My Lords, I thank the noble Lord, Lord Howarth, for his amendments. They raise important issues and I trust that I can provide some satisfactory assurances. I say at the outset that I very much welcome his support for an orphan works scheme and, indeed, for the principle that creators should be paid. He recognises that there is a balanced approach to this issue in this respect.
Regarding Amendment 10, the Government agree that there will need to be a full and proper evaluation of the effectiveness of the orphan works scheme, and its impact on users and rights holders. That is why the Government have committed to a review of the functioning of the scheme one year after it is fully functional. This post-implementation review would be undertaken by the orphan works authorising body and would include, for example, data on the number of orphan works registrations, and permissions issued by the authorising body. The scope of any review, as determined by discussions with stakeholders, would be incorporated into the authorising body’s regulations. I assure the House that the outcome of the review will be reported to Parliament.
Separately, the Government have committed to another impact assessment of the orphan works scheme in April 2015: that is, one year after the scheme is fully operational. According to government guidance, the first review of regulations,
“should in most cases be carried out and published no later than five years after the relevant regulation comes into force”.
In undertaking to do a post-implementation review after one year, with accompanying impact assessment, the Government’s plans will be fully consistent with these principles and guidance.
Amendment 11 would require regulations to make provision that unclaimed fees paid for the use of orphan works were returned to the licensee within a five-year period. Under the proposals currently in the Bill, in the event that fees remain unclaimed for the licensed use of an orphan work, a variety of options are possible: for example, unclaimed fees could be used to help creators; subsidise the cost of running the orphan works scheme—I believe that that point was raised by the noble Lord, Lord Howarth—pay for preservation costs in public institutions; or pay for industry training. I know that there are wide-ranging views on the appropriate use of unclaimed fees. This is why the wording in the Bill is permissive; it requires regulations to deal with this issue but does not rule
any particular option in or out. It does not rule out the return of the fee to the licensee. The current wording allows for further consideration of all these options, with the input of all relevant stakeholders.
The noble Lord, Lord Howarth, supported by the noble Earl, Lord Erroll, raised the issue of the money going to the Exchequer. The use of the funds will be the subject of a full consideration. I hope that gives some reassurance to noble Lords. In other words, all options are open and there will be no presumption that the money will go to the Treasury under this scheme. I hope that that also reassures the noble Baroness, Lady Brinton. The noble Baroness raised a related matter concerning how long the money would sit in bona vacantia. As a general principle, money falling into bona vacantia is dealt with by the Treasury Solicitor, and there is no time period as such. I do not know whether that helps. I hope the House will agree that this is the right way forward. I again assure the noble Lord that it is the Government’s intention that the licence fee for the use of an orphan work should be proportionate to the type of use. However, particularly where orphan works are used commercially, the Government believe it is vital that the conditions of use do not inadvertently undermine the market for known works, particularly, for example, where we are concerned with the livelihoods of creators such as photographers.
The noble Lord, Lord Howarth—