My Lords, the Minister introduced his amendment very fairly but I must admit that Clause 67 still baffles me. I think that I understand the term directive. The Minister has produced a splendid schematic of all the different rights that might be affected in these circumstances, especially where copyright will be brought back from 2039. However, I am still baffled to some degree as to why we need to go the whole hog as regards Clause 67. Technically, I suppose that I am speaking to the clause stand part debate. Originally, the clause was much more objectionable. It is now much more clearly tied to the term directive. However, what is the real motivation of the clause? I think that all of us are very sympathetic to the idea of medieval manuscripts and other old material being taken out of copyright so that they can be digitised. However, the museums, the British Library and others have made the point—whether publicly or otherwise—that in practice there are no copyright claims or difficulties and that by and large they have gone ahead and digitised and have not had any problems in doing so.
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What is quite interesting and extraordinary is that the British Library notes that it has material from the fourth century that is still subject to copyright restrictions. I have no idea why that should be the case, but it surely shows that our laws have unintended consequences. Trying to get to grips with why this is needed, one could say as a good European that conforming to the European term directive is desirable, but there are always unintended consequences.
The two examples that I shall put forward are two authors who died before 1969. TS Eliot died in 1965. His published work is protected for 70 years from the end of 1965 and his unpublished work, in the ordinary course, would lose protection at the end of 2039. However, Clause 67 would give the Secretary of State power to curtail the term of Eliot’s copyright in his unpublished work. Such unpublished work exists. His late wife, Valerie, was editing her husband’s correspondence.
What happens in those circumstances? A slightly longer ago example is cited by the Society of Authors. Ford Maddox Ford, the author of the novel sequence Parade’s End, which was recently so well adapted by the BBC, died in 1939. What will happen to his unpublished work in those circumstances? There are prominent authors in these circumstances. Sometimes it is correspondence, sometimes it is unpublished work, and the consequences of Clause 67 and the application of the term directive will be large.
I wonder whether this was all thought through as well as it could have been. I do not know whether there was an impact assessment or consultation on the application of the term directive. I believe there was not, and perhaps the Minister will confirm that.