My Lords, the last bars of the music are dying away, the curtain is falling, moving valedictory statements have been made but, unfortunately, I have again to be the grit in the oyster because I need to respond to the debate, and the House may wish to know my intention in respect of these amendments.
I thank all noble Lords who have participated in a genuinely helpful debate. I was particularly pleased that the indefatigable noble Lord, Lord Clement-Jones, with whom I have had some degree of disagreement, was willing to support the proposition in the amendment that there should be a review. The noble Earl, Lord Clancarty, supported it, as did the noble Baroness, Lady Brinton, the noble Earl, Lord Erroll, and my noble friend Lord Stevenson. I am grateful to them all.
I am grateful to the noble Earl, Lord Clancarty, for speaking as an artist, because his perspective was valuable. If he, as an artist, has been willing to see another side of the argument on orphan works that is in the public interest, it is particularly telling. The noble Earl, Lord Erroll, spoke as a taxpayer. We cannot all be artists but we all have to be taxpayers. He was absolutely right in what he said about the inappropriateness of setting the tariffs by reference to market values. It is wrong to introduce market values in every area of public life and I wish we could get away from that in our modern political culture. The noble Earl was extremely forthright in his characterisation of the ethics of the Government’s proposition.
However, I was grateful to the noble Viscount, who spoke thoughtfully and constructively, and I very much appreciate the spirit of his response. He acknowledged
that there needs to be review. He asked us to be content with the prospect that there will be a review after only one year by the orphan works authority. There is a question as to whether it is appropriate for the body to review itself. Of course it should always do so, but is that sufficient? I hope that whatever Government there is after 2015 will look again at the methodology for monitoring the progress of the orphan works licensing scheme and ensuring that it is fit for purpose and not producing unintended, unfortunate consequences. We all want it to succeed, and if it is not going to succeed we will need to take further legislative steps to get it right.
It would be helpful to have the second impact assessment that the Minister promised for 2015, but we will need subsequent impact assessments. They need to be proper assessments, not ones whereby you just press a button and the computer produces. Whitehall is getting adept at producing impact assessments. They need to be of high quality.
The noble Lord, Lord Clement-Jones, rightly suggested that the progress of the orphan works licensing scheme would be an appropriate topic to be in the annual report of the Intellectual Property Office. That is so, but a whole range of matters will need to be covered in that annual report and there will from time to time be the necessity for a document that is more particularly focused on the orphan works scheme, unless we can all be confident that it really is working according to our best hopes.
On Amendment 11, the noble Viscount again gave me some grounds for encouragement in his emphasis that a variety of options is possible. He did not explain why the Government do not simply accept that the money ought to be returned after a reasonable interval to those who have lodged it because no rights holders have come forward. Even if they subsequently come forward, of course, they will be paid by the licensing bodies. He did not explain why we do not simply and straightforwardly return the money after a reasonable interval. However, he does not rule it out and he promises full consideration, as well as promising to write to us to clarify what that full consideration may mean, and I am appreciative of that.
The Minister has, as my noble friend Lord Stevenson said, been a most abundant and generous letter writer. However, before he lays down his pen, it would also be helpful if he could bring himself to write one further epistle to us about what diligent search and extended collective licensing the Government envisage at this stage. I recognise that there is more work to be done by the working group, but he will know that probably the greatest anxiety of the cultural institutions, even greater than their anxiety about the requirement for up-front payments, is that the regulations may land them with an impossible task in terms of diligent search. It seemed to me that the Minister made helpful remarks on this subject on Report, but if he were willing to elaborate a little and clarify in another letter to us what he intended when he made those observations on Report, we would be particularly appreciative.
In view of the constructive and helpful tenor of the Minister’s response, I beg leave to withdraw the amendment.