My Lords, I am not unsympathetic to the first of the noble Lord’s amendments, Amendment 10, but on the argument that he makes for a review of the orphan works scheme—and many of us have doubts about how that is going to operate in practice—I wonder whether it could not be done more frequently in the Intellectual Property Office’s annual report. The Minister demonstrated in the course of our debates on the Bill that it will be flexible enough to cover a number of areas. If licensing in the form of a digital hub and perhaps ECL can be covered, or meta-data, why not the state of orphan works?
In passing, perhaps I could raise another matter relating to orphan works. In the debate on Report, my noble friend the Minister said:
“In relation to Amendment 84AE, my noble friend Lord Clement-Jones was concerned that there might be a loophole regarding sublicensing. The answer to this is that the Bill does not permit sublicensing, if that is a help to my noble friend”.—[Official Report, 11/3/13; col. 33.]
I believe that the advice the Minister has received may not be correct in that respect. As the Bill currently stands, it seems expressly to contemplate sublicensing. New Section 116A(4) states:
“The regulations may provide for the granting of licences to do, or authorise the doing of, any act restricted by copyright that would otherwise require the consent of the missing owner”.
An act of authorising another to do the relevant act would clearly permit sublicensing.
Because of the timing of the Third Reading, I was caught on the hop and have been unable to put down a probing amendment on this, but I would be very grateful if the Minister could examine the issue and give an assurance now, or subsequently in correspondence, that the regulations will not permit this.