My Lords, in moving Amendment 28KA, I shall speak also to Amendments 28LA and 28LB. These amendments provide for implementation of the EU orphaned works directive in substitution for the Government’s proposals. The directive provides for non-commercial use of orphan works by cultural institutions. Although the permitted use is non-commercial, the directive allows sales to recover costs. The major question here is why we are going further than the EU orphan works directive, which EU countries have to implement within two years of this September when the directive was passed. It specifically makes provision for museums, galleries, archives and libraries, educational establishments and public service broadcasts to make use of orphan works. These are all essentially cultural institutions. It may not be a perfect directive at this stage, but surely if it will apply in 27 countries, we should build on it. We can, of course, use the new digital hub to good advantage when applying the provisions of the directive.
The Government’s proposals under Clause 68 go much further by permitting exploitation for commercial purposes, which is a matter of real concern to many, particularly the creators of images, where the metadata has been stripped and attribution lost. That is the reason that equivalent provisions failed to get through Parliament under the Digital Economy Bill before the previous general election.
Has no account been taken of photographers’ strong concerns, voiced during the passage of the Bill and in the Hargreaves consultation? The impetus for orphan work licensing comes largely from cultural institutions. The provisions of the directive, therefore, should largely satisfy the need for orphan licensing among those institutions. On 13 September 2012, the orphan works directive was passed, and it must be implemented within two years. Digitisation for preservation and replacement of any work and supplying copies of unpublished work to other libraries, unless the author has forbidden it, is already permitted under current UK copyright law.
On the other hand, the proposed measure in Clause 68 is designed to make orphan works available for commercial exploitation. That measure would deprive rights holders of their property simply because they have not been found by the would-be user of their work, although the Government have not yet formulated the rules and do not intend to publish them until after the measure has been enacted. Being exercisable by secondary legislation, they will not be fully subject to parliamentary scrutiny.
Those are some of the problems which are not dealt with in the measure. Many works contain other copyright works, such as photographs or illustrations. Unlike the EU directive, there is nothing to protect the owners of those copyrights if the overall work is declared an orphan. Diligent search has been used in a number of fields for many years and produces a high level of false orphans. That is because copyright does not have to be registered and there are no definitive registries of the ownership of copyright works. Some types of works, such as photographs and illustrations, are especially easy to separate from the information about their creators—I mentioned the issues about metadata earlier.
In particular, foreign copyright holders are likely to be unaware of the provisions and so will be more likely to lose out as others exploit their works commercially in the UK. Primary legislation should not allow orphan works provisions beyond the EU orphan works directive until it has been drafted to give the same standard of protection to creators as are provided under the directive.
Great concerns have been expressed not only by photographers but by a whole range of others, such as AP, British Pathé, Getty Images, ITN, the Press Association and Thomson Reuters, which are UK, European and worldwide news agencies and audiovisual archives; and FOCAL International, which is the industry body representing commercial and audiovisual archives throughout the world.
The provisions in the clause are premature and should not be introduced in the Bill. If there are flaws in the directive—there may well be—surely we should work on them rather than erecting a totally separate definition of orphan works, which will have few equivalents anywhere else in the world and will certainly be of no use in international rights clearance. I beg to move.