My Lords, I support Amendment 28DZA in the name of the noble Lord, Lord Stevenson. I agreed with much of his introduction, the broad sweep of which was impressive given the nature of these amendments. He commented that exceptions will be introduced by secondary legislation. I associate myself with those remarks. I do not believe that secondary legislation is the right way to introduce those exceptions. It should be done by primary legislation.
That said, it is worth unpacking the metadata amendment slightly because I think that exactly how the amendment would operate should be on the record. Section 296ZG of the 1988 Act, which was inserted in 2003, provides protection for electronic rights management information by giving a cause of action to rights owners when such information is removed or altered by a third party without authority, provided that the third party has the necessary mental element—that is, that it knowingly and without authority removes or alters electronic rights management information.
The amendment seeks to deal with the specific problem that arises when copies of works or other subject matter are gathered by an automated process. It has particular relevance to the actions of search engines and other operators who “spider” the world wide web. Because copies are gathered and often stored or processed by an automated process, no human mind will normally read rights management information which is associated with or embedded in the protected subject matter. The law is presently unclear about the circumstances in which the operator of the automated process will be deemed to have rights management information drawn to his attention. Therefore, the amendment seeks to provide certainty in this regard. It does not expand the scope of any rights belonging to the copyright holder or other right holder. A person gathering materials is free to disregard any restrictions which may be communicated by means of rights management information if, for example, the acts he is carrying out are protected by a fair dealing defence or for any other reason do not fall within the scope of the copyright or other right.
Subsection (1) makes it clear that the effects of the proposed new clause are restricted to persons who gather or access copyright or other protected materials in the course of a business. Therefore, the circumstances in which consumers might be affected by any restrictions in electronic rights management information are outside the scope of the proposed new clause and remain governed by the law at large.
As the Minister may know, the amendment is supported by a large number of members of the creative industries. There is a strong view that metadata is crucial for the future of copyright protection, that it is central towards an efficient, effective and robust licensing system, that it has part of the solution to
diligent search for orphan rights and orphan works, and that it is also helpful in terms of pseudonymous works.
I end by quoting the noble Baroness, Lady Buscombe —I often trawl through the internet to find her best quotations. This one is particularly apt in this set of circumstances. It comes from a House of Lords debate in June 2005:
“For those who make photography their life’s work, protecting their copyright goes beyond the emotive; it is their livelihood. Without adequate protection the photographic image—tomorrow’s cultural heritage—and those who create it will cease to have true value, and without adequate protection a profession dies. Photographers are concerned that, in the digital age, information supplied with the digital image about copyright and the creator is stripped away, often automatically, so that in a matter of moments the world is awash with ‘orphan’ images”.—[Official Report, 22/6/05; col. 1690.]
That was in 2005. We have not done anything about that issue but the passage of this Bill provides a chance to do just that.