My Lords, I thought that the Committee might appreciate, rather than approve, a rather different approach to the clause, trying to make
the best of what I previously described as not optimum relative to the orphan works directive.
A number of matters should be written into the Bill. That is essentially what I propose in my Amendments 28L and 28M to 28S, 30 to 32 and 57. Let us assume that it is possible to amend the orphan works provisions satisfactorily. The most important question in that context was how the licensing system needs to operate. The system needs adequately to protect the interests of the orphan works copyright owners and to be efficient and cost-effective. It is vital that the operation of a licensing system is planned in a pragmatic way that considers the needs of different licensees of orphan works. One way to ensure the efficiency of the system is to make the best use of the existing licensing systems of collecting societies. Collecting societies are in a position to process complex usage data and allocate fees for such licences as broadcasters.
UK Music and the Publishers Association, which are supporting the amendments, are keen that the Government fully explore the way that collecting societies participate in the licensing process. It is important that any orphan works licensing scheme includes certain safeguards to protect the authors’ rights. The regulations described in new Section 116A set out certain conditions under which a licence to use an orphaned work may be granted. However, there is not enough detail in the Bill. The amendments provide that detail. To avoid confusion, I should say that Amendment 28S is part of this group.
First, the licensing body must be representative of a substantial number of copyright owners for the type of work for which a licence is to be granted. It must not represent just a minority of relevant creators. It is not at all clear who or what the person or persons authorised to grant licences under the new Section 116A will be. Should it not be a relevant collecting society, rather than the UK Copyright Tribunal?
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Secondly, new Section 116A specifies that each individual work must be subject to a diligent search for the rights owner. The nature of that diligent search, however, needs to be specified. It cannot be assumed that a work is orphan unless a diligent search of each individual work in question has been carried out. New Section 116A(3) sets this out only in general terms. There are discussions taking place in the working group on orphan works, which include defining what constitutes a diligent search. We need to hear the Minister set out what the Government believe must be included in any diligent search, and what sector specific guidelines are likely to be provided.
Thirdly, authors who have assigned their copyright to a publisher or other agent must have the right to equitable remuneration. Fourthly, licences for orphan works should not be perpetual and should expire when the copyright in the work has come to an end. Fifthly, the regulations must make clear what works can be considered as orphan works and when they cease to be so, especially if an exclusive licence has been granted. I beg to move.