Viscount Younger of Leckie
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Lord Stevenson of Balmacara
My Lords, it has been a very good debate, and it has got us off to a very good start this afternoon in our task to whip through the various clauses on copyright. I start where my noble friend Lady Morris ended. We have to be clear that in addressing these clauses we adjust for the realities of the digital world in a way that makes sense to consumers. We have to start with where people are at present, not where we would like them to be. The points about education are really important here.
We are playing a big price for the lack of reform in recent years from schools unable to make use to libraries unable to make preservation copies of films and television programmes that they hold in the national interest. Copyright raises issues of reasonable social and cultural freedom as well as one very key issue with economic ramifications. The presence of the internet allows all sorts of new forms of creativity, so we need a copyright set-up that encourages one-click licensing for a long tail of material that is out there and which could bring economic and cultural growth. But without a well balanced and modernised framework, we will put ourselves at a big disadvantage over some other countries, most obviously the US but also other emerging players. Countries such as Singapore and Iceland are seeking roles as leading edge players in creative product licensing.
Technological change will mean that we in the UK need to keep on adapting our rules, because our fair dealing regime is part of a European system that requires us to exploit fair dealing exceptions, rather than the US fair use system that enables the regime to flex in response to changing attitudes, behaviours and court decisions. I wonder whether the time has not come to think hard about why we differ from the US on this key point.
As we have heard, the argument for the post of director-general of IP is that such a post is needed to ensure that the successful record of IP generation in the UK is properly recognised, celebrated and built on to ensure its contribution to growth, employment, culture and society. As the noble Lord, Lord Jenkin, said, the key to that is definitely education.
The noble Viscount, Lord Younger, is the newest IP Minister, and I note that he is the sixth person to hold this position since it was created about six years ago. This will undoubtedly lead to a lack of continuity and policy uncertainty for businesses. It is not an exact parallel, but before the creation of the Department for National Heritage, which is now DCMS, there was a period when there were 18 different Ministers with responsibility for films in the then sponsoring department, the DTI, over a period of 17 years. As I was working at the BFI in part of that period, I know what that does to industry. I shall leave it to the Minister, who is barely 18 days into his post, let alone 18 years, to assess whether his location in BIS makes cross-government co-ordination more difficult and sporadic, as has been rather persuasively argued.
One problem for those working on this section of the Bill is that the creative industries do not generally feel that they are being looked after properly. Indeed, there is a wide sense of unease, as the noble Lord, Lord Jenkin, called it, and of imbalance, as my noble friends Lady Morris, Lord Smith and Lord Howarth also mentioned. This is in part because of the rather unfortunate split in responsibilities between BIS and DCMS, which can sometimes—or, indeed, all the time—appear to pull in different directions. My noble friend Lady Morris put it well; she spoke from experience, and I think that she spoke the truth. IP is not well served by the current system. But it is also because there have been no real opportunities to debate in this House and the other place some of the issues in the foreground of this sector’s thinking at a time of great change in every aspect of its businesses. The occasional SI does not compensate for this—something that we will return to in other debates. That is why, to me, the idea of an annual report and a subsequent debate in Parliament seems such a good idea, which I am happy to support.
The Parliamentary Under-Secretary of State, Department for Business, Innovation and Skills (Viscount Younger of Leckie)
My Lords, first, as a Scot, I recognise with a little pride the Scottish historical links with intellectual property which have been highlighted today.
Amendment 28C would create a new statutory role of “Director General of Intellectual Property Rights”, with a duty to promote intellectual property rights. As Minister for Intellectual Property, I have a role to champion the IP system as a whole—a point to which I shall revert later. This system recognises the different interests of rights holders, consumers and other users—an important point raised by the noble Lord, Lord Howarth of Newport, and supported by my noble friend Lord Lucas.
A balanced intellectual property system promotes strong and competitive markets; encourages innovation and creativity; and is a foundation of the knowledge-based economy. I ask noble Lords how the proposed director-general would fit into that system. The frameworks for patents, copyright, trademarks and designs serve sets of different needs, and function in different ways. It is not clear how introducing a new duty, cutting through those distinct, complex and largely effective systems, would affect their operation.
We recognise the importance of promoting and educating about intellectual property. As my noble friend Lord Jenkin highlighted with some impressive statistics, and was highlighted by the noble Lord, Lord Smith, intellectual property is an important agenda for businesses and consumers alike, but although the Government understand the intention behind Amendment 28C, there is a need to deliver a balanced approach.
Amendment 28D would create a new obligation on the Government to report annually on the state of copyright licensing in the UK, and between the UK and our trading partners. The Government are keen to ensure that the intellectual property system as a whole works well. We have ourselves proposed that the Secretary of State will present an annual report to Parliament setting out his view on how the activities of the Intellectual Property Office are facilitating innovation and growth.
The Government agree with Professor Hargreaves that intellectual property policy should be based on reliable evidence. However, the reporting obligation created by this new clause would not be a proportionate tool to do that. Moreover, copyright licences are private agreements, and the Government do not intervene or monitor individual transactions unless circumstances are exceptional.
Collating large amounts of commercially sensitive data could also cause concern within the markets, and could have an impact on the competitiveness of UK interests. Headline figures showing the health of the creative industries are already available. It is not clear that the proposed report would add value to that existing data.
The UK’s creative industries are among the most influential and successful in the world. Our creativity is, quite rightly, highly marketable, award-winning and sought after, and creative industries contributed 2.9% of UK gross value added in 2009.
At this point, I should like to address some points raised by my noble friend Lord Jenkin and the noble Lord, Lord Smith, concerning the value of the IPO. The Government recognise the value of the creative industries, and it is worth emphasising some progress. The Government have done a lot for UK creators and are doing more. We have supported term extension for music performers; introduced charging of charities for music use; are pressing ahead with the antipiracy measures of the Digital Economy Act; and rejected the notion of introducing US-style fair use in the UK.
The Government are also supporting the creative industries abroad through our growing IP attaché network. Those attachés provide practical support to UK businesses, build relations with intellectual property agencies in host countries and improve UK influence overseas. The UK has attachés in south-east Asia, China, India and Brazil. The changes proposed in the Bill will bring the copyright framework up to date and reduce administrative burdens on both creators and users of content. My noble friend Lord Jenkin also questioned the direction and strategy of the IPO, supported by my noble friend Lord Clement-Jones, who questioned whether the IPO is indeed a champion of IP.
Lord Jenkin of Roding
My Lords, contrary to the figures in front of us on the chart, we have actually spent over an hour on the first amendment. I do not, therefore, want to take more time. I thank all those who have taken part in the debate. I think it justified what I said at the beginning about the level of support there is for, if not this particular amendment then the recognition that “all is not well”—to quote the noble Baroness, Lady Morris. All is not well in the field of copyright. I leave the Minister with this thought. The Government have got to do a great deal more if they are going to regain the confidence of copyright owners. I heard what he said and I shall study it carefully. However, there is no question about it, those of us who have been exposed over recent months to the considerable expressions of dismay and, indeed, fear for the future on the behalf of IP owners are left in doubt at all that, as the noble Baroness said, all is not well.
The argument of the noble Lord, Lord Howarth, for seeking balance, is probably what the IPO claims that it would be doing. The fact of the matter is that it has lost the confidence of all those who are concerned as the owners of IP. Something has to be done in order to get the improvement in the whole copyright structure that is widely sought. It may well be that the director-general proposal will need to be looked at again in the light of what has been said in the debate about it. One point I would make is that the all-party group recommended that it come under the Secretary of State for DCMS whereas the IPO comes under BIS. The amendment says “Secretary of State” and that covers all of them, so the amendment does not distinguish.
I agree with what has been said. There is a lack of co-ordination across Whitehall—a lack of the same kind of recognition of the importance of IP lying at the heart of our economy, and it will increasingly lie at the heart of our economy as it becomes even more based on intellectual property and less on manual labour. We have got to look at this very carefully. Parliament has an opportunity to express its views. I have no doubt at all that we shall want to return to the matter at Report. I give notice to my noble friend that I expect that is what we will do, but we will study what he has said very carefully. In the mean time, I beg leave to withdraw the amendment.
Viscount Younger of Leckie
Before my noble friend sits down, I hope that it is in order briefly to answer my noble friend Lord Clement-Jones and to confirm that we can include the detail on licensing within the IPO report in future.
The Earl of Erroll
My Lords, I not sure why these two amendments have been grouped together because they are completely different. However, I will deal with the first one on metadata. I do not know what it has to do with stripping metadata off whatever you might read on the internet. It is saying, as far as I can make out, that if you have an automated system that comes across some metadata, it should respond to that intelligently and either not breach copyright or know that you are permitted to use it. But it does nothing about controlling the metadata or stopping people from stripping it.
In as much as it is saying that you should look at the metadata and therefore respond to it intelligently, yes, that is a nice thought. However, I wonder whether many programmes would be able to do that. I can see that it is probably targeted more towards the search engines and various things like that. I can see some problems with this and think that it will have to go into regulation to work out how to handle it.
We also need to think about the world stage and what is being done in other countries, because a lot of these things that look for items on the internet are based abroad. We want something that is practically useful. We do not want to drive things out of the UK. I am not saying that we should breach copyright and I think that we should use metadata intelligently to try to achieve the aims that we want, but we must be careful how we do it.
I am also keen on the use of data mining for research purposes. For example, you can talk to Wellcome and such people. Huge benefits have come from looking at disparate research material. Very often, new discoveries come from matching things from completely different spheres. That is what we forget when we worry about the protection of copyright for the artist or creative person in that sphere. Actually, researchers have completely different needs. They will not usually go around ripping off other people's ideas.
One of the challenges with this whole area of copyright is that we are trying to treat everything as if it is the same. It is not. Very often, when we benefit one lot we will disadvantage another and we need to be careful not to do that. That slightly worries me.
Leaving that to one side, Amendment 28DZD has a good point behind it, which is that you must have an exception for parody. Leaving the courts to decide what is fair in parody and what is not is very dangerous. As we know, courts are extremely expensive. If you are a small creative group trying to create parody and a big boy comes along and tries to hit you over the head in the courts, you will have to back down. That is bullying. Unfortunately, I do not think that our laws on bullying prevent that. If they did, we might be able to do something about it.
We must be very careful saying that recourse to the courts is workable. Basically, unless you are very rich or very poor, you are outside the law. You are not protected by British law because it is too expensive. That is something I have become aware of in general. We cannot rely on it. I think it is very important, but I entirely agree with the noble Baroness, Lady Brinton. We cannot try to attribute every single little thing that one tries to parody. That would be absolutely ridiculous and unworkable. Without that bit about the attribution, the idea that we are trying to protect parody is extremely important. Therefore, I like this amendment; it just needs a bit of tidying up, I suspect.
Viscount Younger of Leckie
My Lords, Amendment 28DZA would introduce a provision into the Copyright, Designs and Patents Act 1988 that changes the legal status of rights management information attached to digital material. This would make internet service providers responsible for ensuring any rights management information contained in metadata is recognised and acted upon. I have sympathy with creators whose wishes about the use of their material, expressed through metadata, are not always complied with. There are already well-established methods to control automated use of material posted online—for example, the use of robots dot text files to prevent crawling of websites by search engines. I was grateful for the technical insight on this from the noble Earl, Lord Erroll, who I suspect knows a lot more about this than my good self.
Internet service providers are already responsible for removing infringing material when it is brought to their attention. This is in keeping with other areas of law, where we do not expect carriers of information to be held liable for the lawfulness of that information. The approach suggested in the amendment would require all aggregators, indexers and other automated hosts online to develop systems to read metadata and comply with any conditions. As noble Lords will understand, this would be no small task. It would also replicate the efforts of a number of industry-led initiatives in this area, which are making progress. These include the Automated Content Access Protocol project, and work by the industry-led digital copyright exchange to look at the related issue of automated metadata stripping.
Government have considered the amendment carefully but do not consider that legislative change is the right step at this time. Moving on to Amendment 28DZD, noble Lords will be aware that the Government have announced their intention to bring forward legislation to introduce or update a number of copyright exceptions. A new exception to allow limited use of copyright works for parody, caricature or pastiche is part of that work. The amendment of the noble Lord, Lord Stevenson, is therefore going in the same direction as the Government’s policy. Rather than amend the Bill to achieve it, I suggest that it would be better to wait for the introduction of a parody exception, with the other proposed changes to copyright exceptions, in due course.
The Government have already committed to publish draft regulations later in the year, including provisions on this subject, for technical review by any interested parties. This will be an important opportunity to hear from experts, including in this House, to ensure that the regulations will have the desired effect. I would like to pick up on a point emphasised by the noble Lord, Lord Howarth, concerning secondary legislation. To clarify, we believe that exceptions to copyright that are explicitly permitted by the copyright directive may be introduced into UK law by means of Section 2.2 of the European Communities Act. The Hargreaves changes to copyright exceptions announced in December 2012 will be introduced by secondary legislation under the European Communities Act and not under the power in Clause 66 of the Bill. Our intention is to publish draft regulations for public comment in the spring. Government have considered the amendment carefully, but I hope that in light of the above, the noble Lord, Lord Stevenson, will feel able to withdraw this amendment.
Lord Stevenson of Balmacara
I thank all those who contributed to the debate. I am glad we got to the heart of it very quickly. I am particularly grateful to the noble Viscount, Lord Bridgeman, and the noble Earl, Lord Erroll, for their contributions of a technical nature. Who could fail to be persuaded by the noble Baroness, Lady Brinton, who lied when she said she was simply a stage manager? Clearly there was a touch of the real authorial actor there as well and I was grateful to her for her points. My failure here was clearly to have not done my research and realise that despite his youth and clear vibrancy in terms of matters cultural, the noble Viscount had not listened to his children and worked out where “Gangnam Style” was coming from. I perhaps should have taken a leaf out of the book of the noble Baroness, Lady Brinton, and actually done my bit of what it was that does it. It certainly would have amused the civil servants behind, but I think they were laughing already so it would have perhaps wasted my time.
On metadata, this was a probing amendment and was not meant to be one that would have solved the problem. I tabled the amendment because I think we are missing a key debate, and I am still not quite clear about when we are going to get that debate. The Minister said that legislative change in this area is not right, but he failed to explain why it is not right. Perhaps he will write to me and explain in a bit more detail. There is something here. It is clearly contentious, and we are not going to be able to discuss it very well in secondary legislation. I think we are missing an opportunity here.
On parody, we are still left with a problem that was not addressed in what the noble Viscount said. The legal problem with parodies is that,
“they need to be close enough to the original to be recognised by the audience as a parody in the first place, which means that they will almost inevitably infringe copyright”.
How do we get out of that? These words are quoted by the IPO. They are from somebody commenting on a case which sets the situation here quite well: “Newport State of Mind”.
We will not solve this today, and there is no point in continuing it. I shall withdraw the amendment, but when can we have these debates? I beg leave to withdraw the amendment.
Viscount Younger of Leckie
My Lords, Amendments 28DZB and 28EB are intended to ensure that artistic works can continue to be used in two particular ways after the repeal of Section 52 of the Copyright, Designs and Patents Act, or CDPA for short: first, that it shall not be an infringement to use an image of an article protected by copyright in a film, photograph or book; and, secondly, that it shall not be an infringement for new designs to use motifs from artistic works protected by copyright. For example, following the repeal of Section 52, a publisher who reproduces a photograph of any artistic work in a book may need to obtain permission to do so. Similarly, the scope for follow-on design may be restricted. The amendments are intended to make special provision for those circumstances.
The repeal of Section 52 means that all artistic works, irrespective of how and by whom they are used, will be treated equally under the law. The amendments seem to be intended to create special cases for particular uses of works. It is not clear that there is a compelling reason for some artistic works to be treated differently in that way. For example, why should it be necessary for a filmmaker to obtain permission to reproduce a painting by Francis Bacon, but not for another artistic work, such as a designer lamp?
Amendment 28DZC would create an exception that would cover the situations outlined above, but it goes further. It would in some circumstances allow the production of replicas and not just images of articles protected by copyright. As drafted, this would not be compliant with existing law.
There is another aspect to consider. In December, the Government announced changes that will be made to copyright exceptions. These will include, for example, an amended quotation exception, which will permit the use of photographs of artistic works in situations that the courts determine to be fair, and new exceptions for education. Those could cover some uses envisaged under the amendment. I reassure the Committee that the issue can be returned to when we have some experience of how the new arrangements work.
I shall pick up a number of points raised by noble Lords. First, I did indeed spot the article in the press this morning concerning the family business of a well known member of this Government. I think that the question of the noble Lord, Lord Stevenson, was: is it true to say that the wallpaper produced by the Chancellor’s family-owned interior design business will qualify for copyright protection? The repeal of Section 52 could benefit anyone who owns the copyright in a wallpaper, but not all wallpaper will qualify for copyright protection. That will depend on, for example, whether the wallpaper meets the requisite standards to qualify for copyright protection and is, for example, sufficiently artistic and original. Ultimately, that will be a matter for the courts to decide. The Government and the Design Council consider that the repeal of Section 52 will benefit young designers, as it should lead to UK designers developing new designs in markets that become less dominated by copies of artistic works. I hope that noble Lords find that particular example helpful.
It is important to address the point raised by the noble Lord, Lord Stevenson, concerning consultation. Indeed, it was an issue addressed by the noble Baroness, Lady Warwick. It concerns what consultation there will be before the repeal of Section 52. The UK is one of the few member states that has such an exemption. Further consideration will be given when the Government consult on how and when to bring that into force. Further to that, I reassure the noble Lord, Lord Stevenson, that the Government have discussed the repeal of Section 52 with interested bodies, including representatives of sellers of replicas of classic design furniture, such as Scott Howard Office Furniture. We have also had discussions with the Publishers Association, the chairman of the IP Bar Association and Professor Lionel Bently.
The Government will consult formally on how and when the repeal should take effect. We want to hear from affected firms to ensure that the right transitional arrangements are in place to allow them to adjust—for example, by modifying their supply agreements where necessary. The Government believe that it will be business as usual for many British firms who manufacture or sell affected replicas.
The noble Lord, Lord Stevenson, highlighted the question of how Clause 65 is supported by designers. Designers argue that the law undermines the integrity of the design industry and may make British companies less willing to support long-term investment in areas such as furniture design than their European competitors. I quote Sir Terence Conran:
“By protecting new designs more generously, we are encouraging more investment of time and talent in British design. That will lead to more manufacturing in Britain, and that in turn will lead to more jobs—which we desperately need right now”.
Tom Dixon, a British designer, has said:
“Current copyright laws leave designers woefully under protected compared to similar creative professions. This initiative is a small step toward establishing much needed protection of valuable intellectual property”.
The Government have considered these issues very carefully. I hope that in the light of the above, the noble Lord, Lord Stevenson, will withdraw his amendment.
Lord Clement-Jones
Briefly, my Lords, if I may, I understand everything that the Minister has said, but I was a bit flabbergasted by the final statement that the Government have considered this very carefully. The Minister mentioned a few people whom the consultation had taken place with, but the fact is that those people who are suggesting amendments are the very people with whom the consultation has taken place—the Publishers Association and seven professors of design who, after all, ought to know whether young designers are going to benefit from this kind of provision. They have a clear view when they are looking at young designers in the future. There are seven of them, from the University of Cambridge, King’s College London, the University of Glasgow, Oxford, University College London, Bournemouth University and the University of Edinburgh. If they do not know what is going on in the field, who does? They have grave concerns. I felt that the Minister’s response was both disappointing and rather dusty. Perhaps he could give some sort of undertaking to look at this a bit more carefully rather than simply saying, “There is no amendment possible to this clause; all that is available is consultation over how it is brought into effect”. Surely that is unacceptable in the light of all the concerns that have been raised about Clause 65.
Viscount Younger of Leckie
I have listened carefully to my noble friend Lord Clement-Jones on these matters and have taken note. I am not sure that I can convince him that consultation is the right way forward, but I hope that he will accept that. I doubt that he will, but I have taken a firm note of what he has said.
Lord Stevenson of Balmacara
My Lords, I am grateful to everyone who has contributed to this debate. We all broadly sung much the same tune. There are minor changes and I accept the point about the incidental and substantive issues and the need to be careful that we do not knock out the use of props in trying to find a better solution than the one that the Government are proposing.
I am afraid, though, that I echo the comments of the noble Lord, Lord Clement-Jones, by saying that I do not think that we got to the heart of the debate here. To be fobbed off with the idea that somehow by taking these rather extraordinary Henry VIII powers—probably on the wrong legal basis and almost certainly heading in the direction of a conclusion that almost no one else, given the same facts, would arrive at—and then to be told that we can return to this once we have experienced how the laws work does not seem to be a very satisfactory way of going about this.
This needs a bit more consideration and debate. As was said, many of the issues here are not party-political in the sense of opening up great divides between us. We all want a solution to this; I have said twice that I am not against the idea that in the medium to long term we should find a way of establishing a comparability of status for industrial designers and those in the other creative industries. On the other hand, as the noble Lord, Lord Clement-Jones, said, life plus 70 years is a very long time. To change radically, in one short clause in a Bill that is largely about other things, from 25 years to life plus 70 is a big step. We are not saying, “Don’t do it”, but we are saying, “Let’s talk about this a bit more and try to get a better sense of what the issues are”. As someone said—I think that it was the noble Baroness, Lady Brinton—we are concerned about avoiding unintended consequences. There are some already, and we have picked up several of them in the examples that we have given today.
On wallpaper, I thought that hoping that the Hargreaves report would come to the rescue was a little limp. We are not talking about the sort of designs that might be found in commercially popular suppliers of cheap paper and products; we are talking about those people who have registered designs that they have utilised in a perfectly appropriate way in their business to obtain a suitable return on their investment for a number of years. That is changing from 25 years to life plus 70 where the registered design is in the ownership of the company. That is a very large step indeed.
I used that only as an example. I did not want the Minister to be defensive about it, but it made my point well. The approach that he has taken simply does not answer the question. I am sure that we will have to return to this but, in the interim, I beg leave to withdraw the amendment.
Viscount Younger of Leckie
My Lords, Amendment 28DA seeks to ensure that copyright is revived in works of artistic craftsmanship created before 1957. This would apply, for example, to works such as the Wassily chair, designed by Marcel Breuer in 1925 to 1926. Chairs seem to be a favourite theme today. The noble Baroness, Lady Whitaker, mentioned a chair; I was not entirely clear what type of chair it was.
The law in this area is complicated, but the term directive is clear. If the chair was protected by copyright in any other member state before 1995, copyright would also have to apply in the United Kingdom. Amendment 28FA also concerns those works in which copyright is revived. It seeks to remove those provisions which impose an obligation on the owner of a revived work to grant a licence even if he would prefer not to do so. The noble Baroness, Lady Whitaker, has raised an interesting point with this amendment that deserves further consideration. We shall have the opportunity to consider these very specific issues more carefully before the clause is commenced and there will be the opportunity to deal with the issue in the relevant regulations.
Amendments 28E, 28EA and 28F seek to set out the transitional provisions which govern how the change in the law will apply to articles made or imported into the UK or EEA when the law is changed. The Government are aware that there are potential impacts on businesses that manufacture or sell replicas and are committed to consulting on how and when to implement the changes.
My noble friend Lord Clement-Jones asked whether there will be an impact assessment to show the potential effects of the transitional provisions on producers and other third parties. The Government have already produced an impact assessment and will ensure that it is kept up to date as the legislative process moves on.
There are pros and cons to setting a relatively longer or shorter transition period. We understand how that concerns my noble friend Lord Jenkin and the noble Baroness, Lady Whitaker. It will be important that any decision on transitional provisions takes account of the consent of all parties involved. That includes, for example, the length of existing supply contracts and leases for warehouses where products are stored. I confirm to the Committee that we intend that existing stock in the UK will not be affected by the change in the law; the change will apply only to items manufactured or imported after that date. If an express transitional provision proves necessary, the regulations shall provide for it.
This change in law needs to be introduced in a measured way, balancing the needs of the parties involved. The Government have carefully considered the issues and I hope that, in the light of the above, the noble Baroness and my noble friend will not press their amendment.
Lord Clement-Jones
I shall intervene only briefly. It is good news to hear that there is an impact assessment on business and other third parties which will be regularly updated, but, personally, I am none the wiser about the Government’s intentions about time periods for the transition. It is rather baffling. If there is an impact assessment which helps to inform government policy in this respect, it has not been used to take the next step, which is to give a concrete view of the proper period, how the transition will take effect and on whom it will impact.
If the regulations are in the offing, it would be extremely helpful for the Minister at least to give us a glimpse of some of the thinking, which might allay some of the concerns raised in this short debate.
Viscount Younger of Leckie
I can only reiterate to my noble friend Lord Clement-Jones that we are committed to continuing to consult. The best way to respond is to say that we will continue to keep him informed on progress. Progress is not intended to be slow; we intend to proceed with this as fast as we possibly can and to present a timetable wherever we can.
Baroness Whitaker
I am most grateful to the noble Lord, Lord Jenkin of Roding, and all others who spoke—even my noble friend Lord Howarth of Newport who, uncharacteristically, devalues the individual nature of creative inventions. If that individual, unique creation is not properly recognised and compensated, it will decreasingly be made, certainly in the UK. Apart from the simple injustice, which is the other point, there is an economic chilling factor.
I am grateful to the Minister—incidentally, it was the Eames chair that I mentioned; in fact, all the Eames chairs would qualify—but I hope for discussion with him before Report, because I think that we can arrive at some solution. I beg leave to withdraw the amendment.
Viscount Younger of Leckie
My Lords, Amendments 28FB and 28JAA cover the scope of Clause 66. The Government recognise that concerns about this clause remain, despite their efforts to clarify the scope through a government amendment on Report in the Commons. The Government have looked carefully at these amendments and I believe that we understand the intentions of the noble Lord, Lord Stevenson. However, we believe there is the possibility that the amendments as currently drafted would in fact widen the scope of the Government’s power to effect changes in this area with respect to criminal penalties. I do not believe that that is what the noble Lord intended through his amendments.
The Government’s intention with this clause has always been to maintain the current level of criminal penalties whenever it is required to amend or remove copyright exceptions. However, there remain concerns about this clause, as reflected in the intention behind the noble Lord’s amendments. In this light, I am prepared to look again at what more can be done to ensure the clause does exactly what the Government intend and no more.
I hope that in light of the above assurances the noble Lord will withdraw his amendment.
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.
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.
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.
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 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 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.
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 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.
(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,”
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 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 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 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.
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 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 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 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.
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 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 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 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.