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Digital Economy Bill [HL]

My Lords, we now move back to the issue of orphan works under the first part of Clause 42. As I mentioned earlier, many of the government amendments—indeed all of them—are extremely welcome and I very much welcome the attempts of the Government to improve the orphan works provisions in Clause 42. It is clear that photographers and photographic libraries that are still concerned by Clause 42 recognise some of the assurances that have been given by the Minister in his letter and by the Intellectual Property Office in its meetings with the Royal Photographic Society and others. Some of those assurances include that there is no requirement to register works but this will be considered. There will be no central register for the moment but, as was mentioned, the Minister is not unsympathetic. Anyone wishing to use an unattributed image will be required to approach a licensing body which will work to search requirements laid down by regulations established by Parliament. Regulations will not be implemented until appropriate technology and licensing procedures have been agreed with the stakeholders, including the Royal Photographic Society. Something I thought was particularly important was that deliberate or negligent misidentification will carry an appropriate sanction. It is suggested that the level of fee and diligence of search will be such that publishing an orphan work over a newly commissioned image would not be advantageous. The proposed legislation, however, is an enabling Act. The detail will be in the regulations which will be composed following consultation with stakeholders and approved by Parliament. Nevertheless, those assurances give rise to many questions. Of course these are but assurances—they are not in the Bill—and it is not necessarily clear how the regulations will be put together after a change of government or otherwise. In the view of these photographers, orphan works will in effect be licensed under retrospective legislation, as photographers who have engaged the models via agencies for specific usages and licensed those images for specific usages were in a position to make and honour those commitments when those contracts were signed, but their ability to do so will have been subsequently and unpredictably legislated away. The very existence of orphan works licensing may result in photographers being unable to contract for exclusive use, because they cannot guarantee that any given work will not at some point become orphaned and legitimately licensed to other users, competitors and so on. In all the creative industries, models, actors, artists, composers, rights holders of embedded copyright works and others customarily contract for and charge usage fees, and limit usage based on the assumption that the primary holder of the intellectual property rights will retain control of those rights and be bound by their contractual obligations. There is also the argument that orphan works licensing for commercial purposes breaches Article 9 of the Berne agreement and Article 13 of the TRIPs agreement—the agreement on trade-related aspects of intellectual rights—and I hope that the Minister will be able to address that. It is argued that orphan works licensing undermines the rights holder’s ability to guarantee a client exclusive use, and therefore falls foul of those provisions. Then there is the question of moral rights. I note that the Minister has undertaken to engage in discussions on this subject, and a later amendment will no doubt be the subject of debate, but, again, there is no provision in the Bill to compel publishers to attribute the first step for orphan status. Germany and France have strong moral rights, and publishers—consumers of content—are profitable. The argument that this is too expensive for publishers is removed. In many cases, metadata are routinely removed without the user’s knowledge. Photographs that are uploaded to most photographic websites, such as Flickr, have their metadata stripped as part of the process. Most commonly available photo-manipulation software routinely removes metadata during the conversion of images to web-friendly file formats. Consequently, it must be assumed that any image that is uploaded to the internet in any form, or manipulated by a third party in any way, is vulnerable to inadvertent orphaning. No distinction is made between the commercial and non-commercial exploitation of works. Commercially produced imagery usually includes models and proprietary artefacts, the consent and fees for which have been based on limited and defined usages of those photographs. Other usages would have commanded extra fees. Some usages would be forbidden in all circumstances. The client for whom the photographs have been made is likely to have signed a contract for exclusive use. The Government have promised a fair licence fee and a market rate, but there is no such thing; each image is subject to the operating costs of its creator, the rarity and the subject. This is like trying to state that there is a market rate for art. The costs of production, the rarity value, the skill and the perceived status of the photographer all differ. Some photographs contain images of expensive professional models, property, released copyright artefacts, and so on. Others are snapshots. They may be difficult to tell apart visually, but will command radically different rates. Work may be used in a context with which the photographer is not happy. The photograph’s copyright holder—or, indeed, other stakeholders in the image, such as models, their agencies and others—might have commercial, political, religious, moral or ethical objections to possible uses to which the picture might be put and refuse permission in all circumstances if it was sought. By definition, the collective licensing of orphan works can take no account of that. I welcome the fact that exclusions can be made from the framework, but how can contemporary photography be defined if that is the subject of exclusion? How do we know whether an orphan is contemporary? On diligent search, there is no real mechanism or method for finding the creator of an image, and the Government have not yet put together a statement that details how this will work. Again, this will be complicated by the fact that there is no central archive or register. On the rights of the subject of the photograph, commercial photographs require a signed model release, often with clauses stating the precise terms of use. This is another aspect that needs to be dealt with. I turn to contractual exclusivity. No photographer will henceforth be able to license an image on an exclusive basis. The image may well be in use elsewhere as an orphan. There are major international implications and chances of liability as a result. An orphan used here in the UK, but registered in the US, could expose the user to huge fines—something up to $150,000 per infringement in California, for example. There is, however, no mechanism to search the US register for images. How will the Government hold the ring when it comes to putting together orphan rights proposals which impact on the photographic profession? The situation is extremely polarised between some creators and those whom they believe will unjustly commercially exploit their photographs. On these Benches, we have absolutely no quarrel with the cultural sector. We believe that is an entirely appropriate and proper use of orphan works, and, indeed, will resolve some of the long-standing issues that the cultural sector has. The concerns of photographers and photographic libraries revolve almost entirely around the problems of commercial use. Some, such as the Getty library—rather late in the day, I admit—have put forward some extremely interesting ideas, so that a cultural body can be authorised, as an authorised body, for specified purposes, to use orphan works. However, this clause would be further circumscribed in those circumstances. I look forward to what the Minister has to say. I beg to move.