Enterprise and Regulatory Reform Bill

Baroness Warwick of Undercliffe Excerpts

Wednesday 14th November 2012 Lords Chamber

[Baroness Warwick of Undercliffe]

My Lords, there is a huge number of issues in the Bill. For example, along with others, I am very concerned about the proposal to exclude the use of lay members in the Employment Appeal Tribunal. In my experience, the judges at the EAT value the industrial relations and management skills of employer and worker representatives and I hope to return to that at Second Reading.

However, today, I want to concentrate my brief remarks on Part 6, which relates to copyright. I support Clause 68 in particular, which will create a new power for the Government to license so-called orphan works and also open the way to extended collective licensing. Both of these measures are badly needed. As the Hargreaves review pointed out in 2011, a system to allow people to access, preserve and use works where no author can be traced has the potential to open up what he called a “treasure trove” of material. This is of particular interest to universities, libraries and museums. The British Library has drawn attention to the fact that, where it cannot trace the author of a work that may be in copyright, it is currently prevented from doing anything to preserve that work. It cannot digitise it or make it available other than in its original physical form. The British Library has said that this applies to a staggering 43% of the works it holds from between 1870 and 2010. This means that there is material of potentially huge historical, cultural and scientific interest that will literally lie buried away.

Universities also have very large and important collections in their libraries and museums and so face similar difficulties—and I should declare an interest as a member of the council of the University of College London. They have the added frustration of being prevented from using such material for the purposes of teaching and research publications. Of course, some activities are covered by exemptions for teaching and non-commercial research, but those exemptions do not include any form of digital representation such as displaying material on a PowerPoint slide; nor do they include publication, for example in a journal, website or institutional repository, for which a licence would be needed. If you cannot trace the author of a work or secure a licence to use it, you simply cannot reproduce it in this way.

Universities UK has given two examples. The first is of a researcher finding material in an archive that is potentially in copyright. She is unable to identify who the copyright holder could be and so cannot get permission to use the material, say in a research paper. She has no choice but either to not publish the material or to risk court action should the copyright holder later be identified.

The second example is of a lecturer wishing to use photographs on PowerPoint slides as part of a series of lectures. Because such usage does not currently fall within the exceptions granted for the purposes of education, he would have to seek permission in order to do so. If the copyright holders of those images cannot be identified or located, he risks court action were he to use the photographs in this way.

Professor Hargreaves argued in his recommendations for reform of the copyright licensing system that making it easier to secure a licence to use orphan works was a measure that had “no economic downside”. Not only could it place in use a vast range of forgotten material but it will create an incentive for researchers to look for authors. Currently, if you suspect that a work may be an orphan, the time and cost involved in establishing whether that is the case, and the likelihood that you will not be able to use the material at the end of the process anyway, means that in many cases researchers will decide not to bother pursuing it. Under the provisions of the Bill, once you have conducted a diligent search but still cannot trace the author, you may be able to get a licence to use that material. You will pay a fee that will be held for the author should they eventually emerge, which, in my view, makes it more likely that authors will benefit from the reuse of works that are currently abandoned.

The Bill also establishes provisions for extended collective licensing, which is an important counterpart to the measures on orphan works and will make it easier to clear rights to use or digitise large volumes of work. I congratulate the Government on bringing forward these measures and urge colleagues to support them. In Committee, there will be plenty of time for necessary debate about the safeguards attached to these measures. In particular, I shall be interested in the regulation of collecting societies. Universities UK, and others, have argued that collecting societies should operate in a more transparent way and should increase the extent to which they ensure that rights holders and users are represented.

There are also some concerns within the academic community about provisions in Clause 65 extending the copyright period for industrial designs. I understand that there has been inadequate consultation about the effects of these measures and will certainly look to probe the Government on this at a later stage.