My Lords, I shall speak to Amendments 28LA and 28LB, which the noble Lord, Lord Clement-Jones, has introduced. I see these issues very differently from the way that he does. I am sure that he would agree that it would be a pity if we in the Committee excessively polarised the issues of contemporary creators against those of our great cultural institutions and the public, who benefit from the work of those institutions and could benefit so much more if a larger part of their collections were to be made accessible.
The simple answer to the question raised by the noble Lord, both on Second Reading and just now—why we should go beyond the provisions of the European Union orphan works directive—is simply that the directive does not go far enough; it is too limited. Only public sector bodies and educational establishments, not companies, can benefit. That means that public/private partnerships, and even cultural bodies, are prevented from working in partnership with the private sector. Mass digitisation, which would confer very great benefits for the public, is best carried out with private sector contractors and partners. In that way, the production is made possible for global educational markets.
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The directive sets the bar for diligent search too high. It requires diligent search for each individual copyright work, even if embedded in another. For example, a postcard could involve rights in the stamp on the postcard, the design of the postcard itself or the text of the postcard. It is absurd to require that every component of a single item, which is almost certainly an orphan work, should be subject to exhaustive diligent search. If that is to be the requirement, it will simply mean that large volumes of material will never be cleared for use.
Unlike the provisions of this Bill, the European Union directive does not facilitate payment to relevant owners. The use of orphan works in publications—books
and articles, for example—would be prohibited. Limiting the scope of licences to non-commercial purposes would restrict the ability of universities, libraries and museums to raise revenue through exhibitions that included orphan works. It is not realistic to try to maintain a barrier between non-commercial and commercial activities and uses in cultural, educational and academic environments. I believe that there are risks to rights owners that would actually be averted by the provisions of the Bill.
Therefore, I was pleased to read on page 20 of the impact assessment—which has not had an altogether favourable press this afternoon—in the section that deals with orphan works:
“The UK Government is proposing a complementary scheme that would allow commercial and non-commercial use of a wider range of works and not limited to certain institutions ... Should the EU proposal be adopted, the UK scheme will operate alongside it”.
I think that that is entirely appropriate. I would say that rights holders have nothing to fear from academic and cultural institutions. They themselves are generators, as well as active users, of copyright. As users of copyright, they have a long history of respecting and clearing rights. They have no intention whatever of jeopardising the rights of creators. Indeed, libraries and archives, knowing the background of their own collections, will not infrequently be in a better position to search for a rights holder than would a collecting society representing mainstream commercial material. Orphan works licensing will provide a new incentive for institutions to search and secure a licence for assumed orphan works and so potentially will increase the number of rights holders who will benefit financially from their work.
As my noble friend Lady Blackstone briefly explained to the Committee just now in a previous debate, it is essential to find means of licensing orphan works. Many forms of expression—the speaking notes of the Minister or of the noble Lord, Lord Clement-Jones, correspondence, diaries, blogs, private photographs, the archives of clubs and societies, official archives and oral histories—are all covered by copyright and, of their nature, will not be represented by collecting societies, but they are potentially too important to stay in limbo. They need to be treated differently from material that was originally produced commercially. The noble Lord worried about depriving rights holders, but there is no question of that. Therefore, I hope that the Committee will not allow these amendments to find favour.