Enterprise and Regulatory Reform Bill

Lord Clement-Jones Excerpts

Wednesday 20th March 2013 Lords Chamber

[Viscount Younger of Leckie]

My Lords, I begin by thanking noble Lords for the constructive and positive debates we have had on this clause. Responding to an amendment tabled by my noble friend Lord Clement-Jones on Report, the Government are introducing two further amendments to the clause. These amendments mean that some unpublished films and photographs will remain in copyright until 2039 at the earliest, as they do under the current law.

I acknowledged on Report that films can be commercially exploited without having been published. This is because of the legal definition of the word “published”. The same may be true of some unpublished photographs. Equally, there will be some film material and photographs in commercial archives that have yet to be commercially exploited in any sense. These archives may have built business cases on the basis that that material would remain in copyright until 2039 at the earliest and could be exploited until that point. Therefore, to provide some certainty to those businesses, the Government are exempting film and photographs from the clause.

However, a smaller proportion of unpublished films and unpublished photographs are affected by the 2039 transitional provisions than some think. Many films put on commercial release, including newsreels, will have been registered under film legislation, and the 2039 provisions do not apply to those films because they are regarded as published. With regard to photographs, only unpublished photographs taken between 1957 and 1969, whose author died during that period, are affected by the 2039 provisions. Photographs taken before 1957 were protected for 50 years from the end of the calendar year in which they were taken.

The second amendment means that regulations may provide for different provisions for work of different types and of different ages. This would mean that recent works, for example, could be treated differently from centuries-old works.

I hope that in the light of what I have said noble Lords will support these amendments. I beg to move.

[Lord Clement-Jones]

My Lords, I thank the Minister. If anything, what he has just said demonstrates the complexity of copyright legislation and the provisions of what is now Clause 78. One of the interesting things about this Bill is that when debating Part 6 we have continuously had to push our horizons forward. I think that when we started it was Clause 57 onwards, then it was Clause 66 onwards and it is now Clause 76 onwards, but we are very flexible and adaptable here. The amendment demonstrates not only the complexity of copyright law but the flexibility and willingness to listen that the Minister has demonstrated throughout our debate on Part 6. I welcome his response to the concerns, particularly of those in the news agencies and of photographers, about the possible impact of Clause 78, and I am delighted by the outcome.

If we were in Committee, we would probably want to probe the exact meaning of Amendment 9 to,

“make different provision for different purposes”.

However, as we are at Third Reading, I think we will let the Minister get away without too much debate on those words. They are quite wide, and the other place or whoever might wish to have a discussion about them.

[The Earl of Erroll]

My Lords, I add a slight note of dissent. I entirely agree with Amendment 9, which gives greater flexibility to,

“make different provision for different purposes”.

However, Amendment 8 paints the regulation-makers into a corner. I quite see the point of the noble Lord, Lord Clement-Jones, on the commercial stuff. This is his word as a commercial lawyer among the large rights holders and the people who make money out of this material. I see their point. They have invested heavily in some of this stuff, as in other cases, and they want a commercial return on it.

The trouble is with all the other stuff. This is not just about photographs sitting in commercial archives or produced for a commercial purpose. This is not about film sitting in a commercial archive, or from which, published or not, somebody is trying to make some money. It is everything. The sort of stuff that has ended up with genealogical societies around the country and in libraries’ photographic collections will all fall under this. I realise that this does not apply to pre-1957 photographs, so it will not affect people doing research on the Second World War, but you will suddenly have this strange cut-off point. It would have been wise to keep greater flexibility in this so that the Minister, using,

“make different provision for different purposes”,

could have introduced a definition of which kinds of photograph or film were covered. It would not have been difficult to do.

Therefore, Amendment 8 should perhaps be withdrawn because it can be covered in the rest of the provisions, which says that he can then go on to reduce the duration of copyright in existing works. It is made by regulations. If you can do different provisions for different purposes, I would have thought there would be the flexibility to be able to meet the concerns of the noble Lord, Lord Clement-Jones, and the perfectly valid commercial concerns, and also have done things for the libraries, universities, researchers and other people who want to do other things with the works where there was no commercial intent in the first place. Therefore, I would accept Amendment 9 for flexibility, and if I were the Minister, I would withdraw Amendment 8.

--- Later in debate ---

[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.