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Amendment 276 would require regulations made under powers to be introduced by Clause 42 to provide that licensing bodies must adopt a code of practice before they can be authorised to operate an extended licensing scheme. I can assure the noble Lord, Lord Howard, that there is no way we wish to see licensees overriding the rights of copyright owners.

Licence bodies must adopt a code of practice before they can be authorised to operate an extended licensing scheme. This can already be achieved through use of the powers currently contained in the Bill. Schedule A1 enables the Secretary of State to make regulations requiring licensing bodies authorised to set up extended licensing schemes to adopt codes of practice complying with requirements in the regulations. Is there any evidence that copyright owners find it difficult to exercise their rights? The exclusive right of the copyright owner to control their work is kept intact through the opt-out mechanism. In being able to opt out at any time, the copyright owner retains total control of their work. I hope that that is a further assurance. In the light of these assurances, I hope that the noble Lord will feel capable of withdrawing his amendment.

9.45 pm

Lord Howard of Rising: I cannot see, although I am sure that it is there somewhere, where the copyright owner has the right to opt out at any time.

Lord Young of Norwood Green: That is what I am reliably informed-that that will be the case. I am looking to my Box for inspiration, and they are nodding. We will draw the noble Lord's attention to where that is in the Bill explicitly in writing.

Lord Clement-Jones: My Lords, I thank the Minister for his response. I am sure that we all look forward to hearing a promise of a torrent of letters from the department, as the night progresses. I beg leave to withdraw the amendment.

Amendment 274 withdrawn.

Amendments 275 to 277 not moved.



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Amendment 277A

Moved by Lord Davies of Oldham

277A: Clause 42, page 46, line 37, after "work" insert ", unless it is a broadcast or a work included in a broadcast"

Amendment 277A agreed.

Amendment 278

Moved by Lord De Mauley

278: Clause 42, page 46, leave out lines 38 and 39

Lord De Mauley: This is a brief probing question to elicit more details from the Minister as to what he would consider an appropriate system for establishing whether a copyright owner has withdrawn consent for being included in one of these schemes. Will there be an equivalent of the orphan works register for collectively licensed works? If not, how is a copyright owner to know if someone is licensing off his material? Secondly, what sort of notification process will it be necessary for a copyright owner to negotiate to have his material removed from a scheme? Will he be able to withdraw the rights from some of his works, but not others? Will he be able to put some limited restrictions on them, such as for them not to be licensed to certain formats or certain people? I shall be quite happy for most of this to be answered in writing. I beg to move.

Lord Lucas: And will he have control of the price at which his work is licensed?

Lord Young of Norwood Green: My Lords, the provisions on extended licensing preclude the inclusion of works for which the copyright owner has given notice that they want them to be excluded from an extended licensing scheme. The importance of the opt-out is that copyright owners retain control of their work and cannot be compelled to have their works licensed under a scheme. There is no overriding policy reason to interfere with the copyright owner's control. In relation to the point about partial withdrawal for a body of work, I am seeking confirmation from the Box, but I am not getting anything. Communication is a wonderful thing-when it works. I am pretty sure that we can confirm that in writing, together with another point which we will need to deal with. I think I have given plenty of assurance on the question of control, the opt-out and the extensive nature of that, but where I have not we will explain further in writing. In the light of the explanation, I hope the noble Lord will feel able to withdraw his amendment.

Lord De Mauley: My Lords, I thank the Minister. Another important question is how you opt out, but in anticipation of his further response, I beg leave to withdraw the amendment.

Amendment 278 withdrawn.

Amendment 279

Moved by Lord Clement-Jones

279: Clause 42, page 46, line 38, after "rights" insert "specifically"



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Lord Clement-Jones: My Lords, this is one of the most interesting parts of the Bill, because there is some level of bafflement about the precise circumstances in which extended licensing is appropriate. As I mentioned earlier, the clearest example I have been given is clearance of rights in a backlog of programmes owned by the BBC. Some say that current arrangements pretty much allow for that, because if collecting societies have a particular set of rights cleared, they will find it relatively straightforward to clear an additional set of rights. It would be useful to hear from the Minister the kinds of bodies he envisages would want to take advantage of extended collective licensing.

In that context the question arises of whether it is only orphan works which are the issue. If this is designed to go further than orphan works, what kind of works are we talking about? Amendment 280 is designed specifically to make sure that works other than orphan works are excluded from the scheme. We are dimly looking through to the Government's intentions behind this, but if clarity was needed for proposed new Section 116A, even greater clarity is required for proposed new Section 116B. I beg to move.

Lord Lucas: My Lords, in order to shorten my speech today, I had better send a letter to the Minister on Amendment 282. I shall be interested in the replies to the amendment tabled by the noble Lord, Lord Clement-Jones.

The issue harks back to Clauses 4 to 17, and my efforts to persuade principally the music and film industries to come up to date a bit. At present, there is an attempt, organised by the Association of Independent Music, to promote a scheme involving music rights holders and an ISP to offer a viable alternative to piracy-something that will be easy, appeal more and will not be too expensive. If the noble Lord is not aware of this, his colleagues will be. They will also be aware that some of the major rights holders are proving extremely slow to co-operate in this and similar initiatives. I hope that much of the Government's mission in pushing this Bill forward is to encourage the industry to adapt, and to make it clear to the industry that, in contrast to bullish statements being made in the United States, this Bill will not solve the piracy problem for all time. It will not solve the problem: it is a breathing space and it has to be used to adapt.

Lord De Mauley: My Lords, I share a number of these concerns and, in particular, I support Amendment 280. As we have said before in these debates, it seems almost absurd to have one part of the Bill devoted to protecting copyrights and another devoted to taking them away. I simply do not understand why safeguards inserted to protect copyright owners from having their works mistakenly classified as orphan are not extended to this proposed new section.

Lord Young of Norwood Green: My Lords, the extended licensing proposals allow the copyright owner to opt out of an extended licensing scheme at any time. If the copyright owner wants all their works to be removed from a licensing scheme, there would be no need for them to specify them, but if they wanted

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just one or a few rights to be removed, they would naturally need to specify them in order for the collecting society to identify those rights and remove them from the scheme. That actually answers a question raised by the noble Lord, Lord De Mauley in the previous debate. I suggest that there is no need to add "specifically" and I hope that this will persuade noble Lords not to press their amendments.

I welcome what I believe is the intention of Amendment 280-to protect the interests of copyright owners who may be affected by the establishment of an extended licensing scheme. I assure noble Lords that the powers in the Bill will allow for regulations requiring the Secretary of State to consult with those likely to be affected before authorising such a scheme. We intend to consult as widely as possible, allowing us to take account of the views of different interest groups.

Regarding Amendment 281, there are powers in new Section 116A for the Secretary of State to determine in regulations how long royalties collected for the use of orphan works will be kept and for their disposal if the owner is not identified at the end of that period. Those powers may be extended to cover orphan works licensed under an extended licensing scheme, so it is unclear why this provision would need to apply to royalties from works which are not orphan but are licensed under extended licensing schemes. An authorised licensing body will be able to distribute royalties to owners of works which are not orphan, so it is unnecessary to make provision for the distribution of those sums if they are unclaimed.

The noble Lord, Lord Clement-Jones, asked whether we were intending this to go beyond orphan works; the answer is yes. Extended licensing is not a new business model that will be imposed on different sectors. Any licensing body wishing to extend its repertoire will need to make a business decision to do so, presumably with the consent of the rights holders on behalf of whom it acts. It will then need to make a specific application for authorisation from the Secretary of State, who may grant that authorisation if certain specified criteria which have been consulted on are met. The Bill does not give the Government the power to impose extended licensing schemes on any sector that they wish.

Amendment 282 requires the Secretary of State to put forward proposals on the use of the powers introduced by Clause 42 to make regulations providing for extended licensing for,

of the Bill becoming an Act. I have made it clear that the Government are committed to consulting before introducing regulations under these powers.

The noble Lord, Lord Lucas, noted the fact for the Committee that music rights holders and an ISP will be coming up with an alternative to piracy; we await that with interest and have said that we welcome those developments. The noble Lord is right to describe the nature of the Bill as a breathing space; in the world of IT, we know that there is no such thing as a stasis, so his assessment is probably right-and that is probably why Clause 17 somehow came into being, but I hesitate

8 Feb 2010 : Column 581

to mention that again. I hope that, in the light of those assurances and explanations, the noble Lord will feel able to withdraw the amendment.

10 pm

Lord Clement-Jones: My Lords, I thank the Minister for that reply, which illustrated some interesting and useful information and will be required reading in Hansard. The fuzziness still remains. The Minister-I think I quote him correctly-referred to certain specified criteria which will be the subject of consultation. I feel as though I am dealing with a sponge. This is the very opposite of certainty. Maybe, it is because we do not have the benefit of the consultation document in front of us. Maybe, it is because those criteria were not included in the Minister's speech. The more hard-edged the Minister can be about the nature of these particular beasts, which many rights holders believe threaten their economic viability, the better. I live in hope. In the mean time, I beg leave to withdraw the amendment.

Amendment 279 withdrawn.

Amendments 280 to 282 not moved.

Amendment 282AZA

Moved by Lord Faulkner of Worcester

282AZA: Clause 42, page 46, line 42, at end insert-

"116BA Orphan works: supplementary

(1) A work is an orphan work, for the purposes of an authorisation given or to be given to a person (an "authorised person") under section 116A or 116B, if any interest in copyright in the work is entered in a register maintained for the purposes of this section by that person (an "orphan works register").

(2) An authorisation in respect of an orphan work does not affect the need for any consent-

(a) from the owner of an interest not entered in the authorised person's orphan works register (except in the case of an authorisation under section 116B that extends to other interests), or

(b) from the owner of an interest that is entered in that register, if the authorisation does not apply to that interest.

(3) An authorised person must not enter an interest in an orphan works register unless the authorised person-

(a) has complied with the requirements of subsection (8) in respect of that interest and has not found the owner of the interest, or

(b) has reasonable grounds for believing that another person has complied with those requirements in respect of that interest and that the owner of that interest has not been found.

(4) An entry in an orphan works register relating to an interest in copyright must include the record kept in accordance with subsection (8)(c).

(5) If an authorised person finds the owner of an interest entered in that authorised person's orphan works register, the authorised person must remove the entry.

(6) If in relation to an interest entered in an authorised person's orphan works register, the authorised person-

(a) is aware that the requirements of subsection (8) were not complied with, or

(b) is aware of information that makes it no longer reasonable to rely on what was done in compliance with those requirements,

the authorised person must comply as soon as possible with the requirements of subsection (8) or remove the entry.



8 Feb 2010 : Column 582

(7) A failure by an authorised person to comply with any of subsections (3) to (6) in relation to an interest to which an authorisation applies-

(a) does not affect the authorisation in relation to that interest, except so far as regulations may provide, but

(b) is actionable as a breach of statutory duty owed to the owner of that interest.

(8) The requirements of this subsection in respect of any interest in copyright are-

(a) to carry out a reasonable search to find or, if necessary, to identify and find, the owner of the interest,

(b) after the search, to publish notice of the proposal to enter the interest in an orphan works register, in a way designed to bring the proposal to the attention of the owner of that interest, and

(c) to keep a sufficient record of the steps taken under paragraphs (a) and (b) and of the results of those steps.

(9) For the purposes of subsection (8)(a) the person carrying out the search must in particular-

(a) make such use as is reasonable of sources of information, including sources within subsection (11), relating to the work's apparent country of origin, and

(b) have regard to any presumptions under section 104 or 105 that would apply in relation to the work in any proceedings.

(10) The sources referred to in subsection (9)(a) are-

(a) licensing bodies;

(b) associations of publishers or authors;

(c) systems for identifying works of the type concerned;

(d) published library catalogues and indexes;

(e) public databases, including public records that may indicate successors in title.

(11) For the purposes of subsection (9)(a) a work's apparent country of origin is the country which the person carrying out the search reasonably believes is most likely to be-

(a) the country of the work's first publication, or

(b) if the work has not been published, the country with which its making is most closely connected.

(12) Any guidance issued by the Secretary of State must be taken into account in deciding whether the requirements of subsection (8) have been complied with.

(13) The Secretary of State may by regulations amend any of the preceding provisions of this section."

Amendment 282AZA agreed.

Amendments 282ZA to 282ZD not moved.

Amendment 282ZE

Moved by Lord Faulkner of Worcester

282ZE: Clause 42, page 47, line 9, leave out "and 116B" and insert "to 116BA"

Amendment 282ZE agreed.

Amendment 282A not moved.

Amendment 283

Moved by Lord Clement-Jones

283: Clause 42, page 47, leave out line 13

Amendment 283 agreed.



8 Feb 2010 : Column 583

Amendment 283ZA

Moved by Lord Faulkner of Worcester

283ZA: Clause 42, page 47, line 14, at end insert-

"( ) The power referred to in subsection (2)(a) to make consequential provision includes power to amend this Part."

Amendment 283ZA agreed.

Amendment 283A not moved.

Amendment 283B

Moved by Lord Faulkner of Worcester

283B: Clause 42, page 47, line 15, leave out "and 116B" and insert "to 116BA"

Amendment 283B agreed.

Amendment 283C

Moved by Lord Faulkner of Worcester

283C: Clause 42, page 47, line 20, leave out from beginning to "may" in line 21 and insert-

"(5) Subsection (6) applies to a statutory instrument containing any of the following-

(a) the first regulations made under section 116A;

(b) the first regulations made under section 116B;

(c) the first regulations made under paragraph 1 of Schedule A1;

(d) the first regulations made under paragraph 3 of Schedule A1;

(e) regulations under sections 116A to 116BA or Schedule A1 amending section 116BA or another provision of this Part.

(6) The statutory instrument"

Amendment 283C agreed.

Amendment 284

Moved by Lord Lucas

284: Clause 42, page 47, line 23, at end insert-

"116E Registry of copyright

(1) OFCOM shall maintain on the web a registry of other websites where copyright material may be located.

(2) OFCOM shall, at the request of the website owner, add a website to the registry if that website complies with OFCOM's rules for such additions as are then in force.

(3) The rules under subsection (2) shall require-

(a) that each copyright work on the site may be readily identified from information openly provided on that site,

(b) that accurate and complete information on how to licence each copyright work is provided on that site,

(c) that each copyright work on that site is available for licence, and that there are arrangements in place for binding arbitration of disputes relating to the extent or the cost of a licence,

(d) that the architecture of the site allows the search facilities that OFCOM provides under subsection (4) full access.

(4) OFCOM shall maintain, and may charge for the use of, facilities to enable a user to establish whether a copyright work of a given description exists in any of the websites listed on the registry maintained under this section, and to provide a certificate of what such works exist or that no such work is to be found.

(5) No claim may be made under section 116A that a work is an orphan work if a certificate under subsection (4) has not beeen obtained.""


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