My Lords, this amendment arises from conversations that I have held with the British Library, with Universities UK and with the Wellcome Trust. They all endorse this amendment, as do the Chartered Institute of Library and Information Professionals—CILIP—the National Museum Directors’ Conference and the British Broadcasting Corporation. The issues at stake are important for our universities, our libraries, our archives, our museums, our galleries and our broadcasters, as well as for our culture and economy.
The purpose of the amendment is to create some flexibility in respect of a requirement that fees should be paid up front for the use of certain in-copyright works, known as orphan works. Orphan works are works whose rights holders, following a diligent search, remain unidentified or untraceable. The amendment would ensure that there is no absolute requirement in the statute that fees for the use of orphan works should be paid up front.
Let us remind ourselves of the benefits of being able to license the use of orphan works, provided that it is done with appropriate safeguards. I strongly support the Government’s policy of making orphan works accessible.
5 pm
The great cultural institutions of our country hold tens of millions of orphan works in their collections. The Joint Information Systems Committee of the Universities Funding Councils estimated that there might be some 25 million orphan works in its sector. The National Museums Directors’ Conference estimates 50 million in its sector. The British Library considers
that perhaps 40% of its in-copyright collections consists of orphan works. As the law now is, there is no way that this great wealth of resources can be licensed for use. Orphan works remain quarantined. In the words of the National Museums Directors’ Conference, they are underused, understudied and undercelebrated. So Clause 69 and Schedule 21 are essential.
What sort of material are we speaking of? In the first instance, we are talking about books. The British Library’s exercise, the results of which were published in Seeking new Landscapes, found when it took a representative set of titles published between 1870 and 2010 that 43% were potentially in-copyright orphan works. There is unpublished material in vast quantities. Take, for example, material relating to World War I, the centenary of which we are about to start to commemorate. There are personal photographs, letters and diaries. There is more recent material; the Wellcome Trust has a collection of posters about HIV and AIDS. Of the 3,674 posters, 2,601—71%—were found to be orphans. These orphan works represent resources on an extraordinary scale and of extraordinary potential cultural, educational and economic value. They have the potential to stimulate new research, extend knowledge and excite new creativity and innovation. If they were made available to the public there would be enhanced public interest and enjoyment of the contents of our national collections.
However, none of those benefits is possible now. Orphan works remain in limbo. Under the current law, if institutions digitise this material and exhibit it, they are acting illegally. It happens to an extent for the good reasons that I have suggested. It is absurd and wrong that a law that is unfit for purpose should criminalise academics, curators and professional people who are scrupulous about copyright. They are active users and generators of copyright themselves, and their whole ethos is to use these public collections for the public good. I emphasise that everyone agrees that it is essential to protect the legitimate interests of rights holders. Where we see that certain rights holders may have genuine grounds for being anxious about their interests, we must acknowledge and accommodate their concerns in the regulations.
Take digital photographers, for example; it is too easy at the moment to create a fraudulent orphan work by stripping from a digital photograph the metadata that provide the attribution of intellectual property. This happens—not in the great public cultural institutions to which I have been referring, but it does happen. Until a solution is found for this particular problem, probably a technological solution, it would be appropriate to exclude digital photography that originated as digital photography from the scope of licensing of orphan works. The British Library and CILIP would be content if that were done. Meanwhile, vast quantities of analogue material from the 20th century are in archives which, if they could be brought into public exposure and use, would constitute no genuine threat to modern photographers. They would not undercut the market. The Government should, of course, not be stampeded by private commercial interests, expressing vague and unsubstantiated fears about scams and unfair competition.
Without this amendment, we will lose the benefits of Clause 69 and Schedule 21—the benefits of releasing these orphans into the world. A requirement that royalties and licence fees should be paid upfront for the use of orphan works would be unnecessary and damaging. There will be, absolutely rightly, a requirement that a diligent search should be made before application is made to the licensing authority. If, as a result of the diligent search to find the rights holder they have still not been found, there is a strong probability—indeed, a virtual certainty—that the work is orphan. The institutions testify and can demonstrate that it is very rare that a rights holder appears. If a rights holder does appear, where we are speaking of digital library projects which would provide free access to students, scholars, and the general public, it is very unlikely that the holder would require payment: they recognise the educational and public benefit of sharing their property.
Of the 3,674 posters in the Wellcome Collection, responses were received from 108 rights holders. Of those, all but 12 agreed to allow publication online with a non-commercial licence. It is the practice of the National Portrait Gallery to list orphan works on its website when it places images of them online. Over 10 years, fewer than 10 rights holders have appeared, and all have been content that the images remain online. CILIP confirms that this is normal.
To pay people who cannot be identified while not paying those who can be does not make sense, yet that would be the effect of the policy. A requirement to pay upfront is therefore unnecessary. Only modest sums would be needed to requite the rights holders, and those sums can be found from the cash flow of the institutions, and certainly from their reserves. The argument that upfront payment is a necessary insurance is wrong. It would be using a sledgehammer to crack a nut; it would be an unnecessary, bureaucratic, costly diversion of funds from our cultural institutions; and it would be very damaging. Fees required to be placed in an escrow account with the licensing authority would be sterilised. There would be no benefit for the phantom rights holders, but the money would be lost to the institutions as it would be confiscated for years, probably for ever.
We have to envisage substantial sums because of the quantity of orphan works in the public collections. Even a minimal charge per item would be cumulatively prohibitive. The BBC has 950,000 TV and radio programmes in its archive, 5 million photographs and 2 million sundry items in its collections. The British Library has 112 million newspapers and 18.5 million sundry items. Even a minimal fee on each of those would tot up to an impossible level of charging.
What would the licensing authority do with the money? The impact assessment tells us:
“Should the rightful owner not re-appear within say, six years of a permission being issued, the deposited fee would be treated as a Bona Vacantia case (where assets have no owner) … and would thus default to the Crown … The Crown could then use these funds in a variety of ways”.
Let me emphasise that the cultural institutions are entirely happy to contribute to necessary administrative costs of a licensing authority. Let me also say again that they are more than happy to pay royalties due to
rights holders who want to be paid. However, it would be outrageous to require that licence fees be paid not for the benefit of rights holders—who will not appear, or, if they do, will not want to paid—but to default to the Crown. This would be a tax on publicly funded institutions. Indeed, it would be a double tax: it would be taxing grant-in-aid that had already been provided by the taxpayer. Where charitable funds are in question, it would be a levy on those.
It would be an impossible, as well as an inappropriate, burden. Public funds have already been substantially cut to our public cultural institutions, which are struggling to cope with their depleted finances. An upfront licence fee would be an impost on the top of other substantial costs that are appropriate and necessary: for example, diligent search, which we have already spoken about, is very expensive. A diligent search carried out by the Wellcome Trust on the AIDS posters required 132 days of staff time—this is just one instance. The costs of diligent search, digitisation, curation online, maintaining online services and of the contribution for the administration of the licensing authority would all already be there. We must not add unnecessarily to them.
This is the main part of the answer to the Government’s argument about unfair competition and the need for minimal market distortion. They say that it should not be cheaper to use an orphan than a non-orphan work. It would not be, as I have explained. The cultural institutions already face major financial hurdles and costs. If extra, unnecessary, costs are added through the requirement to pay upfront royalties, the institutions will conclude that the game is not worth the candle, the orphan works will stay in limbo and the Government’s highly desirable policy will be aborted.
As the noble Lord, Lord Clement-Jones, said earlier, an orphan work scheme must be economically viable. Do not take my word for it that the scheme would cease to be economically viable. The Wellcome Trust, a great charity to which all of us owe an immense amount, states that to,
“tie up precious public and charitable funds in an escrow account that would, in reality, rarely be used … could act as a significant barrier to institutions taking up the scheme”.
Universities UK states similarly:
“An up-front payment system, with a large number of payments being made to escrow accounts which are never collected, would have a significant negative impact on the ability of universities and others to make legitimate use of orphan works”.
The British Library adds that if, after all this, the licence is to be issued for only five years, leaving uncertainty as to what would happen after that and, presumably, a requirement to keep repeating that laborious process, in all the circumstances, it would not engage with the process. So the Government would be defeating their own purpose.
There is also a moral point. A high proportion of orphan works never originated as commercial. I speak of religious texts or ethnographic material documenting endangered or minority cultures, personal photographs, and the papers of local societies. We should not introduce an assumption that all should be commercialised, that a market price should be attached to everything that is personal, communal or sacred. I wonder whether the
rights holders of non-commercial material would really want a government agency or the Government themselves to be paid for the use of that material. Why should the norms that may be appropriate in the commercial entertainment or publishing sectors be applied everywhere else? We must seek a workable and balanced system for copyright which balances public benefit against legitimate private rights and serves each equitably while facilitating the dissemination of information and knowledge to the broadest public.
The world’s first copyright legislation was passed in this country in 1710 and was known as an Act for the Encouragement of Learning. In 1836, Antonio Panizzi, the great librarian, the creator of the Round Reading Room in the British Museum, wrote:
“I want a poor student to have the same means of indulging his learned curiosity, of following his rational pursuits, of consulting the same authorities, of fathoming the most intricate enquiry as the richest man in the kingdom, as far as books go, and I contend that the Government is bound to give him the most liberal and unlimited assistance in this respect”.
We should legislate in that spirit.
Does the Minister accept that the concerns of the museums, libraries, archives, universities and broadcasters are valid in this matter? Of course we should have sensible flexibility and phasing in how the policy is introduced and developed, but there needs to be a presumption that there will not be a requirement to pay upfront for orphan works. At the very least, we need flexibility in the statute. I beg to move.
5.15 pm