Enterprise and Regulatory Reform Bill

Earl of Clancarty Excerpts

Wednesday 20th March 2013 Lords Chamber

[Lord Clement-Jones]

My Lords, I am not unsympathetic to the first of the noble Lord’s amendments, Amendment 10, but on the argument that he makes for a review of the orphan works scheme—and many of us have doubts about how that is going to operate in practice—I wonder whether it could not be done more frequently in the Intellectual Property Office’s annual report. The Minister demonstrated in the course of our debates on the Bill that it will be flexible enough to cover a number of areas. If licensing in the form of a digital hub and perhaps ECL can be covered, or meta-data, why not the state of orphan works?

In passing, perhaps I could raise another matter relating to orphan works. In the debate on Report, my noble friend the Minister said:

“In relation to Amendment 84AE, my noble friend Lord Clement-Jones was concerned that there might be a loophole regarding sublicensing. The answer to this is that the Bill does not permit sublicensing, if that is a help to my noble friend”.—[Official Report, 11/3/13; col. 33.]

I believe that the advice the Minister has received may not be correct in that respect. As the Bill currently stands, it seems expressly to contemplate sublicensing. New Section 116A(4) states:

“The regulations may provide for the granting of licences to do, or authorise the doing of, any act restricted by copyright that would otherwise require the consent of the missing owner”.

An act of authorising another to do the relevant act would clearly permit sublicensing.

Because of the timing of the Third Reading, I was caught on the hop and have been unable to put down a probing amendment on this, but I would be very grateful if the Minister could examine the issue and give an assurance now, or subsequently in correspondence, that the regulations will not permit this.

[The Earl of Clancarty]

My Lords, briefly, I support Amendment 10, proposed by the noble Lord, Lord Howarth, although I support Amendment 11 as well.

To emphasise how important it is that the new orphan works scheme works and how culturally significant that is for Britain, I agree with everything that the noble Lord said. It is impossible to overestimate the importance of this development for our national museums. For instance, being able to show orphan works—there being such a huge number, indeed millions, of records, papers, photographs and artefacts, some over 1,000 years old—may well make a difference to the quality of display and exhibitions and increase the viability of our collections for international scholarship.

As an artist and creator myself, I might have been expected to vote against Amendment 84AG, which the noble Lord, Lord Howarth, tabled on Report, to allow flexibility in the up-front payment of fees to creators. I did not do so, and I think that I speak for other artists and creators who in this instance can see beyond the minimal benefits to them, if indeed they exist at all, from this aspect of the Bill in the direction of the far more significant wider picture of displaying work, which is often one of the major aims of artists and creators in the first place.

It would be a great shame if, because of this component of the Bill or for any other reason, the orphan works scheme failed or did not operate properly, having come this far. We may find out fairly quickly if this is the case, so three years will be ample time. Given how significant the enabling of orphan works to be shown will be in deepening a sense of British and world culture within our own institutions, we should be able to review the situation at the very least. I support the noble Lord’s amendment.

[Baroness Brinton]

My Lords, I thank the noble Lord, Lord Howarth of Newport, for these two amendments, which are very helpful in trying to balance and find a bridge between the two very distinct sides of the argument that we have seen during the various stages of this Bill—and, in particular, the problems already outlined about whether arrangements for orphan works will work. I am grateful, too, to my noble friend Lord Clement-Jones, for saying that Amendment 10 might be helpful to all parties. I hope that the Minister can give us some encouragement on that.

On Amendment 11, I wanted to point out that I am as concerned as the noble Lord about a large amount of licence fees sitting in a large black hole and then returning to the Government in whatever form as a double taxation. My only question—I apologise as it is rather a technical one, but I saw the amendment only earlier today—is about the five years of royalty payments. If it goes into bona vacantia, how long does it have to sit there before it is released into general Treasury funds? Is it another blocking account? I recognise that the proposal refers to “bona vacantia or otherwise”, and that “otherwise” might refer to the general coffers of the Treasury. It would be helpful to know. My only suggestion to the noble Lord, Lord Howarth, is that five years might be too short a period to search for authors of orphan works.