Enterprise and Regulatory Reform Bill

Debate between Baroness Brinton and Lord Greenway

Monday 28th January 2013 Grand Committee

[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 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 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.