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Digital Economy Bill [HL]

My Lords, during our debate on Report, I agreed that the Government would consider Amendments 155A and 155B tabled by the noble Viscount, Lord Bridgeman. The Government had always intended that extended licensing schemes should be run by representative licensing bodies. While we were not able to accept the drafting of the amendments tabled on Report for reasons I will explain, the government amendments in this group achieve a similar effect. Together, this group of amendments prescribes that the regulations must require that certain factors are taken into account before a licensing body’s application to carry on extended licensing is granted. These factors are, first, the likely effect of the authorisation on authors, rights holders, licensees, potential licensees and members of the licensing body applying for authorisation. This list is not exhaustive. The amendment will ensure that the interests of all those potentially affected by an authorisation under proposed new Section 116B of the Copyright, Designs and Patents Act 1988 will be properly considered before a decision to authorise is taken. I hope noble Lords will agree that this achieves the purpose of that Amendment 155A. Paragraph (b) of Amendment 28 requires consideration of the extent of the applicant licensing body’s existing repertoire before any extension is allowed through authorisation under proposed new Section 116B. This would require consideration of the extent to which the body was already acting for the copyright owner—that is, the extent to which it is representative of copyright owners in that class of works. It is designed to tackle the same ground as did Amendment 155B. There are corresponding amendments for performers’ rights. In exploring the amendments proposed by the noble Viscount, Lord Bridgeman, we encountered difficulties in having the requirement for the agreement of the majority of copyright owners in the Bill. There is no constant from which a majority can be defined as the number of works protected by copyright—and, therefore, the number of copyright owners—is constantly changing. The concept is also uncertain. We are doubtful that a simple majority would be in all cases equivalent to the critical mass of representation which the Government envisage would be required to extend a repertoire. We encountered the same problem with the concept of "substantial" in relation to Amendment 155B—this also applies to today’s Amendments 29 and 37—that is, its application is unclear. Amendment 30 requires the Secretary of State to be satisfied on a number of things in relation to any licensing body applying for an authorisation to carry on extended licensing. The government amendments already require the Secretary of State to consider the representativeness of a licensing body before granting an authorisation. There is also now a requirement for prior consultation on the criteria for authorisation in proposed new Section 116F(4) of the copyright Act. There is equivalent provision for performers’ rights. The government amendments also require the interests of member and non-member rights holders affected by an application for extended licensing to be taken into account before the application is granted. This may be achieved through consultation. On fiduciary duties, licensing bodies are generally given mandates by their members. It follows, therefore, that they should already be acting in the interests of their members. The Government would certainly expect any well-run licensing body to be doing so. Where this is not the case, the Secretary of State can require a licensing body to adopt a code of practice. I hope that in the light of this explanation the noble Lords, Lord Razzall and Lord Clement-Jones, and the noble Viscount, Lord Bridgeman, will not move their amendments. We have managed to find a workable solution which addresses the issues raised on Report in Amendments 155A and 155B, and those raised in Amendments 29, 30 and 37 today. I can assure the House that we absolutely agree that extended licensing should not be available in an area if it goes against the wishes of rights holders in that area. I hope that on consideration of the government amendments tabled today your Lordships will agree that we have managed to capture the spirit and effect of the amendments proposed by the noble Viscount, Lord Bridgeman. I beg to move. Amendment 29 (to Amendment 28) Moved by