My Lords, this group of amendments seeks to add further detail or limitations on the face of the Bill regarding the operation of any schemes for orphan works licensing and extended collective licensing.
Amendments 28T and 53 would prevent an ECL authorisation from applying to works where any part of the copyright was owned or controlled by the collecting society or its member. The idea behind this is to prevent a collecting society from unilaterally extending its mandate. In addition, Amendment 28SA specifies that ECL authorisations could extend only existing licences, and only for use in the UK. The Government agree that ECL should not be used to unilaterally extend existing mandates from members. We do not believe that the current drafting will permit this. This is due to the Copyright, Designs and Patents Act 1988, which provides that ownership of copyright refers to ownership of any aspect of copyright. The Government have been clear that no ECL application can proceed unless the applicant has the explicit support of its membership. It is extremely unlikely that support would be forthcoming for an application which significantly extended the mandates of a collecting society.
With regard to the reference to “owned or controlled” in these amendments, the Government understand the intent to reflect the range of arrangements that may not be captured by the word “owned”. However, the amendment could cover a range of possibilities, including voting rights in a collecting society or influence over the registered owner, and risks preventing legitimate uses of ECL arrangements.
I can confirm that the Government will consider the issues raised here through our stakeholder working group, which includes representatives of rights holders, including several photography groups, libraries, archives and other potential users of ECL schemes, as well as collecting societies. However, the ECL scheme needs to be flexible enough to respond to changing market requirements, so any provision that proves necessary should be made in regulations.
With regard to Amendment 28SA, the Government are pleased to confirm that these provisions can apply only to the exploitation of works within the UK. I also
reiterate the Government’s view that ECL authorisations should be granted only as an extension of an existing mandate from a licensing body’s members.
Amendments 28U, 28W, and 54 add new conditions, which must be met before an authorisation to run an ECL scheme can be granted. These conditions accord fully with stated government policy. First, ECL schemes can be approved only where the collecting society is significantly representative of the type of rights holder affected. Secondly, the application process will closely consider the extent of existing mandates, ensuring ECL is introduced only where there is clear support for collective solutions. Thirdly, ECL schemes will require the explicit consent of the applicant’s members. This ensures that rights holders have an effective right of veto. In practice, we anticipate that a collecting society will be required to ballot its members before applying to operate an ECL scheme. This, I submit, is a more specific and effective safeguard than is offered by these amendments.
Amendment 28WA would specify that an authorisation to operate an extended collective licensing scheme could be used to grant licences for the use of audio-visual works for educational purposes. I can confirm that the power in new Section 116B is designed to enable licensing bodies to apply to operate extended collective licensing schemes for specific uses of copyright works. Nothing, including educational uses of audio-visual work, has been ruled out as long as rights holders want it. A central pillar of our policy is that it is up to the collecting society, acting with the consent of its members—the rights holders—to choose whether to initiate an application and to define what they would like to see in scope. Government have no power to do so.
In the case of audio-visual, although there is currently no single collecting society that could cover the range of rights, there is nothing in these provisions that would stop several collecting societies collaborating to offer a joint licence. Indeed, there is already precedent for such collaboration in collective licensing. For example, the Copyright Licensing Agency already offers licences on behalf of both authors and publishers. The only restriction on this would remain that for such an application to succeed, the licensing body would need to meet the safeguards in the Government’s proposals. It would need to demonstrate that it was significantly representative of the type of rights holders affected by the scheme, and would need to secure explicit consent from its members for the application.
For audio-visual works, these thresholds would need to be met in relation to each of the various groups of rights holders who contribute to such works. This is crucial to ensure that ECL is introduced only where it works in the interests of rights holders. The noble Lord also asked when provision could be made in relation to this power. Subject to the passage of the Bill, the Government would look to make regulations as soon as possible. It is our hope that licensing bodies that wish to apply to operate ECL schemes will be able to do so from 2014 onwards.
The second part of the amendment raises the question of whether pre-1990 broadcast works would be in scope for educational use and learning purposes. The
Government believe that the exception in Section 35 of the CDPA, which this refers to, may already apply to pre-1990 works, but our legal team will be considering this in more detail when preparing the legislation on exceptions. I am pleased that the noble Lord is thinking about the benefit that extended collective licensing could have in some sectors. I hope we have assured him that the type of use he suggests would already be possible under the Government’s proposed scheme.
Amendments 28V and 55 would mean that authorisations for ECL schemes must specify the use of works allowed under the scheme. The existing proposals already address these concerns. The Bill already requires ECL authorisations to set out the types of work and the acts restricted by copyright to which they apply. In October, the Government deposited a briefing document in the House Library including further information on how ECL will work in practice. This sets out that a collecting society applying to use ECL will need to provide details of its proposed scheme. Any authorisation could then cover only the specific uses set out in the application.
Amendments 28X and 56 would require the Secretary of State to extend the right to opt out to an exclusive licensee or authorised representative. The rationale for this is understood, but further work is needed to explore how it would work in practice. This will be explored with stakeholders in the working group on ECL and orphan works. While this issue will be considered further, the Bill does not rule out such provision as it stands.
Amendment 28Y would require any collecting society operating an ECL scheme to adopt a code of practice which met certain criteria. The principle of the amendment is appreciated and government policy is for all collecting societies to adopt codes of practice that comply with minimum standards, which were published in October 2012.
8.15 pm
The sector has already made good progress in this area. Most UK collecting societies have already adopted codes of practice on a self-regulatory basis. The Bill gives the Secretary of State the power to require a collecting society that fails to self-regulate effectively to adopt a suitable code of practice. The minimum standards for codes of practice include specific protections for non-members represented by ECL schemes. The Government intend to develop further such protections before any applications to use ECL can be made.
Amendment 28AA seeks to ensure that any legal action arising from the licensed use of a work with a missing owner would fall to the licensing body and not to the user of the work. The Bill already provides that an orphan works licence will have effect as if granted by the missing owner. Similarly, a copyright licence offered under an approved extended collective licensing scheme would license the use of all works within the scope of the authorisation—except any that had been opted out—regardless of the status of the owner. In practice, collecting societies often already indemnify licensees who use works within the terms of their licence against copyright claims.
However, there are a number of scenarios where the proposed warranties may not be applicable or appropriate. For example, it will not always be the case that a work will have been written by the copyright owner. A warranty to that effect would therefore not be appropriate. In addition, the Government anticipate that, in certain cases, it may be appropriate for the legal risk to fall on the user—for example, should the user exploit the work or works outside the terms of the licence. Likewise, the user and not the authorising body may be rightly responsible for any non-copyright issues that might arise relating to use of the work, such as libel. When a licensing body applies to operate an ECL scheme, it will be required to make the terms of the proposed scheme clear, including any indemnities or warrants it intends to offer.
Finally—and I thank noble Lords for their patience—Amendment 28AB seeks to make clear that the orphan works and extended collective licensing schemes are two distinct and separate schemes with different criteria, safeguards and processes. I have sympathy with the ideas behind many of the amendments, and I am confident that the Government have already sought to address the issues concerned or have committed to do so.
The schemes need to be flexible enough to respond to changing circumstances and to reflect best practice. Changes to the Bill which make particular requirements on regulations limit this flexibility and may have unintended consequences. I realise that I have somewhat run on from the time and a number of points have been raised by your Lordships. As the hour is late, the best thing to do would be to answer those questions in
writing. Therefore on the basis of the assurances and commitments I have given, I ask the noble Lord to withdraw his amendment.