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Digital Economy Bill [HL]

This group of amendments seeks to limit eligibility for authorisation to use or license the use of orphan works. It also seeks to ensure that licences and authorisations for orphan works are non-exclusive. I shall explain the difficulty that this will create. A lot of historical and archived material contains one or more orphaned rights. The average number of orphaned works in public sector collections is estimated at some 5 to 10 per cent. The British Library, as we have already been informed, tells us that some 40 per cent of its collection is orphaned while the BBC has roughly 1 million hours of programming which is similarly orphaned and cannot currently be used. That gives the Committee some idea of the scale of orphaned works. The inclusion of ““other persons”” in the current wording of new Section 116A of the Copyright, Designs and Patents Act introduced by Clause 42 would allow these organisations to be authorised to use or license the use of the orphan works in their own archives. Limiting the scope to licensing bodies would mean that these organisations would have no option but to rely on an authorised licensing body when they might wish to operate their own schemes. As I have already said, the conditions for eligibility to use and authorise the use of orphan works will be considered fully as part of the Government’s consultation and the regulations made will be informed by it. There will be a full consultation between all appropriate parties before we draw up these regulations. We believe that it would not be right at this stage to rule out the possibility of certain large, respected, not-for-profit institutions, particularly those funded by public money, from administering some schemes themselves. For these reasons, too, we do not believe there is any need to restrict those eligible for authorisation or to insert a new definition of licensing body into the Copyright, Designs and Patents Act as Amendment 269 seeks to do. Amendment 256A is unnecessary as new Section 116A(2) of the Copyright, Designs and Patents Act, inserted by Clause 42, provides that both authorisations and licences granted under them are non-exclusive. I hope that Amendment 273 has been addressed by a government amendment that we will address in a later group of amendments. It removes the possibility of orphan works provisions operating by reference to guidance issued by third parties. The noble Lord, Lord Howard, asked how many authorised licensing bodies there would be. Our view is that it is not a question of how many, but how well regulated the bodies are. We stress that what is important is not the amount, but ensuring that they are properly regulated and understand that they must take a balanced approach. In their desire to release orphan works, they must not neglect the need to search for the possible owners of the works, regardless of how reclusive they may be. Nobody is suggesting that they should opt out of that process. I hope that, with those explanations, noble Lords will not press the amendments in this group.