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Digital Economy Bill [HL]

My Lords, my normal courtesies have deserted me. I omitted to thank the Minister for meeting us on Amendments 155A and 155B. Also, in accordance with the provisions of this House, I am required to declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive. In Committee, I and other noble Lords tabled substantial amendments on moral rights and metadata. However, in their fact-sheet dated 22 or 23 February, the Government stated that they had not considered the question of moral rights or metadata in the Bill and that accordingly, they had not carried out any detailed research. I must first congratulate the Minister on being so well briefed on these two subjects at this stage, but it does indicate, if that is so, that the consideration of those two subjects is essential, either in the regulations or in other legislation. As the noble Lord, Lord Clement-Jones, and, indeed, the Minister have agreed, metadata is of particular importance to the photographic industry, since it is a valuable tool in ensuring that potential users and licensees are continually made aware of, among other things, the ownership and source of individual works. The obligatory linking of metadata with its relevant material is also fundamental to the creation of an orderly procedure for extended collective licences. Importantly, it also has the potential to play a significant role in inhibiting growth in the number of orphan works, a goal which we all share. These two amendments, Amendments 168A and 168B, originally put forward in Committee, are designed to address this fast-moving technology. Amendment 168B, in particular, is designed to reflect the fact that the only way, in my view, to inhibit the illicit separation of metadata from the relevant image is by way of a meaningful financial penalty. This did not find favour with the noble Lord, Lord Davies of Oldham, in Committee, but I should be very grateful if the Minister could give us some indication of whether there is some other method of policing available, and whether the meaningful financial penalty can be recognised. This matter will require much further consideration and I would be grateful for an assurance from the Minister that this will be the subject of early consultation, preferably by incorporation into the regulations, or, failing that, by early legislation. On the question of moral rights, when I introduced this amendment in Committee, the noble Lord, Lord Davies of Oldham, acknowledged that this is a very difficult subject and he undertook that his officials would look again at the issues raised, I hope not excluding the particular anomaly of creators of journalistic works who are unable, under current legislation, to claim ownership. I make the fundamental point that ECL is not acceptable unless every citizen has the enforceable right to be identified, and stay identified, as the author or performer of their works. The Government have been frank about the fact that moral rights have not been addressed in the Bill, and I suggest that this omission has inevitably made the Bill somewhat less effective. It is all the more reason that this important subject is addressed at an early stage, and I would welcome the Minister’s assurance on that point as well. Finally—your Lordships will be pleased to know that this is the last amendment on Report—I refer to Amendment 168C on moral rights. This amendment was introduced by the noble Lord, Lord Clement-Jones, and with his agreement, I have brought it back because it contains a fundamental point; that of the unwaivability of moral rights. This is applicable in every other country in the European Union, with the exception of the United Kingdom and Ireland, and it is designed, again, to protect the small photographer. We must envisage scenes where a substantial user with substantial resources will say to the owner of the copyright, "Leave it to us; we will look after all the arrangements, all your finances, but leave it to us". The assurance that that right cannot be waived, whatever the transaction between the two parties, will be, in my view, a considerable reassurance to the photographic industry in particular. That is all I wish to say on that provision. I beg to move.