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Digital Economy Bill [HL]

I thank the Minister for that very comprehensive and somewhat reassuring reply, although I shall come back on a number of points. I thought that the noble Lord, Lord Howarth, was going to give me a hard time in his speech, but in the end I admit that I ended up agreeing almost completely with his comments about the way in which this clause could have been drafted. As in the music hall joke, we would not have started from here if we had had half a chance. It is unfortunate, but this is the clause we have. The nuclear option is not really a nuclear option because I do not plan to divide the House on this. However, it was fairly successful on the last occasion in the debate on whether the clause should stand part of the Bill which elicited quite a lot of amendments from the Government. I hope that the Government will look further at this, and certainly at some of the issues they will consult on, particularly in the light of our debates. There is absolutely no question in my mind about the benefits of this to universities, cultural and education institutions. It is a common factor across the House. It is about particular sectors, and I am glad to say that the Minister has picked up on that entirely. We are not trying to destroy the whole concept, but there are some tricky economic factors at work here, and in the end it will depend on some extremely careful and sensitive consultation. Even though both Ministers at this stage and in Committee have protested that this is not a question of commercial versus non-commercial, the vast bulk of the people reading this clause believe that there is a very strong distinction between them. The Minister says that it is a matter of fair regulation and appropriate licensing, not a question of commercial and non-commercial. But when the Minister starts consulting on orphan works, he will find that that is very much the division. I take enormous comfort from the fact that he has said that if it proves impossible in the course of negotiations to find an appropriate scheme that protects a particular sector—photography is one that I am particularly concerned about in this context—the schemes will not be authorised. All I would suggest to the Minister is that "contemporary photography" is not necessarily the right term because it is very difficult to establish. It may be better to consider "commercial photography" as being a particular sector that might be ripe for exemption. I turn to the question of US damages. My view is that in many cases, US law is extra-territorial, so when the consultations are taking place over a scheme that involves commercial photography, it would be extremely wise for people to check the extra-territoriality of that scheme. I also warmly welcome the way in which there will be diligent searches, that there will be sanctions, and that best practice will be founded on certain key work that has already been done. I do not understand one comment from the Minister about the effect of the ability of photographers to grant exclusive licences. I do not know whether that is the impact of statute overriding contract. As far as I can see, nothing in the Bill states that exclusivity is overridden and therefore a photographer is not liable in circumstances where, against their own contract, they have been forced to grant a licence over an orphan work. I do not know what the legal situation is, and again, just as in the international context, in the course of the consultations that the department will be carrying out, it also needs to be bottomed out. I say that because over and over again, the whole area of exclusivity is a source of considerable concern to photographers. I refer also to the rights of those who are the subjects of photographs and who have given their image rights for certain purposes and not for others. The Minister said that it was unlikely that high-value photographs would become orphan works. I do not know the answer to that; it is pure speculation, if I may say so. The Minister again makes a legal point when he says that he does not believe that the orphan works proposals are in breach of the Berne convention because they do not introduce exceptions to copyright. I hope that that also will be soundly bottomed out when the time comes. I welcome the fact that there will be consultations and that the affirmative procedure will be used, although I would have preferred the super-affirmative procedure suggested by the noble Viscount. When the regulations come back to this House they will be extremely carefully scrutinised and I hope that, unlike in certain circumstances, all Benches will feel free to vote as they see fit on the merits of the regulations. I beg leave to withdraw the amendment. Amendment 167 withdrawn. Amendment 168 Moved by