Clause 18 penalises sites that facilitate access or that are used for or in connection with an activity that infringes copyright. That is far too wide-ranging and puts even sites such as Google at risk. There is no indication that rights holders must take reasonable steps to notify the site owner before seeking an injunction. The proposed injunction would be indefinite, which is inappropriate. Injunctions, it appears, do not cover all service providers, allowing infringing customers to move to different providers.
The key fault is that there has not been enough time, as there was in relation to peer to peer, for consultation on such an important measure. Having made an effort to deal with the problem, we do not believe that it is appropriate, in the short time allowed by the wash-up, to go ahead with that clause-I am glad the hon. Member for Wantage is clear about that.
The last area of controversy is orphan works. The vast majority of the people to whom I, and no doubt other hon. Members, have spoken recognise that it is crazy that so much material with no known copyright owners-so-called orphan works-cannot be digitalised and made available online, with the proviso that if the copyright owner were traced, he or she would be rewarded for the work. Some estimates suggest that there are 50 million orphan works, such as oral histories, personal letters, films and drawings, held by libraries, museums and archives which have no right to make them accessible. We welcomed clause 43 when it first appeared, as it seemed a sensible way forward.
Then, as everyone knows, our attention was drawn to the real problems that affected one group of people-photographers-and the clause became far from uncontroversial. They have given many compelling reasons why clause 43, as it stands, should not proceed. The hon. Member for South-West Surrey went through many of them, so I shall not repeat them, but if the clause is allowed to proceed we will have to find a solution to the problems and concerns of photographers. Simply deleting it would not solve the problem, because that would prevent many good things from going ahead, so in the limited time available we hope-although it might not be possible-to produce a series of amendments that would remove certain types of photography from the Bill.
The amendments would exclude all photographs taken since 1950, allowing for the cultural use of works that are historic or of cultural value, without drawing later commercial or amateur work into the scheme. The measure would not be foolproof, but for the purposes of exclusion it would be easier to identify post-1950 photography than commercial photography. Post-1950 is a clearer definition than contemporary photography, and such an approach would help to prevent the commercial exploitation of amateur photography found online.
We believe that it is possible to develop such an amendment, and we hope to produce it this evening for debate tomorrow, but I make it clear that if that approach, or something similar, cannot be found to address the concerns of photographers we will be forced to join the moves to delete the clause.
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