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Lord Lucas: My Lords, this is the reflection of the earlier amendment of my noble friend Lord Howard. Just as I agree with him that those running registries should make it easy for people to establish what is in them, those holding and wishing to assert copyrights should make it easy for people to find them. I suggest that there should be a system run by Ofcom but not costing it anything, which allows those who wish to ascertain who owns the copyright of a particular piece of material to perform a simple search and find the answer. In the course of time this should mean that not only is it easy for a little photographer or a little creator of any kind to register the copyright in their work so that it cannot be overlooked by even the most short-sighted of exploiters of that copyright, but it becomes easy and simple for those who wish to establish who owns the copyright to find the answer. This is really only possible with modern technology where you can have image search engines and fast-tech search engines and you can characterise music. It would not be a Google search but a search provided by a specific engine provided by Ofcom, licensed by Ofcom and paid for by people who wish to search for copyright. It is perfectly technically feasible and would save people a lot of trouble. I beg to move.

Lord Young of Norwood Green: I recognise where the noble Lord is coming from, but we feel there are already many databases of copyright information available online, such as the excellent ARROW project, with which I have no doubt the noble Lord, Lord Lucas, is familiar. Where there is a publicly accessible database of this sort, it would be sensible to search it before a work can reasonably be considered "orphaned".

The government amendments that we have moved recognise that such databases are an invaluable resource for those seeking to identify the owners of works, and require that they be searched before any work can be declared orphan. The government amendments also introduce a requirement for those administering an orphan works scheme to maintain a register, but I think that is slightly different from what is envisaged by the noble Lord, Lord Lucas, with this amendment.

The maintenance of registers of orphan works with details of the diligent search that has been undertaken will ensure that the process is properly adhered to and documented. This is not the same as requiring Ofcom to create and maintain what would amount to a shop window of online works available to license. While, as I say, we understand the intentions, we do not believe that they are appropriate for the reasons I have given. In the light of those, I trust that the noble Lord, Lord Lucas, will feel able to withdraw the amendment.

Lord Lucas: My Lords, I will read what the noble Lord has said. For now, I withdraw the amendment.

Amendment 284 withdrawn.

Amendment 284ZA

Moved by Lord Faulkner of Worcester

284ZA: Clause 42, page 47, line 29, leave out "116A(6)" and insert "116BA"

Amendment 284ZA agreed.

Amendment 284A not moved.



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Amendment 284B

Moved by Lord Davies of Oldham

284B: Clause 42, page 47, line 31, leave out "1A(6)" and insert "1BA"

Amendment 284B agreed.

Debate on whether Clause 42, as amended, should stand part of the Bill.

Lord Clement-Jones: My Lords, I do not wish to prolong the agony but I have given notice that I wish to oppose Clause 42 standing part. It is possible simply to sketch out some of the issues that have been raised in the debate. I know that the Minister has taken note, and I very much hope that it is not necessary to go into any great detail about the failings of Clause 42, despite many of the welcome government amendments. The problem is that the distinction is not made between cultural and commercial uses.

There is a big issue as far as the profession of photography is concerned, and I have had quite a lot of communication with the Royal Photographic Society on this issue. It clearly represents the interests of its members. It believes that because it is so easy to strip out information about copyright attribution from photographs that are put on the web, for instance, many hundreds of orphan works are being created every week. It feels that this problem is of particular significance to its profession. It believes that these provisions would not act in its best interests and that they will be a way in which commercial interests will be able to pay less than the market price for the use of such photographs.

One of the flaws in all this is the fact that, alongside the provisions about orphan rights, no provision is made for moral rights or rights of attribution to be added. The noble Viscount, Lord Bridgeman, has an amendment about moral rights. One of the underlying issues is that very little distinction is made here between modern and historic collections. Until the recent government amendments, there was no proper definition of "orphan work". Even now, as we have said, there is too little emphasis on the need for proper, diligent investigation of ownership of copyright before orphan work provisions can take effect. In the last group of amendments, we described how there is insufficient explanation of exactly how extended licensing will operate, which bodies are intended to operate it, what works it is meant to apply to, and so on.

All of us have been at pains to point out that generally the cultural sector has made a good case for new orphan works provision. Indeed, the Gowers report did so. I mentioned before that the British Library, the Natural History Museum, the National Museum Directors' Conference and the Association of Independent Museums have been eloquent in their representations. We want to see them being able to use their archival material for educational and cultural purposes. They have quoted many convincing examples of where these provisions are needed. The big question is how and whether the commercial sector should take advantage of the provisions. The key issue is that on the face of it, the clause is far too wide. There are fears

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among many creators-writers and photographers in particular-that this will be a means of using their works at a knock-down price on the basis that they have been temporarily classified as an orphan work. There are aspects of the clause that we can fully support, but the Government need to pare it down to its essentials before we can fully support it.

Viscount Bridgeman: My Lords, the noble Lord, Lord Clement-Jones, an amendment or two ago, referred to the flabby brief that we have because so much of the regulation will be left outside the Bill for secondary legislation. It is the usual bleat from the Opposition that this happens. We accept that time has been very short on this one, and framing of the regulations has not been possible to date. I make a plea that if the Government were able on Report to bring some of the substance of the regulations-I do not expect that it will be all of them-on to the face of the Bill, it will be easier to have a meaningful debate on Report.

10.15 pm

Lord Young of Norwood Green: My Lords, this clause helps modernise copyright licensing. First, orphan works, as we all now know, cannot at present be used without the specific permission of the copyright owner. The new provision will enable large numbers of potentially valuable cultural works to be used on a regulated and licensed basis, with money held to reimburse the copyright owner if they later come forward. The clause introduces a definition of "orphan works" and regulations made under these powers will contain the detailed procedures for the use and licensing of works so classified. Orphan works are works protected by copyright but for which the copyright owner cannot be identified or traced even after a diligent search. That is a succinct definition.

Lord Clement-Jones: Is the Minister saying that that definition is included in the Bill? If not, should it be included?

Lord Young of Norwood Green: We said we would reflect on the definition in light of the previous contribution.

The second provision is to allow for extended licensing schemes to be authorised by the Secretary of State. Currently, rights clearance can be complex and time consuming. We aim to help simplify and update the process by allowing an authorised licensing body, under appropriate circumstances, to grant copyright licences on behalf of copyright owners from whom it does not have specific authority to act. As with orphan works, those authorised to operate extended licensing schemes will be subject to safeguards to achieve a balance between the interests of creators, users and stakeholders.

Thirdly, where a licensing body's own system of self-regulation is failing, the Secretary of State will have the power to require the licensing body in question to adopt a code of practice that meets requirements in the regulations. Our intention here is that licensing bodies should be subject to these requirements if they are authorised to license orphan works or to carry out extended licensing. All other licensing bodies should put in place systems of self-regulation. Fourthly, equivalent powers are introduced for performers' property rights, together with a definition of "orphan rights".



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On consultation before secondary legislation is drafted and before the first schemes are set up, we recognise that different sectors have different needs. That is why we have tried to draft this legislation to give flexibility in the way orphan work schemes are set up and run. If we find that certain types of work, such as contemporary photography, cannot be included in this framework without causing harm to rights holders then we will have the flexibility to exclude them from any schemes. However, this is not something we can say today and it will be consulted on widely before regulations are drafted.

On moral rights, we recognise that some creators have concerns about the current moral rights system. We also know that many users of copyright material will be equally concerned about any change to that system. Intellectual Property Office officials have carried out an informal review of this issue and will continue to work to identify any evidence for change. It would not be right to make any changes to the moral rights system until we have evidence from all sides of the debate.

This clause will ensure that we are able to access our cultural heritage and utilise modern licensing schemes, while still, as I said, ensuring that copyright owners and owners of performers' rights control the use of their work and are paid for that use if they wish. Nothing in these provisions is intended to undermine that principle. Indeed, the inclusion of an opt-out for rights holders in both cases will ensure that they retain control of their rights. The Government intend to consult extensively on the detail of regulations before they are made by the Secretary of State under these powers.

Lord Clement-Jones: I will respond briefly. I thank the Minister for his reply. Despite the fact that we have had a long debate over the past hour and a half on Clause 42, there were some new elements to his reply that I found welcome. I refer in particular to the response about the possible exclusion of commercial photographers if the consultation goes a certain way. There may be a quid pro quo here. The Minister said that it would not be right to introduce moral rights without proper consultation. The quid pro quo may be that commercial photographers are excluded until such time as moral rights are introduced. The Minister was almost juxtaposing that himself: it is an interesting concept. His reply raised some useful points and I look forward to him coming back at Report with a blinding new set of amendments. I will not press my opposition to the clause standing part.

Clause 42, as amended, agreed.

Amendment 285

Moved by Lord Lucas

285: After Clause 42, insert the following new Clause-

"Format shifting

(1) The Copyright, Designs and Patents Act 1988 is amended as follows.

(2) In section 17, at the end insert-



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"(7) Where a person acquires the right to use a copyright work in electronic form for his personal use, he also acquires the right to copy that work into other electronic formats for his personal use.

(8) Regulations may specify a sum upon payment of which the Registrar of Public Lending Right or a Licensing Scheme may grant a person the rights in subsection (7) in respect of works acquired by him before the coming into force of this section.""

Lord Lucas: My Lords, unless the Committee objects, I will telescope proceedings by speaking also to all my remaining amendments. I hear no objections: this is good. The amendments have three things in common. First, I will not move them this evening because they are all probing amendments. Secondly, I cannot imagine that under any circumstances they will end up in the Bill in their current form. Thirdly, if I do not get a reasonable answer from the Minister this evening or by letter before Report, they will certainly re-emerge then, and will probably contain a requirement that Ofcom continues to investigate, or that in some other way progress continues to be made.

Amendment 285 concerns format shifting, which is an old chestnut. It is something that is widely done. It is pretty universally accepted that if you buy a CD, you can put it on your MP3 player; but it is none the less against copyright. If copyright owners tried to pursue this hard, the Government and public would react swiftly against them. None the less, there is a right there that remains unremunerated. Copyright owners have been pressing for this to be dealt with, as it is on the continent, by a levy on the kit used for format shifting.

Another way of dealing with it might be that one could acquire a licence to format shift from the relevant licensing authority in whatever form the Government choose, so that rather than burdening ourselves with creating a new system of getting revenue via hardware, we use the existing system of licensing bodies to allow people to acquire a licence to format shift, much in the same way as people acquire a television licence. Format shifting is an unsettled area of copyright in which we should be making gentle progress.

Amendments 286 and 287 concern the artist's right to remarket. Only a minority of music and other material is available on the net. Many artists find that substantial parts of their back catalogues are not for sale: they are locked up by people who have acquired the copyright interests and who do not find it worth their while marketing the work, so the artist gets no revenue from it. I think that there is a scheme-the noble Lord will tell me if I am wrong-that covers programmes provided by independent producers to ITV. After a certain period, if the programmes are no longer being actively used by ITV, they become open for remarketing by the companies that made them. If they successfully remarket something, they pay, I think, 50 per cent back to ITV. ITV acquires a revenue stream for which it has to make no effort at all. The original producer-who after all ought to be the concern of this Bill as much as the copyright owner-acquires a revenue stream where before there was no hope of income. Both sides benefit. This arrangement has been reached in this one small corner of the industry, although it could certainly be extended to music without any damage to anyone. The industry ought to be

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encouraged to make progress on this and, if we come to a proper reform of copyright, ought to be included. I want to hear from the Government what their position is on this and what progress they hope to be making in that direction.

I shall not address Amendment 289. I shall not move it at the appropriate time.

Amendment 290 relates to a practice which has grown up among some of the major rights holders. They look at licensing the material they have control of to a scheme and say, as some internet schemes do, "All you can eat for $15 a month", or whatever the right wording for that is in relation to music. Rather than requiring a payment from the scheme they are licensing, they say, "You can have access to our music for a proportion of your equity". They then say to the creators of this content, "No, you're not entitled to any of this. This is not income, this is something else. It is ours, not yours". This Bill should be concerned as much with the creators as with the owners of copyright. This injustice is likely to grow in the context of the way in which one can envisage the business of distribution of copyright materials on the net developing, and it ought to be ended because the interests of the creator ought to be preserved even if the rights have been disposed of in return for equity.

Amendment 291 is an attempt to move the industry, and particularly the music industry, on a bit. It probably goes a bit far to discuss this evening.

Amendment 292 returns us to something we have discussed peripherally this evening; namely, the way in which search engines and copyrights interact. That is amplified in Amendment 292BA, which looks at links. To deal with the latter amendment first, some major groups have asserted that to link to their material on the internet is to infringe their copyright. This is an extremely undesirable development and we ought to state clearly that we are against it and will take action against it. I return to my earlier comments on copyright-copyright is a compact between a Government and the creators of copyright content to enable the creation of that content by disadvantaging its citizens. I do not see that copyrighting or allowing the copyrighting of links advantages citizens in any way. There is no creation involved in that act. It merely starts to balkanise and destabilise the web and it should not be allowed.

We should think carefully about what we want search engines to do and what we want the web to look like. It comes down to the question of whether we want to run the web British style or Chinese style. Are we interested in search engines being able to reach anything that people have put out on the web and that is not specifically blocked, or do we want to allow something that is more balkanised and where whole sections of the web are available only through subscription to a certain ISP or site? We ought to take the clear view that the breadth of knowledge on the web should be available to all, and that commercial interests on the web should be confined to relatively small corners of it and not allowed to take over vast swathes of it. In most cases, a search engine taking a small extract of copyright material-what is on a search engine is

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copyright material-should be regarded as fair usage and a proper part of the way in which the citizen and the copyright holder interact. I beg to move.

10.30 pm

Lord Davies of Oldham: My Lords, I do not know whether to respond to the thoughtfulness of the noble Lord, Lord Lucas, in grouping together all his remaining amendments on the Marshalled List at this late stage of the day and speaking to them, or to his threats that the Government are in for very serious trouble on Report if my responses are not good enough. I will respond in a similarly constructive way. I am all too aware that he somewhat syncopated the quality and range of the arguments that he might have put in defence of his amendments, although, by the same token, the Government's replies will not be as extensive as they might have been, so I undertake here and now to write to him with a fuller response. I am well aware that there will be conspicuous gaps in my response to his arguments and to the issues that he raises, although I hope to be able to cover some of the more significant points of principle so that we clarify the position.

Amendment 285 deals with the format-shifting question, to which the Government have given the most careful consideration both in the recent copyright strategy and in the second-stage consultation on the Gowers recommendations on copyright exceptions. We have concluded that a UK-only solution will not be able to deliver the kind of access and use that private individuals would like while at the same time respecting the needs of rights holders for appropriate remuneration, and that a solution that is suitable for the digital age can be delivered only in an EU-wide context. The noble Lord will appreciate that we have a great deal more work to do in this area, and I hope he will recognise that we cannot accept the amendment.

Amendments 286 and 287 deal with artists' right to remarket. As stated in the recent copyright strategy, the Government plan to draw together a group to develop model contracts or contract clauses that strike a fair balance between the rights of creators and publishers to form a benchmark for good practice. We are already working with industry representatives to take this forward, and we recognise the importance of this point.

I do not think that the noble Lord spoke to Amendment 289, which is the only amendment for which I have a specific answer that might have been regarded as satisfactory and all encompassing. He did, however, speak to Amendment 291, which would take away the control of the creator. We do not think that there is a compelling policy reason to do so in this case.

Likewise, we are worried about Amendment 292. Interfering with the balance of current rights and exceptions would have far-reaching consequences for those who run web services and for rights holders and consumers. There is also a real danger of unintended consequences when legislating for particular technology-specific issues. We therefore do not think that it would be right to legislate further in this area without having examined fully whether a further exception is necessary, and without having determined the full consequences of these actions.



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I recognise that the noble Lord put forward an important argument in this area, and this is certainly one of the responses which I know he will say in a moment or two is somewhat less than satisfactory. I will certainly undertake to write to him with regard to that amendment, and to flesh out our arguments on the other amendments.

Finally, on Amendment 292BA, we are not clear whether all of the activities within the scope of this amendment would infringe copyright in any event. In some cases, it would depend on the circumstances of a particular case. The amendments may legitimise some aspects of unlawful file-sharing and so would of course conflict with one of the aims of the Bill.


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