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Digital Economy Bill [HL]

My Lords, Amendment 153A argues for orphan works schemes to be limited to licensing bodies, an issue we debated extensively in Committee. The Government believe that there is no reason to exclude cultural organisations which have acted as foster parents to large numbers of orphan works from eligibility to run such schemes. It is possible that these organisations may find it more efficient to use licensing bodies, but that is for the market to decide. We should not rule them out in the first instance. For this reason we cannot accept Amendment 153A. However, I bring your Lordships good news on Amendments 155A and 155B. The Government have always intended that extended licensing schemes should be run by representative licensing bodies. We therefore agree to consider Amendments 155A and 155B and will bring our proposals to Third Reading. On Amendment 177A, the term "licensing body" is already defined in the Copyright, Designs and Patents Act 1988. It is used more widely than in the new provisions introduced by Clause 42. The addition of qualifying criteria to this definition could have serious implications for other areas of legislation dealing with copyright licensing. The provisions of Clause 42 and Schedule 2, as currently drafted, allow the setting of requirements for any body wishing to become an authorising body, whether they wish to operate extended collective licensing or an orphan works scheme. It is already the case that we will be able to set the right entrance criteria to avoid unsuitable bodies applying for these extra powers. I reiterate that there is now an obligation on the Government to consult on the conditions for authorisation. This will enable us to limit the extension of these powers only to those bodies which are suitable for the job. Amendment 172A would require regulations imposing codes of practice on persons authorised to license orphan works and licensing bodies to be subject to a super-affirmative procedure. I cannot accept that the noble Lord’s proposal is the right or proportionate way to deliver scrutiny for two reasons. First, we are having a very full debate now as part of the scrutiny of this primary legislation; and secondly, we have provided that the order will be considered under the affirmative procedure, so there will be further parliamentary debate on any order. The affirmative procedure will apply to the first exercise of these powers. This was introduced by government amendment in response to a recommendation, after all, of the Delegated Powers and Regulatory Reform Committee. The committee is satisfied that this is a satisfactory level of scrutiny. We are committed to full consultation between all appropriate parties on the regulations, as I have said already, and the results of consultation can shape a workable proposal that takes account of the views of all parties. Super-affirmative procedure is appropriate to very wide-ranging powers. In this situation, we are talking about codes of practice that are designed to maintain the balance of power between licensor and licensee, and to ensure minimum standards of fairness and transparency. In this circumstance we believe, as did the Delegated Powers and Regulatory Reform Committee, that affirmative resolution is adequate scrutiny. The super-affirmative procedure would simply add delay and cost. I hope that in the light of the assurance that I have given to bring forward two amendments on Third Reading and my explanations on the other amendments, the noble Viscount will feel able to withdraw the amendment.