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However, as I said in moving the amendment, there are still some very important things that cannot be done on a voluntary basis. I know that many noble Lords will retain their sense of unease that the Government are not prepared to give more attention to how this amendment could be adopted and put in place. I hope the Minister will not regret that at some future stage. I am particularly surprised, in the light of the report by Dr Linda Papadopoulos, that they are not perhaps giving rather more detailed consideration to the implications that could certainly have been drawn from her report. However, under the circumstances and for the moment, I beg leave to withdraw my amendment.
Lord De Mauley: My Lords, we have tabled Amendment 150 simply to seek clarification of a response that the Minister gave in Committee. His argument against consumer advice being required on every video work appeared to rest on the burden that such a requirement would place on the industry. While I yield to no man in my determination to minimise unnecessary burdens on business, I cannot see what burden would be created here. As it stands, the video cover must already leave a certain amount of space available for the clear presentation of the classification. This space is sufficient for consumer advice, so no further space would be required to be sacrificed from the design of the cover. Since it is the BBFC that drafts consumer advice, there is no further burden on the production company to draft the wording either. It could be argued that making consumer advice automatic would reduce the administration burden on a production company, so I ask the Minister for a rather better reason as to why he does not agree that consumer advice should be present on all video works. I beg to move.
Baroness Howe of Idlicote: My Lords, I support the amendment. Its purpose is to empower consumers by enabling them to make informed choices about a film or video game through the provision of content advice, whether in the form of English-language text in the case of the BBFC or pictograms in the case of PEGI. PEGI's rules attempt to make it compulsory for video game packaging to carry PEGI content advice. Without the amendment, content advice on packaging would not have a statutory back-up. The amendment would
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Lord Davies of Oldham: My Lords, I am grateful to the noble Lord and the noble Baroness for their contributions to the debate. We emphasise that the Video Recordings Act already offers significant protection for children. It puts in place a system that makes it a criminal offence to sell or supply video works to children or young people if they contain content that is inappropriate for them. This system has worked well for 25 years. Parents and consumers can see clearly from the product what they are buying and whether the content is suitable for viewing by particular age groups.
In addition to this important layer of statutory protection, there is a wealth of voluntary information available to parents and consumers if they want more detail on the storyline or underlying content. At the moment, the vast majority of DVDs and games rated by the British Board of Film Classification display not only the compulsory labelling that is required, such as the age ratings, but a few words of consumer advice that have been jointly agreed between the content publisher and the BBFC. The BBFC website also contains extended consumer advice, which parents can view to find out more about a particular film or television programme. I am grateful to the noble Baroness, Lady Howe, for having introduced the point that the Pan-European Games Information also offers consumer advice in the form of pictograms that indicate whether the video game contains scenes that feature, for example, drug use, violence or bad language.
We do not think that there is compelling evidence to demonstrate that consumer advice offers a greater level of public protection or that this extra level of consumer advice needs to be made compulsory, which is the burden of the amendment. We have existing statutory protection and good practice that guarantee that the amendment is not necessary. We are keen to ensure that we do not create unnecessary legislation. The noble Lord, Lord De Mauley, made a nod in that direction but, as we have the necessary protection in place, why do we need an additional amendment to the Bill?
The Secretary of State will issue guidance to the industry and the designated authorities to indicate that consumer advice should be available as a best practice standard. This standard is already widely adopted and delivered on the ground by a responsible and responsive industry in collaboration with the British Board of Film Classification and the Video Standards Council. The British Video Association has confirmed to the Government that it will continue to encourage its members to comply with best practice and has emphasised that there is already a very high compliance rate under the voluntary scheme.
I recognise the good intentions of the noble Lord's amendment and I am grateful to the noble Baroness, Lady Howe, for her comments on the matter. However,
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Lord De Mauley: My Lords, I thank the noble Baroness, Lady Howe, for her support and for the points that she made in support of mine. I thank the Minister for his helpful response, which I will consider carefully, even if he does not go quite so far as I would like. However, for today, I beg leave to withdraw the amendment.
Lord Young of Norwood Green: My Lords, I rise to propose this super-group of government amendments, aimed at addressing noble Lords' concerns expressed in Committee and at Second Reading. The overall effects of these amendments are to introduce a plain English definition of an orphan work; make the search requirement "diligent"; make orphan works registers more easily accessible; make it compulsory for the treatment of royalties to be regulated; specify what topics must be covered in the codes; extend regulation to all authorised bodies; and make it compulsory for the Secretary of State to consult on the conditions for authorisation of orphan works and extended licensing schemes with those likely to be affected by the establishment of such schemes.
Amendment 156 inserts the plain English definition of orphan works called for during our previous debate. The search is now required to be diligent rather than reasonable. The definition and the sources that must be searched are in line with best practice, particularly the recommendations of the High Level Expert Group on Digital Libraries. Some of your Lordships had concerns about the registers for orphan works. Amendment 156 provides for the regulations to specify the format of these registers and for them to be publicly available. This will facilitate ease of searching for rights holders. To create a system that incentivises searching for the copyright owner, we have made provision in Amendment 156 for non-compliance to be actionable as a breach of statutory duty. The Secretary
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Amendment 157 provides for the regulation of any authorised body or person, while Amendment 169 may require them to adopt codes of practice. Some of your Lordships expressed concerns about the other persons being authorised. I hope that the extension of the regulation will reassure noble Lords that the safeguards apply to all persons authorised.
Amendment 159 introduces a requirement to consult those who may be affected by an authorisation for orphan works or by extended licensing. This could be used to consult on questions such as whether a body was sufficiently representative to be granted an authorisation or whether a majority-and if so, what majority-of rights holders would need to agree to the establishment of a scheme before it could be authorised.
Amendment 177 sets out the topics that must be contained in the codes of practice. These include accounting arrangements in relation to royalties, complaints handling, transparency requirements and arrangements for holding sums for the copyright owners. These are designed to ensure that the codes capture minimum standards of fairness and transparency.
The last amendment that I shall single out is Amendment 180, which makes it mandatory for the regulations to cover the treatment of royalties and the deduction of administrative costs. The remaining amendments make equivalent provisions for performers' rights and have the same effect.
I apologise for speaking at some length. I hope that I have reassured your Lordships that we have listened carefully to the comments made in this House in Committee and on Second Reading and taken them on board in this package of amendments. I beg to move.
Lord Howarth of Newport: My Lords, I would be grateful if my noble friend could give clarification on a couple of questions. The great majority of amendments in this large group seem to me entirely appropriate, but I want to ask him about the substitution of the word "diligent" for "reasonable" in Amendment 156. In Committee, the noble Lord, Lord Clement-Jones, suggested that the word "diligent" would be preferable, partly because it matched language emanating from Europe and partly because we are used to the concept of due diligence, which suggests a properly conscientious search. However, I am a little worried that replacing "reasonable" with "diligent" will tend to perpetuate the requirement for institutions to conduct immensely time-consuming and expensive inquiries to track down copyright holders that are doomed to be fruitless because the copyright holders are not there or are not traceable. I wonder what my noble friend considers that the difference will be in practice between "diligent" and "reasonable". It seemed to me that "reasonable" was a perfectly satisfactory term and that the Government's first thoughts were right. I am interested to see that the use of the word "reasonable" persists in new sub-paragraph (8)(a) in Schedule 2. I personally prefer it.
When the Secretary of State is minded to authorise an institution to license the use of copyright material consisting of orphan works, who would he be obliged to consult? Again, if those who hold the copyright for orphan works cannot be found, how can the Secretary of State consult them or their representatives?
Lord Clement-Jones: My Lords, I simply wanted to respond early to the Minister's amendments. Although I am going to be like Oliver and ask for more in due course under the clause stand part debate, I am very grateful to the Minister for having so carefully considered some of the points made in Committee. There is no doubt that the government amendments improve Clause 42. The big question is whether they improve it enough.
Lord Howie of Troon: I have spoken only once before in this lengthy debate and that was on Clause 42, on the definition of orphan works. I spoke on behalf of the Periodical Publishers Association, of which I am the vice-president. We felt then that the definition was inadequate. The association did not think that it was a proper definition at all. I was glad when, after a brief debate in Committee, the Minister, to my surprise, said that he agreed with me and would go back to consider what had been said and see whether a better definition could be arrived at. He has, in fact, done that-I think to the satisfaction of the association. On the question of "reasonable" and "diligent", we suggested the form of words "reasonably diligent". However, I have no intention of quibbling over that. "Diligent" is good enough for me and I am satisfied with the Minister's approach, as is, I am sure, the association.
Baroness Buscombe: I very much hope that the Minister will not weaken his resolve over the terminology. "Diligent", as the noble Lord, Lord Howarth, said, suggests something that is a conscious and perhaps more conscientious approach to ensuring that what needs to be done in order to find out whether something really is an orphan work takes place.
Lord Puttnam: This is an area to which I have given a huge amount of thought and put in a lot of work over the past 35 years. The Government have done a remarkable job in finding a way through a very complicated area. The most important result will be that works that have not previously been freely available will, effectively, be released into the public domain. This is a major victory and it would be a great pity-I am looking at the noble Lord, Lord Clement-Jones, when I say this-if we tried to make the perfect the enemy of the good. These amendments are a very good compromise, which I commend the Government for having achieved.
Lord De Mauley: My Lords, I join other noble Lords in thanking the Minister for bringing forward these amendments. He apologised for taking so long in doing so, but I thought that he was commendably
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Lord Young of Norwood Green: I thank noble Lords for their contributions. On the comments of my noble friend Lord Howarth about the use of "diligent" instead of "reasonable", we believe that the emphasis is important. Although there will be consultations, our view is that there will be differences in different situations and we are trying to achieve a balance. My noble friend Lord Puttnam rightly reminded us that we must not forget the primary objective with which we started out. It is a noble and important objective, whereby we want to be able to release works that for years have not been able to see the light of day, while at the same time wanting to ensure that people conduct a "diligent" search. I rather like the emphasis of that word. We are not asking people to go on ad infinitum, but we want to feel assured that when these works are released there has been a diligent search.
My noble friend Lord Howarth also asked who the Secretary of State will consult. My information is that the Secretary of State will consult widely across the same class of authors as those who are likely to be affected. That may not catch the specific authors but it will take into account their likely concerns.
The noble Lord, Lord De Mauley, asked about stored royalties; he has obviously remembered what happens when private detectives are asked to follow the money. Unfortunately, we cannot yet give a perfect answer on that. No decision has been taken yet, but there is a possibility of a fund for creators or something on those lines. There will be consultations in relation to that.
Lord Puttnam: Perhaps my noble friend the Minister would like to use the authority granted him by the Dispatch Box to make it clear that public bodies, such as the British Film Institute or the British Library, would not find the hurdle created by the word "diligent" so high that they were in effect not able to clear material. It would be quite absurd if public money was used to clear material for public purposes and for the hurdle to become so high that it becomes unaffordable.
"( ) Regulations under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted."
These amendments centre around my continuing concerns, expressed also by several noble Lords, about the need for information on the regulations in the Bill. They are designed to ensure that copyright holders remain in control of their own creativity. Also, I share the concern which has been voiced elsewhere in the House that the default inclusion of rights holders in the licensing scheme is likely, on occasions, to conflict directly with primary licences between rights holders and users. I am aware that the Minister has written about the opt-outs in correspondence, but I should be grateful if he would take this opportunity of clarifying that for the record.
As I see it, the fundamental principles of copyright are subverted by requiring rights holders to opt out of such a scheme if they wish to retain control over how their work is licensed. The provisions covered by this amendment would give rights holders an opportunity, in a closer environment, to keep in touch with any collecting societies which are entrusted with the licensing of their rights. The effect of both of these amendments is to safeguard as far as possible communications between creators and users, either directly or through licensing bodies.
Amendment 177A returns to the theme of the regulations. The Government are to be commended for setting out the considerations which need to be addressed in the code, and I pay tribute to the Minister for his enunciation of the various ways in which the Government have met some of the concerns expressed in earlier stages of this debate. However, I ask them once again to take one step back and not only address the code criteria, which have been admirably set out, but to give some outline guidance of what the regulations will say.
I turn now to Amendment 172A, the extra amendment which has been included in this group. For reasons it is not necessary to go into here, this Bill has had little time for preparation. I have no doubt that had more time been available, much more detail on the proposed regulations would have been available in the Bill.
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