Perhaps I may comment on the point about the EU directive and then come back to the point that the noble Lord has raised.
My noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson, talked about the EU directive and the interaction between the regulations and the directive. Where relevant and where we have the powers to do so, we have in fact included the provisions from the directive in these regulations. The rest will need to be consulted on—in my view, a vital part of good legislation—and will then be incorporated in time for the coming into force of the directive in, I think, 2016. To give more detail, I should add that where there are concepts that we do not need to consult on that are relevant to these regulations and for which we have the legal power—for example, the definition of a collecting society—we have actually included that in these regulations, obviously with the objective, which I think we share, of keeping administrative and regulatory burdens in this important area to a minimum, while having proper governance.
My noble friend Lord Clement-Jones also talked about the risk of disreputable collecting societies running ECLs. Any collecting society applying for an ECL authorisation must already be licensing the types of works that are subject to the authorisation. The codes of practice regulations which became law in April 2014
are intended to support a system of self-regulation by collecting societies by giving government powers to close any gaps that may emerge in the self-regulatory framework. This should strengthen confidence in the operation of collecting societies. As part of the self-regulatory framework the collecting society must allow for an initial independent review one year after implementation and further reviews every three years thereafter. Any collecting society applying for an ECL will need to have a code of practice in place. Any collecting society that fails to comply in all material respects with its code of practice would run the danger of having its authorisation revoked. This power can be invoked at any time during the authorisation period. Interested parties concerned about an ECL scheme can make representations to the Secretary of State at any time during its operation.
My noble friend also asked about the Copyright Hub, which he felt could be more valuable than ECL. The industry-led Copyright Hub project is a very important attempt to make licensing easier and more valuable. ECL is likely to complement the hub by allowing broader collective licences to be offered by the hub. However, both use of ECL and use of the hub are of course choices for rights holders; government is merely offering a new choice to collecting societies.
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The noble Lord, Lord Stevenson, said that this involves property rights and that it is important that we get it right, which I agree with. Helpfully, he broadly accepted that we were trying in the regulations to do what we said we would do during the passage of previous legislation.
The noble Lord raised four points, the last of which I think I have dealt with. He said that he was pleased that the SI was vesting on one of two vesting dates, 1 October. As a former businessperson, I very much agree with him on this point. It has been a change that has come about in recent years that has helped business a lot, and I am proud of the fact that this regulation comes into effect on 1 October.
The noble Lord also asked a perceptive question about fees charged and expenses. My understanding is that the cost of licences is negotiated with licensees, and the obligation to do this is in the code of conduct. There is recourse to the Copyright Tribunal, which regulates the price of a licence. If I have not satisfied the noble Lord, I will very happily take recourse in this new art, the art of letter writing.
The point was made that there is not enough detail in the regulations around “informed consent” and “significantly representative”. We have deliberately not defined those concepts in the regulations because there is often a great difference in the operation of collecting societies in different sectors, as I am sure noble Lords will understand. That was strongly evidenced in the consultation, which showed that different sectors wanted and needed different thresholds to make ECL work for them. Putting the detail in the accompanying legal guidance gives us the flexibility to cater for those differences and to cope with future changes. The guidance will be available when the new regime comes into place and it is hoped that it will meet the concern raised.