My Lords, before introducing amendments to this clause, I should like first to set out how the provisions in this clause will
work. This is a complex area, and I understand some greater clarity may be helpful. At present, certain unpublished works that were created before 1 August 1989 remain in copyright until 2039. This is because of transitional provisions applying when the 1988 copyright Act was introduced. The transitional provisions mean that works such as centuries’ old unpublished letters or manuscripts remain in copyright until 2039. This is far beyond the standard terms of copyright required by the EU term directive 2006. Many of these works are orphan because it is not possible to contact the rights holder, possibly now a long-lost historical figure, to ask permission to reproduce them.
To illustrate the scale of the problem, the National Archives estimate that around 12 million or 42% of the 30 million archival items held in English and Welsh public archives predate 1891. The vast majority of these are thought to be unpublished and would therefore remain in copyright until 2039 under the current law. Clause 67 will allow the Secretary of State to reduce the length of copyright term for these works. But, and importantly, the length of term cannot be reduced beyond the minimum requirements of the term directive. I should like to stress that it is only when the date 2039 is later than the date that the term directive would produce that any reduction in term would occur, such as when 2039 gives more than life plus 70 years for an unpublished literary work by a known author.
For example, the only literary works that could have their terms reduced will be those where the known author died before 1969 or, in the case of unknown authors, where the work was created before 1969. This is because unpublished literary works by known authors will receive copyright protection for the duration of their life plus 70 years from the year they died. Unpublished literary works by unknown authors will receive protection for 70 years from the year the work was created.
In the case of photographs, the only ones which could potentially be subject to a reduction in term are unpublished photographs taken between 1 June 1957 and 1 January 1969. Where the photographer is known and died before 1 January 1969, the new term would become 70 years from the year the photographer died. If the photographer is unknown, the term would be 70 years from the year the photograph was created.
The term directive specifies different terms for different types of works in different circumstances so it is not possible to list them all now. I have a more detailed note available here today, which I will also place in the House Library, of what this means for different works. Many of the works that currently enjoy a longer term of copyright than that required by the term directive are orphan works. Reducing the term of copyright to the usual levels will bring many of these works out of copyright. This will reduce the overall number of works classed as orphan and is part of the solution to the orphan works problem.
The Government are bringing forward two amendments to Clause 67. This follows further consideration on the scope of the clause and in response to the observations made by the Delegated Powers and Regulatory Reform Committee report published on
14 December 2012. We accept that the scope of this clause would benefit from clarification. The amendments will therefore remove the references to “published but anonymous or pseudonymous” works and clarify that the power is limited by the EU Term Directive 2006. We have concluded that most anonymous and pseudonymous published works are unlikely to be subject to the 2039 transitional provisions. As such, these types of work need not be included in the scope of the power. This amendment means that Clause 67 now applies only to unpublished works, subject to the transitional provisions that currently enjoy copyright protection for longer than the standard periods of protection specified in the term directive.
The second amendment makes clear that no work will receive a shorter term of copyright than set out in the term directive. This has always been implicit in this power; this amendment simply provides clarity by putting the matter beyond any doubt. I hope that in the light of what I have said noble Lords will support these amendments. I commend the clause to the Committee. I beg to move Amendment 28JB.