Second Reading

Part of Digital Economy Bill [HL] – in the House of Lords at 6:12 pm on 2 December 2009.

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Photo of Viscount Bridgeman Viscount Bridgeman - Shadow Minister (Also Shadow Minister for Northern Ireland), Shadow Minister, Shadow Minister, Shadow Minister 6:12, 2 December 2009

My Lords, I must first declare an interest in that I am a non-executive director of the Bridgeman Art Library, a company owned by my wife and family. The company is a photographic archive and a member of the British Association of Picture Libraries and Agencies. In turn, the association is a member of the Creators' Rights Alliance, which represents a wide spectrum of organisations in the music and photographic fields. There are certain aspects of the Bill which are of concern to that organisation and others, and I will attempt briefly to address them.

The first is the subject of the use of works whose creators cannot be identified-orphan works. It is a logical and legal absurdity to make such provision while there are significant groups of authors who do not have the right to be identified as authors of their work under the Copyright, Designs and Patents Act 1988. The right is given by Section 77 but, for many, is taken away by Section 79. The groups include news reporters and photographers, and all authors and performers who produce work under contracts of employment. Authors and performers should have an unequivocal and universal right to be associated with their work and to defend its integrity.

I suggest that there are two key moral rights which need to be considered. The first of these is that society and democracy have a profound interest in clear attribution, especially for news reporting, with the corollary that identified authors should take responsibility for their work. Secondly, authors and performers should be able to enforce their moral right to object to uses of their work that, in the words of the governing international law of the Berne convention, are,

"prejudicial to [their] honour and reputation".

For example, authors and performers should be able to prevent works being distorted by manipulation or being used in misleading or offensive contexts.

I shall say something about extended collective licensing, if I may. Clause 42 would allow the Minister to make regulations by statutory instrument to permit extended collective licensing-the extension of licensing agreements to all authors, not only those who are members of the collecting societies that negotiate them. I shall come back to that later. Such a provision exists in UK law to facilitate cable redistribution of TV programmes, but making the works of authors and performers available on the internet from where they may so easily be copied for gain, whether by individuals or corporate pirates, has a much wider impact and requires much stricter safeguards. I note that a famous web search engine is already distributing creators' works without permission and, on the face of it, is in breach of national and international law, in the hope of changing the law to exploit forms of extended licensing. That is a quite different matter from licensing to genuinely public institutions, such as the British Library.

We believe that legislation should enshrine the principle that all uses of a work permitted under extended collective licensing must be accompanied by full credits for the author and other metadata which not only detail the source of the work but also give information such as agency contact details, thus ensuring that the work is traceable and attributed. There is a particularly relevant point here. As is well known, litigation on infringement of copyright is cumbersome and expensive in relation to likely returns and is rarely used. I pay tribute to the Minister for the way in which he set out the intended policing of copyright infringements. I hope that the noble Lord, Lord Davies of Oldham, will pass that on to him.

The massive fall in licensing fees following the advent of online publishing has meant that the paternity right is ever more essential to photographers and other creators being able to trace and gain recompense for uses of their works. The right to a credit must be safeguarded, together with a suitably high level of compensation by transgressors. It is a further reason why metadata-the textual accompaniment to an image or other work-must remain linked by law. It will simply be a matter of survival for many photographers.

There is a theoretical prohibition under the Copyright and Related Rights Regulations 2003 on removing such information that attempts to implement the relevant provisions of the EU directive on copyright in the information society. The Consumer Rights Alliance believes that it is defective; it provides that a creator or other rights holder has the same rights as he has in respect of an infringement of copyright, which is to sue for the value of the infringement. What is that worth?

We believe further that the Bill should make it clear what kinds of organisation should be authorised to implement either licensing of orphan works or extended collective licensing. I am concerned that under Clause 42, proposed new Section 116B, there is scope for an institution to become self-licensing, and I would welcome an assurance from the Minister that the possibility of closing this anomaly, or at least clarifying the position, will be addressed. To revert to that point, Clause 45 enables decisions on collective licensing by the Secretary of State by way of statutory instrument. As a member of the Opposition, I have a natural suspicion of this form of legislation, and in this context I consider it to be particularly serious. We must have regard to the attitude of future Governments and also bear in mind that there are in this environment some very big beasts with massive resources for lobbying.

The Bill rightly seeks to strike an equitable balance between creators, stakeholders and users. If this clause is not modified the balance could well be upset. The collecting societies are, in effect, the monitors of this balance. A great responsibility lies with them, and it is for this if for no other reason that I urge the Government to consider regulating them in the body of the Bill rather than by way of secondary legislation, with all the power that that would give to one individual-the Minister.