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Digital Economy Bill [HL]

My Lords, as this is the first time I have spoken at this stage of the Bill, I declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive, and a member of the British Association of Picture Libraries and Agencies and the Creators’ Rights Alliance, both of which have briefed me but not on this amendment. I shall not be pressing Amendment 255B in the name of my noble friend Lady Buscombe and myself since it is a probing one, but I wish to speak briefly to it because are some important points are associated with it. In addressing the orphan works problem, there are some honestly held differences of opinion between the licensing approach in new Clause 116A and the exceptions route represented by Amendment 255B and new Clause 30A. It is clear from contact that I have had with interested parties to the Bill that the licensing route is the option favoured by the majority, but by no means all, of stakeholders. I am well aware that all sides of your Lordships' House wish this Bill to pass into law in this Parliament, which is the basic reason why I shall not press my amendment at this stage. I am also cautiously reassured by the intentions expressed in the Government’s recent briefing paper that there will be wide consultation in connection with the framing of the regulations and the code of practice that will derive from them. I thank the Minister for facilitating a meeting with his officials and the Intellectual Property Office, which I gather will be responsible for drawing up these regulations. However, some important aspects are associated with this amendment, which I hope that the Minister will take note of for possible considerations in the later stages of this Bill and in the crucial task of framing the regulations. The proposed Clause 30A would be an additional permitted act to set beside those already set out in Chapter 3 of the Copyright, Designs and Patents Act 1988. It is effective, inexpensive and entirely consistent with a cornerstone and the existing structure of copyright law, which goes back centuries, in that it preserves the integrity of the exclusive right to copy. This is the foundation of copyright. As it stands, Clause 116A alters the basis of copyright law, which confers on the first owner an inalienable right until he voluntarily parts with it. The exceptions route achieves the objective without depriving the owner of his or her property rights. Secondly, it places the burden of proof for establishing orphan status where logically it should belong—with the user—and not in the hands with a third party, a licensing body. In this, it contrasts with Clause 116A, in which a third party, namely a licensing body, can be interposed between copyright and owner. The owner can lose control of his copyright. It is a basic point, which this House should be aware of. I am also aware that that point is addressed in a new clause recently tabled by the Government, so I am grateful for that. I make it clear that the ambit of the exception should be confined to institutions approved by the Secretary of State and would be aimed at those who hold the major collections of orphan works. The composition of those collecting societies is covered in amendments about to be discussed. There is nothing to prevent these institutions from combining together to create their own licensing body. Clause 30A is but one of a number of alternative solutions to the orphan works question. In not moving it, I am pleased to put my name to those amendments in the range Amendments 260 to 272, in the name of the noble Lords, Lord Clement-Jones and Lord Razzall, which should have the laudable effect of improving certain aspects of the clause as currently drafted. I make two further important points. The first is that straightforward procedures are put in place to enable the rights owner to assume control of this work once he or she has made himself known. The standard of proof required to establish title should be reasonable—and again I have to concede that the new government amendment refers to that. In the Times of the past week, there have been two letters, one from the curators of leaders of the majority of the major museums in this country, supporting the present proposal. It was followed today by a letter written by the executives of institutions representing a large body of creators who have grave concerns of this Bill due to the possible exploitation of their members’ rights by unscrupulous users. I know that my noble friend Lady Buscombe will speak further on that matter. Those settling the secondary legislation must bear in mind that monopolies or quasi-monopolies by collecting societies should be tolerated only as long as such structures are the only means of protecting effectively the rights of individual owners. I beg to move.