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Digital Economy Bill [HL]

My Lords, I do not wish to prolong the agony but I have given notice that I wish to oppose Clause 42 standing part. It is possible simply to sketch out some of the issues that have been raised in the debate. I know that the Minister has taken note, and I very much hope that it is not necessary to go into any great detail about the failings of Clause 42, despite many of the welcome government amendments. The problem is that the distinction is not made between cultural and commercial uses. There is a big issue as far as the profession of photography is concerned, and I have had quite a lot of communication with the Royal Photographic Society on this issue. It clearly represents the interests of its members. It believes that because it is so easy to strip out information about copyright attribution from photographs that are put on the web, for instance, many hundreds of orphan works are being created every week. It feels that this problem is of particular significance to its profession. It believes that these provisions would not act in its best interests and that they will be a way in which commercial interests will be able to pay less than the market price for the use of such photographs. One of the flaws in all this is the fact that, alongside the provisions about orphan rights, no provision is made for moral rights or rights of attribution to be added. The noble Viscount, Lord Bridgeman, has an amendment about moral rights. One of the underlying issues is that very little distinction is made here between modern and historic collections. Until the recent government amendments, there was no proper definition of ““orphan work””. Even now, as we have said, there is too little emphasis on the need for proper, diligent investigation of ownership of copyright before orphan work provisions can take effect. In the last group of amendments, we described how there is insufficient explanation of exactly how extended licensing will operate, which bodies are intended to operate it, what works it is meant to apply to, and so on. All of us have been at pains to point out that generally the cultural sector has made a good case for new orphan works provision. Indeed, the Gowers report did so. I mentioned before that the British Library, the Natural History Museum, the National Museum Directors’ Conference and the Association of Independent Museums have been eloquent in their representations. We want to see them being able to use their archival material for educational and cultural purposes. They have quoted many convincing examples of where these provisions are needed. The big question is how and whether the commercial sector should take advantage of the provisions. The key issue is that on the face of it, the clause is far too wide. There are fears among many creators—writers and photographers in particular—that this will be a means of using their works at a knock-down price on the basis that they have been temporarily classified as an orphan work. There are aspects of the clause that we can fully support, but the Government need to pare it down to its essentials before we can fully support it.