Enterprise and Regulatory Reform Bill

Baroness Warwick of Undercliffe Excerpts

Monday 28th January 2013 Grand Committee

The implications are significant, and they are seriously worsened if we extend the duration of protection from 25 years to life plus 70, which in the case of a design made by a designer at the age of 30 who dies at the age of 85 would be 125 years. New and contemporary designers will not be allowed to reuse any original part of existing designs dating back for much of the 20th century. They say that we tend to hear more from established designers in the design industry not fully appreciating the implications for the future. So while generally supporting the intention behind Clause 65, it does need some important amendment. At the very least the clause, even if amended along the lines suggested, should not be brought into force until there has been a consultation and appropriate provision has been made to protect the interests of third parties in future as well as during a transitional period.

[Baroness Warwick of Undercliffe]

My Lords, there are concerns about the impact of Clause 65 on designers and manufacturers, but this amendment seeks to address a problem which the clause will create for anyone who wants to use a two-dimensional representation of a design that is in copyright. This will affect a wide variety of users, but I am most concerned about the impact on those involved in teaching design. I declare a non-financial interest as a member of the council of University College London.

It is obvious that one cannot teach design without being able to show images of designs to your students. If you want to do this by example, showing a PowerPoint slide of a design during a lecture and the item is in copyright, you need a licence. If the term for industrial designs is increased to 70 years plus life, that means that you will need a licence for almost all 20th century designs. Many of these will be orphan works, so securing a licence under the current law would be difficult if not impossible. This would be eased by the orphan works provisions, which we will come to shortly. Meanwhile, this will have a real impact on the teaching of creative subjects.

In copyright, we have had almost nothing but consultation for the last decade, yet there was no consultation of non-commercial users here. The Government should consult all those potentially affected by the impact of this clause. The proposed amendment would be a proportionate response to the problem, allowing teachers, lecturers, museums, publishers and libraries to use photographs of designs without the need of a licence. It is in the interests of the creative sector that we allow such uses.

[Viscount Bridgeman]

My Lords, I speak to Amendment 28DZB, which has been so ably covered by the two movers of the amendment. I support this amendment as far as it goes, but it needs to make the distinction between incidental use, such as a passing shot of a chair on a TV programme, and one with a wider agenda—for example, financial or political. A well known example of the latter is the case about two years ago brought by Unilever, owners of the Marmite brand, against the BNP, whose image of a Marmite pot was a major feature on the BNP website. This resulted in an out-of-court settlement in favour of the plaintiffs. I hope that the Minister will take note of this proposed adjustment to the amendment.

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[Baroness Blackstone]

My Lords, I associate myself with what my noble friend Lord Howarth has just said. He put it concisely and succinctly, and I entirely endorse everything that he has just put forward. I shall not repeat what he has already said.

I do not believe that Clause 68 goes quite far enough, and I should like it to have gone further. I certainly do not want to see it restricted in the way that the noble Lord, Lord Clement-Jones, suggests. My noble friend is absolutely right when he points to the undesirability of polarising this debate between the needs of cultural institutions, scholars and researchers and the requirement in the 21st century that we should be able to digitise material en masse, which should include orphan works. Until now, it has required huge amounts of time and effort—pointless time and effort—to try to establish who the authors of these so-called orphan works are, usually with absolutely no useful result. Therefore, I very much hope that the Committee will reject these amendments and support Clause 68 as it stands. I hope that when the regulations are formulated, they will be able to maximise the extent to which it is possible for orphan works to be accessed and digitised in the interests of the wider public and of research and scholarship.

[Baroness Warwick of Undercliffe]

My Lords, while there is a danger of me saying, “Me, too” and sitting down, I would like to reinforce those points. It is worth reflecting on the fact that Universities UK, the British Library and the Wellcome Trust have all explained in considerable detail why the orphan works provisions must extend to commercial as well as non-commercial works. They have certainly convinced me that it is not possible to draw a clear distinction between commercial and non-commercial works—that is, commercial uses in the context of universities, museums and libraries.

We must remember that a very large proportion of orphan works were never intended for commercial purposes. Others have mentioned letters, but I would add personal notes, diaries and even sketches on napkins. Those are the kind of things that make personal archives so rich and such a wonderful source and rewarding ground for scholars. Therefore, I do not think that we should seek to put any barriers in the way of that material being preserved and shared.

[Lord Greenway]

My Lords, I have every sympathy with the aims of the British Library, the Wellcome Foundation and others. However, I should like to bring the debate back to the photography angle. I am a photographer and there was a time when I used to make my living as a photographer, although I no longer have the time to do that. However, I have a considerable archive of my own photographs and photographs that I have acquired over very many years. In effect, I have what could be termed a small photo library.

I am concerned about this measure because copyright is, and always has been, a minefield. To my mind, what we are doing here risks making it even more of a minefield. What will be the position for the large number of photo libraries which, after all, make their living from selling reproduction rights for photographs? They are worried that they will be badly affected by this Bill. They do not think that there has been enough consultation. There is a risk that, if the Bill goes through as it stands, some of them could go out of business.

I find this business of orphan works difficult to comprehend. I have lots of photographs that could well be orphan works. I have no idea who took them. Some of them are 100 years old and were taken in other parts of the world. Do I have to license all those photographs and pay money into an account that may well build up into a huge sum of money and will be sitting there, most of the time unused, when such money could be used, especially by photo agencies, to increase their business in other ways? I find the whole thing exceedingly confusing. I would welcome the Minister pouring some light on that.

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[Lord Howarth of Newport]

My Lords, these amendments have at least enabled us to discuss some very important issues. I want to concentrate on the question of diligent search. Whether the proposed United Kingdom orphan works licensing scheme will work depends on whether the regulations ensure that the requirements for diligent search are proportionate and manageable. Unless the time and cost of diligent search are reduced in appropriate circumstances for cultural and academic institutions they, for the most part, will not bother to attempt to use the orphan works in their collections. The noble Baroness, Lady Brinton, briefly described the scale and quantity of orphan works that it is believed are in our national collections. It is thought, for example, that some 50% of archive collections consist of orphan works. There are three very interesting and helpful pages in the impact assessment. I keep on praising the impact assessment—counter-culturally—which gives instances of the scale of orphan works in particular collections and the prodigious volumes of time, effort and cost that would be required to perform a diligent search item by item on all of them.

If the regulations are to be proportionate, they will take account of the nature of the work in question, for example whether it was originally produced for commercial purposes or was unpublished; the use that is proposed for the work—whether, for example, it is intended that there should be free access to it for educational or cultural benefits to the public; a realistic assessment of any risks to potential rights holders; and the feasibility of tracing rights holders. I understand it is the Government’s intention that there should be proportionality in the way the regulations stipulate the requirement for diligent search. However, I would be grateful if the Minister could enlarge on the Government’s intentions in this regard. I hope he will be able to give some comfort to those of us who believe it is important to remove unnecessary obstacles to making orphan works accessible.

Amendments 28M and 28N are totally unrealistic. To require a diligent search for each individual work, regardless of the practicalities, would make digitising orphan works in major areas impossibly time consuming and expensive. Therefore, that would be unreasonable and disproportionate. I hope that my noble friends will not wish to pursue amendments to that effect. I hope the Minister will be able to give us comfort in what he tells us about the Government’s intentions in this area.

[Baroness Warwick of Undercliffe]

My Lords, I also comment on the question of diligent search. I agree that we need clarification about what will constitute diligent search, but I would worry if we set the bar too high, and these amendments ask us to set a very high bar indeed. Many noble Lords appreciate the time and effort involved in tracing the authors of some categories of work. It is essential that this is proportionate to the type of material involved and the likelihood of finding the owner.

As my noble friend Lord Howarth has said, if we do not establish a proportionate system, the requirement will act as a disincentive to use this legal route for using orphan works. Users will either risk infringement by using works without a licence, as some currently do now, or decide not to use the work at all. We have talked a lot about balance this evening. Clearly, we need the right balance in this case. That is the way the working group is already moving and that is the right approach.

[Baroness Brinton]

My Lords, in the interests of time, I really will just say “me too”. I very much support the comments made by the noble Lord, Lord Howarth and the noble Baroness, Lady Warwick.