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Digital Economy Bill [HL]

My Lords, I apologise in advance for giving a lengthy reply, but this is the first time we have debated this issue and it merits such a reply. I thank the noble Viscount, Lord Bridgeman, for his constructive approach to this matter. This group of amendments appears to have three objectives. The first is to insert a definition of ““orphan works””, including requirements for a diligent search. The Government genuinely sympathise with the intention of this amendment, and, taking on board the report from the Delegated Powers and Regulatory Reform Committee, have tabled Amendment 282AZA, which we shall discuss later. I believe that this new definition provides for the diligent searching which the amendment seeks to achieve, so I would urge noble Lords to consider withdrawing it. The second objective of the group of amendments is to make provision for payment for use of orphan works, including an indemnity for the user. I understand that the intention of these amendments is to clarify how payment for use of orphan works would work in practice. The Bill gives the Secretary of State powers to deliver a solution to the long-standing problems caused by orphan works, and this includes powers to make regulations dealing with royalties paid for the use of orphan works. As I say, we intend to define those in regulations. There will be full consultation on the regulations later in the year. Amendment 265 requires the person authorising the use of an orphan work to indemnify its licensees for any liability they incur through use of the orphan work. As authorisation gives consent for the use of an orphan work, any licensee will not infringe copyright, so an indemnity would serve no purpose. It is worth making it clear that, as I said, the Government are committed to engaging in extensive and full consultations with interested parties to inform the final shape of the regulations—the noble Baroness, Lady Buscombe, referred to that—that will govern orphan works schemes. We fully understand the importance of those. The regulations will ensure that we get the balance right between the creator and the desire to share these orphan works with the public at large. The third and final issue in this group of amendments is raised in the definition introduced by Amendment 255B, which seeks to provide that fair dealing in an orphan work does not infringe copyright. As drafted, Clause 42 inserts powers to make regulations providing for the use of orphan works. There is a power to make consequential amendments to the Copyright Act inserted by Clause 42, but at present there is no intention to alter the exceptions contained in that Act. Again, any changes to the current system of exceptions, if that were proposed, would be introduced only after full consultation. The noble Viscount, Lord Bridgeman, talked about the two letters to the Times, one of which was welcoming and the other of which expressed concern. I can understand the concern. This is a big step. We are all seeking to get the balance right without destroying any creator’s rights. I do not think that I could have put it any better than my noble friend Lord Howarth who talked about the mass of material in the British Library—something like 40 per cent of orphan works. The situation was perhaps even more graphically described by the noble Lord, Lord Howard, who referred to the treasure troves. Indeed, they are treasure troves. We have no intention of weakening legitimate copyright. The letter in the Times said that any institution can set itself up and after a rudimentary search declare a work orphan. That is not true. My noble friend Lord Howarth described the position correctly. Bodies will have to be authorised and regulated and will have to carry out a diligent search as defined in the government amendments. These safeguards will protect the rights of absent rights owners. If I were them, I could understand why they would write that letter, because if they have any doubts at all, they want to get the point home to the Government. In a desire to express their concern, they have made a rather simplistic, inaccurate description of what will be required. It is not the case that anyone can set up this body, do a quick search and orphan works will be declared. Nothing could be further from the truth. I have referred to the subsequent government Amendment 282AZA, in which we took on board comments from the Delegated Powers and Regulatory Reform Committee. I hope that in the light of the explanation and the assurances that I have given, the noble Viscount will feel able to withdraw the amendment.