Debate in the House covered Clauses 31 to 42, and the Government agreed to consider in principle two amendments tabled by Viscount Bridgeman, Baroness Buscombe (Conservative) and Lord Clement-Jones (Liberal Democrat) to Clause 42, concerning the representation of creators by extended collective licensing bodies. As the Minister, Lord Young, said, “The Government have always intended that extended licensing schemes should be run by representative licensing bodies. We therefore agree to consider Amendments 155A and 155B and will bring our proposals to Third Reading.”

According to Cabinet Office Guidance, “The principal purposes of amendments on Third Reading are to clarify any remaining uncertainties, to improve the drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill. Amendments are restricted to technical points to tidy up the Bill. An issue which has been fully debated and voted on or negatived at a previous stage of a Bill may not be reopened by an amendment on Third Reading. Notice is required if any Member of the House wishes to move an amendment to leave out a clause or schedule on Third Reading, just as it is on Report.”

Finally, a new copy of the Bill as amended in Report has been made available, for those of you wishing to follow the latest changes to the Bill.

The Government opposed an amendment put forward by Lord Clement Jones (Liberal Democrat) and Lord Howard (Conservative). However the House of Lords supported the amendment, the result of which was to replace clause 17 with provisions regarding “Preventing access to specified online locations for the prevention of copyright infringement”. The amendment passed by the House of Lords raises significant issues which will need to be addressed as the Bill progresses through Parliament.

Debate came to an effective end at 7.40pm, having reached Clause 30. We had hoped to make further progress, but business scheduled in the dinner-break ran on and sitting was adjourned before we could return to the debate.

We look forward to resuming the remaining clauses at our next day in Report on the 8th of March.

Introduction
There are several areas where copyright law in the UK is currently developing. This includes provisions in the Digital Economy Bill to create regulated schemes for licensed use of orphan works and extended licensing by collecting societies. This factsheet explains some key issues and corrects some of the more common misconceptions about the Government’s plans and policies.

We are aware of some concerns about how these changes might affect the way professional photographers do business, so parts of this factsheet are particularly aimed at them.

What are Orphan works?

Orphan works are works protected by copyright, but where the rights holder cannot be identified or found, even after a genuine and diligent search has been made. Although all types of work can become orphaned, the problems for the most part arise from unpublished letters and diaries, old books, or archival sound and video recordings held in museums and libraries. These may of course include photographic illustrations, or separate photographic works.

Why is the Government acting?

Access to orphan works is important from both a cultural and economic perspective. The BBC and British Library both experience difficulties – the British Library estimate that up to 40% of its archive collection is orphaned. Some institutions have very reasonable plans to use orphan works – digitising and making available historic material – but without the permission of the copyright holder such use may be an infringement of copyright and possibly a civil or criminal offence.

What is the Government doing?

The provisions in the Digital Economy Bill introduced on 18th November 2009 and currently before parliament will enable the Government to create a solution to the problem of Orphan Works. The changes will provide the Government with powers to authorise and regulate suitable bodies to operate orphan works licensing schemes. Before any of this can happen the Government is committed to a wide ranging public consultation, to make sure the rules are fair and workable.

When will this happen?

Public consultation is currently planned for some time in the second half of 2010. The consultation will be wide ranging to ensure as many stakeholders as possible have the opportunity to make their views known and are able to help shape the details of how orphan works will be licensed. Following that consultation work will be done to develop the secondary legislation to create the first authorised schemes.

How exactly will the schemes work?

Until the consultation has taken place it would be premature to speculate on exactly who might have access to licences, how the licence fees would be held and other administrative details. The system will be a flexible one, as it is clear that what is appropriate for one set of circumstances won’t be appropriate in another.

What does this actually mean for photographers?

Although the administrative details have yet to be worked out, the important thing to note is that any schemes created will operate on a regulated and licensed basis. That means that before a user can apply for a licence to use the work, they must first carry out a diligent search for the original owner of the right. The required steps are outlined in the Bill itself, but as the appropriate searching techniques are likely to be different for different sectors, the details for specific types of work will be fixed in the secondary legislation, after consultation.

Will this allow people to use works for unfair prices?

Certainly not! The Government is aware of many photographers’ concerns that orphan works will create a means for content users to appropriate large amounts of their hard work at an unfairly low cost or for free. Any use of an orphan work will require payment of a fair licence fee, and this fee will be held safely and kept available to be claimed by the rightful owner should they come forwards.

The Government’s intention is that there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty. Subject to consultation, any regulations would be designed on that basis. The Government takes this to imply that licensing of orphan works would be at the market rate, where one exists; the intention would be that, as far as possible, rights holders would get a similar return regardless of who licenses their work (for instance, whether a collecting society or other body). Not only would this minimise any financial incentive to misidentify works, but it would also guard against unfair distortion of existing markets by protecting the interests of returning rights holders.

What happens if people use photographs that shouldn’t be considered orphan?

Currently, if photographic works are used without permission, the rightful owner usually has to take legal action to gain redress for the unauthorised use. However, if such a use is made under an authorised orphan works scheme, then there will be a clear point of contact and a simple process by which the rights holder can check for use of their works and claim the money that is being held for them.

Furthermore, if a content user fails to act properly and comply with the terms of the orphan works authorisation (for example by not carrying out a properly diligent search), then they would be subject to regulation and revocation of their permissions, as well as being liable for substantial financial penalties. It is anticipated that this will actually improve the situation for creators such as photographers whose work is sometimes orphaned.

Shouldn’t this be limited to non-commercial use?

The key point to ensure fairness to rights holders is not an arbitrary distinction between commercial and non-commercial use: it is about ensuring that there is adequate regulation of organisations running orphan works or extended licensing schemes. The Government is aware that different sectors have different needs, and these provisions will give the Government the flexibility to tailor the details of licensing schemes so that they are appropriate for different areas. If it proves impossible to devise a scheme for a particular area that does not unfairly disadvantage rights holders interests, then the Government will have the flexibility to not authorise any schemes to be set up in that areas.

What did the delegated powers committee say?

The Delegated Powers Committee suggested that the clause should include an explicit definition of orphan work, and that regulations (secondary legislation) made under the provisions should be subject to affirmative procedure (which means they will be debated and voted on in both houses of Parliament). The clause has now been amended to address both of these points, as well as a number of other minor concerns raised by the committee.

Metadata is easily stripped from photographs, doesn’t this make everything on the internet ‘orphan’?

No. Just because a photograph does not have a by-line or electronic metadata attached does not mean it can be considered orphan. A diligent search will in most cases still allow the original rights holder to be identified through the searching of databases, advertisement of the intention to use, use of electronic messaging (in the case of sites such as Flickr for example) and other steps. The effectiveness of electronic searching will also increase as image recognition technology improves. The effectiveness of available search tools will be taken into account when considering whether or not it is appropriate to authorise a scheme covering a particular type of work.

It should also be noted that there are already provisions in law to prevent the removal of metadata if the person doing so is aware that it may facilitate infringement of copyright (see section 296ZG of the Copyright Designs and Patents Act 1988). This means that stripping photographers’ work of metadata to claim it as “orphan” is now and will continue be unlawful.

Isn’t it unfair to do this without changing moral rights?

The provisions in this Bill do not change the existing system of moral rights. We are aware that some creators would like a change in the way moral rights work, particularly with regard to the right to identified as author of a work. This is however a polarised debate: publishers and users of copyright works are concerned that any change would prevent them from carrying out legitimate editing activities and add unacceptable overheads to established business practices.

The government has committed to continue to keep the case for a change under review.

What can you do if you still have concerns?

If the Digital Economy Bill becomes law, then the government has committed to a broad consultation before legal rules for orphan works schemes are developed. At this time (planned to be the second half of 2010) we would like to hear from creators and copyright owners of all types, as to what they believe the issues are for them. The consultation process will be widely publicised, and you will be able to contribute your views at that time.

As you may have noticed, in the lead-up to Report we’ve been busy. In the previous ten days we tabled a wide range of Government amendments - around 120 in total – and drafted a slew of new factsheets and letters to parliamentarians, which we’ve now uploaded to this website. Please have a look at the letters and factsheets sections for the latest, including explanations of the recent amendments proposed by the Government.

You may also be interested in the Parliament Web Centre’s recent experiment with presentating a Bill online – they are investigating a range of innovative ways in which Bills might be presented, including hyperlinking to existing Acts to be amended by a Bill, and interleaving the Explanatory Notes for the Bill with the legal text itself.  Have look and see what you think – I know the Parliament web team would be grateful for feedback. (Please note that this version currently uses the Bill as introduced in the Lords, and doesn’t feature the amendments that have been made since.)

Dear Colleague,

During the earlier debates in Committee it became clear that the issue of how the proposals in the Bill might impact on libraries, wi-fi providers and universities was one which caused some concern. I undertook to provide the House with more information, both on the current position in these establishments and on how they might be affected by these proposals.

I attach a factsheet on this which I will ensure is made publically available, given the level of interest in this issue. I hope the note is self explanatory, but I would like to highlight a few of the main points.

There are measures that all establishments can take to tackle infringement. ISPs can and do provide a great deal of advice, information and help. Our intention is that the code should formally require ISPs to provide generic advice and information on how to tackle infringement as well as how to protect a wireless connection/network and that such advice is appropriate for the establishment in question. We will add a requirement in the Bill under clause 8 that this is a provision that the code must include.

For universities (and other academic and educational establishments as well as commercial businesses) it is very clear that there is no one model of internet access they offer. Similarly the process and procedures in place for dealing with infringements differ. Many of the larger establishments provide services to other parts of the public sector – hospitals, research centres etc –or to private sector commercial operations. Some universities do have in place very strict procedures to address infringement with some very stiff penalties. Others do not.

Each establishment must look at its own position and how the Bill will impact upon it, then consider this guidance and what action to take.

Similarly, there are a number of different models in libraries but these share some general characteristics. The bulk of internet access in libraries is currently provided through fixed library terminals. This makes tackling infringement much simpler to the extent that it is unlikely that significant use is made of libraries fixed networks for infringement.

Where libraries offer wireless access (which is available more and more in public libraries) it is harder to tackle infringement, especially at the higher levels of bandwidth but there are still steps that they can take to limit infringement.

The factsheet sets out the position for libraries, universities and wi-fi providers in more detail and gives a guide to how we anticipate the Bill affecting each type of establishment.

As I said during the debate, we cannot simply give a blanket exemption to such establishments – this would in effect give carte blanche to infringement and would attract infringers to exploit these spaces. Instead, we see a pragmatic approach as the best way forward using three elements:

1. existing action,
2. information and advice, and;
3. the independent appeals body.

Many establishments already take effective action and there is no reason why such existing arrangements cannot be continued. However, in the event that an establishment finds themselves on the infringers list, they will then have two options:

• they could wait for any legal action to be brought against them and pursue their case in court, or;
• they could take pre-emptive action, take their case to the independent body and seek to be removed from the infringers list.

The body would consider each case on its merits and provided the university or library had followed the advice from their ISP and taken reasonable steps to address infringement, only in exceptional circumstances would we anticipate the appeal failing.

There is the potential for the code to offer some flexibility and reflect the particular positions of libraries and the like. Ofcom will consult on the code in due course which will then need Government and Parliamentary approval. However, it will be for universities, libraries etc to make their case during code discussions and I would therefore urge them to look closely at how they might be affected and to engage with copyright owners and ISPs as soon as possible.

Finally I should stress this note was prepared in response to issues raised during the Committee Stage debate. I realise that it will however receive a wider readership including those in academia, education as well as business and who may want some general advice and information about what measures they might take. I therefore include a short note which I hope will provide a top-level guide.

LORD YOUNG