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Enterprise and Regulatory Reform Bill

Volume 744: debated on Monday 11 March 2013

Report (4th Day)

Relevant documents: 9th, 10th, 11th, 12th, 14th and 16th Reports from the Delegated Powers Committee.

Clause 66 : Exploitation of design derived from artistic work

Amendment 84ZBA

Moved by

84ZBA: Clause 66, page 62, line 31, at end insert—

“( ) in Schedule 1, paragraph 6;”

My Lords, I support the amendments of my noble friend Lord Stevenson of Balmacara in this group, but I will speak to the ones in my name. I tabled these amendments in Committee and will not repeat what I said at that time. The reason for their reappearance is that in his reply on 28 January the Minister said that I had raised an interesting point which deserved further consideration. He went on to say,

“we shall have the opportunity to consider these very specific issues more carefully”.—[Official Report, 28/1/13; col. GC 443.]

At a subsequent meeting that the noble Lord helpfully held with us and his officials, I was assured that my points were taken and that they were working on a solution. Now is the time, I hope, to hear it.

I briefly remind noble Lords that Amendment 84ZBA applies the new copyright protection to works of art made prior to June 1957 and brings the UK back into compliance with European legislation. Amendment 84ZEB is pretty much consequential to Clause 66 to make sure that regulations apply to copyrights which were never protected under previous legislation but will be now, again bringing the UK into compatibility with the decisions of the European court. Amendment 84ZEA allows a short transition period, with a possible extension for third persons who manufacture or hold stocks of copies of design works within the European Economic Area.

I also remind noble Lords of the present situation for our many talented designers who contribute sizeably to economic growth. Because sufficient protection has been lacking, the UK has become a safe haven for the sale of replicas of designs which breach copyright. Only two other countries in Europe behave in this way—Estonia and Romania. Criminal prosecutions are pending against UK-based suppliers in other countries. We should not allow this damage to the reputation of our design market, potentially one of our great strengths. No British jobs are at stake if we implement these amendments and fair competition, as well as our international reputation, will be improved. Our brilliant design businesses will have more security to develop, so I very much look forward to the Minister’s reassurance.

My Lords, I would like to speak to Amendment 84ZC in this group. I come from a slightly different perspective from that of the noble Baroness, Lady Whitaker, because there is particular concern among publishers that the giving of full copyright protection to three-dimensional artistic works will impact on those who create two-dimensional images of such works, including publishers, museums, educational establishments and filmmakers, and that designers taking inspiration from existing works will be penalised.

There is particular concern that this clause will have an adverse effect on the publishers of books that include images and description of artistic works. This consideration was wholly absent from the impact assessment. Where such books currently include copyright material, they may possibly come to be in breach of copyright as the images and descriptions being used will have had their copyright term lengthened. Furthermore, implementation of the clause will have a serious negative effect on the future ability of publishers to produce such books.

In Committee, the Minister responded to a debate on an initial amendment, and said:

“The amendments seem to be intended to create special cases for particular uses of works. It is not clear that there is a compelling reason for some artistic works to be treated differently in that way”.

However, the Minister further said that exceptions being proposed as part of the modernising copyright programme could cover the situation. He said:

“These will include, for example, an amended quotation exception, which will permit the use of photographs of artistic works in situations that the courts determine to be fair, and new exceptions for education. Those could cover some uses envisaged under the amendment”.—[Official Report, 28/1/13; col. GC 437.]

This amendment is designed to elicit a more detailed statement from the Minister about the expected exceptions, such as quotation, education and fair dealing. It is important for him to clarify issues about the retrospectivity of the clause where legitimate copies have been made of a work after the expiry of the design protection and before the new extended term of copyright protection has arisen under this clause. Can existing photographs, for example, be used in newly published works? What is the position of reprints?

The Government also need to give details of the impact of this clause on publishing and other sectors and to give assurances about the formulation of the transitional provisions accordingly. In that respect I support, and have added my name to, the amendment tabled by the noble Lord, Lord Stevenson, about when this clause might come into effect.

Government Amendment 84A is also in this group, which I very much welcome. We debated the former Clause 66, which is now Clause 67. I may get my retaliation in first in terms of welcoming the clause. It is a good omen for going forward in further discussion on Part 6, and a good omen for discussion on the exceptions when we come to them later this year. I am delighted with the Government’s very clear statement about the use of Clause 67, and I know that it will be widely welcomed.

My Lords, I want to add my support to the comments that have been made so far this afternoon, but perhaps from a different sectoral perspective. There are certainly a number of concerns about how this clause will affect designers and manufacturers. In particular, universities and colleges want to draw attention to the fact that it will substantially affect teaching, research and design. The ability to display photographs of designs is essential to the teaching of design. The change in copyright terms for these articles would mean that in future, any academics seeking to do this in a way which is not covered by the existing exemptions—including any digital reproductions such as displaying Powerpoint slides during a lecture—would have to seek a licence to do so. This will also apply to publishers reproducing photographs of industrially produced articles, or museums which may wish to display such articles.

We share concerns that this will frustrate the development of the creative sector in the UK, and the teaching of subjects associated with it. As has already been mentioned, the impact assessment focused very much on the commercial uses of designs, such as manufacturers of replica furniture and household goods. I believe that it should consult with non-commercial users of designs which are currently covered by Section 52 of the Copyright, Designs and Patents Act 1988, such as academics, museums and publishers to ensure that its appeal does not have an unduly negative effect. To this effect, I support Amendments 84ZC and 84ZE.

My Lords, I support my noble friend the Minister in his Amendment 84A to Clause 67. It is a sensible amendment that recognises that the IPO’s original Henry VIII wording was not fit for purpose. If I may say so, it skilfully overcomes legal and parliamentary complexities to meet this stated aim of the Government since this clause was first introduced in another place. As I understand it, the clause now maintains criminal penalties for copyright infringement without inadvertently giving this or future Governments power to introduce copyright exceptions.

My Lords, I have some sympathy with the amendment moved by the noble Baroness, Lady Whitaker. The protection of designs is a hugely important part of the whole question of intellectual property. I am not convinced that the Bill as drafted adequately protects this, and I shall be very interested to hear what my noble friend on the Front Bench says. I understand the points that have been made by my noble friend Lord Clement-Jones and others about the desire of the people who might want to use this for other purposes, but I feel very strongly that it is necessary to protect the property rights of those who were responsible for the original design. As I understand the amendment of the noble Baroness, Lady Whitaker, that is the intention that she has put forward.

When I spoke on this Bill before, both in Committee and at the previous Report sitting, I was initially given the impression that this issue was not sufficiently high on the Government’s agenda. However, by the time we had finished the Committee stage, and in the light of the amendments which my noble friend has tabled and to which reference has already been made, I have been reassured. However, I still feel that those who are responsible for creating the designs—they may be designs of all sorts of artefacts and artistic works—should have their rights properly protected. Having heard the noble Baroness, Lady Whitaker, and having read some of the briefing on this from bodies that represent designers of all sorts, I am not wholly satisfied that the individual’s rights are properly protected. I shall be interested to hear what my noble friend has to say when he replies to this debate.

I should add that I am very much in favour of and welcome government Amendment 84A in this group. That seems to be a considerable improvement and reinforces my view that my noble friend is doing his best to try to hold the balance fairly. However, on this question of design, on which the noble Baroness, Lady Whitaker, laid emphasis, and on which I have seen some of the representations that have been made, I still require reassurance. I hope that my noble friend may be able to provide it.

My Lords, I should like to enter a dissenting note in relation to what was said by the noble Lord, Lord Jenkin, and my noble friend Lady Whitaker on this specific question of designs—for example, of furniture. It is not clear to me why it would be an improvement to extend the period of protected copyright in a registered design from the 25 years that has prevailed for a long time past to the proposed “life plus 70 years” period. The effect would be to perpetuate monopolies held by designers and their assignees, and by those who purchase intellectual property from them.

It is of course essential that there be a proper period of protection for intellectual property and that designers and other originators of intellectual property are able to enjoy a proper return and reward for their investment. However, it is not clear to me why the prices of the items that they designed—tables and chairs, for example—should be kept artificially high beyond 25 years, for perhaps 100 years and more.

Let me quote to my noble friend William Morris, a pioneer of English socialism and of English domestic design, whose general injunction was:

“Have nothing in your house that you do not know to be useful, or believe to be beautiful”.

He also said:

“I do not want art for a few any more than education for a few, or freedom for a few”.

We must reward and incentivise our designers, but we must keep a balance that will enable people to have beautiful things in their homes. It is not clear to me why the price of a Charles Eames chair or an Eileen Gray table should be kept very high for long periods beyond 25 years, thereby preventing ordinary people having beautiful things in their homes.

I wonder also whether the proposed extension would prove to be policeable. I do not know what the noble Lord and my noble friend anticipate the intellectual property regime will be that will successfully police the manufacturing of furniture by, for example, 3D printing. The pace of change in the digital economy and its extent is so vast that we may need to think in more radical terms about how we find ways to protect the legitimate interests of individual and private rights holders while extending the benefits of digital design that are capable of being replicated at virtually no cost as rapidly and extensively as possible. I wonder whether it is sensible to try to continue to shore up this decaying edifice of traditional copyright, or whether Governments and possibly charities should not be finding ways to give the rewards to the designers but, at the same time, allow the maximum number of people to have the benefit of those designs as early as possible.

My Lords, the noble Lord, Lord Howarth, has put his finger on the real difficulty for designers. It is not that the period of copyright protection is too short; rather, it is too ineffective. What is needed for our designers is some method of ensuring that their designs are not ripped off extremely rapidly so that they have no effective period of protection. I have heard it said that new fashion designs that appear on the catwalks of London or Paris are copied within a very few weeks, and the copies are then retailed in our shops. If we wish to protect our designers, as we surely should because they are so talented, it seems to me that that is the direction in which we should look. Rather than extending the period of copyright protection, it should be made an offence to sell something that was designed within a shorter but reasonable period of time, and such goods should be seizable if they appear in the retail markets here.

My Lords, as has already been said, all of us around the House can welcome Amendment 84A. This has been a troubled point that has caused difficulty in another place as well as in Committee and here, so we welcome what has now been drafted. We think it does the trick, given what it was intended to do, so we are happy to put our weight behind it. However, it will be obvious from the short debate that we have already had on this rather complicated set of amendments on a rather complicated part of the Bill that not everybody is happy with the direction of travel here. It is important to reflect for a second on why that is.

The debates are really all about whether the Government are right to delete Section 52 of the Copyright, Designs and Patents Act and whether, by so doing and so ending the current regime of registered designs, which, as has been said already, has lasted for a good number of years, the Government have really and fully considered all the issues that flow from that decision. Implications would arise for products that are or are about to be put out of rights protection under the present registered design period of 25 years, and that will in future be copyright for a period of 70 years after the death of the designer. That is a substantial change.

As the noble Baroness just said—and I have a lot of sympathy for this—there is growing concern that the whole approach, which is reflected by this proposed change, goes against where good sense would suggest the issues are going to go in the future. Some countries have very little legal protection for copyright, and what there is is very weak, and others are moving in different directions from us. What is the point of trying to tie down longer periods during which protection could be offered if you cannot also put forward the necessary arrangements under which that protection is to be guaranteed?

There is of course a case, and a very good one, to be made for letting industrial designers have the same protection for their efforts as are available to composers, writers and the like. However, there are still some very real questions on this issue, which have led me to put down the amendment, which would delay the implementation of Clause 66 and give us time to consider two very different and rather important issues. The first is whether this is the right decision, and if so how and on what basis it will be introduced. We have not been given the detail here, we have not seen the draft regulations, and we are not aware of the timescale that the Government have in mind.

Secondly and more importantly, a lot of what is being argued, or will I think be argued by the Minister when he comes to respond, relates to the exceptions and changes that have been forecast by the Hargreaves review to the way in which copyright and copyright exceptions are organised. This point was made by the noble Lord, Lord Clement-Jones, in relation to 2D design representations of 3D designs. So much of what is going to change could, with the right sort of regulatory framework brought in under the Hargreaves exceptions, allow some guarantees and support for those involved. However, we simply do not know enough about it, so surely it would be better to see those regulations, take them through the due processes in this House, agree them in their original form or as modified if that is thought appropriate, and then consider whether Section 52 should be changed and the new regime brought in.

I will give a bit more detail on this. I asked the Minister in Committee, although I did not get much of a reply and he has not included any further detail in the letters I have received so far, why this proposal was not preceded by a consultation with stakeholders and why the impact assessment that has been published has very little detail about the impacts that will be implemented by its changes.. The impact assessment, although it is not complete, admits that the reform of Section 52 will harm consumer welfare, as classic designs—those that are more than 25 years old—will be remonopolised. Replicas that are currently available at some 15% to 20% of the price of an original will no longer be available, but no opportunity has been taken to consult consumers. Moreover, there are those who argue that the impact assessment significantly underestimates the other costs that will arise, partly because of its focus on furniture and three-dimensional design, and because it fails to acknowledge that section’s immunising effects on certain secondary uses.

The Government believe that the change would encourage innovation and investment in design, but this is supported by the very flimsiest of arguments in the impact assessment, and no new evidence is offered to explain why the balance of interests between designer and owner, and competitors and consumers, should be drawn differently today from how it was in 1988 or indeed in 1994-95, when the Government successfully negotiated to retain Section 52 of the Copyright, Designs and Patents Act. As I have said, I am also concerned that we have no real idea yet what, when Section 52 is repealed, the transitional arrangements will be on existing stocks and on articles and designs such as wallpaper that are out of copyright but which will now gain a further period of protection.

Turning to the detail of the amendments, Amendment 84ZC would offer some comfort to museums, teachers, publishers, photographers and film makers. At present, they can rely on Section 52 to justify the inclusion of their images of mass-produced designs in catalogues, books, PowerPoint slides and films. In the case of a number of art publishers, this freedom represents the difference economically between a viable publication and one that could not occur. For museums, it allows the inclusion of images of such designs on websites and indirectly facilitates education in design.

Amendment 84ZD seeks to protect “follow-on designs”—that is, designs that build on designs and use them to create new and innovative materials. This is threatened by the proposed repeal of Section 52 because of the strict test of copyright infringement that will, in effect, be applied henceforth to the use of any design from the 20th century. The test of infringement of copyright is the reproduction of any original part of the copyright work; it does not matter how much the use has added. That means that copyright can impede the use of design contributions that draw upon but add to and transform a design.

In contrast, in European design law the test of infringement of design rights is whether the user’s design produces a “different overall impression” on an “informed user”. This test means that there will be no infringement where a second-generation designer draws on existing design features but produces something that is transformed into a new design. If copyright protection is to be extended in time, as the Government propose, we think this is a preferable test. Establishing impediments to follow-on designers is a reckless move, particularly in the middle of a recession.

I argued in Committee that we need to be very careful here. It is well known that designers build with and on the design ideas of their predecessors. I believe that the extension of copyright term to “life plus 70” will make this much more difficult because of the sheer length of the term and because copyright protection is in many ways stronger than design protection. In my view, this issue has not been given sufficient weight, as we need to give careful consideration to the needs of future generations of designers.

This is a complicated area and I have dealt with it in some detail, but it is very important that we hear absolutely clearly from the Government how and in what terms they intend to proceed with this process. Nothing that I have heard today suggests that there is a good case to be made for that, and I hope that the Minister will be able to reassure us.

My Lords, I start by thanking noble Lords for their helpful contributions to this debate. I very much recognise their detailed knowledge of these issues.

I should like to begin with government Amendment 84A. During Grand Committee, in response to very helpful interventions by my noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson, I made a commitment to look again at the wording of what was Clause 66 and is now Clause 67. The purpose of the government amendment is to limit the clause so that when the Section 2(2) power is used to amend copyright exceptions, the limitation on criminal penalties does not apply. The new clause no longer operates a separate power. It is now a way of removing the undesirable consequences which flow when Section 2(2) is used. With this amendment I believe we have responded to the concerns that were expressed in Grand Committee by my noble friend Lord Clement-Jones and the noble Lord, Lord Stevenson.

I should like to deal with Amendments 84ZBA 84ZC, 84ZD, 84ZE, 84ZEA and 84ZEB together, but shall deal first with Amendments 84ZEA and 84ZE. The Government understand the real concerns about the repeal of Section 52 of the Copyright Act. We want affected groups to have adequate time to adapt but we also take seriously the fact that rights owners are pressing us for early implementation. That is why the Government have committed, as I said in Grand Committee, to consult all interested parties on the timing of the change. To decide those timings now would prejudge the consultation, and any transitional period will allow appropriate time to implement changes to copyright exceptions.

I will just answer a question that was raised by the noble Lord, Lord Stevenson, on the economic effects on consumers and those who use 2D images. I can reassure him that the Government will consult on traditional provisions and publish another impact assessment.

On Amendment 84ZC, the Government have met with publishers and the Publishers Association, representatives of replica furniture manufacturers and academics. We have heard from others, such as the British Screen Advisory Council and the Victoria and Albert Museum. We will continue this productive engagement and helpful exchange of information through the consultation.

Copyright exceptions will go some way towards moderating the impacts of the change. The forthcoming changes to copyright exceptions, announced in December, are particularly important for this. For example, fair dealing exceptions relating to teaching and the use of quotation are likely to be relevant to the use of two-dimensional images of artistic works in the teaching of design or related subjects. My noble friend Lord Clement-Jones raised the issue of the amended quotation section. He wanted, I understand, a more detailed statement from me concerning retrospectivity and the impact on the publishing sector. I hope that what I have said has gone some way towards answering his particular query.

It may be helpful to focus more in an answer on film makers, photographers, picture libraries, designers and publishers. The Government understand that film makers, picture libraries and photographers who use images of certain artistic works, and designers who use motifs from existing designs, could be affected if there is copyright in the underlying work. For example, a wallpaper that has been inspired by a design from the 1950s by Lucienne Day has been cited to the Government as a follow-on design which could be affected by the changes. Further consideration will be given when the Government consult on how and when to implement the repeal. Moreover, in December 2012, the Government announced changes that will be made to copyright exceptions. It is possible that these will address many of the concerns that have been raised about the use of images of artistic works.

Turning to Amendment 84ZD, I note concerns about the ability to use artistic works as features in new designs. This sort of follow-on design plays a useful role in the thriving UK design culture. However, it is not clear that it would be lawful to provide a copyright exception permitting follow-on designs. There are concerns about what happens to copies of an artistic work made after the expiry of the 25-year design protection but while Section 52 remains in force. I can confirm that any copy made, distributed or imported into the UK or communicated to the public while Section 52 is in effect will be unaffected by the change in the law. However, if, for example, a book containing photographs of artistic works is reprinted after Section 52 is repealed, permission will need to be sought from the relevant rights owners unless a copyright exception applies.

On Amendment 84ZEB, I have heard concerns about imposing an obligation on the owner of a revived work to grant a licence, even if they would prefer not to. The points raised will be given careful consideration in the consultation.

I will deal now with Amendment 84ZBA. Some are concerned about the revival of copyright in works of artistic craftsmanship created before 1957. A work protected by copyright in any other EU member state on 1 July 1995 would also be protected in the United Kingdom. In the circumstances, I hope that my noble friends will agree that an amendment is not needed, as provision already exists under the current law.

I will answer a couple of points raised by the noble Lord, Lord Howarth. He emphasised the need for balance, and was concerned about the overly long term of copyright. The term after the abolition of Section 52 will be the same as for most other copyright holders. It will thus put furniture designers of classic works in a position to be incentivised, as is the case for any other creator. He also raised some concerns about the benefits of design classics not reaching the greater public. Some people see the availability of cheap replicas as good for consumers who cannot afford the originals. However, designers argue that replicas damage the integrity of the design industry and make British companies less willing to support long-term investment in design than their European competitors. Supporting British designers and offering greater choice to consumers are not mutually exclusive and the Government hope that the repeal of Section 52 should lead to UK designers developing new designs in markets which become less dominated by copies of artistic work. That would benefit consumers by offering them greater choice and variety. In the light of what I have said, I hope that the noble Baroness will withdraw her amendment.

The Minister said he hoped that what he had to say would be reassuring about retrospectivity. However, I did not pick up exactly what he had to say about retrospectivity; he talked a lot about fair dealing and the educational exemptions. Specifically on retrospectivity, can the Minister give a little more clarification? I understand that if copies of those three-dimensional works are made after the new extended term of copyright has come into effect, clearance will need to be obtained for those existing works.

I thank my noble friend for that question. The best thing would be for me to get back to him in due course, as I have done on many occasions, with a focused letter on the specific question of retrospectivity.

My Lords, I am grateful for the authoritative support of the noble Lord, Lord Jenkin of Roding. In response to my noble friend Lord Howarth of Newport, I remind your Lordships’ House of the double damage done by undervaluing individual creativity in design: the disincentive and loss to a significant sector of our economy on the one hand, and the simple, yet common, injustice of yet again failing to recognise that the,

“lifeblood of a master spirit”,

is not just the written word but other unique manifestations of the human spirit.

I agree with the noble Baroness, Lady O’Neill of Bengarve, about the importance of effective implementation and enforcement. I also welcome the Minister’s arrangements for consultation. That will be helpful on the dilemmas that we have been exploring in my amendments, but I shall want to check the exact application of the law as he quotes it before Third Reading. In the mean time, I beg leave to withdraw my amendment.

Amendment 84ZBA withdrawn.

Amendments 84ZC to 84ZEB not moved.

Amendment 84A

Moved by

84A: Clause 67, leave out Clause 67 and insert the following new Clause—

“Penalties under provision amending exceptions: copyright and rights in performances

Paragraph 1(1)(d) of Schedule 2 to the European Communities Act 1972 (limitation on criminal penalties) does not apply for the purposes of provision under section 2(2) of that Act amending—

(a) Chapter 3 of Part 1 of the Copyright, Designs and Patents Act 1988 (acts permitted in relation to copyright works), or(b) Schedule 2 to that Act (rights in performances: permitted acts).”

Amendment 84A agreed.

Clause 68 : Power to reduce duration of copyright in transitional cases

Amendment 84AA

Moved by

84AA: Clause 68, page 64, line 2, after “amend” insert “paragraph 12(3) of”

My Lords, I shall also speak to Amendments 84AB, 84AC and 84AD.

Amendment 84AA straightforwardly addresses a specific aspect—that is, the duration of copyright in existing anonymous or pseudonymous works. The amendment is designed to clarify the scope of the application of Clause 68. Rather more importantly, the effect of Amendments 84AB and 84AC would be to prevent the Secretary of State being able to curtail the period of protection in respect of unpublished pre-1988 Act films and pre-1956 Act photographs, and in respect of other unpublished pre-1988 Act works whose authors are known and who died in the period from 1900 to 1989. This means that the copyright material covered by the amendment will, unless published in the mean time, fall into the public domain at the end of 2039, which is the position under the law as it stands.

I thank the Minister for his correspondence on Clause 68; that correspondence has now extended to quite a number of letters, which I have found extremely helpful. However, no one would object to this clause if it simply solved a problem about copyright protection attaching to centuries-old, unpublished manuscripts and private charters. As regards works created more recently, such as unpublished minutes of meetings and correspondence from the 20th century, being within the scope of Clause 68, the Minister is clearly of the view, as he said, that these provisions are part of the solution to the orphan works problem. In the discussions about the copyright clauses in Grand Committee, I pointed out that one of the difficulties was that the Government’s policy had such an insubstantial evidence base. The Minister has now in correspondence referred to the Seeking New Landscapes study by Barbara Stratton. However, without going into great detail, there is doubt as to whether generalisations can be drawn from that study. It would be helpful to know what proportion of the material held by archives and assessed as orphan is pre-20th century, and what proportion of the 20th century material post-dates 1960. That, at least, would give some indication of whether Clause 68 will in fact make a significant contribution to reducing orphanage.

Indeed, the Government have made clear that they are acting to reduce the number of orphan works through this clause. It is thought, and the Minister believes, that a large proportion of orphan works in cultural connections are unpublished. Given the clear crossover with orphan works—which is the subject of separate legislation in this Bill—the Government should surely make clear how they intend for unpublished works, which may also be orphaned, to be treated. In particular, the Government should issue guidance on how a search process to determine the date of creation will operate, and on when potential users need to approach the orphan works licensing body; and should make clear that unpublished orphan works will also still be subject to the copyright term directive.

Generally, as I understand it, exercising the Clause 68 power, as drafted, would enable the Secretary of State to remove copyright protection from the unpublished works of authors who died before 1 January 1943. Assuming that the clause came into effect before the end of this year, it would have an immediate effect on only the unpublished material of authors who died before 1943. It would have no effect on post-1968 material, because for those cases the European directive provides a term of 70 years from the end of the calendar year in which the author died, rather than the fixed term to 2039 provided for in the 1988 Act.

It follows that if one disregards anonymous and pseudonymous works from the analysis, a potential user will need to be able to discover the date of death of the author of any work—such as an unpublished letter—to ascertain whether the work in question has been ejected into the public domain. If it is not yet in the public domain, they will need to ascertain whether it will be affected at some future date by an order made by the Secretary of State. I doubt whether this will make life much easier for any of the archivists who are the intended beneficiaries of this clause.

The Minister lays a good deal of emphasis on the claim that unpublished works are not being commercially exploited. Surely some are; for example, audio-visual archives contain large numbers of unpublished films which are commercially exploited on a large scale, including digitally.

Celluloid film reels were rarely sold or hired, with the consequence that a great deal of commercially valuable but unpublished audio-visual material is widely exploited. Substantial investment has also been undertaken to produce and make this content available digitally, in reliance on the current legal provision that it will be protected by copyright until at least the end of 2039, thus enabling the costs of digitisation and digital exploitation to be recouped.

Some major organisations are involved: AP, British Pathé, Getty Images, the Imperial War Museum, ITN and Reuters—I am sure that the Minister has had meetings and correspondence with them. However, there are many others with significant but smaller holdings. Unpublished films represent the capital assets of thriving business which, under the proposal as it currently stands, the Government seem bent on affecting. In his letter to me, the Minister indicated that he has asked officials to look at this issue. I welcome that, but perhaps he could give more detail today. There are also perfectly respectable grounds why the owners of literary material might not wish to publish. One has to consider only why one might not wish to publish Nancy Mitford’s letters, or Eliot’s letters: the executors might well have perfectly good reason for deciding not to publish.

On those grounds, it is essential that the Government should take time to think again about Clause 68 and, as I suggested, widen the evidence base to demonstrate the existence of a substantial body of orphan works which are capable of being affected by the proposed powers. Certainly, in the first instance, they should exclude subsection 5(b), concerning films, from the ambit of Clause 68.

Moving briefly to Amendment 84AD, the relationship between Clauses 68 and 69 is unclear, as I mentioned earlier, and will lead to legal uncertainty as to what provisions apply to an orphan, anonymous or pseudonymous work which has not been published. Anonymous or pseudonymous works are likely to be orphan. Consequently, the administration should be subject to the normal rules for orphan works, requiring a diligent search for the rights holder. The amendment is required to clarify the scope of Clause 68 in relation to orphaned works. If the work is an orphaned work under Section 116A of the Copyright, Designs and Patents Act, the mechanism for orphaned works as set out in Clause 69 should apply. I beg to move.

My Lords, I have added my name to this group of amendments, which, as my noble friend has already explained, are to deal with the situation where the Bill as drafted would permit a number of unintended consequences, including permitting the publication of confidential family papers and destroying the value amassed in archives of works.

Clause 68 contains a particular quirk of historic definitions in copyright law that means that films and photographs are defined as published only when they are first hired, sold or made available for hire. As most films are broadcast and photographs appear in newspapers or magazines, they are not as such published and therefore would fall under the scope of the clause. Although on the one hand, the Government want to use the clause to allow organisations such as the British Library to publish medieval manuscripts, it will also enable millions of commercially valuable films and photographs to be put into the public domain. We believe that that loophole can easily be fixed by including in the Bill that unpublished photographs and films should fall outside the scope of that power. The amendments solve that problem in a clean and simple way and will give surety to concerned rights holders but not impact on the valuable contribution that the clause can make to organisations such as public libraries. I urge my noble friend to accept them.

My Lords, I shall speak against Amendment 84AA and the other amendments in the group. I refer back to the point made by my noble friend Lord Clement-Jones about the scope and size of the problem of unpublished works and grey literature. A study by the British Library found that 43% of potentially in-copyright works published between 1870 and 2010 were orphan works. The figure for unpublished works, including letters, diaries, photographs and memos is far higher, and grey literature produced by charities, societies and associations but not for any direct commercial purpose, also contain high concentrations of orphan works. One example of that is a study of sound recordings of political debates in the 1960s, which identified 350 performers, of whom only 100 could be traced, meaning that more than 70% of the content was orphaned; 350 hours were spent trying to clear the rights to use the material; and the success rate—permissions received—was only 4%. That shows us the size of the problem, which is why I am grateful to the Government for the clarifications in the Bill and why we need to oppose the amendments.

Bringing copyright for unpublished work into line with the existing copyright duration would release much valuable historical data into the public domain and would not affect unpublished works created shortly before the 1988 transitional arrangements. As we have discussed in previous stages of this Bill, works of these kinds are, of their nature, orphan works. The copyright holders are incredibly difficult to identify. The British Library notes that it still has material from the 7th century in copyright. As a result, a large amount of material currently in copyright due to the transitional arrangements would be difficult or impossible ever to obtain a licence for.

My Lords, I turn first to Amendments 84AA, 84AB and 84AC and thank my noble friends for raising the important issues in them. At the outset, I will answer questions raised by my noble friend Lord Clement-Jones, supported by my noble friend Lady Brinton, about the voices concerned about the evidence for the clause and for the orphan works, and especially asking how much is pre-20th century. That is probably a slight paraphrase of the questions raised by my noble friend Lady Brinton.

We do not know the exact amount, but the National Archives estimates that around 12 million—or 42%—of the 30 million archival items held in English and Welsh public archives predate 1891, which is over 120 years ago. Therefore we are now likely to be 70 or more years past the date of creation. The vast majority of these are thought to be unpublished and would therefore remain in copyright under the current law until 2039. The law relating to the transitional provisions of the Copyright, Designs and Patents Act 1988 is complex. The various points that have been raised through these amendments and in debate underline that complexity. These are important points, and it is right that we should take time to debate them properly.

The Government’s overriding policy objective has always been to enable use of historically important unpublished material which has over-long copyright protection. Prior to 1998, copyright on such material was perpetual, and from 1998 it ran until 2039 at the earliest. Because of the way the 1956 and the 1988 copyright legislation interact, it appears that it may be possible for a film to remain unpublished, even if it has been commercially exploited by showing it to the public in a cinema or on television. This is because it can be shown to the public by various legal routes which do not technically constitute publication; for example, public performance, exhibition or communication to the public.

To become published, a film would need copies of it to be issued to the public, such as on DVD or through online sales. It may be necessary to recognise this in the treatment of films in the regulations. Before they exercise this power, the Government recognise that it will be important for the impact assessment accompanying the regulations to assess whether there are costs to specific rights holders or industry sectors. The regulations would allow the Government to treat different works in different ways.

However, my noble friend has raised a good point about the impact on commercial film and photographic archives. My noble friend Lord Clement-Jones today raised concerns about business expectations in relation to unpublished works. I will therefore commit to looking in advance of Third Reading at how this should be addressed. I hope that in the light of this assurance, my noble friend will not press this particular amendment.

Finally, Amendment 84AD relates partly to the provisions to reduce over-long copyright in some unpublished works—which we spoke about earlier—and partly to the orphan works licensing scheme. I can confirm that where there is any doubt about whether an unpublished, anonymous or pseudonymous orphan work is still within copyright, an orphan works licence could be applied for. This would be under the scheme proposed in Clause 69. Therefore I believe that there is no need for this amendment.

If the user of an orphan work chose to proceed without gaining an orphan works licence, they would be open to possible legal action if a rights holder reappeared and the work turned out to be still within copyright. That might be described as a risk-based approach to the problem of copyright infringement. However, the courts would be likely to take a dim view of such infringement when there was a lawful means of using such a work through the orphan works licensing scheme. In the light of the assurances that I have provided, I hope that my noble friends will not press their amendments.

My Lords, I thank the Minister for his reply. In the light of it, I suppose that I should be grateful that I do not have to trade discussion with my noble friend Lady Brinton about the study instituted by the British Museum. There are many of us who do not believe that Barbara Stratton’s report, Seeking New Landscapes, comes to conclusions that can be generalised about in the way that some people have done by extrapolating from it in a way that is not necessarily helpful, although I do not think that the British Museum has done that.

That said, the way that the Minister has tied together Clauses 68 and 69, in his undertaking that the orphan works provisions would come together with unpublished works which were in copyright, is extremely helpful. I am not quite sure how that is achieved by the actual wording of the clause. One may wish to be rather clearer about when the duty of diligent search applies, certainly in regulation, because it may not be obvious from the outset that these works are orphaned and in copyright. Some further probing may be necessary on that.

I very much welcome the Minister’s undertaking on news film and so on, and his recognition that films have not necessarily been published even when they have been exhibited. That is one of the absolutely fundamental issues that the organisations which I mentioned earlier have been labouring under. However, their point has come across and I am grateful to the Minister for recognising it. I look forward to seeing what he will come forward with on Third Reading. In the mean time, I beg leave to withdraw the amendment.

Amendment 84AA withdrawn.

Amendments 84AB to 84AD not moved.