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The Government want-and the noble Lord did say how important it was for us to have a definition of what we wanted from the web-web users to continue to be able to use the web freely for legitimate uses, but we do not want to condone or to encourage copyright infringement. Those are the principles which underpin our approach to the web. Once again, I know that I am craving the noble Lord's indulgence with such a sparse response to some intensive arguments, which he mercifully at this late hour kept to a few well-chosen words. We will write to him on all those amendments and I know very well that if he is less than satisfied with the responses on that very mildly-presented point, we may hear more from him. We will certainly bear that in mind in the letters that we write to him. I hope that he will withdraw his amendment.

Lord Lucas: My Lords, there is certainly potential in the letter that the noble Lord will write to satisfy the questions that I have raised in these amendments. I look forward to reading it. He did not address Amendment 290. Given that it is a somewhat technical amendment, I will be satisfied with a letter on that subject too. I will be particularly interested in the detail on Amendments 286, 287, 290, and 292BA. Those are the ones where the noble Lord has excited my interest most in terms of what can possibly be conveyed through a letter. I look forward very much to receiving it. I beg leave to withdraw my amendment.

Lord Davies of Oldham: My Lords, I regret my omission of Amendment 290. That was a mistake on my part. I am not going to go into it in great detail now, but we do have very considerable sympathy for the intention behind this amendment. However, we are not sure that this is the way to achieve what we think we have in mind as a common aim. If that is an encouragement to the noble Lord, he will find the letter at least reasonably positive in that direction.

Amendment 285 withdrawn.

Amendments 286 to 292 not moved.

Amendment 292A

Moved by Viscount Bridgeman

292A: After Clause 42, insert the following new Clause-

"Metadata

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



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(2) In section 296ZG (electronic rights management information)-

(a) after subsection (3) insert-

"(3A) This section also applies where a person (F), knowingly and without authority, distributes, imports for distribution or communicates to the public or makes available to the public any device, product or component, or provides services which are designed or promoted to remove or alter electronic rights management information."

(b) after subsection (4) insert-

"(4A) A person D or E or F shall be liable on summary conviction to a fine not exceeding level 5 on the standard scale.""

Viscount Bridgeman: Amendments 292A and 292B are joint amendments in the names of the noble Lord, Lord Clement-Jones, and myself. They should logically be transposed. Amendment 292A expands the effectiveness of Amendment 296ZG in the Copyright, Designs and Patents Act 1988. It is where a person is knowingly associated with a program to separate metadata. I am advised by everyone in industry that electronic programs, which are designed to inhibit that, are a total waste of time. The only effective sanction is a penalty and that is set out in new subsection (2)(b). Metadata are of particular interest to the photographic industry. Earlier in the debate, we talked about making available orphan works, but the great advantage of having a really effective metadata regime is to inhibit the growth of orphan works. I beg to move.

Lord Clement-Jones: I rise very briefly-I see the look of horror on the Minister's face-to support the amendment of the noble Viscount, Lord Bridgeman. This group of amendments is important. In the photographic profession, metadata have become extremely important. The noble Viscount made the case very clearly for the sanction of a fine if these metadata are interfered with.

Amendment 292B is also extremely important to cope with the activities of search engines. This is a completely new area. It has particular relevance to the actions of search engines and other operators who spider the internet; copies are gathered and often stored or processed by an automated process and no human mind would normally read rights management information, which is associated with or embedded in the protected subject matter. Machine-to-machine permissions and consents are becoming vital in the digital age but the present law is unclear about the circumstances in which the operator of the automated process will be required to abide by rights management information contained in or associated with copyright work. This amendment is designed to deal with that.

Lord Davies of Oldham: I am grateful to noble Lords for speaking to these amendments. On Amendment 292A, it is already the case that alteration of electronic rights management information, which may include metadata, is actionable in the same way as copyright infringement. We feel that the effect of this amendment would be to make it unlawful and potentially criminal to supply the systems used by rights holders to edit their own metadata. This is not something that the Government would wish to do.

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The current law is wise to focus on unauthorised tampering with metadata rather than the means of doing so.

The Government are not sympathetic to Amendment 292A but we have considerable sympathy with Amendment 292B, which is to allow rights holders to control the terms of use of copyright works by, for example, web search providers. However, it is not clear that the amendment is needed: rights holders can already set these terms, and any infringement of their copyright is actionable in the courts. There are also risks of adverse consequences to legitimate web search and other valued services.

On Amendment 292D, the Government recognise that many creators have concerns about this issue. Moral rights are an important part of copyright and should be respected wherever it is practical to do so. I am grateful to the noble Viscount for emphasising that matter today and giving us the opportunity to have a meeting in which we were able to discuss these issues with some degree of thoroughness, which is not the case this evening to the same extent.

We recognise the concerns raised by the noble Viscount and will continue to look at this issue. I understand that officials have already carried out an informal information gathering exercise on this subject, and I am sure they will continue to explore the issues with parties from both sides of the debate. We do not underestimate the importance of this issue but we think it will be resolved better on an industry basis rather than in a formal amendment to the Bill. I hope the noble Viscount will be prepared to withdraw his amendment.

Lord Clement-Jones: I apologise to the Minister. I should have spoken to Amendment 292D. I thank him for his response to my non-introduction of that amendment.

Lord Davies of Oldham: I anticipated the issue because the noble Viscount, Lord Bridgeman, very kindly came to a meeting in which we discussed these issues intensively. In my mind, I had grouped all three amendments together. I now realise that there is another author, apart from the noble Viscount, Lord Bridgeman. I salute both authors and their copyright.

10.45 pm

Lord Clement-Jones: If the Minister is not careful, I will come and bend his ear on the same subject.

Viscount Bridgeman: I am very grateful for the Minister's compliments. I shall read very carefully what he said in reply to Amendment 292A and consult the noble Lord, Lord Clement-Jones. In the mean time, I beg leave to withdraw the amendment.

Amendment 292A withdrawn.

Amendments 292B and 292BA not moved.



8 Feb 2010 : Column 594

Amendment 292C

Moved by Viscount Bridgeman

292C: After Clause 42, insert the following new Clause-

"Moral rights

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

(2) For section 78 (requirement that right be asserted) substitute-

"78 Moral rights

(1) The rights conferred by this Chapter (moral rights) are-

(a) exercisable without formality in unpublished works,

(b) exercisable without formality in works made available to the public after this section comes into force.

(2) There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement of this section, unless the rights conferred by this Chapter were asserted at the time."

(3) In section 79 (exceptions to right)-

(a) at the end of subsection (3) insert "except in the case of works created after section (Moral rights) of the Digital Economy Act 2010 comes into force",

(b) omit subsection (5), and

(c) omit subsection (6)(a).

(4) In section 81 (exceptions to right)-

(a) omit subsection (3), and

(b) omit subsection (4)(b).

(5) For section 205D (requirement that right be asserted) substitute-

"205D Requirement that right be asserted

(1) The right conferred by section 205C shall be exercisable without formality.

(2) There shall be no cause of action for omission of attribution in re-publication of a work that was legitimately made available before the commencement date of this section, unless the rights conferred by Chapter IV (moral rights) were asserted at the time."

(6) In section 205G (exceptions to right) omit subsection (2).

Viscount Bridgeman: If I heard the noble Lord, Lord Clement-Jones, right, I think that press photographers are going to be used as a trading counter. I should like to speak briefly about them now.

It is a logical and legal absurdity to talk of licensing works whose authors cannot be identified while there are still significant groups of authors who do not have the right to be identified. Authors' rights have a particular problem in the world of journalism. Authors have to take responsibility for their work, which is an exceptionally important matter in the case of journalistic works. The requirement to assert the right is, as has become clear in the Government's Digital Britain consultation that led to the Bill, confusing and introduces unnecessary complexity. In many cases, a person wanting to know whether they are legally obliged to identify an author would need to track down the original invoice submitted by the author or performer to the publisher or broadcaster. It is unnecessary and should be removed in the interests of clarity and legal certainty.

The exception to the right to be identified as the author of a journalistic work was introduced to the 1988 Act at the last minute and in the days of hot metal typesetting. Then, publishers perhaps had cause to fear that the slug of metal bearing the photo credit or article by-line would fall on the floor and be kicked

8 Feb 2010 : Column 595

under the compositor's stone. Current technology makes identification easy-in fact, in the best design cases, it is entirely automatic-and the proposal on orphan works makes it imperative.

Lest newspaper editors should have cause to be worried about this constraining normal editing, the bar is set high enough by the requirement that the author shows that an alternation amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director. I beg to move.

Lord Clement-Jones: I support the noble Viscount, Lord Bridgeman, in this amendment. Moral rights are currently one of the poor relations under UK copyright law. Many of the concerns about orphan works that we have talked about today would be cured if there was a proper right of attribution-a proper moral right-under UK law, particularly for magazines and newspapers, which are currently exempted. The noble Viscount made a superb case for the amendment.

Lord Davies of Oldham: My Lords, I am grateful to both noble Lords for concentrating on what we all recognise is an important and difficult issue. The current law represents a careful balance between creators and rights holders, setting out their respective economic and moral rights, but we recognise that many creators have concerns about this issue.

Officials at the Intellectual Property Office have conducted an informal information-gathering exercise. The indications from this were that the removal of the requirement to assert the right to be identified as author is not at all a straightforward matter. Although creators, as is to be expected, are generally positive about such moves, commercial users and owners of copyrighted works have indicated that any such change may impose additional administrative burdens on them and that editorial freedom could be marginalised.

It is clear that this issue is one of many relating to the copyright framework that generates conflicting and, as we all appreciate, strongly held views. I suspect that the Bill is not entirely the appropriate vehicle to resolve matters, but we are aware of the strong feelings that have been represented again this evening. I am asking officials to continue looking into this matter and I hope for the time being that the noble Viscount can withdraw his amendment. He has certainly stimulated the Government to look at this issue further. It is complex and we are not sure that we can resolve it within the Bill's framework. We will look at these matters before Report.

Viscount Bridgeman: I am grateful to the Minister and beg leave to withdraw the amendment.

Amendment 292C withdrawn.

Amendment 292D not moved.

Schedule 2 : Licensing of copyright and performers' property rights

Amendments 293 to 299 not moved.



8 Feb 2010 : Column 596

Amendments 299A to 299L

Moved by Lord Young of Norwood Green

299A: Schedule 2, page 56, line 37, at end insert-

"( ) A penalty imposed under sub-paragraph (2) must not be greater than £50,000."

299B: Schedule 2, page 57, line 31, leave out "a right ceases to be an orphan right" and insert "an interest in a performer's property rights ceases to be included in an orphan rights register (see paragraph 1BA)"

299C: Schedule 2, page 57, leave out lines 36 to 40

299D: Schedule 2, page 58, line 4, after "recording" insert ", unless it is a recording made from or included in a broadcast"

299E: Schedule 2, page 58, line 9, at end insert-

"1BA (1) A right is an orphan right, for the purposes of an authorisation given or to be given to a person (an "authorised person") under paragraph 1A or 1B, if any interest in the performer's property rights concerned is entered in a register maintained for the purposes of this paragraph by that person (an "orphan rights register").

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

(a) from the owner of an interest not entered in the authorised person's orphan rights register (except in the case of an authorisation under paragraph 1B 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 rights register unless the authorised person-

(a) has complied with the requirements of sub-paragraph (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 rights register relating to an interest in a performer's property rights must include the record kept in accordance with sub-paragraph (8)(c).

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

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

(a) is aware that the requirements of sub-paragraph (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 sub-paragraph (8) or remove the entry.

(7) A failure by an authorised person to comply with any of sub-paragraphs (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 sub-paragraph in respect of any interest in a performer's property rights are-

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



8 Feb 2010 : Column 597

(b) after the search, to publish notice of the proposal to enter the interest in an orphan rights 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 sub-paragraph (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 sub-paragraph (10), relating to the apparent country of origin of the recording concerned, and

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

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

(a) licensing bodies;

(b) public funding bodies;

(c) trade unions and trade associations;

(d) systems for identifying recordings of the type concerned;

(e) published library catalogues and indexes;

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

(11) For the purposes of sub-paragraph (9)(a) a recording'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 recording's first publication, or

(b) if the recording 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 sub-paragraph (8) have been complied with.

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

299F: Schedule 2, page 58, line 13, at end insert "(and section 116D accordingly applies as if references to Part 1 included references to this Part)."

299G: Schedule 2, page 58, line 14, leave out "and 1B" and insert "to 1BA"

299H: Schedule 2, page 58, leave out line 19

299J: Schedule 2, page 58, line 21, at end insert-

"( ) The power referred to in sub-paragraph (1)(a) to make consequential provision includes power to amend this Part."

299K: Schedule 2, page 58, line 22, leave out "and 1B" and insert "to 1BA"

299L: Schedule 2, page 58, line 27, leave out from beginning to "may" in line 28 and insert

"(4) Sub-paragraph (5) applies to a statutory instrument containing any of the following-

(a) the first regulations made under paragraph 1A;

(b) the first regulations made under paragraph 1B;

(c) regulations under paragraphs 1A to 1BA amending paragraph 1BA or another provision of this Part.

(5) The statutory instrument"

Amendments 299A to 299L agreed.

Schedule 2, as amended, agreed.

Clause 43 agreed.

Clause 44 : Public lending right

Amendment 300

Moved by Lord Clement-Jones

300: Clause 44, page 48, line 18, at end insert-

"(c) applies only to one loan to one reader at a time of each copy of the work held by the library concerned,"


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