believe that diligent search will be that straightforward where foreign rights are concerned. I think that the IPO will find that a lot of concern is expressed as the regulations and the clause come into effect. It has already been expressed in letters to the Secretary of State and to the former Intellectual Property Minister. I suspect that the volume of correspondence from those foreign rights holders will increase over time.

I will read carefully what everyone has had to say. It may even be that I come back with a suitable response on various issues that have been raised here today. I believe that digitisation is a great deal more straightforward than it has been alleged today. For instance, my noble friend spent most of the time arguing for orphan works. At no point in this debate have I argued against the concept of orphan works; I think that they could be usefully employed, constrained within the right limits. In the mean time, I beg leave to withdraw the amendment.

Amendment 28KA withdrawn.

Amendment 28L

Moved by Lord Clement-Jones

28L: Clause 68, page 63, leave out lines 8 to 11 and insert “specify a licensing body authorised to grant licences, only if this licensing body represents a substantial number of copyright owners of the type of work for which a licence is to be granted”

Lord Clement-Jones: My Lords, I thought that the Committee might appreciate, rather than approve, a

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rather different approach to the clause, trying to make the best of what I previously described as not optimum relative to the orphan works directive.

A number of matters should be written into the Bill. That is essentially what I propose in my Amendments 28L and 28M to 28S, 30 to 32 and 57. Let us assume that it is possible to amend the orphan works provisions satisfactorily. The most important question in that context was how the licensing system needs to operate. The system needs adequately to protect the interests of the orphan works copyright owners and to be efficient and cost-effective. It is vital that the operation of a licensing system is planned in a pragmatic way that considers the needs of different licensees of orphan works. One way to ensure the efficiency of the system is to make the best use of the existing licensing systems of collecting societies. Collecting societies are in a position to process complex usage data and allocate fees for such licences as broadcasters.

UK Music and the Publishers Association, which are supporting the amendments, are keen that the Government fully explore the way that collecting societies participate in the licensing process. It is important that any orphan works licensing scheme includes certain safeguards to protect the authors’ rights. The regulations described in new Section 116A set out certain conditions under which a licence to use an orphaned work may be granted. However, there is not enough detail in the Bill. The amendments provide that detail. To avoid confusion, I should say that Amendment 28S is part of this group.

First, the licensing body must be representative of a substantial number of copyright owners for the type of work for which a licence is to be granted. It must not represent just a minority of relevant creators. It is not at all clear who or what the person or persons authorised to grant licences under the new Section 116A will be. Should it not be a relevant collecting society, rather than the UK Copyright Tribunal?

7.30 pm

Secondly, new Section 116A specifies that each individual work must be subject to a diligent search for the rights owner. The nature of that diligent search, however, needs to be specified. It cannot be assumed that a work is orphan unless a diligent search of each individual work in question has been carried out. New Section 116A(3) sets this out only in general terms. There are discussions taking place in the working group on orphan works, which include defining what constitutes a diligent search. We need to hear the Minister set out what the Government believe must be included in any diligent search, and what sector specific guidelines are likely to be provided.

Thirdly, authors who have assigned their copyright to a publisher or other agent must have the right to equitable remuneration. Fourthly, licences for orphan works should not be perpetual and should expire when the copyright in the work has come to an end. Fifthly, the regulations must make clear what works can be considered as orphan works and when they cease to be so, especially if an exclusive licence has been granted. I beg to move.

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Lord Howarth of Newport: My Lords, these amendments have at least enabled us to discuss some very important issues. I want to concentrate on the question of diligent search. Whether the proposed United Kingdom orphan works licensing scheme will work depends on whether the regulations ensure that the requirements for diligent search are proportionate and manageable. Unless the time and cost of diligent search are reduced in appropriate circumstances for cultural and academic institutions they, for the most part, will not bother to attempt to use the orphan works in their collections. The noble Baroness, Lady Brinton, briefly described the scale and quantity of orphan works that it is believed are in our national collections. It is thought, for example, that some 50% of archive collections consist of orphan works. There are three very interesting and helpful pages in the impact assessment. I keep on praising the impact assessment—counter-culturally—which gives instances of the scale of orphan works in particular collections and the prodigious volumes of time, effort and cost that would be required to perform a diligent search item by item on all of them.

If the regulations are to be proportionate, they will take account of the nature of the work in question, for example whether it was originally produced for commercial purposes or was unpublished; the use that is proposed for the work—whether, for example, it is intended that there should be free access to it for educational or cultural benefits to the public; a realistic assessment of any risks to potential rights holders; and the feasibility of tracing rights holders. I understand it is the Government’s intention that there should be proportionality in the way the regulations stipulate the requirement for diligent search. However, I would be grateful if the Minister could enlarge on the Government’s intentions in this regard. I hope he will be able to give some comfort to those of us who believe it is important to remove unnecessary obstacles to making orphan works accessible.

Amendments 28M and 28N are totally unrealistic. To require a diligent search for each individual work, regardless of the practicalities, would make digitising orphan works in major areas impossibly time consuming and expensive. Therefore, that would be unreasonable and disproportionate. I hope that my noble friends will not wish to pursue amendments to that effect. I hope the Minister will be able to give us comfort in what he tells us about the Government’s intentions in this area.

Baroness Warwick of Undercliffe: My Lords, I also comment on the question of diligent search. I agree that we need clarification about what will constitute diligent search, but I would worry if we set the bar too high, and these amendments ask us to set a very high bar indeed. Many noble Lords appreciate the time and effort involved in tracing the authors of some categories of work. It is essential that this is proportionate to the type of material involved and the likelihood of finding the owner.

As my noble friend Lord Howarth has said, if we do not establish a proportionate system, the requirement will act as a disincentive to use this legal route for using orphan works. Users will either risk infringement

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by using works without a licence, as some currently do now, or decide not to use the work at all. We have talked a lot about balance this evening. Clearly, we need the right balance in this case. That is the way the working group is already moving and that is the right approach.

Baroness Brinton: My Lords, in the interests of time, I really will just say “me too”. I very much support the comments made by the noble Lord, Lord Howarth and the noble Baroness, Lady Warwick.

Lord Clement-Jones: My Lords, I realise that I failed to speak to Amendment 30, so if I may I will just finish this group.

An orphan works license must provide remuneration for relevant rights holders, specifically the holding of money in escrow to remunerate rights holders who come forward within a certain time period. New Section 116C(4) of the Bill states:

“The regulations must provide for the treatment of any royalties or other sums paid in respect of a licence”.

That is welcome, but could be much clearer using the more broadly recognised term of “remuneration”. While royalties are common in the music industry, in the publishing industry royalties are used to describe payment made solely to authors. The word “remuneration” is also preferable for the avoidance of doubt as distinct from compensation, which would suggest a need for rights holders to prove harm before being able to receive their monies.

Lord Stevenson of Balmacara: My Lords, I want to make it clear that we on this side support the ECL approach in general. The reason for supporting these particular amendments is to make sure that the issues that they raise are probed. I look forward to hearing what the Minister has to say.

However, it is worth putting on the record that there are still a lot of reservations from individual authors and photographers about the potential impact of an ECL scheme, particularly where there is not a collecting society—

Lord Clement-Jones: No.

Lord Stevenson of Balmacara: I beg your pardon?

Lord Clement-Jones: If I can clarify, we are still on orphan works amendments, which are designed to improve the orphan works provisions in the clause.

Lord Howarth of Newport: Before the Minister responds, the noble Baroness, Lady Blackstone, apologised that she had to depart from the Committee because of a commitment, but she asked me to say that, as chair of the British Library, she associated herself with the points that I put forward in my remarks.

Viscount Younger of Leckie: My Lords, the amendments cover both the scope and detail of the proposals for a UK orphan works scheme. Amendment 28L would

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limit who could be authorised to grant licences to use an orphan work and de facto would mean that only a collecting society already operating in the sector could be authorised to grant licences. The amendment assumes that all orphan works will be licensed by collecting societies. However, many orphan works are simply not of a type that is licensed collectively—unpublished works, diaries, old photographs and oral history recordings, for example. There will therefore need to be a separate independent authorising body for orphan works which are not covered by any collecting society.

Amendment 28M seeks to make clear that the orphan works scheme applies to a work where there are multiple rights owners and one or more of these are not known or cannot be traced. The Bill already makes provision for this. The requirement for a diligent search for the copyright owner will be described in greater detail in the regulations. This will include all relevant rights-holders where there is more than one.

Amendment 28N would mean that a separate diligent search had to be undertaken for every orphan work that someone wants to use. The clause already provides that a work must have been subject to a diligent search for the rights holders before it can qualify as an orphan work. However, requiring a separate diligent search for each individual orphan work could result in potential licensees having to conduct repetitious searches. For example, five poems by the same poet whose name is known, published by the same publisher, would require five separate diligent searches.

Amendment 28P is concerned with creators who have assigned some or all of their copyright in a work that goes on to be a suspected orphan work. The diligent search for rights holders will cover all potential rights holders in a work, including the creator. This amendment would also provide an author with a new right to remuneration for the use of an orphan work, even when the author had assigned the relevant copyright in the work to someone else. Only those who are rights holders will be entitled to remuneration for the use of an orphan work. This is exactly the same as for non-orphan works.

Amendments 28Q and 52 seek to clarify what the term “authorised” means in this subsection. In particular, they seek to ensure that those authorised to license orphan works cannot grant themselves a licence. This is an important point and one on which the clause is already clear—in new Section 116A(5)(c) introduced in Clause 68. Any body authorised to issue orphan works licences cannot license themselves to use an orphan work.

Amendment 28R would mean that a licence to use an orphan work must be time-limited and not run beyond the copyright term in a work. I can confirm that regulations will provide for limits for orphan works licences. These will be appropriate to the type of use being licensed and could be a time limit or a limit according to intended use—for example, a print run. In reality, sometimes it will not be possible to tell whether the copyright in an orphan work has expired.

My noble friend Lord Clement-Jones spoke to Amendment 28S, which I shall address at this point. The amendment seeks to clarify that orphan work licences can be granted even when it is not known

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whether an exclusive licence has been granted. An orphan works licence may be granted where a diligent search does not find all the relevant rights holders, including an exclusive licensee. The noble Baroness, Lady Warwick, raised this particular issue. Where the diligent search reveals the existence of an exclusive licence, the work will not qualify as an orphan work. Where an orphan works licence is granted following a diligent search but subsequently an exclusive licence holder appears, the exclusive licence holder will be treated in the same way as any other absent rights holder that appears. The detail of this will be set out in the regulations. That is why the clause specifically applies to cases where it is uncertain where the copyright subsists.

I turn to Amendment 30. This concerns the very important issue of remuneration being set aside for rights holders when an orphan works licence is granted. I can set on the record that the regulations will provide for the treatment of remuneration. I also draw my noble friend’s attention to the wording in the clause:

“The regulations must provide for the treatment of any royalties or other sums paid in respect of a licence”.

I believe that the term “royalties” is not used in all sectors but it is understood in the Bill to mean the same as “remuneration”. The phrase “other sums” would also cover any other types of fees to be set aside for rights holders. Therefore, the Government’s view is that the clause already provides for remuneration to be dealt with by the regulations.

I should like to pick up one point made by the noble Lord, Lord Howarth. He asked whether there will be proportionality in undertaking a diligent search. I hope that I have that right. Much work is already being undertaken in diligent search work for different types of work. This is being considered by the working group, which includes representatives of museums, libraries and archives.

I hope that in the light of the explanations and assurances that I have given, the noble Lord will agree to withdraw the amendment.

Lord Clement-Jones: My Lords, I thank the Minister for that helpful reply. His speech will certainly need some studying but he gave a number of assurances which were very helpful, particularly those concerning the content of the regulation, the explicit statements about what the regulations will contain and, for the purposes of Pepper v Hart, how the relevant provisions should be interpreted as far as remuneration is concerned. Therefore, I think that there are some useful points in there.

I must disagree with the Minister and with the noble Lord, Lord Howarth, about the way that one interprets each individual orphan work in terms of the clause. If it were going to be laborious, there is a point to be made there. But this is designed simply to make sure that there is no job lot of orphan works clearance; then the licensee can simply say, “We did our best, but it was a bit of a potpourri or collection of works that we had to clear, so we took a few here and there”—rather like a raffle. There is a point to be made there, and it needs clarifying still, so I may come back to it. The wording may not be sufficiently clear, but it is one of

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the real issues that many rights holders have, that everything will be thrown into a pot and some search will be made but it will not be sufficiently diligent because it will not have been done in respect of each individual work.

I thank the Minister for that response. I thought that it was a useful mini-debate about the way in which the orphan works provisions can be improved. In the meantime, I beg leave to withdraw the amendment.

Amendment 28L withdrawn.

Amendments 28LA to 28S not moved.

Amendment 28SA

Moved by Lord Clement-Jones

28SA: Clause 68, page 63, leave out lines 29 to 31 and insert “authorised to extend an existing copyright licence between a user and the licensing body so as to confer on the user the right of exploitation within the United Kingdom provided by the licence in respect of works in which copyright is not owned or controlled by the licensing body or a person on whose behalf the licensing body acts”

Lord Clement-Jones: My Lords, I move this amendment on the basis that noble Lords wish to carry on beyond eight o’clock. As I say, my speech will last seven or eight minutes. This group is entirely devoted to the issue of extended collective licensing and seeks to amend Clause 68. First, I will deal with Amendments 28T to 28Y and 52 to 56. Then I will speak to Amendments 28SA and 28AA.

Extended collective licensing is a system whereby a collecting society can extend its licences to include the works of non-members. Non-members will be able to opt out of the licence if they choose. There are mixed views ranging from tepid to hostile in the creative industries. Nevertheless, all see the following safeguards as crucial in any ECL system that is introduced. Extended collective licences must be permitted only in certain strictly controlled circumstances. For example, a collecting society that grants them must be representative of rights owners in the field. Licences must be granted on a scheme-by-scheme basis and the mechanics of opting out should be clearly prescribed. Although the Government’s policy documents and verbal assurances have indicated that such strict conditions will be imposed, they have not been placed in the Bill. This is alarming for rights holders as they therefore do not have a cast-iron, future-proofed assurance that the power in the Bill will not at some indefinite point be used in a way that results in secondary legislation unfairly interfering with their exclusive rights, which are the preserve of primary legislation.

Extended collective licensing allows for collective licences to be granted by a collecting society in respect of all works of the type for which it is authorised whether or not it has the mandate with respect to each individual work. So, for example, a collecting society for publishers could be granted the ability to license literary works by publishers with whom it did not have a direct relationship. ECL schemes would also allow collecting societies to issue non-exclusive licences for

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particular uses of works beyond the uses covered by the scope of its rights holder mandate. So, for example, a society could issue a licence to a third party to allow the digital reproduction of works by a member publisher even where its mandate did not provide for this use. As such, ECL can potentially deprive rights holders of the ability to make a choice as to how their work is exploited. Collecting societies are permitted to go beyond the scope of mandated agreements and therefore act without the direct permission, and perhaps without the direct knowledge, of the rights holder. The rights holder who wishes at the outset not to be subject to such treatment would be required to opt out of the licensing scheme—the direct opposite of the present situation whereby they opt in. This important shift of onus on rights holders is a serious inversion of their position and requires a greater level of vigilance and monitoring. For many smaller rights holders this may well prove a very onerous burden.

If ECL is to be introduced, the creative industries therefore believe it is vital that additional safeguards are set out in the Bill to protect rights holders as much as possible from unauthorised and undesired use of their works. The Publishers Association, UK Music and many others believe that a licensing body should be granted an extended collective licence only if the following conditions are satisfied. First, the licensing body is significantly representative of UK rights holders in the field concerned. Secondly, the authorised licensing body has adopted a code of practice which gives members and non-members equal rights. Thirdly, an application has been made and a separate licence granted for different uses of works. Fourthly, the Secretary of State is satisfied that the licensing body is acting with the approval of its membership. Fifthly, members and other interested parties have had the opportunity to comment on ECL applications under consideration by the Secretary of State.

Amendment 28SA adds necessary safeguards to the ECL provisions in new Section 116B. A licence limited to the provisions as drafted could breach the requirements of the Berne Convention and TRIPS agreement in relation to non-UK works. This is inherent in ECL and cannot be cured. Nevertheless, this amendment gives extra protection to right holders if ECL is introduced. It is argued that copyright licensing is administratively burdensome on those who wish to use copyright works and should be streamlined. ECL is presented as the means by which the Government can sort out this situation. However, the industry is rapidly bringing its own digital solutions to the marketplace.

A collective licensing scheme is a voluntary arrangement in which owners of a particular kind of copyright authorise a collecting society to enforce those copyrights on their behalf. Yet the scheme proposed in Clause 68 resembles a form of compulsory licensing under which the Government will authorise a licensing body to grant licences for works which neither it, nor anyone who has authorised it, owns. ECL is stated to be voluntary on the part of a rights owner in that he can opt out of the scheme after it has come into being.

However, opting out is possible only if a rights owner knows about the scheme and how it may license its works. Those unlikely to know about ECL schemes

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licensing their works will include amateur creators whose works are on the internet, although they are not published commercially, and foreign rights holders. In the view of many, the existence of such a body will artificially distort the market for rights, as its rates would become the de facto standard against which negotiations would take place.

Properly, ECL refers to a statutory scheme that extends the collective licence to those rights owners who have chosen not to join the scheme. It is impossible to extend a collective licence that does not exist. Several economically significant sectors within the current creative industries have no collective licensing scheme at all. That includes news clips, films, photographs and illustrations. Those who have argued for ECL point to the Nordic countries, where there are ECL schemes. However, those schemes are very limited in their type of work and rights licence, and there are major differences between the small Nordic and large UK copyright markets.

The Nordic collecting societies are well regulated, and the extended collective licence schemes are narrowly limited in scope and subject to strict parliamentary scrutiny. Cinematographic and dramatic works, as well as computer programs, all of which are types of work of which minor use has great commercial value to the copyright owner, are generally excluded. However, the UK proposal is not limited in scope with respect to either use or types of work.

Any introduction of an ECL scheme must be compliant with the UK's international obligations, including the three-step test. The proposals are not compliant in special cases, the first step; can conflict with normal exploitation of the work, the second step; and can unreasonably prejudice the legitimate expectations of creators, the third step. It is inevitable that, if passed, the provisions will be challenged in the courts.

Finally, ECL is proposed to solve perceived copyright licensing problems, which the copyright hub, to which I and many other noble Lords referred, is intended to solve on the basis of voluntary participation without confiscation of property rights by secondary legislation or any legislation. If ECL is proposed again, surely the primary legislation must contain the minimum safeguards to comply with international norms.

I apologise for the length of my speech, but I did warn noble Lords. Amendment 28AA was proposed by the Association of Authors’ Agents, which is a voluntary trade association whose membership comprises 102 British literary agencies. It suggests that there should be a requirement in the Bill that customary warranties be made to any users being granted licences to use works under an ECL scheme. In a publishing contract, an author usually makes the following warranties to the publisher: that he has full right to enter into the agreement; that the work is an original work written by the author; that the work in no way infringes any existing copyright; that the work contains nothing unlawful, indecent or libellous; that it does not infringe any right of privacy, confidentiality or intellectual property rights; and that any recipe, formula or instruction contained in the work is accurate and is not injurious to the user.

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Without those warranties, it is difficult for works to be exploited commercially. There needs to be some provision for at least the basic warranties to be provided under an ECL scheme.

Finally—as your Lordships will be pleased to hear—on Amendment 20AB, the schedule sets out some welcome provisions for any orphan works or extended collective licensing schemes that come into force. However, as Sections 116A and 116B make clear, orphan works and ECL are two quite separate licensing schemes, governed by different qualifying criteria, authorisation processes and provisions. The schemes are not interdependent in any way. For the avoidance of doubt and to reinforce the distinction between the two schemes, I have tabled Amendment 20AB. I beg to move.

8 pm

Baroness Buscombe: I rise briefly, given the hour, wholly to support the amendments tabled by my noble friend Lord Clement-Jones. This is an area that I focused on in my Second Reading speech. Without wishing to repeat what my noble friend said, there is something rather disingenuous about saying that this system is voluntary but, at the same time, you have to opt out. I know there is huge concern across the industry with regard to this clause on extended collective licensing. It is important that the Government recognise that there needs to be more clarity around how this system would work. There are big questions about how much such a scheme would be policed and regulated with, I understand, just £10,000 per annum earmarked to administer it, and whether extended collective licensing bodies could license content for the internet, meaning that ECL will spill well beyond these shores. I believe that any new system should be opt-in only. It should be limited to a specific remit, such as extended collective licensing for non-commercial use and orphan works.

Lord Howarth of Newport: My Lords, there is a mass of significant matter in these amendments. It is, perhaps, a rather unfortunate degree of bundling that we have them all together. It is particularly unfortunate that the Committee is attempting to deal with them at this stage of the evening. There is important material here that we should not be trying to address under this sort of pressure of time. Noble Lords will be glad to know that I do not intend to comment on each amendment now. I simply want to say a word about Amendment 28SA because I believe it is singularly important. Its effect would be impractical and destructive. As Universities UK has explained to us, limiting the scope of extended collective licences to the UK would require users to manage different territorial permission for some works from a licensing body and not others. It would mean that much broadcast or digital use of these works could not be sold abroad or put on the web and would effectively render extended collective licensing unworkable. The British Library concurs in finding these amendments unmanageable. This amendment also raises issues with regard to existing licences from collecting societies that are de facto extended collective licences that support business and education and already allow use outside the United Kingdom, so, unintentionally, I am sure, this is a wrecking amendment.

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Lord Greenway: My Lords, I, too, reiterate what the noble Lord, Lord Howarth, said. It is entirely inappropriate for the Committee to be discussing these important amendments at this stage of the game. Like the noble Lord, Lord Clement-Jones, I would like to have made a much longer speech. I shall not, for which noble Lords will, I am sure, be grateful, but I reiterate the great concern of the British Association of Picture Libraries and Agencies regarding ECL. It is keen to ensure that ECL will not supplant an existing framework to manage image rights. I shall not go any further than that, but this subject needs much greater concentration rather than rushing it through at this stage of the evening. On that note, I shall sit down, but I am not happy.

Lord Stevenson of Balmacara: My Lords, I shall speak to Amendment 28WA. The key issue is whether it may be necessary to broaden the remit of an existing licensing organisation and, if it is necessary, I hope the amendment will do what is required to achieve that. The background to this amendment is to try to open up the archives of the BFI, in particular, but also those of other agencies that hold film and broadcast material. The power of film to transform the way we see the world around us and understand it cannot be underestimated. Britain is one of the world’s greatest film cultures and has a heritage dating back to the very first days of the invention of film. We believe that every young person, regardless of where they live or where in the UK the archive material is actually held, should be able to access and learn from this heritage. Film has significant value as a teaching tool for many different subjects, as well as having a value in its own right in its artistic content. If it is true that the innovators and creators of tomorrow can be found in our education sector, we believe they should have access to film of all ages, much of it stored in publicly managed archives and in copyright and other related materials, just as they have access to libraries of printed words.

The Bill contains a proposal for extended collective licensing that will make it easier and more practical to mass-digitise archive material, particularly for educational access use. That is to be welcomed. However, this change to the law will not be relevant to film or the moving image more generally, as currently there is no collecting society or agency available to license film and moving image material under copyright for educational use. As the Minister will know, Section 35 of the Copyright, Designs and Patents Act 1988 provides an override to the exception which allows broadcasting material to be licensed for use by educational institutions. This scheme has been operated by the ERA since 1990, and it helps copyright owners and performers to derive an income from the licensed use of their literary, dramatic, musical and artistic works. This is extremely valuable, but the ERA’s remit is limited to broadcast material which was recorded after the commencement of the Act and does not cover film. Most educational organisations are covered under the ERA licence scheme, which is renewable annually. It allows teaching staff to record the broadcast output of ERA members for non-commercial educational use.

One simple way to introduce collective licensing to film would be to extend the remit of an existing

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society, which could be the ERA, to include film and also pre-1990 television broadcasts that are not covered under ERTA licensing. In the age of convergence, it makes little sense to maintain different approaches between film and television. This solution will benefit rights holders, whose interests will be protected as they see a resurgence of educational interest in their creative work and an extended shelf life for their former work, as well as a new income stream. Also, existing education users who are already paying subscriptions will see the value of their investment considerably increased through access to wider audio-visual collections.

Is the Minister confident that the existing text of the Bill will deliver this outcome? If this is not the case, could he consider what is being proposed in my amendment as a way to provide a suitable solution that covers extended copyright licensing to the audio-visual sector?

Viscount Younger of Leckie: My Lords, this group of amendments seeks to add further detail or limitations on the face of the Bill regarding the operation of any schemes for orphan works licensing and extended collective licensing.

Amendments 28T and 53 would prevent an ECL authorisation from applying to works where any part of the copyright was owned or controlled by the collecting society or its member. The idea behind this is to prevent a collecting society from unilaterally extending its mandate. In addition, Amendment 28SA specifies that ECL authorisations could extend only existing licences, and only for use in the UK. The Government agree that ECL should not be used to unilaterally extend existing mandates from members. We do not believe that the current drafting will permit this. This is due to the Copyright, Designs and Patents Act 1988, which provides that ownership of copyright refers to ownership of any aspect of copyright. The Government have been clear that no ECL application can proceed unless the applicant has the explicit support of its membership. It is extremely unlikely that support would be forthcoming for an application which significantly extended the mandates of a collecting society.

With regard to the reference to “owned or controlled” in these amendments, the Government understand the intent to reflect the range of arrangements that may not be captured by the word “owned”. However, the amendment could cover a range of possibilities, including voting rights in a collecting society or influence over the registered owner, and risks preventing legitimate uses of ECL arrangements.

I can confirm that the Government will consider the issues raised here through our stakeholder working group, which includes representatives of rights holders, including several photography groups, libraries, archives and other potential users of ECL schemes, as well as collecting societies. However, the ECL scheme needs to be flexible enough to respond to changing market requirements, so any provision that proves necessary should be made in regulations.

With regard to Amendment 28SA, the Government are pleased to confirm that these provisions can apply only to the exploitation of works within the UK. I also

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reiterate the Government’s view that ECL authorisations should be granted only as an extension of an existing mandate from a licensing body’s members.

Amendments 28U, 28W, and 54 add new conditions, which must be met before an authorisation to run an ECL scheme can be granted. These conditions accord fully with stated government policy. First, ECL schemes can be approved only where the collecting society is significantly representative of the type of rights holder affected. Secondly, the application process will closely consider the extent of existing mandates, ensuring ECL is introduced only where there is clear support for collective solutions. Thirdly, ECL schemes will require the explicit consent of the applicant’s members. This ensures that rights holders have an effective right of veto. In practice, we anticipate that a collecting society will be required to ballot its members before applying to operate an ECL scheme. This, I submit, is a more specific and effective safeguard than is offered by these amendments.

Amendment 28WA would specify that an authorisation to operate an extended collective licensing scheme could be used to grant licences for the use of audio-visual works for educational purposes. I can confirm that the power in new Section 116B is designed to enable licensing bodies to apply to operate extended collective licensing schemes for specific uses of copyright works. Nothing, including educational uses of audio-visual work, has been ruled out as long as rights holders want it. A central pillar of our policy is that it is up to the collecting society, acting with the consent of its members—the rights holders—to choose whether to initiate an application and to define what they would like to see in scope. Government have no power to do so.

In the case of audio-visual, although there is currently no single collecting society that could cover the range of rights, there is nothing in these provisions that would stop several collecting societies collaborating to offer a joint licence. Indeed, there is already precedent for such collaboration in collective licensing. For example, the Copyright Licensing Agency already offers licences on behalf of both authors and publishers. The only restriction on this would remain that, for such an application to succeed, the licensing body would need to meet the safeguards in the Government’s proposals. It would need to demonstrate that it was significantly representative of the type of rights holders affected by the scheme, and it would need to secure explicit consent from its members for the application.

For audio-visual works, these thresholds would need to be met in relation to each of the various groups of rights holders who contribute to such works. This is crucial to ensure that ECL is introduced only where it works in the interests of rights holders. The noble Lord also asked when provision could be made in relation to this power. Subject to the passage of the Bill, the Government would look to make regulations as soon as possible. It is our hope that licensing bodies that wish to apply to operate ECL schemes will be able to do so from 2014 onwards.

The second part of the amendment raises the question of whether pre-1990 broadcast works would be in scope for educational use and learning purposes. The

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Government believe that the exception in Section 35 of the CDPA, which this refers to, may already apply to pre-1990 works, but our legal team will be considering this in more detail when preparing the legislation on exceptions. I am pleased that the noble Lord is thinking about the benefit that extended collective licensing could have in some sectors. I hope we have assured him that the type of use he suggests would already be possible under the Government’s proposed scheme.

Amendments 28V and 55 would mean that authorisations for ECL schemes must specify the use of works allowed under the scheme. The existing proposals already address these concerns. The Bill already requires ECL authorisations to set out the types of work and the acts restricted by copyright to which they apply. In October, the Government deposited a briefing document in the House Library including further information on how ECL will work in practice. This sets out that a collecting society applying to use ECL will need to provide details of its proposed scheme. Any authorisation could then cover only the specific uses set out in the application.

Amendments 28X and 56 would require the Secretary of State to extend the right to opt out to an exclusive licensee or authorised representative. The rationale for this is understood, but further work is needed to explore how it would work in practice. This will be explored with stakeholders in the working group on ECL and orphan works. While this issue will be considered further, the Bill does not rule out such provision as it stands.

Amendment 28Y would require any collecting society operating an ECL scheme to adopt a code of practice which met certain criteria. The principle of the amendment is appreciated and government policy is for all collecting societies to adopt codes of practice that comply with minimum standards, which were published in October 2012.

8.15 pm

The sector has already made good progress in this area. Most UK collecting societies have already adopted codes of practice on a self-regulatory basis. The Bill gives the Secretary of State the power to require a collecting society that fails to self-regulate effectively to adopt a suitable code of practice. The minimum standards for codes of practice include specific protections for non-members represented by ECL schemes. The Government intend to develop further such protections before any applications to use ECL can be made.

Amendment 28AA seeks to ensure that any legal action arising from the licensed use of a work with a missing owner would fall to the licensing body and not to the user of the work. The Bill already provides that an orphan works licence will have effect as if granted by the missing owner. Similarly, a copyright licence offered under an approved extended collective licensing scheme would license the use of all works within the scope of the authorisation—except any that had been opted out—regardless of the status of the owner. In practice, collecting societies often already indemnify licensees who use works within the terms of their licence against copyright claims.

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However, there are a number of scenarios where the proposed warranties may not be applicable or appropriate. For example, it will not always be the case that a work will have been written by the copyright owner. A warranty to that effect would therefore not be appropriate. In addition, the Government anticipate that, in certain cases, it may be appropriate for the legal risk to fall on the user—for example, should the user exploit the work or works outside the terms of the licence. Likewise, the user and not the authorising body may be rightly responsible for any non-copyright issues that might arise relating to use of the work, such as libel. When a licensing body applies to operate an ECL scheme, it will be required to make the terms of the proposed scheme clear, including any indemnities or warrants it intends to offer.

Finally—and I thank noble Lords for their patience—Amendment 28AB seeks to make clear that the orphan works and extended collective licensing schemes are two distinct and separate schemes with different criteria, safeguards and processes. I have sympathy with the ideas behind many of the amendments, and I am confident that the Government have already sought to address the issues concerned or have committed to do so.

The schemes need to be flexible enough to respond to changing circumstances and to reflect best practice. Changes to the Bill which make particular requirements on regulations limit this flexibility and may have unintended consequences. I realise that I have somewhat run on from the time and a number of points have been raised by your Lordships. As the hour is late, the best thing to do would be to answer those questions in

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writing. Therefore on the basis of the assurances and commitments I have given, I ask the noble Lord to withdraw his amendment.

Lord Clement-Jones: Very briefly, because the hour is late, I echo what the noble Lord, Lord Greenway, said. It is unsatisfactory to be discussing a cornerstone of the Bill at the fag end of the Committee, when we know that the Committee normally finishes at 7.45 pm.

There were many useful nuggets in what the Minister had to say. Some of the detail he gave was very useful, but I was particularly interested in his affirmation that ECL was not useable for rights outside the United Kingdom. The noble Lord, Lord Howarth, seemed to think that it had that flexibility, but it does not. That is what makes it an unsatisfactory arrangement and why many people object to it. It is setting up a separate UK situation which eventually, I hope, will be overtaken by an EU directive on ECL, so in many ways ECL is premature.

However, it is far too late to talk at length about the principles of ECL. My amendments tried to improve the scheme. The Minister has elucidated quite a lot. I will read Hansard with great interest. In the mean time, I beg leave to withdraw the amendment.

Amendment 28SA withdrawn.

Amendments 28T to 28AB not moved.

Lord Popat: My Lords, this may be a convenient moment for the Committee to adjourn.

Committee adjourned at 8.20 pm.