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Digital Economy Bill [HL]

My Lords, on Amendment 256ZA, there is no good reason at this stage to exclude, for example, libraries and archives from applying for authorisation to use or license the use of orphan works. I understand the concern expressed by the noble Viscount, Lord Bridgeman, about ensuring that libraries are properly defined. I must admit that in the light of our previous comments about commercial partners, I tend to share that aspect of the contribution of the noble Lord, Lord Lucas, though I am not sure that I would go quite as far as he did on the question of control. These organisations have acted as foster parents to large numbers of orphaned works and may have specific expertise that could mean that they are best equipped to use or license the use of orphan works. They may ultimately decide to use licensing bodies to run their orphan works schemes if that proves more efficient, but that is for the market to decide. I know that the noble Lord, Lord Clement-Jones, has been concerned that we are not getting this right in terms of sufficient provision in the Bill for finding the copyright owner before a work is declared orphaned. He has expressed his concern about what is reasonable and diligent and I do not dismiss it. However, the Government have tabled amendments to specify what must be done to satisfy the requirement for a reasonable search. Perhaps we will reflect on ““diligent””, but we have endeavoured to meet that. This includes looking at a number of sources, including licensing bodies, associations of publishers or authors, systems for identifying works of the type concerned, published library catalogues and indices, and public databases. The requirements for the search—this is very important in the light of what was mentioned—are in line with best practice, including the guidelines developed by the European high-level expert on digital libraries, as referred to by the noble Lord, Lord Clement-Jones. Licensing bodies authorised to set up extended licensing schemes will be expected to give wide notice of the establishment of their individual schemes. Previous reference to this has been made, including, for instance, schemes concerning different mediums, one of which was photography. They will also be expected to give wide notice of the distribution of royalties. This should give copyright owners, including photographers, ample notice and opportunity to come forward. In addition, it is expected that authorised licensing bodies will have obligations to seek out copyright owners in order to reimburse them for the use of their works. It might be better to say that licensing bodies carrying on extended licensing can be subject to regulation, including requirements to operate a code of practice, and to have an ombudsman for dispute resolution. These safeguards will work to ensure that rights holders’ interests are respected. I hope that this more detailed explanation is helpful. I have dealt with Amendment 259A, which seeks to insert a requirement for diligent search. In response, as I said on the recommendations of the Delegated Powers and Regulatory Reform Committee, we have tabled amendments which include the insertion of a definition of orphan works into the copyright Act. They provide that a person may classify a work as orphan only after he has conducted an extensive search for the copyright owner. On Amendment 276A, I must stress that extended licensing, where it operates in the EU, is based on the principle of extending the repertoire of a licensing body which represents a critical mass of rights where it is in the public interest to do so. On Amendment 280A, we do not see any justification for limiting the availability of licences to public libraries. We consider that licences available under extended licensing schemes should be available to all. Similarly, on Amendment 275A, there appears to be no justification for providing in proposed new Section 116B of the copyright Act that extended licensing cannot be used in relation to certain categories of works. I reassure the noble Lord by reiterating that the Government will consult fully on the exercise of these powers in proposed new Section 116B of the copyright Act before they are exercised. This consultation will include issues such as conditions for authorisation and the extent to which a licensing body is representative of copyright owners within a certain area. It would be premature to define representation requirements on the face of the Bill. For that reason, I would ask the noble Lord to consider not pressing his amendment. Amendment 282A seeks to limit the exercise of the power to make different provisions for different purposes to proposed new Sections 116A and 116B and Schedule 1. That limitation already exists in proposed new Section 116D(1). I hope that this will reassure the noble Viscount, Lord Bridgeman, and persuade him not to press this amendment.