My Lords, I shall also speak to Amendments 84AB, 84AC and 84AD.
Amendment 84AA straightforwardly addresses a specific aspect—that is, the duration of copyright in existing anonymous or pseudonymous works. The amendment is designed to clarify the scope of the application of Clause 68. Rather more importantly, the effect of Amendments 84AB and 84AC would be to prevent the Secretary of State being able to curtail the period of protection in respect of unpublished pre-1988 Act films and pre-1956 Act photographs, and in respect of other unpublished pre-1988 Act works whose authors are known and who died in the period from 1900 to 1989. This means that the copyright material covered by the amendment will, unless published in the mean time, fall into the public domain at the end of 2039, which is the position under the law as it stands.
I thank the Minister for his correspondence on Clause 68; that correspondence has now extended to quite a number of letters, which I have found extremely helpful. However, no one would object to this clause if it simply solved a problem about copyright protection attaching to centuries-old, unpublished manuscripts and private charters. As regards works created more recently, such as unpublished minutes of meetings and correspondence from the 20th century, being within the scope of Clause 68, the Minister is clearly of the view, as he said, that these provisions are part of the solution to the orphan works problem. In the discussions about the copyright clauses in Grand Committee, I pointed out that one of the difficulties was that the Government’s policy had such an insubstantial evidence base. The Minister has now in correspondence referred to the Seeking New Landscapes study by Barbara Stratton. However, without going into great detail, there is doubt as to whether generalisations can be drawn from that study. It would be helpful to know what proportion of the material held by archives and assessed as orphan is pre-20th century, and what proportion of the 20th century material post-dates 1960. That, at least, would give some indication of whether Clause 68 will in fact make a significant contribution to reducing orphanage.
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Indeed, the Government have made clear that they are acting to reduce the number of orphan works through this clause. It is thought, and the Minister believes, that a large proportion of orphan works in cultural connections are unpublished. Given the clear crossover with orphan works—which is the subject of separate legislation in this Bill—the Government should surely make clear how they intend for unpublished works, which may also be orphaned, to be treated. In particular, the Government should issue guidance on how a search process to determine the date of creation will operate, and on when potential users need to approach the orphan works licensing body; and should make clear that unpublished orphan works will also still be subject to the copyright term directive.
Generally, as I understand it, exercising the Clause 68 power, as drafted, would enable the Secretary of State to remove copyright protection from the unpublished works of authors who died before 1 January 1943. Assuming that the clause came into effect before the end of this year, it would have an immediate effect on only the unpublished material of authors who died before 1943. It would have no effect on post-1968 material, because for those cases the European directive provides a term of 70 years from the end of the calendar year in which the author died, rather than the fixed term to 2039 provided for in the 1988 Act.
It follows that if one disregards anonymous and pseudonymous works from the analysis, a potential user will need to be able to discover the date of death of the author of any work—such as an unpublished letter—to ascertain whether the work in question has been ejected into the public domain. If it is not yet in the public domain, they will need to ascertain whether it will be affected at some future date by an order made by the Secretary of State. I doubt whether this will make life much easier for any of the archivists who are the intended beneficiaries of this clause.
The Minister lays a good deal of emphasis on the claim that unpublished works are not being commercially exploited. Surely some are; for example, audio-visual archives contain large numbers of unpublished films which are commercially exploited on a large scale, including digitally.
Celluloid film reels were rarely sold or hired, with the consequence that a great deal of commercially valuable but unpublished audio-visual material is widely exploited. Substantial investment has also been undertaken to produce and make this content available digitally, in reliance on the current legal provision that it will be protected by copyright until at least the end of 2039, thus enabling the costs of digitisation and digital exploitation to be recouped.
Some major organisations are involved: AP, British Pathé, Getty Images, the Imperial War Museum, ITN and Reuters—I am sure that the Minister has had meetings and correspondence with them. However, there are many others with significant but smaller holdings. Unpublished films represent the capital assets of thriving business which, under the proposal as it currently stands, the Government seem bent on affecting. In his letter to me, the Minister indicated that he has asked officials to look at this issue. I welcome that, but perhaps he could give more detail today. There are also perfectly respectable grounds why the owners of literary material might not wish to publish. One has to consider only why one might not wish to publish Nancy Mitford’s letters, or Eliot’s letters: the executors might well have perfectly good reason for deciding not to publish.
On those grounds, it is essential that the Government should take time to think again about Clause 68 and, as I suggested, widen the evidence base to demonstrate the existence of a substantial body of orphan works which are capable of being affected by the proposed powers. Certainly, in the first instance, they should exclude subsection 5(b), concerning films, from the ambit of Clause 68.
Moving briefly to Amendment 84AD, the relationship between Clauses 68 and 69 is unclear, as I mentioned earlier, and will lead to legal uncertainty as to what provisions apply to an orphan, anonymous or pseudonymous work which has not been published. Anonymous or pseudonymous works are likely to be orphan. Consequently, the administration should be subject to the normal rules for orphan works, requiring a diligent search for the rights holder. The amendment is required to clarify the scope of Clause 68 in relation to orphaned works. If the work is an orphaned work under Section 116A of the Copyright, Designs and Patents Act, the mechanism for orphaned works as set out in Clause 69 should apply. I beg to move.