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Digital Economy Bill [HL]

My Lords, I am very grateful to the noble Viscount, Lord Bridgeman, and the noble Baroness, Lady Buscombe, for acknowledging that we have here a problem that needs a sensible, civilised and practical resolution. It is very important that masses of material that is in some of our great national collections should be released so that it becomes available for scholarly, educational or other cultural uses in the public interest. I do not think that anybody desires to deprive rights holders of their legitimate rights, but we are talking about orphan works that are, by definition, works where rights holders cannot be identified or traced. We need to acknowledge that this is a very large-scale problem. In a speech to the ALAI congress last year, the chief executive of the British Library, Dame Lynne Brindley, explained just how significant this issue is to the British Library, which has estimated that over 40 per cent of its archive collections may be orphan works. That figure was corroborated by a recently released international study entitled In from the Cold, which found that up to 50 per cent of works in large archives were orphan works and, indeed, that in excess of 50 million orphan works were held in somewhat more than 500 organisations which were surveyed. A huge amount of content is thus effectively off-limits under the way that copyright law is at present constructed. It is hence accessible only with difficulty, providing little value or benefit to anyone. I am sure that the Committee will agree that it is highly desirable to find a workable solution to this problem, while balancing the legitimate rights of rights holders. British Library staff, the chief executive said, have spent literally thousands of working hours trying to identify rights holders who often cannot realistically be found and probably do not exist. For example, in one oral history project involving a series of unpublished interviews held in the 1960s and 1970s at St-Mary-le-Bow church in the City of London, 302 hours were recorded as being spent by British Library staff and their paid contractors in looking for 259 rights holders. Some of those rights holders were famous and easily identified, but many were local teachers, bankers, clergy or professionals who, all those years afterwards, could not be tracked down. Despite all the time and trouble that the library took, it was only able to locate 14 of those rights holders, all of whom then gave permission for their material to be used freely. Much of that material is of considerable potential educational and scholarly value, but of no commercial value; it was never created with commercial value in mind. Spending so much time on fruitless searches for rights holders is really not a sensible or, I would suggest, a proper use of public resources—a very important question in these times of financial stringency. It is not surprising, then, that much of the cultural sector is agreed on wanting an exception in copyright law for orphan works. It is essential to maintain legal and reputational certainty for libraries, archives and museums, which are putting parts of their collections on the web, and to enable that material to be released into use. It therefore seems to me that whereas collective licensing and collecting societies are important for commercial purposes, we are talking of non-commercial, educational, scholarly and cultural purposes. Those should be treated differently in the public interest, and it is right that an educational or cultural body should be able to receive a licence from the Secretary of State, as the Government propose—and, as I thought, was compellingly argued in the letter in the Times of 1 February, signed by 26 leading figures from the educational, research and cultural sectors. I was surprised by the tone of the letter in today’s Times from the distinguished writers and publishers, who said that the Bill would allow any individual or institution, regardless of their motivation, to conduct a rudimentary search, decide that a work appears to be orphan, and licence themselves on that basis to exploit it. However, Clause 42 envisages that the Secretary of State would use regulations to govern the manner in which those licensed may proceed. Schedule 1(a) would confer on the Secretary of State power to provide for codes of practice relating to licensing bodies and the regulation of licensing bodies and of other persons authorised. It seems that the Government have recognised a real problem, put forward a sensible and decent solution, which will allow important cultural resources to be released and made widely available for the public benefit, while not jeopardising legitimate copyright interests. I am happy with the Government amendments. I personally hope that the House will reject amendments that seek to unravel this well-constructed measure. We are not talking of fly-by-night pirates but of the professional staffs of the British Library, the National Libraries of Wales and Scotland, the national museums, the Wellcome Foundation: people of profound scholarship and professional scruple, who naturally respect copyright as essential to the academic edifice, to the creative endeavour and the publishing industry. It is very odd to suppose that they would play fast and loose. They have powerful protections for copyright carefully built into their operational systems and have been wrestling strenuously and conscientiously with copyright issues in the digital era. Within the framework proposed by the Government, if a rights holder turns up after their work has been exploited as orphan, they will receive fair compensation. The licence would only be granted on this basis. Libraries, knowing the background of their collections, may well be better placed to search for a rights holder of, say, private diaries, a locally published history or hand-written letters or notes than a collecting society representing—very competently and appropriately as they do—mainstream commercial material. The Government’s proposals seem well-balanced.