Enterprise and Regulatory Reform Bill

Debate between Baroness Warwick of Undercliffe and Lord Howarth of Newport

Monday 28th January 2013 Grand Committee

[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of the nature of the work in question, for example whether it was originally produced for commercial purposes or was unpublished; the use that is proposed for the work—whether, for example, it is intended that there should be free access to it for educational or cultural benefits to the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 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.