Copyright and Rights in Performances (Certain Permitted Uses of Orphan Works) Regulations 2014

Lord Clement-Jones Excerpts

Thursday 23rd October 2014 Grand Committee

We were told during the passage of the Enterprise and Regulatory Reform Bill that this scheme, once introduced, would be reviewed after a one-year period. That is a very good thing. We look forward to the review, which may be carried out by the noble Baroness’s successor but will none the less be valid and valuable. As it is, I worry that we risk forgoing the cultural and economic benefits of enlarging access to orphan works that we might have had.

[Lord Clement-Jones (LD)]

My Lords, I welcome the implementation of the EU directive, but I want to talk exclusively to the domestic version of the orphan works regulations, which originated in Section 77 of the Enterprise and Regulatory Reform Act. I am sure we all recall with nostalgia the passage of that Bill through this House. Perhaps, in the light of his remarks, the noble Lord, Lord Howarth, should have backed my amendment to the European directive implementation in the Bill.

The Minister’s examples of the types of work that could be licensed and authorised have been extremely interesting, but—strangely enough—like the noble Lord, Lord Howarth, I wonder whether there will be a great take-up of these provisions. It seems that the volume of licences issued through the rather similar Canadian scheme is extremely low. I am told that only 42 licenses have been granted under Hungary’s orphan works scheme since it started in 2009. The revised impact assessment goes into great detail and downgrades the original estimates of use. Like the noble Lord, Lord Howarth, I wonder whether the contribution of these provisions will be worth even the modest cost of setting up and running the authorisation process, or the cost of initially obtaining authorisation. I share his doubts about the costs that are set out in the impact assessment.

Under Section 116A(3) of the Act, a work cannot qualify as an orphan work unless the owner of the copyright,

“has not been found after a diligent search made in accordance with the regulations”.

Indeed, the regulations lay on the authorising body an obligation to take reasonable steps to ensure that the search relied on by the orphan licensee satisfies the requirements for a diligent search, while the licensee is required to demonstrate that a diligent search has been carried out. These are very necessary safeguards to protect against error and abuse. Alongside the regulations, the IPO has issued guidance notes to assist someone who wants to satisfy the authorising body that he is undertaking a diligent search.

Perhaps I am being unfair, but it seems to me that the IPO, as the authorising body, has gone to considerable lengths to disclaim some of its responsibilities. When the noble Viscount, Lord Younger, was the responsible Minister, he assured the Committee on 28 January 2013 that the UK scheme includes a requirement that any diligent search is verified by an independent authorising body, but surely the current proposals do not constitute such a verification process. I understand that the IPO has said that it would not “police” applications. Moreover, it is stated in the Intellectual Property Office guidance on diligent search that the applicant is required to submit no more than a completed checklist of sources from which they have sought information. Although applicants are instructed to retain evidence in the form of letters, e-mails and so on, they are not asked to submit this with their application. This cursory procedure is consistent with the estimated size and budget of the scheme set out in the impact assessment. Perhaps that explains the very low figure.

It seems that a view has been taken by the authorising body that because of the provisions of the Data Protection Act it would be precluded from disclosing relevant details of an applicant’s search, such as the identity of the people who had been contacted. Surely the provisions of the Data Protection Act are disapplied in circumstances where they would inhibit the proper exercise of statutory functions. What is the argument for preventing disclosure? Are licences to be awarded on the basis of a few ticked boxes? By contrast, I understand that the Canadian and Hungarian schemes both require the submission of evidence so that proper verification of the searches can be conducted by the authorising body.

That is all very puzzling: a prospective user of an orphan work would be infringing copyright by going ahead and exploiting a work without obtaining a licence. An authorising body surely has an obligation to satisfy itself that what has been done by each applicant meets the due diligence standard—in other words, that the applicant has looked for answers in the right places, not the wrong places—and it is very difficult to see how an authorising body might satisfy itself on that score without actually having looked at what had been done and considering what might have been done. This could not be a box-ticking exercise. Over and above the question of whether the authorising body undertakes to give thorough and critical scrutiny to what an applicant has done so as to be able to make a judgment about what might or should have been done, there is the question of the oversight of the authorising body. The authorising body fulfils a statutory function. Who is entitled to see that it is doing its job, and how would that be done?