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

Lord Scott of Foscote Excerpts

Thursday 23rd October 2014 Grand Committee

My noble friend helpfully outlined the safeguards that rights owners will have, particularly photographers, against the stripping of metadata to create orphan works. What does she know about the current take-up of the voluntary code on metadata? It is clear under the regulations that no sub-licensing is possible, and I welcome that, but what are the circumstances in which the authorising body will allow transfer? Finally, can back remuneration be claimed during the renewal period? I look forward to the Minister’s reply.

[Lord Scott of Foscote (CB)]

My Lords, I rise simply to make clear my complete agreement with the remarks that have just been made by the noble Lord, Lord Clement-Jones. One is talking here of the expropriation of valuable property, valuable assets—the product of the labour of the creator of the copyright in question, whether it is music, art or literature—and often the means by which the creator makes his or her living. The creator may have become somnolent and may not be using the creation in question, but that is no ground, normally speaking, for expropriating the asset.

Compulsory expropriation has to be safeguarded properly. The safeguard in the present case depends upon the diligent search. What is a diligent search? It is almost as long as a piece of string. What might seem diligent to one person might not seem diligent to another. It is essential, in my respectful opinion, for the diligence of the search to be verified before action can be taken on the basis of it. Without that verification—without proper attention being paid to the genuineness of it—grave injustice may be done and this House should not lend itself to such a possibility.

[Baroness Buscombe (Con)]

My Lords, I will speak briefly. I will not echo the words of my noble friend Lord Clement-Jones—it would be otiose to do so—but my concern is in relation to diligent search.

I feel that we are coming to the end of a long journey. This is something that some of us debated at length when discussing the Digital Economy Bill. Those discussions never came to fruition, but I remember that we had a number of assurances from the then Government about the importance of diligent search in relation to orphan works.

As the noble and learned Lord, Lord Scott, said, we are talking in many cases about very valuable assets. My noble friend the Minister and her department have been right to create what may be, in the words of the noble Lord, Lord Howarth, an intensive, laborious and bureaucratic process, but it is important that these assets are handled with care by whoever they may be dealt with in the years ahead. I congratulate both my noble friend the Minister and her predecessor, my noble friend Lord Younger, who have spent many hours on this subject trying to get it right.

Listening to noble Lords, I feel that the Minister is between a rock and a hard place in trying to please everyone. But I feel strongly that it would help if my noble friend could explain a little more about the process for diligent search and what is meant by “reasonable” before we come to a close on this, because there are many outside these walls who remain concerned about the future of these valuable assets.