My Lords, I am moving this amendment to pick up on a point that the Government made earlier in the Bill's progress in response to a debate that we had on the future of FM radio. We were reassured by comments made by the Minister in Committee that FM radio stations, particularly local ones, that currently have no plans to migrate to digital are safe. The Minister said that for the foreseeable future following switchover, FM was the right technology for local radio stations. I know that this was of great encouragement to many of those local stations that had previously felt threatened by switchover. Significantly, he stated that the Government were,
"committed to establishing a combined electronic programme guide for radio".-[Hansard, 3/2/10; col. 279.]
That is the key to the long-term future of FM radio. Following switchover, listeners should surely be able to switch between stations without even noticing that they have switched from analogue to digital. A combined electronic programme is the way to ensure that that happens. That is why I was pleased to hear from Digital UK that it has developed a prototype for just such a system. Will the Minister elaborate on the Government's plans for the electronic programme guide? What support will the Government give the industry as they continue to take this measure forward? Amendment 139 would ensure that this had to happen before a switchover date was nominated. While of course we appreciate that the Government might have alternative means to ensure that we see these deployed into the market as quickly as possible, some further clarity would be most useful. I beg to move.
I support the noble Lord, Lord De Mauley, on this amendment. This seems to be an essential part of the armoury, going forward, if we are to achieve digital switchover in the timescale that the Government propose. I am not going to repeat some of what I said earlier, in Committee and on Report, about the necessity to maintain FM as well as digital for a considerable period. The Minister has confirmed that that is the intention, even if he cannot undertake that FM will always be with us. It is essential for the foreseeable future, though, that there is a proper way of accessing FM and digital in the same receiver and with an electronic programme guide that makes it extremely easy for the consumer to do this so that little distinction is made between analogue and digital.
My Lords, I, too, strongly support what my noble friend has proposed. It is an important step in preventing truly local radio stations from becoming second-class citizens in the new era. The amendment would not completely prevent that, but it would certainly make a contribution towards it. The Government have said that something like 120 local commercial stations might benefit from the combined electronic programme guide. Will the Minister give us some indication of the size of the local stations that he has in mind? In other words, what areas does he envisage these local stations covering? Will it be something like the area covered by a commercial station in Oxford, for example, or will the area be substantially smaller than that? Some guidance would be extremely helpful. My noble friend's broad proposal would be very much to the benefit of smaller radio stations as well as the public and I support it.
My Lords, I am grateful to the noble Lords who have contributed to this short debate. The Government do not believe that a combined electronic programme guide should be a requirement of digital radio switchover or, by the way, that this directly addresses the concerns raised by local analogue radio stations. The Government are committed to supporting an integrated station guide, which provides a combined list of all available digital and FM stations. This will allow listeners to choose a station by the station name irrespective of the platform on which it is carried. It will help to provide a level playing field between digital and analogue stations.
Such an integrated station guide has already been developed. A working prototype has been developed by engineers at Frontier Silicon and was demonstrated to manufacturers last week. It is continuing to develop the technology to ensure that the station list does not repeat stations available on both DAB and FM and is efficient and user-friendly. Once this development is complete, we will encourage manufacturers to include the technology in their future developments. We consider that the requirement raised in the amendment has already been addressed.
I do not have a direct answer to the question that the noble Lord, Lord Fowler, asked me on the numbers, but I will write to him immediately after this debate to inform him of the facts. I hope that the noble Lord, Lord De Mauley, will feel that we have met the broad terms of his amendment and that he can safely withdraw it.
My Lords, I am grateful to my noble friend Lord Fowler and to the noble Lord, Lord Clement-Jones, for their supportive words and I agree with what they say. In explaining my amendment, I acknowledged that the Government might have alternative means. Although I am not entirely sure that the Minister has given me 100 per cent satisfaction on that, I beg leave to withdraw the amendment.
Amendment 139 withdrawn.
Clause 35 : Local radio multiplex services: frequency and licensed area
Moved by Lord Davies of Oldham
140: Clause 35, page 42, line 14, leave out "local"
My Lords, I will also speak to the other government amendments in this group, which are intended to address the concerns expressed by the noble Baroness, Lady Howe, in Committee about the extension of the licensed area of the national radio multiplex. The effect of the amendments is to allow Ofcom, at the request of the licence holder, to extend the area in which a national commercial radio multiplex is available. Notably, this would facilitate the extension of the coverage area of the existing national commercial multiplex into Northern Ireland. We recognise that the decision to extend into Northern Ireland may have an impact on the existing commercial multiplex provider, but we believe that any impact would in fact be minimal and more than outweighed by the benefit to listeners. At the same time, these government amendments will ensure that the provisions in the original drafting of Clause 35, which allow local multiplexes to vary their frequencies and reduce their licensed areas as well as to extend them, remain applicable only to local multiplexes. The Government have listened carefully to the concerns raised by the noble Baroness in our previous discussions on the Bill and we hope that our proposed amendments will address the issues that she raised. I beg to move.
Amendment 140 agreed.
Amendments 141 to 143
Moved by Lord Davies of Oldham
141: Clause 35, page 42, line 14, at end insert-
"( ) OFCOM may, if the requirements of subsections (2) to (4) are met, vary a national radio multiplex licence by extending the area in which the licensed service is required to be available."
142: Clause 35, page 42, line 15, leave out "this section" and insert "subsections (2) to (5)"
143: Clause 35, page 42, line 37, at beginning insert "In the case of a local radio multiplex licence,"
Amendments 141 to 143 agreed.
Moved by Baroness Bonham-Carter of Yarnbury
143A: After Clause 37, insert the following new Clause-
"Regulation of television
In paragraph 19(2) of Schedule 24 to the Enterprise Act 2002, after paragraph (b) insert-
"(c) may, as concerns undertakings given by one or more holders of a licence to provide a Channel 3 service, be amended or revoked by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament"."
My Lords, I start by declaring an interest as an associate of an independent production company. The purpose of this rather technical amendment is to address an imbalance that exists in the treatment of certain merger undertakings. The issue arises because when responsibility for mergers, which was given to the Secretary of State under the old Fair Trading Act 1973, was transferred to the Competition Commission, this did not cover all cases and the Secretary of State retained the power to review some mergers. This amendment in fact concerns the continuing existence of the contract rights renewal, the price control mechanism that applies to ITV advertising sales.
When Carlton and Granada merged in 2002 and became ITV plc, it was one of only three commercial television channels available in most homes. There were concerns then that its share of the advertising market was too powerful, so CRR was introduced to protect advertisers. CRR allows companies that advertise with ITV to retain to this day commercial deals that they made in 2002. It was designed for an analogue age and is palpably ridiculous in our digital one. Digital TV, and with it the supply of airtime for adverts, has grown with incredible speed. While competition in the commercial TV market has exploded, the media-buying market has consolidated, with 80 per cent of media advertising today controlled by four agencies. Do these super-agencies and the multinational companies that they represent really need protecting from one television channel, ITV?
CRR is damaging the UK's creative industries. It deprives ITV of money at a time when investment in original UK television content has fallen by £340 million over five years. It has become unnecessary and should be brought to an end. As it stands, the CRR regulations are the responsibility of the Competition Commission. The best route to amending CRR is to bring its review under the responsibility of the Secretary of State. This amendment is designed to pave the way for that. It would give the Secretary of State the discretion, following secondary legislation, to bring CRR back within the scope of a regime that continues to apply to several other merger undertakings. I beg to move.
My Lords, I support the noble Baroness, Lady Bonham-Carter, and I hope that her lucky run from earlier in the Report stage will continue today. I moved an amendment in Committee suggesting that media mergers be moved from the Competition Commission to Ofcom as a knowledgeable specialist surveyor of the media marketplace. I withdrew my amendment at that stage and, within a week, the Competition Commission announced that, after three years of deliberation, it would not make any significant changes to CRR. Had my amendment been moved after that decision was announced, I would have been strongly pressed to push the matter to a vote and I suspect that I might have had considerable support throughout the House.
As the noble Baroness said, this amendment does not pronounce on CRR; it simply gives the Secretary of State power to review it. It is the minimum position that we should aim for. We are in something of a mess in terms of media mergers and, frankly, the Competition Commission has not been on top of the job. It seriously worries me that a good government Bill, which among other things does quite a lot to help the commercial sector in both television and radio, will find its best efforts vitiated by the Competition Commission refusing to move on matters such as CRR. All the improvements that the Government are bringing about through the Bill could well be vitiated if that situation is maintained. I support the amendment.
My Lords, I, too, support the amendment and the words of both fellow members of the Communications Committee, although the amendment is not necessarily one of the committee's proposals. The term "contract rights renewal" seems designed to put off the understanding of any right-minded person. It is, in fact, reasonably simple. It amounts to the conditions that were adopted to deal with any adverse market effects resulting from the merger of Granada and Carlton, which formed ITV. However, that was in a different age when ITV was a major player in this area. It still is, but it is not as major as it was then. The measure was introduced to protect advertisers when ITV was one of only three commercial television channels available in most homes in the country. Self-evidently, that position has changed dramatically. The advertising market has completely changed. The number of digital households has more than doubled to 90 per cent and there has been an explosion of new digital channels.
The only question is: do the advertisers require the kind of protection that was once given to them? Frankly, I do not think that they do. This is unnecessary regulation. I agree entirely with what the noble Lord, Lord Gordon, said-had we known the result of the competition inquiry, there would have been considerably more interest in this provision when it was first debated. This amendment gives us the opportunity to put that right. The condition placed on ITV-as everyone knows, it has been going through some pretty rough times-is entirely unnecessary in modern market conditions and it is about time that we recognised that. If the only way of recognising it is to take the power away from the Competition Commission and leave it to the Secretary of State's discretion, that seems to me a sensible way to go.
My Lords, I support the amendment and associate myself with the remarks made by the three noble Lords who have spoken to it. It may seem a technical amendment but it is very important. If we are not careful, we will have an environment where ITV will have a job to continue as a public service broadcaster. Although it has done a little better financially in the recent past, it is facing a very difficult situation with declining advertising revenues. That may be a long-term phenomenon, given how much the internet is taking away. It seems to me that this regulatory provision relates to a bygone age, albeit only seven or eight years ago. It would be sad and disastrous for British television if the main players ended up being the BBC and Sky. It would not be good for the BBC-an organisation for which I have enormous respect-or for the British public, and it would weaken television generally. Therefore, this amendment is important. If we constrain ITV from surviving with a decent level of return, its programming quality will go down and in the end we will not have a vital commercial sector, which is healthy for British television and broadcasting.
I do not know how much discussion the Competition Commission has had on CRR. I suspect that it probably did not have sufficient. I would very much like to give ITV a chance to compete properly-not tie its hands behind its back-return to decent profitability and contribute to the creativity of British television.
My Lords, I support the amendment despite my position as deputy chairman of Channel 4, which in some respects marginally benefited from the CRR decision. As someone who has watched developments in this very specialised sector for a great number of years, it is clear to me that the Competition Commission struggles when it tries to deal with this very fast moving and complex area. I do not expect it to put its hand up and say that it cannot cope, but it would be helpful if the Government put their hand up for it.
My Lords, I add my support. Irrespective of whether the Competition Commission does not know enough about the industry or whether its mind works in a different direction, it clearly is not an appropriate body to decide this matter. It is important that we keep ITV with us as far as we possibly can. I support the amendment.
My Lords, we, likewise, support Amendment 143A. There is now widespread acknowledgement that the contract rights renewal regime has served its purpose. As the noble Baroness, Lady Bonham-Carter, said, internet search-engine advertising has grown dramatically and that, together with the multitude of digital channels now available, means that ITV is no longer the dominating player in advertising it once was, as my noble friend Lord Fowler said. It was interesting to note that the Secretary of State for Culture, Media and Sport told the other place recently that he was sympathetic to calls to scrap the system. He did not, however, think that there was a mechanism by which this could be done through this Bill. Amendment 143A seems to solve his particular problem in a rather neat way. The amendment gives to Parliament the power to scrap the regime. It does not, as the noble Lord, Lord Gordon, said, necessarily mean it will be scrapped. Parliament will want to listen to all sides of the debate in some detail. Given the cross-party political will for change, which this debate has demonstrated rather aptly, it is frustrating that politicians have been powerless to do anything about it. Amendment 143A would change that so I hope the Minister will listen carefully and can offer some support from the government Benches.
Certainly the Government are listening carefully. This amendment is supported in many parts of the House and I therefore approach the issue with great seriousness. We recognise the concerns which have been expressed about ITV in its present circumstances, and the noble Lord, Lord Fowler, is right that we are in different circumstances today from a number of years ago when ITV had a rather more flourishing perspective before it. The Secretary of State has already made his concerns in this area clear elsewhere. However, we do not agree that this new clause is the correct way to address these concerns.
The Secretary of State already has a power under the Interpretation Act to amend or repeal orders, such as the order specifying and transferring the CRR undertakings to the Competition Commission. So we do not need the amendment in substance since the Secretary of State already has that power. It was the intention of the Enterprise Act that the Office of Fair Trading and the Competition Commission act as independent competition authorities, free from government interference. Accordingly, once undertakings were transferred to the competition authority, the Secretary of State ceased to have any power over those undertakings. The final decision of the Competition Commission is not due until April 2010 and it may, of course, still revoke the CRR undertakings. ITV may also decide to challenge the Competition Commission's decision in the High Court on judicial review grounds if it is not happy with the situation.
The competition regime has been carefully crafted and any changes to it should be considered in depth. Here we are with this Bill at Report stage, dealing with an important dimension. I fully appreciate the concerns of all noble Lords. However, this amendment deals with only part of the problem and does not allow for the full analysis required in these circumstances. The Secretary of State has said that he has sympathy with ITV's position, but we need to be cautious of making amendments to legislation at this stage when we cannot foresee all the potential consequences.
I am not seeking to resist the amendment in principle, in terms of the issue it addresses and the importance of it. What I am contending is that this proposed new clause will not improve the situation or solve the problem and we should be extremely wary of putting one change into legislation at this stage when we do not have a total perspective before us. As I have indicated, developments relating to independent television are imminent and will take place within a matter of the next couple of months.
I hope the noble Baroness will accept that we have had an important debate on these issues. She is right to have raised them, and she was supported from many parts of the House with concern on the matter. I reiterate that what she expressed is also of concern to the Government. But the amendment is not the way to solve it and it would be injudicious for us to accept the amendment at this stage. I hope therefore that the noble Baroness will feel able to withdraw it.
My Lords, I am saying two things. Certainly, other parts of the Bill refer to the difficulties which face independent television. It is the case that this amendment concentrates our mind on the issue, but several measures in the Bill are designed to address the issue of independent television. We are involved in complicated competition matters which are properly the responsibility of the Competition Commission, but I have indicated that the Government have power under the Interpretation Act to step in if, in fact, the situation was serious enough to merit action. Clearly, we hope that things do not reach that unfortunate pass and we appreciate the widespread concern in the House about the position of independent television. We all recognise that the issue needs to be safeguarded, although I cannot go as far as my noble friend Lord Dubs who, in slightly more maudlin comments, suggested that independent television might disappear altogether. It is very clear that we regard independent television as having both a future and an important role to play.
While the House will recognise that other parts of the Bill help to reinforce the position of independent television, this amendment would produce a partial and limited approach which superficially looks attractive because there is a genuine problem that needs to be addressed. However, the amendment might have all sorts of attendant difficulties for the relationship of the Secretary of State regarding competition matters, which are the responsibility of the Competition Commission. What I am assuring the House is that the Secretary of State certainly has the power in extremis to take necessary action.
I thank the Minister for his reply. He mentioned the word "cautious". He is being much too cautious. I stress that the amendment is designed only to make it possible for a Secretary of State to take responsibility for a review of CRR. It does not compel him or her. Nothing would need to happen after the Bill is passed unless a future Secretary of State wanted to do it and could get a further piece of secondary legislation through Parliament to make it happen.
The Minister mentioned that the Competition Commission still has not completed its deliberations. However, its latest decision, which noble Lords around the House have mentioned, is based on the same misconception set out in its previous decision last September. The commission considered that,
"the competitive environment is still very similar to that identified in the CC's 2003 report".
That is blatantly nonsense. It spent three years on its latest review and, judging by those pronouncements, nothing fundamental will change. Once the final statement is made, that will be it for the foreseeable future.
I thank all noble Lords who have supported this amendment, in particular the noble Lord, Lord Puttnam. As vice-chair of Channel 4, he is in an interesting position in supporting this amendment. I urge the Minister to ponder my words, and I hope the Government might reconsider their position. For the moment-
Before the noble Baroness sits down, I sought to indicate in my reply that we took this issue very seriously indeed; we know it is serious and needs to be addressed. I also indicated that we have considerable difficulties because of certain imminent decisions. Given the range of opinions and strength of feeling across the House, I have indicated that the Government will of course look at this very seriously, and I give the noble Baroness that assurance.
My Lords, In Committee we had a very useful debate on Clause 38 stand part which ranged widely across the whole issue of spectrum auction and allocation. My intention today with this amendment is not to range so broadly but to home in much more carefully on a particular aspect, namely the spectrum used by the programme-making and special events sector for radio microphones. Through its Save our Sound campaign, the sector has made it very clear that it has not been happy with the way in which the Government did not make their intentions clear regarding compensation for the loss of spectrum used by that sector and those radio microphones.
The Minister wrote me a very helpful letter on
"Any package has to be consistent with the principles of leaving users no worse off than if the change had not taken place and also has to be consistent with State Aid principles and within Ofcom's statutory powers. As you can appreciate, this is a difficult judgement. The Government will give this matter careful consideration when we have the relevant information from Ofcom".
On these Benches, we look very carefully at ministerial letters, and we take comfort from them when they contain a certain level of detail. This letter is very general, and at the moment it does not give a great deal of comfort to the PMSE sector. I hope that today the Government will be able to give a much better idea of where advance notice applies and no compensation is payable; where no notice was able to be given and where compensation does apply; and, in particular, the kinds of compensations which will be available.
I understand that Ofcom is re-evaluating the situation-I welcome that, and the fact that the Minister was pleased to have a meeting with the PMSE sector. But what are the timescales involved in the Government making this decision? When will Ofcom have finished its re-evaluation? On the face of it, this was a very useful first step by the Minister, but a number of issues flow from it and many questions remain to be answered before it will be clear that this sector is being treated fairly. I beg to move.
My Lords, in our previous debate on this clause, the noble Lord, Lord Clement-Jones, optimistically stated that we would have to wait until Report for further enlightenment on the Government's spectrum policy. I am not sure what he was expecting, but while we have been waiting there has been a relevant development. The European Commission has recently cleared the proposed merger between T-Mobile and Orange. As part of this clearance, undertakings have been given involving the release of 1,800 megahertz of spectrum. I would be interested to know whether the undertakings satisfy the Minister, and whether the Government believe that competition in the mobile broadband market will now be secured.
My Lords, in Committee I set out why Clause 38 is an important element of the Government's plans to implement their wireless spectrum modernisation programme. Without the clause, there would be a delay in the introduction of next-generation mobile services that would benefit our citizens and the economy as a whole. However, I am aware of the noble Lord's concerns about what will happen to the programme-making and special events industry in this country as a result of plans to clear the 800 megahertz band. I have written to the noble Lord on this matter, as he acknowledged, but it may help if I put on record the key points.
The Government recognise these concerns. They also recognise the contribution that the PMSE sector makes to the social, cultural and economic well-being of the UK. However, it is important to recognise that PMSE users have been given several years' notice that they will be required to vacate certain channels, known as the interleaved spectrum, that until now have been available to them. In the case of these channels, the proposal is that no compensation will be paid, as sufficient notice has been given. However, PMSE users will have access to other interleaved spectrum channels, details of which should be available later this year.
There is a different position for licensed users being moved from Channel 69-this was the concern of the noble Lord, Lord Clement-Jones-which is the dedicated channel for PMSE, where most radio microphones operate. These users are being offered compensation, as they had a legitimate expectation that they could use that dedication-sorry, I meant to say that dedicated channel, although they might show dedication as well-until at least 2018.
Ofcom has consulted on this twice, with the most recent consultation closing in September last year. It has evaluated the responses and is carrying out further analysis to ensure that, along with the Government, it has the most robust information available on which to make a final decision. This is a difficult decision, as it must be made within the powers that have been laid out for Ofcom by Parliament, and must also be compatible with European state aid rules. We intend to make it as soon as possible.
I am looking to see if I can help the noble Lord with any more detail. Ofcom has been tasked to produce this information and we hope to have a decision and an announcement of the package and terms in weeks rather than months. That undertaking, although not completely precise, is a little bit firmer. I personally share the noble Lord's concern, as do the Government.
The issue raised by the noble Lord, Lord De Mauley, is complex. I am afraid that I am not briefed on it, so I will write to him with a detailed response. I hope that, in the light of these assurances and the extra information I have provided, the noble Lord, Lord Clement-Jones, will feel able to withdraw the amendment. He has my assurance that as soon as we can provide the additional information, we will do so.
My Lords, I thank the Minister for that reply. Obviously I am pleased that there is a slightly firmer hand on the tiller when it comes to Ofcom making its determination. What worries me is that when the Bill has gone through, everybody will go to sleep again and the PMSE sector will be left waiting for a decision. However, I take the Minister's assurance that Ofcom has been tasked to produce the material in weeks rather than months. That is a significant statement about Channel 69 compensation.
I turn to what the noble Lord, Lord De Mauley, said. I agree that his question was legitimate in the light of the decision that has been made by the Commission. I find it extraordinary that the Government do not have an answer to hand about the implications for the auction and spectrum allocation of the merger of the two mobile broadband operations. Going from five to four will fundamentally change the competitive situation. I hope that, by the next stage of the Bill, there will be a statement on that, even though it was not me but the noble Lord, Lord De Mauley, who asked the question, and on Report he cannot jump up and down and ask, "If not, why not?".
I thank the Minister. I will consult with the PMSE sector about his response. In the mean time, I beg leave to withdraw the amendment.
Amendment 144 withdrawn.
Clause 40 : Classification of video games etc
Moved by Lord Davies of Oldham
145: Clause 40, page 46, line 22, at end insert-
"(3A) After subsection (3) insert-
"(4) The Secretary of State may by regulations amend this section-
(a) by adding or removing a case in which a video work is not an exempted work, or
(b) by amending a description of such a case.""
My Lords, I shall speak also to Amendments 151 and 190A. I reiterate that the Government's predominant concern in introducing a video classification system is to protect children from inappropriate video content. We fully accept that, if exempted videos contain certain material, they should be subject to statutory age classification requirements and regulation. Any video content depicting scenes of gross violence, mutilation or human sexual activity currently falls within the scope of the Bill even if that content is contained within a video which is predominantly about music or sport.
By giving the Secretary of State a power to amend the non-exempt criteria, we will ensure that the wording of the Bill properly reflects the type of content available and achieves the most effective level of regulation on the ground. Furthermore, we are committed to carrying through consultation on the issue by autumn of this year.
We consider that the amendment will answer the concerns which were expressed strongly in debate and previous stages of the Bill. I emphasise that this view is supported by the British Board of Film Classification, the Video Standards Council and the British Video Association. I beg to move.
My Lords, I welcome this amendment, which marks an acceptance by Government that there is a problem in relation to harmful material in music, sport and documentary video works being supplied to children without restriction. I also welcome the Minister's commitment to consult on exemptions. There is clearly a need to close the loophole which allows harmful material to avoid regulation; and this view was supported by colleagues around the House on previous occasions.
The recent debate on Andrew Dismore's Video Recordings (Exemption from Classification) Bill demonstrated that this concern is shared by colleagues in another place. It is also supported by the Home Office review, published last week, on the sexualisation of young people. Recommendation 26 of the report proposes that the current gap,
"in the regulatory protection provided by the Video Recordings Act 1984 be closed ... by removing the general exemption for 'works concerned with ... music'".
Given the widespread concern about the issue from the industry, law enforcement, the regulator and the Home Office, and in both Houses, it is good to know that the Minister has confirmed that a consultation is going to take place in the autumn, and that the intention is to take action to close the loophole rather than what was on the agenda before, which was whether to close it.
On a related child protection issue, I welcome the commitment by the Government to hold urgent discussions to look at how to prevent children freely accessing hardcore pornography from UK video-on-demand services. I have written to the noble Lord, Lord Young, asking him to ensure that these discussions also involve ATVOD, as the delegated authority for video-on-demand regulation, and the BBFC, as experts on pornographic and other extreme content. I am pleased to say that he has agreed with this suggestion.
I also asked that the Minister give noble Lords a clear indication of when those discussions and consequent actions are likely to be completed. Again, I would be grateful for any comments that he can make. The noble Lord, Lord Young, also referred me to the Home Office's review on the sexualisation of young people, which also deals with the issue. Most noble Lords will have seen the considerable coverage given to the recommendations of the author, Dr Linda Papadopoulos. In Recommendation 27, she asks that regulation of UK-based video on demand services is strengthened,
"to ensure that they do not allow children to access hardcore pornography".
Will the Minister confirm that the Government will act swiftly, working with Ofcom, ATVOD and the BBFC to ensure that that recommendation is implemented in the most appropriate way?
My Lords, like the noble Baroness, Lady Howe, I thank the Minister for this group of amendments and for working with the relevant group of stakeholders and us to address our concerns. I would have preferred as a general principle to have seen the loophole closed in primary legislation, but I understand the need for proper pre-legislative consultation on the matter. As it is, I hope that the matter will be resolved quickly and to everyone's satisfaction.
My Lords, in welcoming this amendment and in supporting the remarks of my noble friend Lady Howe, I remind the Minister that in 1993, in the immediate aftermath of the killing of James Bulger in Liverpool, I produced an amendment in another place introducing restrictions on the sale of video violence, which included gratuitously violent material. My reason for doing that was that the trial judge made it clear at the time that one of the two boys involved in the killing had been exposed not only to pornography but to necrophilia and gratuitously violent material.
It has always struck me as bizarre that we suggest that what we see has little effect on us. When we consider that the advertising industry spends about £4 billion trying to sell us its wares on television, it is common sense to accept that exposure to what we see has a profound influence on us. When we consider the violence in society today, there is no doubt that the desensitisation of children and young people is a major factor, and that it has been promoted as a result of the violent culture that we have created in the United Kingdom.
I therefore hope that the Minister will ensure that the consultative process takes place rapidly, that if legislation is necessary it will be brought before your Lordships' House in good time, and that we will consider other ways, such as the introduction of the so-called V-chip, which can be placed in televisions, allowing parents to sift out violent material from their homes and giving them far greater control over the content to which their children may be exposed. I fully accept that some children most likely to be affected will not be in homes where parents take such steps, but at least it would be a move in the right direction.
My Lords, I, too, congratulate the Minister on having introduced Amendment 145, in particular. At the same time, I congratulate the noble Baroness, Lady Howe, on her efforts, which have stimulated the Government to produce the amendment. It is important. Like the noble Lord, Lord De Mauley, I regret that it is being done by secondary legislation, rather than directly by primary legislation, as in the original amendment that we discussed in Committee. This is probably three-quarters of a loaf, even if it is not the full loaf.
Well, my Lords, it may not be the full loaf, but it is the real thing in terms of the Government's determination to act in this respect. I want to reassure the noble Baroness, Lady Howe, who stresses the urgency of the issue. I fully understand that point. I did not say that we would be consulting in the autumn; I said that we sought to carry out a thorough consultation on the issue by the autumn. My timetable is a little earlier. We will be consulting throughout the summer and up to the autumn on this important matter.
Of course, we do need to consult because this is not a straightforward issue. I listened carefully to the noble Lord, Lord Alton, and the House is well aware of his views on these matters. I have to say that at times he presents as known facts that which other reputable authorities would regard as somewhat contentious. I am not sure that violence among young people in this country is down to television, films and broadcasting. It seems to me that it is likely that, in historical terms, there was a considerable amount of violence among young people in society well in advance of anything being depicted on our screens, either large or small, and therefore we should not draw too ready an issue of cause and effect.
That does not alter the fact, however, that the Government are clearly under an obligation where parents express concern about material which might be available to young children against which they would be protected in other circumstances. This would certainly be the case so far as films are concerned if these are inserted into video games or into video programmes which might purport to have totally different content but which nevertheless have something which parents would want to restrict their children from seeing and which we would all recognise might be harmful to children. It is then necessary that action is taken.
I am therefore moving these amendments as a constructive response to the case that has been made. I am not sure that we had the benefit of the contribution of the noble Lord, Lord Alton, last time but, as he says, he has a very long history on these matters and we pay respect to his constant concern about these issues. I reassure him and the House that this issue was sufficiently debated in Committee for the Government to have brought forward these amendments in good faith to tackle the issue as soon as we can.
Amendment 145 agreed.
Clause 41 : Designated authority for video games etc
Moved by Baroness Howe of Idlicote
146: Clause 41, page 48, line 34, at end insert "or the video works authority for those video games allocated to it under subsection (1)"
Amendment 146 is in my name and that of the noble Lord, Lord Clement-Jones. I am pleased that since Committee stage the Government have sent out a fact-sheet which is effectively guidance to the effect that the BBFC will be allocated ancillary games on product which is primarily film and R18 games. A number of us had called for this allocation to be in the Bill, but it is still welcome to have this confirmation from the Minister about how matters will be taken forward. This allocation is a sensible and practical decision, given the home entertainment industry a desire for a one-stop shop for Blu-ray discs and the need to have special arrangements in place for the kind of problematic material that can be found in R18 games.
I also welcome the definition of a video game set down in this guidance as,
"a game that people play via a console or a PC".
It is important to have clarity so that the responsibilities of the two designated authorities are properly understood. I welcome the fact that the Minister anticipates that, if products come on the market that are essentially film-type material but are marketed as games, these would be allocated to the BBFC. It would be helpful to have further confirmation of this approach from the Minister when he replies.
The fact-sheet that was sent to me by the noble Lord, Lord Young, however, does not deal with how it is decided whether works fall within an allocated category, which is why I have tabled this amendment. I hope that the Government will look at this matter again. Given the difficulties associated with R18 material, it makes sense for the BBFC to determine whether a video game falls within that category, since it is the expert in this field. Without this amendment, we risk the video games authority wrongly determining that a work does not pass the R18 threshold and therefore does not need to go to the BBFC. This has ramifications in terms of ease of access, since the work would no longer need to be sold in a sex shop. It would also mean that there would be no specialised scrutiny of the content.
Will the Minister indicate how he expects these matters to be resolved? Will there be guidance from the Secretary of State if the BBFC is convinced that a work that has just been classified 18 by the video games authority should have been classified R18? The amendment is a logical consequence of the Government's correct decision to allocate difficult works to the BBFC because of its expertise.
Amendment 147, in my name and that of the noble Lord, Lord Clement-Jones, is crucial to the successful application of the new regulatory regime for video games. It is vital that this new regime is introduced effectively and in a manner that does not damage the tried and tested regime for linear material. Under the Bill, the video games authority would have only to "have regard to" any determination by the BBFC for linear material in the game, even where it is for a film within a game that has already been classified by the BBFC. That, surely, cannot be right. It can lead only to consumer confusion and to major problems for the enforcement authorities.
The amendment has the full support of LACORS, which, as we know, represents local authority enforcement officers. The fact-sheet which the noble Lord, Lord Young of Norwood Green, kindly sent me does not really resolve this issue, but it helpfully promises:
"The VSC must consult the BBFC about the appropriateness of the arrangements that it makes for getting the BBFC determinations about the linear video content. As added reassurance, the Secretary of State will issue guidance on how this system will work if clarification is required due to the new way of working under this revised scheme".
This clarification is helpful along the path, and I would be grateful if the Minister could indicate when we might expect this guidance. However, my preferred route is still through primary legislation.
My amendment would mean that we are not dependent on guidance from the Secretary of State at some future juncture. This is an important issue, because it goes to the very heart of the BBFC's role as the regulator for linear content in this country. It has undertaken this role for nearly 100 years and has won the support-perhaps hardly surprisingly as it has existed all that time-of the British public and parties from all sides of this House. I appreciate that it is not the Government's intention to undermine this role, but I fear that the Bill will have that effect if it is not amended.
This amendment would make it very clear that the video games authority would have to implement the BBFC's determination for non-integral linear material. My understanding was that the Government always intended to leave the BBFC with this responsibility, and my amendment would ensure that that remained the case and that another regulator with no experience in linear material-to be fair, it does not claim to have any experience-could not, under the terms of the Bill, overrule the BBFC's classification. Will the Minister assure the House that it will not have that ability under the Bill?
Again, LACORS supports this amendment because it needs there to be clear responsibility for classification decisions in order to enforce the Video Recordings Act. Again, the fear is that, given that the video games authority appears to have sole responsibility for classification, even of linear material, it will be very difficult in a court of law to have proper assistance when providing evidence. I am sure that this is not the Government's intention, and I hope that the Minister will reconsider the matter and accept this amendment. I beg to move.
My Lords, I signed my name to the amendment so cogently put forward by the noble Baroness, Lady Howe, and I think her extremely cogent speech demonstrates that sometimes ministerial letters can raise more questions than they answer. There are certainly a number of questions in the speech of the noble Baroness today.
I am a very strong supporter of the new PEGI system for video games; this amendment is certainly not supported from these benches on the basis that it is going to cause any problems for the VSC. It is entirely motivated by the need to have a proper demarcation between the two in cases where linear content is contained within video games. This is a very important potential loophole, which Ministers have addressed in other ways. The whole purpose of these amendments is to deal with the issue of demarcation between the BBFC and the VSC. As the noble Baroness said, this amendment to the primary legislation would mean that the Secretary of State would not need to issue guidance on how this system will work. There would be a ready-made method of demarcation, and we believe that would be greatly preferable and much clearer right from the outset of the operation of this Bill.
My Lords, our Amendment 148 in this group addresses much the same point as those of the noble Baroness, Lady Howe. They all seek to clarify the division of responsibility over video work, and raise a concern that the BBFC classification will not be the one by which the product is marketed. Amendment 148 raises an issue highlighted by the BBFC as to how the usual procedure for gathering evidence for a prosecution would operate. As it stands, if the BBFC classification were the one under which a video work was marketed, it would be a straightforward matter for the enforcement body to go to the BBFC to check the material against its records. Will the Minister explain how the video games authority will be able to provide adequate certificates of evidence?
My Lords, I rise to speak briefly. I am slightly confused both by the last debate and by this one. This provision, of course, applies only to video games that either are bought on a disc or are on television. It cannot, as far as I am aware, apply to the downloading of any video games through the internet which are sourced from outside this country, and many of them will be. I am not quite sure how any of this applies to that, and I would be grateful if the Minister would give me some answers in his reply.
My Lords, I am grateful to all noble Lords who have participated in this important debate, and particularly to the noble Baroness, Lady Howe, for moving Amendment 146. I emphasise that our overriding policy intention is to ensure that video games be classified by the authority designated for that purpose.
As we discussed extensively in Committee, it is vital that some flexibility is set out in the Bill to enable certain kinds of games to be allocated across to the BBFC for classification. This flexibility is achieved by the new Section 4ZB. The section makes clear that the Video Standards Council can determine conclusively which authority is responsible for classifying a certain class of video games. We believe this is the correct approach, as it is the video games authority which will be ultimately responsible for setting up arrangements to classify video games. The VSC will allocate across any games to the BBFC, but it can do so only after consultation with that body. Also, before withdrawing any allocation, it must consult the BBFC. In addition, the VSC will have to take into account any guidance the Secretary of State issues. So it is clear where the responsibility lies, and it is also clear that the obligation is on the VSC.
Under new Section 4ZC we have defined how the video games authority will deal with non-integral film material contained within a game. It is now a legal requirement for the video games authority to have regard to any BBFC determination or BBFC classification made about such film content within games, so the Government would contend that Amendment 147 is already provided for in the Bill. It is quite clear that the video games authority has no flexibility in those terms, but must refer the matter to the BBFC.
In setting up arrangements to take account of BBFC determinations and classifications, the VSC would be under a duty to consult the BBFC and to comply with any guidance that the Secretary of State issues. The question of guidance has been raised in the debate, and I reassure the House that the Secretary of State will offer guidance to make absolutely sure that the spirit and intent of the Act are reflected in its implementation. The noble Baroness, Lady Howe, was particularly concerned about that point. We trust the two designated authorities to decide when referral is appropriate, and to share any information that is required to make sure that the process of classification is implemented properly. We have been reassured by both bodies that they will do that. Further, our detailed discussions have satisfied us that they will work together to interpret and apply the legislation correctly.
The Government contend that the Bill already sets up the structure to meet the anxieties that have been raised, but one or two points were raised with particular force and precision, and I want to reply to those. On the question put by the noble Lord, Lord De Mauley, about evidence being made available for prosecutions, we understand of course the need to support the prosecuting authorities, and the Bill as currently drafted enables the BBFC to provide material evidence to the court on which it has made a determination.
The noble Baroness, Lady Howe, stressed once again the urgency of this matter. That is why we want the Bill to pass through both Houses of Parliament with not only the proper degree of scrutiny, but with the proper degree of urgency as well. I emphasise that the guidance from the Secretary of State will be published before the video games authority is designated under the Act. This will take place within months of Royal Assent, and I am sure that the whole House will join with me in hoping that that Royal Assent is not unduly delayed.
The noble Baroness also asked how a game would be identified as one to be restricted to the 18-plus category so that it is allocated across to the BBFC. The VSC and the BBFC are in discussions with each other and will identify the criteria that make a game likely to be restricted to 18 plus. The game will be allocated across if it is likely to be designed as R18 because that is the proper responsibility of the BBFC.
There are always differing views in the House on these matters, but I speak against a background where the work of the BBFC enjoys the confidence of the nation generally. Where serious material in video games merits its attention, the BBFC will be brought in because it will be an obligation on the Video Standards Council to bring it in. That is the basis of the Government's contention that the Bill already meets these anxieties. The amendments are important in clarifying the debate, but I hope that the noble Baroness will feel able to withdraw her amendment, and that the noble Lord, Lord De Mauley, will not move his, on the grounds that the Government have given careful thought to these matters and the Bill provides answers to the issues they have raised.
My Lords, I thank the Minister for his reply and the detailed way in which he has dealt with the advice that has been given to all parties affected by the amendments. As I said, although the preferred route is still through primary legislation, the assurances he has given and the clear way in which he has set out how he expects the bodies concerned to work together in coming to a conclusion on which role each should play-not least when matters come before a court of law-will be very helpful indeed. Once we get to the Royal Assent stage, the guidance could be only a matter of months away, which will be a huge help. The sooner this is clear and available for those concerned to act upon the better. I-
Before the noble Baroness withdraws her amendment, I omitted to respond to a point raised by my noble friend Lord Maxton. I emphasise-the noble Baroness will be fully aware of this-that we are talking about boxed video games here. That is the subject of the provision.
I am grateful for the support of the noble Lords, Lord Clement-Jones and Lord De Mauley, and everyone else who has spoken on the issue. I again thank the Minister for his help, and I beg leave to withdraw the amendment.
Amendment 146 withdrawn.
Amendments 147 and 148 not moved.
Moved by Baroness Howe of Idlicote
149: After Clause 41, insert the following new Clause-
"Duty to promote online safety
(1) It shall be the duty of internet service providers and mobile phone operators to take such steps, and to enter into such arrangements-
(a) to bring about, or to encourage others to bring about, a better public understanding of online safety;
(b) to provide prominent, easily accessible and clear information on filtering options of public electronic communication services for the purposes of online safety-
(i) at the time of purchase of the service; and
(ii) to make such information available for the duration of the contract.
(2) In this section "online safety" means safe, responsible use of the internet and other communication devices by children and young people."
My Lords, I apologise for being on my feet yet again. Amendment 149 requires internet service providers and mobile phone operators to promote online safety and to provide consumers with information on filtering options prominently at the point of purchase and throughout the duration of the contract. It does not prescribe how they should go about doing so; neither does it require them to produce filtering software of their own. It simply requires that ISPs and MPOs make buyers aware of filtering options, thereby promoting child safety online, just as toy makers, traffic light wardens and shopkeepers already do offline.
In Committee the Minister suggested that the amendment was unnecessary because the task that it seeks to address is already taken care of by the UK Council for Child Internet Safety. Having studied the Minister's speech and the excellent work of the UKCCIS carefully, I am, however, even more convinced of the need for my amendment. As the Minister knows, that body is a coalition of concerned bodies that seek to promote child safety on the basis of voluntary self-regulation and observation of best practice. On this basis, there are some important things that it can do and some very important things that it cannot.
One of the things that it can do, and is doing, is to promote the idea of the BSI filtering kitemark so that people considering filtering options will be able to identify safe and reliable filtering technologies. This is very welcome, but while the kitemark is a good mechanism to ensure the quality of filtering products, it does not and cannot ensure parental knowledge of filtering software per se. While the UKCCIS does good educational campaigns, such as "Zip it, Lock it, Flag it", these initiatives are not permanent, as my filtering amendment would be. Campaigns, as we all know, come and go.
That there is a pressing need for the filtering amendment is eloquently demonstrated by UKCCIS itself in its annual report, which shows that only,
"15 per cent of parents whose child's phone can be used to access the internet say parental controls are enabled".
That comes from Ofcom, March/April 2009. This suggests a real lack of awareness of filtering options and what they can do and the challenges surrounding this are becoming more pressing with newer handsets that allow unfettered access to the internet. Interestingly, a Home Office report entitled The Sexualisation of Young People, already referred to during today's debate-the author being the prominent, well-known psychologist, Linda Papadopoulos-recommends that game consoles and mobile phones should be sold with parental filtering mechanisms turned on.
In summary, this amendment is needed for three reasons. First, while some ISPs and MPOs already provide information on filtering, there are still companies that do not. They should. This is something that the UKCCIS cannot make them do and the voluntary basis of education is too slow. It took the industry far longer than was appropriate, and many more years than the Government wanted it to take, for companies to sign up to standards relating to child pornography.
Secondly, while many companies provide information on filtering, not all do it in a prominent way at the point of sale and-I emphasise-throughout the duration of the contract. Again, UKCCIS cannot oblige companies to do this. Finally, there is evidence that more work needs to be done to educate parents, as the UKCCIS safety strategy suggests. I do not believe that it is fair to place the high burden of expectation that the Minister has thrust upon the UKCCIS, which, for reasons I have set out, it cannot possibly deliver by itself. The combined effect of Amendment 149 and the work of that body, however, would put in place a credible framework and I believe, frankly, that our children deserve nothing less. I beg to move.
My Lords, I support the amendment standing in the name of my noble friend and I commend to the House the very measured way in which she has moved it today. Amendment 149 has a light touch and a very sensible approach. It does not just rely on the voluntarism that is implicit in the Minister's remarks in Committee, remarks which I have carefully read. I was sorry not to be able to be present to hear them at the time.
I do not believe that the only factor that shapes a young person is exposure to gratuitous violence, as the Minister implied earlier on, any more than I think that exposure to information on the internet is necessarily a bad thing. Indeed, the internet can be the most extraordinary tool for good and it can be used in an education setting in the most wonderful ways. Parents want to have some control over what their children see, though, and we should encourage them to want to have some say over what their children are exposed to.
That is why we need a more robust approach towards child protection, and merely relying on the UK Council for Child Internet Safety, wonderful though that body is and good work though it undoubtedly does, is not sufficient. The difficulty with depending on a body that in turn is forced to depend on a voluntary approach is eloquently illustrated by examination of one of the council's current initiatives: the proposal of a BSI kite mark for filtering software, to which my noble friend referred.
I shall mention two things in that regard. First, while a kite mark is helpful, if parents are already aware of filtering options, there is a more urgent need to make them aware of filtering options at the point of sale and for the duration of the contract, hence the importance of this amendment. Secondly, an e-mail from the council that I have seen states:
"This is still very much work in progress".
This reminds me of the problem relating to the timetable for voluntary agreements on signing up to the Internet Watch Foundation's list of blocked websites. The comparison pertains directly to time proofing; it shows why legislation is needed and how it can complement the council's work. Voluntary arrangements by themselves are simply not enough.
In 2004 British Telecom started using technology to block illegal child abuse images at ISP level. These measures stop customers accessing these images, deliberately or by accident. Early in 2006 the then Parliamentary Under-Secretary for the Home Office, Vernon Coaker, said that the Government wanted all ISPs to use similar technology to block content found on the Internet Watch Foundation's list of child abuse websites. Mr Coaker said that 90 per cent of ISPs had either already implemented or pledged to implement the blocks by the end of 2006. It beggars belief that there are companies that still do not block this content. To put things into perspective, Twitter has been around since 2006, YouTube since 2005 and Facebook since 2004. The internet moves very quickly and the Government need to move along with it at the same speed.
Given that a UK council survey has shown that only 15 per cent of parents have provided filtering for their children's phones, it is clear that making parents aware of filtering options is an urgent priority. We should not wait for ineffective and slow voluntary arrangements to work when more effective and simple legal alternatives such as my noble friend's amendment are on the table-that is, unless we are prepared to give the impression that child protection issues are of only minor importance. I strongly support the amendment.
My Lords, Clauses 4 to 9 of the Bill are about sending a message, as is the amendment. At the moment Tony Neate struggles on with Get Safe Online, the government-promoted website for this information. However, it is badly underfunded, and this would be a way of spreading the load among many other people. Therefore it can only be recommended.
My Lords, as I said when the amendment was discussed in Committee, the Government recognise and agree with the objective that the noble Baroness, Lady Howe, seeks to achieve. In that debate I outlined the very important work that the UK Council for Child Internet Safety is doing in leading the Government's work in this area and in bringing together-I stress this-a wide range of interested parties, including the internet service providers and mobile phone operators at whom this amendment is aimed.
I emphasise the sustainability of the council's work. For example, it has already brought about changes in the school curriculum that will continue into the future. It is also running a public awareness campaign, with the message to "Click Clever, Click Safe" to raise awareness among children and their carers of how to stay safe online. That message is being promoted by all council members. The council's work with industry, and the previous work of the Home Secretary's task force, shows the ongoing commitment of these companies to doing what this amendment calls for: promoting the safe use of the internet by children. I am glad to say that the companies involved include those that run some of the most popular sites on the internet. Their commitment to this cause is also shown by the success of the Internet Watch Foundation. That body has been running since 1996 and currently has 100 companies as members and supporters. It is recognised-and we should acknowledge this-as a world leader in the fight against criminal content online, particularly images of the sexual abuse of children. It is a self-regulatory body, independent of government, although we totally support its work. The longevity and success of this body are testament to how seriously issues of online safety are taken by the industry.
A couple of points have been raised by noble Lords. The noble Baroness, Lady Howe, talked about parents not being aware of filtering software. Actually, in our view and on our information, many parents are aware of such software but-and I simply state this-some say that they do not want to use it. They want more information about all aspects of safety, and this is what the UKCCIS is doing. Both the noble Baroness, Lady Howe, and the noble Lord, Lord Alton, talked about not all ISPs telling parents about parental controls. I know that all major ISPs are in the UKCCIS and so are committed to promoting online safety. This covers the vast majority of the UK population, so including most children.
Due to this ongoing and widely supported work, we do not believe that the amendment is needed. However, I hope the House will rest assured that the Government agree with its spirit. As well as supporting the work of the Internet Watch Foundation, I urge noble Lords to follow the work of the UK Council for Child Internet Safety, where we will be working with our partners to set up a framework of support, education and protection, which will not only help today's children, but will continue that help into the future as circumstances and technologies change.
I have a final couple of points. First, on the question of compulsion rather than voluntarism, the internet develops quickly, as the noble Lord, Lord Alton, said. A voluntary arrangement can take account of new services and not just put a burden on ISPs. Finally, this amendment seeks to impose specific obligations on a limited section of the wide variety of companies involved in the internet. This would require the Government to conduct a full consultation to see whether such a burden is proportionate. We simply do not have the time to undertake such a consultation and, given the work that is already going on in this area, it is unlikely that the additional benefit to be gained would outweigh the cost to industry of complying and to the public purse of monitoring and enforcing any new rules.
We share the concerns expressed by the noble Lord, Lord Alton, and the noble Baroness, Lady Howe, but we believe that the current arrangements have made significant strides within the industry and are creating the right sort of climate to promote both awareness and responsibility on the part of ISPs and mobile phone providers. In the light of those comments and of assurances previously given, I would hope that the noble Baroness will feel able to withdraw the amendment.
My Lords, I thank the Minister for what he has said and, indeed, I should particularly like to thank my noble friends Lord Alton and Lord Erroll for their contributions in support of the amendment. I certainly do not have the slightest wish to disparage the excellent voluntary work done both by the UK Council for Child Internet Safety or by the Internet Watch Foundation, for which I have great respect.
However, as I said in moving the amendment, there are still some very important things that cannot be done on a voluntary basis. I know that many noble Lords will retain their sense of unease that the Government are not prepared to give more attention to how this amendment could be adopted and put in place. I hope the Minister will not regret that at some future stage. I am particularly surprised, in the light of the report by Dr Linda Papadopoulos, that they are not perhaps giving rather more detailed consideration to the implications that could certainly have been drawn from her report. However, under the circumstances and for the moment, I beg leave to withdraw my amendment.
Amendment 149 withdrawn.
Schedule 1 : Classification of video games etc: supplementary provision
Moved by Lord De Mauley
150: Schedule 1, page 58, line 25, after "(3)" insert "and insert-
"(2) Regulations under this section may require content advice issued with the classification certificate by the designated authority to be shown in a manner so specified.""
My Lords, we have tabled Amendment 150 simply to seek clarification of a response that the Minister gave in Committee. His argument against consumer advice being required on every video work appeared to rest on the burden that such a requirement would place on the industry. While I yield to no man in my determination to minimise unnecessary burdens on business, I cannot see what burden would be created here. As it stands, the video cover must already leave a certain amount of space available for the clear presentation of the classification. This space is sufficient for consumer advice, so no further space would be required to be sacrificed from the design of the cover. Since it is the BBFC that drafts consumer advice, there is no further burden on the production company to draft the wording either. It could be argued that making consumer advice automatic would reduce the administration burden on a production company, so I ask the Minister for a rather better reason as to why he does not agree that consumer advice should be present on all video works. I beg to move.
My Lords, I support the amendment. Its purpose is to empower consumers by enabling them to make informed choices about a film or video game through the provision of content advice, whether in the form of English-language text in the case of the BBFC or pictograms in the case of PEGI. PEGI's rules attempt to make it compulsory for video game packaging to carry PEGI content advice. Without the amendment, content advice on packaging would not have a statutory back-up. The amendment would bring UK law and PEGI rules together and ensure that bespoke BBFC consumer advice-80 per cent of viewers overall and 85 per cent of parents of primary school-age children find it helpful, according to research carried out in 2009-is available on packaging. I hope that the Minister will give serious consideration to the amendment, which would improve consumer empowerment and child protection.
My Lords, I am grateful to the noble Lord and the noble Baroness for their contributions to the debate. We emphasise that the Video Recordings Act already offers significant protection for children. It puts in place a system that makes it a criminal offence to sell or supply video works to children or young people if they contain content that is inappropriate for them. This system has worked well for 25 years. Parents and consumers can see clearly from the product what they are buying and whether the content is suitable for viewing by particular age groups.
In addition to this important layer of statutory protection, there is a wealth of voluntary information available to parents and consumers if they want more detail on the storyline or underlying content. At the moment, the vast majority of DVDs and games rated by the British Board of Film Classification display not only the compulsory labelling that is required, such as the age ratings, but a few words of consumer advice that have been jointly agreed between the content publisher and the BBFC. The BBFC website also contains extended consumer advice, which parents can view to find out more about a particular film or television programme. I am grateful to the noble Baroness, Lady Howe, for having introduced the point that the Pan-European Games Information also offers consumer advice in the form of pictograms that indicate whether the video game contains scenes that feature, for example, drug use, violence or bad language.
We do not think that there is compelling evidence to demonstrate that consumer advice offers a greater level of public protection or that this extra level of consumer advice needs to be made compulsory, which is the burden of the amendment. We have existing statutory protection and good practice that guarantee that the amendment is not necessary. We are keen to ensure that we do not create unnecessary legislation. The noble Lord, Lord De Mauley, made a nod in that direction but, as we have the necessary protection in place, why do we need an additional amendment to the Bill?
The Secretary of State will issue guidance to the industry and the designated authorities to indicate that consumer advice should be available as a best practice standard. This standard is already widely adopted and delivered on the ground by a responsible and responsive industry in collaboration with the British Board of Film Classification and the Video Standards Council. The British Video Association has confirmed to the Government that it will continue to encourage its members to comply with best practice and has emphasised that there is already a very high compliance rate under the voluntary scheme.
I recognise the good intentions of the noble Lord's amendment and I am grateful to the noble Baroness, Lady Howe, for her comments on the matter. However, we think that we have in place good practice, with the necessary legislative framework to back it up, and that therefore the amendment is not necessary. I hope that the noble Lord will feel that I have given him sufficient reassurance to enable him to withdraw the amendment.
My Lords, I thank the noble Baroness, Lady Howe, for her support and for the points that she made in support of mine. I thank the Minister for his helpful response, which I will consider carefully, even if he does not go quite so far as I would like. However, for today, I beg leave to withdraw the amendment.
Amendment 150 withdrawn.
Moved by Lord Davies of Oldham
151: Schedule 1, page 60, line 13, after "section" insert "2,"
Amendment 151 agreed.
Clause 42 : Extension and regulation of licensing of copyright and performers' rights
Moved by Lord Young of Norwood Green
152: Clause 42, page 49, line 23, after "the" insert "missing"
My Lords, I rise to propose this super-group of government amendments, aimed at addressing noble Lords' concerns expressed in Committee and at Second Reading. The overall effects of these amendments are to introduce a plain English definition of an orphan work; make the search requirement "diligent"; make orphan works registers more easily accessible; make it compulsory for the treatment of royalties to be regulated; specify what topics must be covered in the codes; extend regulation to all authorised bodies; and make it compulsory for the Secretary of State to consult on the conditions for authorisation of orphan works and extended licensing schemes with those likely to be affected by the establishment of such schemes.
Amendment 156 inserts the plain English definition of orphan works called for during our previous debate. The search is now required to be diligent rather than reasonable. The definition and the sources that must be searched are in line with best practice, particularly the recommendations of the High Level Expert Group on Digital Libraries. Some of your Lordships had concerns about the registers for orphan works. Amendment 156 provides for the regulations to specify the format of these registers and for them to be publicly available. This will facilitate ease of searching for rights holders. To create a system that incentivises searching for the copyright owner, we have made provision in Amendment 156 for non-compliance to be actionable as a breach of statutory duty. The Secretary of State may impose sanctions, including a financial penalty, where the authorised person is in breach of its authorisation requirements-for example, failing to search diligently the required sources.
Amendment 157 provides for the regulation of any authorised body or person, while Amendment 169 may require them to adopt codes of practice. Some of your Lordships expressed concerns about the other persons being authorised. I hope that the extension of the regulation will reassure noble Lords that the safeguards apply to all persons authorised.
Amendment 159 introduces a requirement to consult those who may be affected by an authorisation for orphan works or by extended licensing. This could be used to consult on questions such as whether a body is sufficiently representative to be granted an authorisation or whether a majority-and if so, what majority-of rights holders would need to agree to the establishment of a scheme before it could be authorised.
Amendment 177 sets out the topics that must be contained in the codes of practice. These include accounting arrangements in relation to royalties, complaints handling, transparency requirements and arrangements for holding sums for the copyright owners. These are designed to ensure that the codes capture minimum standards of fairness and transparency.
The last amendment that I shall single out is Amendment 180, which makes it mandatory for the regulations to cover the treatment of royalties and the deduction of administrative costs. The remaining amendments make equivalent provisions for performers' rights and have the same effect.
I apologise for speaking at some length. I hope that I have reassured your Lordships that we have listened carefully to the comments made in this House in Committee and on Second Reading and taken them on board in this package of amendments. I beg to move.
My Lords, I would be grateful if my noble friend could give clarification on a couple of questions. The great majority of amendments in this large group seem to me entirely appropriate, but I want to ask him about the substitution of the word "diligent" for "reasonable" in Amendment 156. In Committee, the noble Lord, Lord Clement-Jones, suggested that the word "diligent" would be preferable, partly because it matched language emanating from Europe and partly because we are used to the concept of due diligence, which suggests a properly conscientious search. However, I am a little worried that replacing "reasonable" with "diligent" will tend to perpetuate the requirement for institutions to conduct immensely time-consuming and expensive inquiries to track down copyright holders that are doomed to be fruitless because the copyright holders are not there or are not traceable. I wonder what my noble friend considers that the difference will be in practice between "diligent" and "reasonable". It seemed to me that "reasonable" was a perfectly satisfactory term and that the Government's first thoughts were right. I am interested to see that the use of the word "reasonable" persists in new sub-paragraph (8)(a) in Schedule 2. I personally prefer it.
Amendment 159 states that the Secretary of State must consult various persons,
"before making provision as to requirements for a person's becoming or remaining authorised".
When the Secretary of State is minded to authorise an institution to license the use of copyright material consisting of orphan works, who would he be obliged to consult? Again, if those who hold the copyright for orphan works cannot be found, how can the Secretary of State consult them or their representatives?
My Lords, I simply wanted to respond early to the Minister's amendments. Although I am going to be like Oliver and ask for more in due course under the clause stand part debate, I am very grateful to the Minister for having so carefully considered some of the points made in Committee. There is no doubt that the government amendments improve Clause 42. The big question is whether they improve it enough.
I have spoken only once before in this lengthy debate and that was on Clause 42, on the definition of orphan works. I spoke on behalf of the Periodical Publishers Association, of which I am the vice-president. We felt then that the definition was inadequate. The association did not think that it was a proper definition at all. I was glad when, after a brief debate in Committee, the Minister, to my surprise, said that he agreed with me and would go back to consider what had been said and see whether a better definition could be arrived at. He has, in fact, done that-I think to the satisfaction of the association. On the question of "reasonable" and "diligent", we suggested the form of words "reasonably diligent". However, I have no intention of quibbling over that. "Diligent" is good enough for me and I am satisfied with the Minister's approach, as is, I am sure, the association.
I very much hope that the Minister will not weaken his resolve over the terminology. "Diligent", as the noble Lord, Lord Howarth, said, suggests something that is a conscious and perhaps more conscientious approach to ensuring that what needs to be done in order to find out whether something really is an orphan work takes place.
This is an area to which I have given a huge amount of thought and put in a lot of work over the past 35 years. The Government have done a remarkable job in finding a way through a very complicated area. The most important result will be that works that have not previously been freely available will, effectively, be released into the public domain. This is a major victory and it would be a great pity-I am looking at the noble Lord, Lord Clement-Jones, when I say this-if we tried to make the perfect the enemy of the good. These amendments are a very good compromise, which I commend the Government for having achieved.
My Lords, I join other noble Lords in thanking the Minister for bringing forward these amendments. He apologised for taking so long in doing so, but I thought that he was commendably brief. The amendments represent a considerable improvement on how this Bill was previously drafted. Although many critical details remain left to secondary legislation, some important safeguards dealing with the implementation of this power have now been set out in statute. I should like, if I may, to probe the Minister a little more on where the stored royalties are likely to end up after the stipulated period is completed and a copyright owner has not emerged. I appreciate that the finer detail will be left to consultation, but perhaps he can give us a little more information on where all the money will go.
I thank noble Lords for their contributions. On the comments of my noble friend Lord Howarth about the use of "diligent" instead of "reasonable", we believe that the emphasis is important. Although there will be consultations, our view is that there will be differences in different situations and we are trying to achieve a balance. My noble friend Lord Puttnam rightly reminded us that we must not forget the primary objective with which we started out. It is a noble and important objective, whereby we want to be able to release works that for years have not been able to see the light of day, while at the same time wanting to ensure that people conduct a "diligent" search. I rather like the emphasis of that word. We are not asking people to go on ad infinitum, but we want to feel assured that when these works are released there has been a diligent search.
My noble friend Lord Howarth also asked who the Secretary of State will consult. My information is that the Secretary of State will consult widely across the same class of authors as those who are likely to be affected. That may not catch the specific authors but it will take into account their likely concerns.
The noble Lord, Lord De Mauley, asked about stored royalties; he has obviously remembered what happens when private detectives are asked to follow the money. Unfortunately, we cannot yet give a perfect answer on that. No decision has been taken yet, but there is a possibility of a fund for creators or something on those lines. There will be consultations in relation to that.
I hope that we have addressed a wide range of concerns that were expressed in Committee. I would like to think that we have covered the waterfront, so to speak, and I hope in the light of that-
Yes, I am coming to that; I realise that now. I hope that the House will feel able to support the government amendments and I beg to move.
Perhaps my noble friend the Minister would like to use the authority granted him by the Dispatch Box to make it clear that public bodies, such as the British Film Institute or the British Library, would not find the hurdle created by the word "diligent" so high that they were in effect not able to clear material. It would be quite absurd if public money was used to clear material for public purposes and for the hurdle to become so high that it becomes unaffordable.
I can certainly give that assurance because I believe that that is the intention of the House.
Amendment 152 agreed.
Moved by Lord Young of Norwood Green
153: Clause 42, page 49, line 23, at end insert-
"(1A) Where the missing copyright owner is not the sole owner of copyright in the work, an authorisation does not affect the need for consent from any other owner of copyright."
Amendment 153 agreed.
Moved by Viscount Bridgeman
153A: Clause 42, page 49, line 23, at end insert-
"( ) Regulations under subsection (1) shall only provide for authorising a licensing body that represents a substantial number of authors or, as appropriate, performers of the type of works for which the licence is to be granted."
These amendments centre around my continuing concerns, expressed also by several noble Lords, about the need for information on the regulations in the Bill. They are designed to ensure that copyright holders remain in control of their own creativity. Also, I share the concern which has been voiced elsewhere in the House that the default inclusion of rights holders in the licensing scheme is likely, on occasions, to conflict directly with primary licences between rights holders and users. I am aware that the Minister has written about the opt-outs in correspondence, but I should be grateful if he would take this opportunity of clarifying that for the record.
As I see it, the fundamental principles of copyright are subverted by requiring rights holders to opt out of such a scheme if they wish to retain control over how their work is licensed. The provisions covered by this amendment would give rights holders an opportunity, in a closer environment, to keep in touch with any collecting societies which are entrusted with the licensing of their rights. The effect of both of these amendments is to safeguard as far as possible communications between creators and users, either directly or through licensing bodies.
Amendment 177A returns to the theme of the regulations. The Government are to be commended for setting out the considerations which need to be addressed in the code, and I pay tribute to the Minister for his enunciation of the various ways in which the Government have met some of the concerns expressed in earlier stages of this debate. However, I ask them once again to take one step back and not only address the code criteria, which have been admirably set out, but to give some outline guidance of what the regulations will say.
I turn now to Amendment 172A, the extra amendment which has been included in this group. For reasons it is not necessary to go into here, this Bill has had little time for preparation. I have no doubt that had more time been available, much more detail on the proposed regulations would have been available in the Bill.
The Bill will not complete its passage through both Houses, and thus will not be subject to the scrutiny of Bills provided by the normal procedure. I am not in favour of using the super-alternative procedure as a routine device to enable statutory instruments to be modified. However, I ask the Minister to agree that these are exceptional circumstances. The content of the regulations will be fundamental to the operation of Clause 42. Nothing at present is known about the content or intentions of the regulations, and the 60-day consultation period available under the procedure would be a valuable extra means of securing debate on the structure of suitable regulations. It would go a long way towards allowing the misgivings on many sides about the efficacy of Clause 42. I am sorry that I have not been able to give the Minister more notice of the amendment and will be grateful for his views. I beg to move.
My Lords, I will reserve most of my comments on Clause 42 for the debate on Amendment 167. I put my name to the amendment of the noble Viscount because Clause 42 covers the overriding issue of the content of the regulations and how they will be approved. This is the common theme of all the amendments in the group. I hope that the Minister will cast more light on that in the course of the debate, which will influence discussion on Amendment 167 as well.
My Lords, I rise briefly to support my noble friend's amendment, to which I have added my name. I also pay tribute to the Government, who clearly have listened through the stages of the Bill. However, I still see beyond your Lordships' House a degree of concern, as expressed by my noble friend, particularly at the speed with which we all have had to respond to the Bill-and the Government in turn are responding as well. Because of a lack of information, there is concern about what will be in the regulations. The amendments in this group are an attempt to enhance communication between creators and licensing bodies. We believe that the amendments should be supported because they are totally positive. We must reassure creators who may not have the influence of some large institutions, or the means to access professional advice to assist them in responding to Clause 42.
I will make some brief comments and raise some questions about the amendments in this group. I will start with Amendment 153A. How would a cultural institution, a museum or library, be accommodated under the rubric? The amendment is aimed at defending the legitimate interests of the commercial sector, but in so doing ignores the legitimate interests of the cultural sector and of the public. It would drive a coach and horses through the intent of the clause, which is to create a regime to deal effectively with the problem of orphan works.
Amendments 155A and 155B relate to proposed new Section 116B of the 1988 Act. If proposed new Section 116A depends on 116B, the amendments would be unacceptable. They would work when copyright owners could be identified, but with orphan works, where copyright owners cannot be identified, they would not. We must deal differently with the two categories. If the amendments rule out the authorisation of cultural institutions, which the Secretary of State may for good reasons wish to authorise where orphan works are concerned, they will not do.
I am pleased to tell noble Lords that I have no problem with Amendment 177A.
My Lords, my noble friend Lord Bridgeman raises important points, and I entirely agree with his amendments. Amendments 153A and 155B merely set out what the Minister has already promised. I hope they will be accepted in principle if not in the precise wording.
I also agree with the principle behind Amendment 155A. Copyright owners understandably have considerable concern about these provisions. If they see no benefit in this system, it is clear that adequate safeguards have not yet been put in place, and I suggest that we ignore their wishes at our peril.
On Amendment 172A, I share my noble friend's concerns. It is not good practice to leave so much pertinent detail about a code to secondary legislation. We can be forgiven for fearing that the Government are still making knee-jerk legislation rather than properly thought-through policy.
Lastly, as regards Amendment 177A, it seems to me axiomatic that such details must be included in the regulations. We look forward to the Minister's response.
My Lords, Amendment 153A argues for orphan works schemes to be limited to licensing bodies, an issue we debated extensively in Committee. The Government believe that there is no reason to exclude cultural organisations which have acted as foster parents to large numbers of orphan works from eligibility to run such schemes. It is possible that these organisations may find it more efficient to use licensing bodies, but that is for the market to decide. We should not rule them out in the first instance. For this reason we cannot accept Amendment 153A.
However, I bring your Lordships good news on Amendments 155A and 155B. 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.
On Amendment 177A, the term "licensing body" is already defined in the Copyright, Designs and Patents Act 1988. It is used more widely than in the new provisions introduced by Clause 42. The addition of qualifying criteria to this definition could have serious implications for other areas of legislation dealing with copyright licensing.
The provisions of Clause 42 and Schedule 2, as currently drafted, allow the setting of requirements for any body wishing to become an authorising body, whether they wish to operate extended collective licensing or an orphan works scheme. It is already the case that we will be able to set the right entrance criteria to avoid unsuitable bodies applying for these extra powers. I reiterate that there is now an obligation on the Government to consult on the conditions for authorisation. This will enable us to limit the extension of these powers only to those bodies which are suitable for the job.
Amendment 172A would require regulations imposing codes of practice on persons authorised to license orphan works and licensing bodies to be subject to a super-affirmative procedure. I cannot accept that the noble Lord's proposal is the right or proportionate way to deliver scrutiny for two reasons. First, we are having a very full debate now as part of the scrutiny of this primary legislation; and secondly, we have provided that the order will be considered under the affirmative procedure, so there will be further parliamentary debate on any order. The affirmative procedure will apply to the first exercise of these powers. This was introduced by government amendment in response to a recommendation, after all, of the Delegated Powers and Regulatory Reform Committee. The committee is satisfied that this is a satisfactory level of scrutiny. We are committed to full consultation between all appropriate parties on the regulations, as I have said already, and the results of consultation can shape a workable proposal that takes account of the views of all parties.
Super-affirmative procedure is appropriate to very wide-ranging powers. In this situation, we are talking about codes of practice that are designed to maintain the balance of power between licensor and licensee, and to ensure minimum standards of fairness and transparency. In this circumstance we believe, as did the Delegated Powers and Regulatory Reform Committee, that affirmative resolution is adequate scrutiny. The super-affirmative procedure would simply add delay and cost.
I hope that in the light of the assurance that I have given to bring forward two amendments on Third Reading and my explanations on the other amendments, the noble Viscount will feel able to withdraw the amendment.
I just say to the noble Lord, Lord Howarth, that we certainly did not intend to be disruptive in any way. I take on board the Minister's comment on Amendment 153A. Clearly, I am disappointed with his reply on the super-affirmative proposal. We all know the limitations of affirmative procedures and that they cannot be modified. However, I am grateful for his explanation and I beg leave to withdraw the amendment.
Amendment 153A withdrawn.
Amendments 154 and 155
Moved by Lord Young of Norwood Green
154: Clause 42, page 49, line 27, leave out "may" and insert "must"
155: Clause 42, page 49, line 35, leave out from "in" to end of line 36 and insert "a register kept in accordance with section 116CB(1)."
Amendments 154 and 155 agreed.
Amendments 155A and 155B not moved.
Moved by Lord De Mauley
155C: Clause 42, page 50, line 7, at end insert-
"(2A) Before granting any licence in respect of works in which copyright is not owned by the body or a person on whose behalf the body acts, the relevant licensing body must publish guidelines on how to exclude a work by notice under subsection 2(b).
(2B) Before publishing guidelines under subsection (2A) above, the licensing body must consult copyright owners and creator of the type of works for which the licence is to be granted."
My Lords, we have already had a useful debate with a gratifying number of government amendments about the safeguards necessary for an effective orphan works scheme. It is unfortunate that we do not have a similar number of government amendments to welcome in relation to collective licensing. Amendment 155C is intended to ensure a minimum safeguard for a proper system of collective licensing. The Bill contemplates the possibility of a copyright owner opting out from a collective licensing system, but gives no detail as to what sort of system might be considered acceptable. Unlike with orphan works, where the licence body has to undertake a diligent search before it can grant licences, the onus here is on the copyright owner to protect his material from being licensed without his permission.
As such, the opt-out system must be as transparent and as simple as possible. Our amendment is intended to engage copyright owners of the type who will be represented in the process of establishing what system would be most effective. The opt-out provisions must bring notice of that power to as many rights holders as possible, as well as making it easy for them to opt out should they wish to remove their work collective licensing. I hope that the Minister sees the wisdom of that point, and I beg to move.
I presume that publishing something under either creative commons, new public licence or something similar would be an automatic opt-out from some other collective licensing scheme.
My Lords, we welcome the spirit of this amendment. One question that we must ask rights holders in our extensive consultation before any schemes are authorised or regulations made is how the opt-out mechanism should work for their particular sector. Our premise is that it should be designed to be as unburdensome as possible, but we need each sector to tell us how that should work. It is completely sensible that sectoral guidelines be published once we know how the mechanism works. As those issues will be covered by the Government's consultation and included in the regulations, we do not think we need to require licensing bodies to consult additionally. For those reasons, I hope that the noble Lord will feel able to withdraw his amendment.
Amendment 155C withdrawn.
Moved by Lord De Mauley
155D: Clause 42, page 50, line 7, at end insert-
"( ) The regulations must require all licensed bodies to publish and maintain a register of all works for which they are granting licences in respect of works in which the copyright is not owned by the body or a person on whose behalf the body acts."
This amendment is again intended to impose the same level of transparency on Section 116B as the Government have conceded for the orphan works register. How is a copyright owner to know that his work has been licensed out without his express permission if there is not a clear and accessible register which he can check? Such a register would be a minimum criterion of any authorisation, and I hope the Minister will accept, if not the precise wording of the amendment, at least the principle behind it. I beg to move.
My Lords, the Government are sympathetic to this amendment, which would allow bodies authorised to run extended licensing schemes to hold a register with details of the works of non-members from whom it does not have a specific mandate to license. It could be possible for such a licensing body to hold such a register, but it is unlikely that it would be accurate. Blanket licensing, even when the licensing body licenses in non-extended licensing mode, works so that the usage is only known after it has been reported by the licensee. Thus the register cannot be fully up to date at any time.
I would like to explain how the system could be designed to reach non-members so that they are aware that their works are being licensed. First, an authorised body may be required to give wide notice of the establishment and the parameters of its extended licensing scheme. This could include national and sectoral advertising aimed at bringing the scheme to the notice of rights holders in case they wish to opt out. Secondly, there is now an obligation to consult with those likely to be affected before the authorisation of the scheme. Thirdly, the authorised body will need to distribute royalties to both members and non-members, creating an obligation to seek out non-members whose works have been licensed to pay them their royalties.
We consider that these provisions will operate to ensure that an authorised licensing body does not license works that have been opted out of a licensing scheme and is fully accountable to the non-members whose works it licenses under these arrangements. The consultation requirements will ensure that regulations introducing extended licensing are structured so that the system functions properly. In the light of these comments and assurances, I hope that the noble Lord will be able to withdraw his amendment.
Amendment 155D withdrawn.
Amendments 156 to 166
Moved by Lord Young of Norwood Green
156: Clause 42, page 50, line 11, leave out from beginning to end of line 38 on page 51 and insert-
"116CA Meaning of "orphan work"
(1) A work is an orphan work if a person-
(a) has carried out a diligent search to find or, if necessary, to identify and find, the owner of, or of an interest in, copyright in the work, and
(b) has published the notice required by this section, but has not found the owner.
(2) References to the missing copyright owner in relation to an orphan work are references to that owner.
(3) For the purposes of subsection (1)(a) the person carrying out the search must in particular-
(a) make such use as is reasonable of sources of information, including sources within subsection (4), relating to the work's apparent country of origin, and
(b) have regard to any presumptions under section 104 or 105 that would apply in relation to the work in any proceedings.
(4) The sources referred to in subsection (3)(a) are-
(a) licensing bodies;
(b) associations of publishers or authors;
(c) systems for identifying works of the type concerned;
(d) published library catalogues and indexes;
(e) public databases, including public records that may indicate successors in title.
(5) For the purposes of subsection (3)(b) a work's apparent country of origin is the country which the person carrying out the search reasonably believes is most likely to be-
(a) the country of the work's first publication, or
(b) if the work has not been published, the country with which its making is most closely connected.
(6) The notice required by subsection (1)(a) is notice of the proposal to enter the interest concerned in a register kept in accordance with section 116CB(1), published in a way designed to bring the proposal to the attention of the owner of the interest.
(7) The Secretary of State may by regulations amend any of the preceding provisions of this section.
116CB Orphan works: registration and compliance
(1) Regulations made by the Secretary of State must provide for an authorisation under section 116A or 116B to have effect in respect of an interest of a missing copyright owner only if the interest is entered in a register kept by the authorised person (an "orphan works register").
(2) The regulations must-
(a) specify the form of an orphan works register and how it is to be kept, and
(b) provide for an orphan works register to be made available to the public.
(3) An entry in an orphan works register must include a sufficient record of the steps taken for the purposes of section 116CA(1)(a) and (b).
(4) An authorised person must not enter an interest in an orphan works register unless the authorised person-
(a) has taken the steps referred to in section 116CA(1)(a) and (b) and has not found the owner of the interest, or
(b) has reasonable grounds for believing that another person has taken those steps and that the owner of the interest has not been found.
(5) If an interest is entered in an authorised person's orphan works register and the authorised person finds the owner of the interest, the authorised person must remove the entry.
(6) If in relation to an interest entered in an authorised person's orphan works register, the authorised person-
(a) is aware that any of the steps referred to in section 116CA(1)(a) and (b) was not taken, or
(b) is aware of information that makes it no longer reasonable to rely on the steps taken, the authorised person must as soon as possible take those steps or remove the entry.
(7) Where an interest is entered in an orphan works register, regulations under section 116A or 116B may provide for an authorisation under that section to have effect in respect of that interest despite a failure to take steps referred to in section 116CA(1)(a) or (b) or to comply with any of subsections (4) to (6).
(8) But a failure by an authorised person to comply with any of subsections (4) to (6) is actionable as a breach of statutory duty owed to the owner of the interest concerned (and see paragraph 3 of Schedule A1).
(9) Any guidance issued by the Secretary of State must be taken into account in deciding whether a person has taken the steps referred to in section 116CA(1)(a) or (b) or has complied with subsection (3).
(10) The Secretary of State may by regulations amend any of the preceding provisions of this section."
157: Clause 42, page 51, leave out lines 41 to 43 and insert-
"(a) the regulation of licensing bodies, and of persons other than licensing bodies who are authorised under section 116A;
(b) enforcement for the purposes of such regulation, or otherwise for the purposes of sections 116A to 116CB."
158: Clause 42, page 52, line 1, leave out "116C" and insert "116CB"
159: Clause 42, page 52, line 7, at end insert-
"( ) Before making provision as to requirements for a person's becoming or remaining authorised under section 116A or 116B, the Secretary of State must consult the persons the Secretary of State thinks likely to be affected (or persons who represent such persons) and such other persons as the Secretary of State thinks fit."
160: Clause 42, page 52, line 8, leave out "116C" and insert "116CB"
161: Clause 42, page 52, line 19, leave out "116C" and insert "116CB"
162: Clause 42, page 52, line 20, leave out "section 116C or another" and insert "any"
163: Clause 42, page 52, line 28, at end insert-
|""missing copyright owner (in relation to an orphan work)||section 116CA";"|
164: Clause 42, page 52, line 29, leave out "116C" and insert "116CA"
165: Clause 42, page 52, line 30, at end insert-
|""missing rights owner (in relation to orphan rights)||paragraph 1CA of Schedule 2A";"|
166: Clause 42, page 52, line 31, leave out "1C" and insert "1CA"
Amendments 156 to 166 agreed.
Moved by Lord Clement-Jones
167: Clause 42, leave out Clause 42
My Lords, we now move back to the issue of orphan works under the first part of Clause 42. As I mentioned earlier, many of the government amendments-indeed all of them-are extremely welcome and I very much welcome the attempts of the Government to improve the orphan works provisions in Clause 42. It is clear that photographers and photographic libraries that are still concerned by Clause 42 recognise some of the assurances that have been given by the Minister in his letter and by the Intellectual Property Office in its meetings with the Royal Photographic Society and others. Some of those assurances include that there is no requirement to register works but this will be considered. There will be no central register for the moment but, as was mentioned, the Minister is not unsympathetic.
Anyone wishing to use an unattributed image will be required to approach a licensing body which will work to search requirements laid down by regulations established by Parliament. Regulations will not be implemented until appropriate technology and licensing procedures have been agreed with the stakeholders, including the Royal Photographic Society. Something I thought was particularly important was that deliberate or negligent misidentification will carry an appropriate sanction. It is suggested that the level of fee and diligence of search will be such that publishing an orphan work over a newly commissioned image would not be advantageous. The proposed legislation, however, is an enabling Act. The detail will be in the regulations which will be composed following consultation with stakeholders and approved by Parliament.
Nevertheless, those assurances give rise to many questions. Of course these are but assurances-they are not in the Bill-and it is not necessarily clear how the regulations will be put together after a change of government or otherwise. In the view of these photographers, orphan works will in effect be licensed under retrospective legislation, as photographers who have engaged the models via agencies for specific usages and licensed those images for specific usages were in a position to make and honour those commitments when those contracts were signed, but their ability to do so will have been subsequently and unpredictably legislated away.
The very existence of orphan works licensing may result in photographers being unable to contract for exclusive use, because they cannot guarantee that any given work will not at some point become orphaned and legitimately licensed to other users, competitors and so on. In all the creative industries, models, actors, artists, composers, rights holders of embedded copyright works and others customarily contract for and charge usage fees, and limit usage based on the assumption that the primary holder of the intellectual property rights will retain control of those rights and be bound by their contractual obligations.
There is also the argument that orphan works licensing for commercial purposes breaches Article 9 of the Berne agreement and Article 13 of the TRIPs agreement-the agreement on trade-related aspects of intellectual rights-and I hope that the Minister will be able to address that. It is argued that orphan works licensing undermines the rights holder's ability to guarantee a client exclusive use, and therefore falls foul of those provisions.
Then there is the question of moral rights. I note that the Minister has undertaken to engage in discussions on this subject, and a later amendment will no doubt be the subject of debate, but, again, there is no provision in the Bill to compel publishers to attribute the first step for orphan status. Germany and France have strong moral rights, and publishers-consumers of content-are profitable. The argument that this is too expensive for publishers is removed.
In many cases, metadata are routinely removed without the user's knowledge. Photographs that are uploaded to most photographic websites, such as Flickr, have their metadata stripped as part of the process. Most commonly available photo-manipulation software routinely removes metadata during the conversion of images to web-friendly file formats. Consequently, it must be assumed that any image that is uploaded to the internet in any form, or manipulated by a third party in any way, is vulnerable to inadvertent orphaning.
No distinction is made between the commercial and non-commercial exploitation of works. Commercially produced imagery usually includes models and proprietary artefacts, the consent and fees for which have been based on limited and defined usages of those photographs. Other usages would have commanded extra fees. Some usages would be forbidden in all circumstances. The client for whom the photographs have been made is likely to have signed a contract for exclusive use.
The Government have promised a fair licence fee and a market rate, but there is no such thing; each image is subject to the operating costs of its creator, the rarity and the subject. This is like trying to state that there is a market rate for art. The costs of production, the rarity value, the skill and the perceived status of the photographer all differ. Some photographs contain images of expensive professional models, property, released copyright artefacts, and so on. Others are snapshots. They may be difficult to tell apart visually, but will command radically different rates.
Work may be used in a context with which the photographer is not happy. The photograph's copyright holder-or, indeed, other stakeholders in the image, such as models, their agencies and others-might have commercial, political, religious, moral or ethical objections to possible uses to which the picture might be put and refuse permission in all circumstances if it was sought. By definition, the collective licensing of orphan works can take no account of that.
I welcome the fact that exclusions can be made from the framework, but how can contemporary photography be defined if that is the subject of exclusion? How do we know whether an orphan is contemporary?
On diligent search, there is no real mechanism or method for finding the creator of an image, and the Government have not yet put together a statement that details how this will work. Again, this will be complicated by the fact that there is no central archive or register.
I turn to contractual exclusivity. No photographer will henceforth be able to license an image on an exclusive basis. The image may well be in use elsewhere as an orphan. There are major international implications and chances of liability as a result. An orphan used here in the UK, but registered in the US, could expose the user to huge fines-something up to $150,000 per infringement in California, for example. There is, however, no mechanism to search the US register for images. How will the Government hold the ring when it comes to putting together orphan rights proposals which impact on the photographic profession? The situation is extremely polarised between some creators and those whom they believe will unjustly commercially exploit their photographs.
On these Benches, we have absolutely no quarrel with the cultural sector. We believe that is an entirely appropriate and proper use of orphan works, and, indeed, will resolve some of the long-standing issues that the cultural sector has. The concerns of photographers and photographic libraries revolve almost entirely around the problems of commercial use. Some, such as the Getty library-rather late in the day, I admit-have put forward some extremely interesting ideas, so that a cultural body can be authorised, as an authorised body, for specified purposes, to use orphan works. However, this clause would be further circumscribed in those circumstances. I look forward to what the Minister has to say. I beg to move.
My Lords, the noble Lord, Lord Clement-Jones, has just made some important points on behalf of photographers-and I do not depreciate them-but in tabling this amendment to leave out Clause 42, he has resorted to the nuclear option. This seems to be a strange resort for a Liberal Democrat. If we accept this amendment, we abandon any attempt to deal with the orphan works problem. As we noted in Committee, the scale of that problem is very significant indeed. It is estimated that there are some 50 million orphan works in museums, libraries and archives spread across the public sector, and the British Library is of the view that some 40 per cent of the material housed in its archives is made up of orphan works.
Under the law as we now have it, hugely time-consuming and expensive searches have to be undertaken or else vast amounts of material are effectively quarantined and left in limbo. Moreover, respectable academic and cultural institutions find themselves operating on the margins of the law. Nor should the House underestimate the economic significance of this. United Kingdom universities generated £59 billion for the UK economy in 2009, more than the pharmaceutical industry or the agricultural sector. We should not hamper the universities in making reasonable and proper use of the assets in their archives and libraries that are of potential scholarly, educational or cultural value-subject, of course, to all the safeguards in the Bill, as improved by the amendments that have been accepted and as it will be fleshed out by regulations.
I turn to a more general point about the character of this Bill and the way Parliament has had the opportunity to examine it. I am frankly puzzled as to why the Bill was not constructed and designed to show a clear distinction between the treatment of orphan works with little or no commercial value but important scholarly, educational or cultural value, and commercially produced material that is in copyright. It would have facilitated our analysis of it and made it far easier for us to give a fair wind to the parts that everybody in practice has agreed should be supported. But the two elements of the Bill have been so inextricably tangled up with each other that we have found ourselves in considerable difficulty.
I suggest with great respect to the Minister that it would have been much easier for Parliament and the interests that are affected by this legislation had the Government exhibited draft regulations at the same time as they exhibited the Bill or, preferably, a draft Bill. Had they then consulted with all the stakeholders on the whole of this draft legislation together, they would have saved huge amounts of worry and parliamentary time.
Most of our debates on Clause 42 have reflected the legitimate anxieties of interest groups which do not know how their work and their livelihood will be affected and fear an inappropriate use of the large powers sketched out in the Bill. This anxiety, and the time that has been spent debating these fears, was really unnecessary. Should it not be the normal way of proceeding with technical legislation of this kind-on which there is not a party political difference and everybody is feeling their way forward-that all concerned have the opportunity to consider draft material at reasonable length? In that way, everybody would understand where they stood, the Government could listen to advice and we could then have legislation that was properly considered and approved by those who knew most about it. It would be far easier for Parliament to handle.
I do not think it is a good thing to take large, vague powers in primary legislation without at the same time specifying the practical applications that the Government intend, and showing how the regulations will limit an inappropriate use of those powers.
My Lords, I say to the noble Lord, Lord Howarth, that it is not particularly constructive, which is a sad reflection, to say that had we had the consultation period, my concerns about a super-affirmative resolution would have been irrelevant. I say to the noble Lord, Lord Clement-Jones, that we will address the subjects of metadata and moral rights in the next amendment, but I would like to associate myself with his very comprehensive remarks on metadata before the Minister replies.
My Lords, Clause 42 allows for the authorisation of orphan works and extended licensing schemes. This includes a statutory obligation to consult those who are likely to be affected before setting the requirements for authorisation of these schemes. It may not be the perfect way of proceeding, but we believe that it provides an assurance. I tended to agree with my noble friend Lord Howarth, at least in the first part of his contribution, that the amendment of the noble Lord, Lord Clement-Jones, was rather a nuclear option.
On the other point made by my noble friend about commercial versus non-commercial, the key point is to ensure fairness to rights holders. It is not an arbitrary distinction between commercial and non-commercial use; it is about ensuring that there is an adequate regulation of organisations running orphan works or extended licensing schemes. The Government are aware that different sectors have different needs, and these provisions will give them 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, the Government will have the flexibility to not authorise any scheme to be set up in those areas.
The noble Lord, Lord Clement-Jones, also spoke about possible damages in the US. Licences will only affect the UK, so I am advised that there is no possibility of US damages.
For clarity, I should explain that extended licensing does not remove the owner's control of copyright or performers' rights. Rights holders who are members of licensing bodies will be able to influence whether these bodies adopt extended licensing. Rights holders who are not members will be able to opt out by giving notice. The noble Lord, Lord Clement-Jones, has been a champion of photographers' rights; I can reassure him that we have listened to the concerns of photographers and other copyright owners, and I want to make six points.
First, we have met with representatives of the photographic sector, including the Royal Photographic Society. We found the meetings helpful and have tabled amendments to address the concerns raised. We will continue to work with photographers and other rights holders and creators as we develop these proposals through consultation.
Secondly, the orphan works framework incentivises diligent searching, so no financial advantage should be gained from the misidentification of a work as orphan. Deliberate or negligent misidentification must carry appropriate sanctions. Thus, if a person fails to comply with their authorisation, for example by not carrying out a diligent search, they could be subject to regulatory sanctions including a financial penalty and the revocation of the authorisation. They may also be subject to actions for breach of statutory duty. Furthermore, we have outlined the requirements for diligent searching. These are in line with best practice, including the European High Level Expert Group on Digital Libraries. We will develop these further in our consultations, and if we find that there are no means to carry out a suitable search in a sector, that may be a strong indicator that the powers to authorise the use of orphan works should not be used in that sector.
Thirdly, the orphan works provision does not affect the licensing arrangements that photographers have in place and does not affect their ability to grant licences on an exclusive or any other basis in the future. This, I know, was a matter of grave concern to the noble Lord, Lord Clement-Jones. It is unlikely that these sorts of managed high-value images will become orphan. Where the rights holder can be identified, whether or not metadata accompany the work, they will be traceable by the diligent searching process. At present, if photographs are used without the consent of the rights holder or creator, they would need to take legal action to gain redress. The difference for the rights holder whose work is wrongly used under an authorised orphan works scheme is that there will be a clear point of contact and a simple process by which they can check for use of their works and claim any money being held for them.
Fourthly, some have argued that the orphan works provisions breach the Berne convention and TRIPS. The clause does not introduce exceptions to copyright or performers' rights, so Article 9 of the Berne convention and Article 13 of TRIPS do not apply. However, we confirm that the introduction of the orphan works provisions do not alter rights owners' ability to license their copyright or performers' rights on an exclusive or any other basis.
Fifthly, we recognise the problems caused by metadata being removed from works. This is something we need to take into account when considering whether digital images should be capable of being licensed under orphan works regulations. We will ask this question in the consultation, but for now I want to make it absolutely clear that the removal of metadata does not render a work orphan. I stress the point. It is now mandatory for treatment of royalties to be regulated in regulations permitting the use of orphan works. We envisage that the licensing of orphan works will be at the market rate where one exists. In any case, we intend that as far as possible, rights holders will get a similar return regardless of who licenses their work. This will guard against the unfair distortion of existing markets. These provisions will allow licences to be granted only in certain specific circumstances. There will be no change to privacy law, no change to contract law, and no change to the existing law on moral rights.
Sixthly, the Government are aware that different sectors have different needs. These provisions give us the flexibility to tailor the regulations so that they are appropriate for licensing different types of copyright works or performers' rights. As explained in Committee, if we find through consultation that certain types of works such as contemporary photography cannot be included in this framework without causing harm to rights holders, we will have the flexibility to exclude them, which addresses another point of concern expressed by the noble Lord, Lord Clement-Jones. I also want to emphasise that we have addressed concerns about the breadth of these powers by introducing a requirement that the first exercise of powers under proposed new Sections 116A and 116B of the 1988 Act and the equivalent provision for performers' rights is to be subject to the affirmative procedure.
Finally, I hope the flesh that we have put on these proposals will give the noble Lord the assurances he asked for at Second Reading and in Committee. I hope he will also agree that we have struck the right balance between making it clear in the Bill how these powers are to be exercised while not pre-empting the outcome of the existing consultations that will precede the regulations. In the light of these assurances, I hope that the noble Lord will feel able to withdraw his amendment.
I thank the Minister for that very comprehensive and somewhat reassuring reply, although I shall come back on a number of points. I thought that the noble Lord, Lord Howarth, was going to give me a hard time in his speech, but in the end I admit that I ended up agreeing almost completely with his comments about the way in which this clause could have been drafted. As in the music hall joke, we would not have started from here if we had had half a chance. It is unfortunate, but this is the clause we have. The nuclear option is not really a nuclear option because I do not plan to divide the House on this. However, it was fairly successful on the last occasion in the debate on whether the clause should stand part of the Bill which elicited quite a lot of amendments from the Government. I hope that the Government will look further at this, and certainly at some of the issues they will consult on, particularly in the light of our debates.
There is absolutely no question in my mind about the benefits of this to universities, cultural and education institutions. It is a common factor across the House. It is about particular sectors, and I am glad to say that the Minister has picked up on that entirely. We are not trying to destroy the whole concept, but there are some tricky economic factors at work here, and in the end it will depend on some extremely careful and sensitive consultation.
Even though both Ministers at this stage and in Committee have protested that this is not a question of commercial versus non-commercial, the vast bulk of the people reading this clause believe that there is a very strong distinction between them. The Minister says that it is a matter of fair regulation and appropriate licensing, not a question of commercial and non-commercial. But when the Minister starts consulting on orphan works, he will find that that is very much the division. I take enormous comfort from the fact that he has said that if it proves impossible in the course of negotiations to find an appropriate scheme that protects a particular sector-photography is one that I am particularly concerned about in this context-the schemes will not be authorised. All I would suggest to the Minister is that "contemporary photography" is not necessarily the right term because it is very difficult to establish. It may be better to consider "commercial photography" as being a particular sector that might be ripe for exemption.
I turn to the question of US damages. My view is that in many cases, US law is extra-territorial, so when the consultations are taking place over a scheme that involves commercial photography, it would be extremely wise for people to check the extra-territoriality of that scheme. I also warmly welcome the way in which there will be diligent searches, that there will be sanctions, and that best practice will be founded on certain key work that has already been done.
I do not understand one comment from the Minister about the effect of the ability of photographers to grant exclusive licences. I do not know whether that is the impact of statute overriding contract. As far as I can see, nothing in the Bill states that exclusivity is overridden and therefore a photographer is not liable in circumstances where, against their own contract, they have been forced to grant a licence over an orphan work. I do not know what the legal situation is, and again, just as in the international context, in the course of the consultations that the department will be carrying out, it also needs to be bottomed out. I say that because over and over again, the whole area of exclusivity is a source of considerable concern to photographers. I refer also to the rights of those who are the subjects of photographs and who have given their image rights for certain purposes and not for others.
The Minister said that it was unlikely that high-value photographs would become orphan works. I do not know the answer to that; it is pure speculation, if I may say so. The Minister again makes a legal point when he says that he does not believe that the orphan works proposals are in breach of the Berne convention because they do not introduce exceptions to copyright. I hope that that also will be soundly bottomed out when the time comes.
I welcome the fact that there will be consultations and that the affirmative procedure will be used, although I would have preferred the super-affirmative procedure suggested by the noble Viscount. When the regulations come back to this House they will be extremely carefully scrutinised and I hope that, unlike in certain circumstances, all Benches will feel free to vote as they see fit on the merits of the regulations. I beg leave to withdraw the amendment.
Amendment 167 withdrawn.
Moved by Lord Lucas
168: After Clause 42, insert the following new Clause-
"Protection of the right to link to publicly available information on the internet
(1) The Copyright, Designs and Patents Act 1988 is amended as follows.
(2) After section 116 insert-
"116A Protection of the right to link to publicly available information on the internet
(2) A short extract of copyright material used to explain the significance of a URL may be permitted under 'fair use' provisions.
(3) Any copying of copyright material required to create the link and text referred to in subsections (1) and (2) shall not constitute an infringement of copyright if destroyed immediately afterwards.""
My Lords, Amendment 168 suggests that we should take a position on the current dispute between publishers, internet search engines, news aggregators and others in order to defend and make clear where the boundaries of copyright should be in this area.
Noble Lords may have seen briefing from publishers, newspaper publishers and magazine people on the amendment. They are happy to concede that a link in itself is not a breach of copyright; they also do not seem to quarrel with subsection (3) of the amendment which refers to a process of copying the copyright material in order to make the link and then disposing of it afterwards. What seems to cause a problem for them is the use of a brief extract of the copyright material to describe the link. A typical example of this would be to use Google images to search for images on the web. Google images display a small thumbnail of a picture so that you can flip through many pages while looking for a picture of Lord Lucas, or whatever catches your fancy-I am sure the Minister would never do such a thing-until you find one which is of the right Lord Lucas or is sufficiently horrible to suit your purposes. The newspaper publishers say that you should not be able to do that. Nor should you be allowed to take a short text extract-for example, the headline or half of the first sentence or whatever-sufficient to give an indication of what the link leads to. They claim that is copyright.
I can see the argument. They are saying that the current fair use, which is limited to things such as reviews and research, does not cover the activities of search engines or news aggregators, and perhaps it does not. That is the reason for the amendment. It is time we debated this. We, as Parliament, ought to draw the boundaries at a fair place for copyright owners and in a proper place for users of the internet. A link should be properly described, and it should be possible to use an equivalent of the right to make short extracts from reviews in order to describe that link. The publishers' associations should get back in their box. I beg to move.
My Lords, the amendment is essential, particularly in view of Amendment 112 which replaced the original Clause 17. Under that clause, a court can give an injunction where a substantial proportion of the content is made accessible via a specified online location-in other words, it will catch search engines.
I declare an interest in that I have an association with a search engine called Pingar which aggregates information for business purposes into small reports, with headings, URL and a short description-which is exactly what the noble Lord, Lord Lucas, is talking about-so that businesses can use that URL to drill down and find possibly copyright material. They would then pay for that material because they would be going through a proper place where they can be charged accordingly. This acts as an advertisement, effectively, for copyright material and I cannot understand why many people would object to it.
Newspapers will themselves have to be careful. When they quote chunks of a report or other articles-which they do from time to time-that is surely bringing things together, aggregating and introducing copyright material into an article that they are publishing. Therefore, in trying to protect themselves, they will probably make it so that they cannot carry out reporting in the way that they do at the moment.
As I have always said, it would have been better to tackle this through a rewrite of the Copyright, Designs and Patents 1988, but that is not going to happen in the near future. Whoever becomes the next Government will not tackle the issue because they will probably feel that they have tackled enough of it in the Digital Economy Bill. However, the Bill is not nearly sufficient to begin to touch the surface of what we should be doing in a digital age. Unfortunately I do not think anything else will be done in the near future, in which case the amendment of the noble Lord, Lord Lucas, is absolutely essential; otherwise the search engines and other people will get into a huge amount of difficulty. It will all end up in a very expensive test case and it will be left to judges to sort out the mess. I agree with the noble Lord, Lord Lucas, that this issue is for Parliament to decide; it is not for people to interpret bits of law, particularly bits written in haste without adequate public consultation. If the Minister does not accept the amendment, I hope that he will give a guarantee to bring one back at Third Reading which covers protections for search engines, aggregators and news sites.
My Lords, the Government agree that copyright should not impair people's ability to link to content which is intended to be publicly available on the internet. However, it is not clear that the activities listed in the amendment would constitute copyright infringement. To the extent that they do constitute infringement, the law already has an exemption for temporary copying which is designed to facilitate browsing the internet and caching. This is covered in Section 28A of the Copyright, Designs and Patents Act 1988. It is unclear how the new provision would work with this existing exemption. It would simply create confusion.
The noble Lord, Lord Lucas, and the noble Earl, Lord Erroll, also referred to search engines and content aggregators. These face additional challenges in linking to web content, in particular, those associated with automatic provision of excerpts. However, it is right that they should face the restriction of not copying a substantial part of a work. Search and aggregation are both important but so, too, are the rights of content creators. Some of these issues are currently the subject of litigation before the Copyright Tribunal in Meltwater v the Newspaper Licensing Agency.
There was also a question about whether it is possible to use short excerpts of a work without infringing copyright. Ownership of copyright in a work gives the owner exclusive rights to do certain acts in relation to that work. Infringement occurs if a person does any of those acts in relation to the whole or a substantial part of that work without the consent of the right holder. It is possible to use excerpts of a work without the permission of the right holder and without infringing copyright if those excerpts are not substantial, or if one of the statutory exemptions applies.
Unfortunately, we do not believe that this amendment helps the situation. I have tried to be clear and to give some further assurances in my comments. We will look at the situation, but, at the moment, we feel that this amendment is not the right one. I hope that, in the light of my comments, the noble Lord will feel capable of withdrawing the amendment.
My Lords, I am grateful for that reply. It seems to me that the Minister is coming from very much the same position as I am. Doubtless, if we get troubles with the cases in front of the tribunal, I will come back to him to ask if we can put the law back where we thought it was, but, for the moment, I beg leave to withdraw the amendment.
Amendment 168 withdrawn.
Moved by Viscount Bridgeman
168A: After Clause 42, insert the following new Clause-
"Effect of electronic rights management information material gathered by an automated process
(1) The Copyright, Designs and Patents Act 1988 (the "1988 Act") is amended as follows.
(2) After section 296ZG (electronic rights management information) insert-
"296ZH Effect of electronic rights management information material gathered by an automated process
(1) This section applies where electronic rights management information is associated with a copy of a copyright work, or appears in connection with the communication to the public of a copyright work, and a person (G) in the course of a business makes a copy of, or performs, any other restricted act in relation to that work by an automated process.
(2) If the conditions in subsection (3) are satisfied, G is deemed to have notice of the contents of that electronic rights management information ("the information") for all purposes relating to his further use of, or access to, the copyright work.
(3) Those conditions are that-
(a) it is reasonably practicable for G to instruct the equipment or software which conducts the automated process to recognise, read and interpret the information;
(b) the meaning of the information may be ascertained from published standards which G knows about or ought to know about; and
(c) the meaning of the information is sufficiently clear that it is reasonably practicable to instruct G's equipment or software to comply with any restrictions contained in the information regarding the further use of, or access to, the copyright work.
(4) Where, apart from this section, G would be regarded in law as having notice of any of the information, nothing in this section prevents F from having such notice.
(5) Subsections (1) to (4), and any other provisions of this Act as it has effect for the purposes of those subsections apply, with any necessary adaptations, to rights in performances, publication rights and database right.
(6) Section 296ZG(7) (definition of certain expressions) extends to this section.""
My Lords, my normal courtesies have deserted me. I omitted to thank the Minister for meeting us on Amendments 155A and 155B. Also, in accordance with the provisions of this House, I am required to declare an interest as a non-executive director of the Bridgeman Art Library, which is a photographic archive.
In Committee, I and other noble Lords tabled substantial amendments on moral rights and metadata. However, in their fact-sheet dated 22 or
As the noble Lord, Lord Clement-Jones, and, indeed, the Minister have agreed, metadata is of particular importance to the photographic industry, since it is a valuable tool in ensuring that potential users and licensees are continually made aware of, among other things, the ownership and source of individual works. The obligatory linking of metadata with its relevant material is also fundamental to the creation of an orderly procedure for extended collective licences. Importantly, it also has the potential to play a significant role in inhibiting growth in the number of orphan works, a goal which we all share.
These two amendments, Amendments 168A and 168B, originally put forward in Committee, are designed to address this fast-moving technology. Amendment 168B, in particular, is designed to reflect the fact that the only way, in my view, to inhibit the illicit separation of metadata from the relevant image is by way of a meaningful financial penalty. This did not find favour with the noble Lord, Lord Davies of Oldham, in Committee, but I should be very grateful if the Minister could give us some indication of whether there is some other method of policing available, and whether the meaningful financial penalty can be recognised. This matter will require much further consideration and I would be grateful for an assurance from the Minister that this will be the subject of early consultation, preferably by incorporation into the regulations, or, failing that, by early legislation.
On the question of moral rights, when I introduced this amendment in Committee, the noble Lord, Lord Davies of Oldham, acknowledged that this is a very difficult subject and he undertook that his officials would look again at the issues raised, I hope not excluding the particular anomaly of creators of journalistic works who are unable, under current legislation, to claim ownership. I make the fundamental point that ECL is not acceptable unless every citizen has the enforceable right to be identified, and stay identified, as the author or performer of their works.
The Government have been frank about the fact that moral rights have not been addressed in the Bill, and I suggest that this omission has inevitably made the Bill somewhat less effective. It is all the more reason that this important subject is addressed at an early stage, and I would welcome the Minister's assurance on that point as well.
Finally-your Lordships will be pleased to know that this is the last amendment on Report-I refer to Amendment 168C on moral rights. This amendment was introduced by the noble Lord, Lord Clement-Jones, and with his agreement, I have brought it back because it contains a fundamental point; that of the unwaivability of moral rights. This is applicable in every other country in the European Union, with the exception of the United Kingdom and Ireland, and it is designed, again, to protect the small photographer. We must envisage scenes where a substantial user with substantial resources will say to the owner of the copyright, "Leave it to us; we will look after all the arrangements, all your finances, but leave it to us". The assurance that that right cannot be waived, whatever the transaction between the two parties, will be, in my view, a considerable reassurance to the photographic industry in particular. That is all I wish to say on that provision. I beg to move.
My Lords, I support the amendments in the names of the noble Viscount, Lord Bridgeman, and myself. These are clearly of fundamental importance and I would say that there should be no orphan works scheme which applies to commercial photographers unless provisions of this kind are enacted-I feel as strongly as that both about the metadata provisions and the moral rights aspect. We need to ensure that creators can defend their work from inappropriate use and distortion, that works are clearly attributed and that further works are not orphaned. That is a very important point in view of the claim that thousands of works are being created orphans each week. This is fundamental to the concerns of the photographers and the photographic libraries.
My Lords, I thank my noble friend Lord Bridgeman for returning to this important issue again. Our Committee discussions were cut rather short on these sorts of matters because of time constraints and, judging by the sudden increase in the number of noble Lords in the Chamber-which I regret, I fear, has little to do with the Bill-something similar might happen now if I do not keep my remarks brief. We entirely agree with my noble friend that the issues he raises need to be resolved. For example, as we have heard, it is far too easy for photographs to be stripped of identifying information and copied to many different users, denying owners any chance of controlling or benefiting from the use of their work.
I understand that the Government are intending to start the pre-legislative process to address these problems, and on these Benches, we will be holding a review of copyright law in view of issues raised by the internet. I look forward to hearing more from the Minister about the Government's intentions in this area.
There are also risks of adverse consequences to legitimate web search and other valued services. It would be wrong to legislate without having examined the full consequences of action. For example, I imagine some noble Lords might wish to see provisions for sanctions against any false claim of copyright through electronic rights management information or wilful failure to develop the capacity for machine-reading of electronic rights management information. Given that neither the need for, nor the effects of this amendment are clearly established, I urge the noble Viscount to withdraw the amendment.
On Amendment 168B, the issue of removal or alteration of metadata is of great concern to many creators, for example, photographers. It is already the case that alteration of electronic rights management information, which may include metadata, is actionable in the same way as copyright infringement. Amendment 168B seeks to establish sanctions against persons who provide products or services that are designed for unauthorised metadata removal or editing.
In principle, the Government would support changes that helped to tackle unauthorised tampering with metadata, and I appreciate the effort that has gone into improving this amendment over its predecessor from Committee stage, Amendment 292A. However, it is unclear what "authorisation" means in this context. As a consequence, the amendment might call into question the legality of supplying assistance currently used by rights holders to edit their own metadata. That could force changes to existing legitimate products, with concomitant expense and potentially a hiatus in availability.
The current law concentrates on the act of unauthorised tampering with electronic metadata rather than the means of doing so. The Government's view is that this remains the most viable route of dealing with the real problem with metadata tampering that so concerns noble Lords. On that basis, I urge noble Lords not to move the amendment.
With regard to Amendments 168C and 168D, the Government remain alive to the concerns of many creators over the issue of moral rights. We understand fully that this is a concern for photographers in particular. We are continuing to look at this issue, and will do so in conjunction with the photographic community. For example, the Strategic Advisory Board for Intellectual Property Policy has organised a workshop for that very purpose on
Amendment 168C would prevent the waiver of moral rights. There are real concerns about the impact of this in practice. Leaving aside the question of whether it is right to restrict individuals' freedom in this way, we would need to consider what adverse consequences there would be, including for creators of some works.
Amendment 168D would mean that the right to be identified as the author or director of a copyright work or as a performer applied automatically. It would also restrict and remove exceptions to this right. The Government do not want to introduce such fundamental changes without fully consulting on and considering the consequences.
We are committed to looking at these issues, but they are too complex to resolve with these amendments today. Although in some cases we support the spirit and principle, we do not believe that the amendments are right. There is a good deal of complexity in these areas. We have given a lot of assurances of consultation and we have brought up examples of that during the comments that I have just made. I hope, therefore, in the light of my comments and assurances, that the noble Viscount will feel able to withdraw the amendment.
My Lords, I am grateful that the Minister has treated these amendments as probing, which indeed they are. My only comment is that the ingenuity of the electronics and software industry in circumventing regulations designed to inhibit, for instance, the separation of metadata, should never be underestimated. This is a huge challenge. I am grateful, though, and I beg leave to withdraw the amendment.
Amendment 168A withdrawn.
Amendments 168B to 168D not moved.
Schedule 2 : Licensing of copyright and performers' property rights
Amendments 169 to 172
Moved by Lord Young of Norwood Green
169: Schedule 2, page 60, line 30, leave out "may by regulations require a licensing body" and insert-
"(a) must, in the case of a licensing body or other person authorised under section 116A or 116B, and
(b) may, in the case of any licensing body that appears to the Secretary of State not to have a system of self-regulation protecting the interests of copyright owners, licensees, prospective licensees or the public, require the licensing body or other person"
170: Schedule 2, page 60, leave out lines 33 to 38
171: Schedule 2, page 61, line 1, at end insert "or other person"
172: Schedule 2, page 61, line 5, at end insert "or other person"
Amendments 169 to 172 agreed.
Amendment 172A not moved.
Amendments 173 to 177
Moved by Lord Young of Norwood Green
173: Schedule 2, page 61, leave out lines 6 to 13
174: Schedule 2, page 61, line 15, leave out "such provision" and insert "provision under paragraph 1"
175: Schedule 2, page 61, line 16, at end insert "or other person"
176: Schedule 2, page 61, line 17, leave out "sub-paragraph (1)(b)" and insert "paragraph 1(1)(b)"
177: Schedule 2, page 61, line 19, at end insert-
"2A (1) Regulations under paragraph 1 must provide for a code applying to a licensing body to include provision relating to these matters-
(a) obligations of the body to its members;
(b) where the body is authorised under section 116B, obligations of the body to owners of copyright in works subject to the authorisation who are not members;
(c) accounting arrangements in relation to royalties or other sums paid in respect of a licence;
(d) obligations of the body to licensees;
(e) control by the body of administration and marketing carried out by it or on its behalf;
(f) the handling of complaints against the body, including the appointment of a person to represent the interests of complainants;
(g) provision of information by the body, and other matters relating to transparency in relation to activities of the body;
(h) the making of reports by the body to the Secretary of State.
(2) Regulations under paragraph 1 must provide for a code to include, in relation to works to which an authorisation under section 116A or 116B applies that are registered as orphan works, provision relating to these matters-
(a) accounting arrangements in relation to royalties or other sums paid in respect of a licence;
(b) calculation of payments to copyright owners;
(c) arrangements for holding sums for copyright owners;
(d) provision of information by the authorised person."
Amendments 173 to 177 agreed.
Amendment 177A not moved.
Amendments 178 to 190
Moved by Lord Young of Norwood Green
178: Schedule 2, page 61, line 27, after "116B," insert-
"(ba) any of subsections (4) to (6) of section 116CB,"
179: Schedule 2, page 62, line 19, at end insert-
"(1A) Where the missing rights owner is not the sole owner of the rights concerned, an authorisation does not affect the need for consent from any other owner."
180: Schedule 2, page 62, line 23, leave out "may" and insert "must"
181: Schedule 2, page 62, line 32, leave out "an orphan rights register (see paragraph 1C)" and insert "a register kept in accordance with paragraph 1CB(1)."
182: Schedule 2, page 63, line 8, leave out from beginning to end of line 42 on page 64 and insert-
"1CA (1) A right is an orphan right if a person-
(a) has carried out in accordance with regulations a diligent search to find or, if necessary, to identify and find, the owner of, or of an interest in, a performer's property rights, and
(b) has published the notice required by this paragraph, but has not found the owner.
(2) References to the missing rights owner in relation to orphan rights are references to that owner.
(3) For the purposes of sub-paragraph (1CA (1)(a) the person carrying out the search must in particular-
(a) make such use as is reasonable of sources of information, including sources within sub-paragraph (4), relating to the apparent country of origin of the recording concerned, and
(b) have regard to any presumptions under section 105 that would apply in relation to the recording in any proceedings.
(4) The sources referred to in sub-paragraph (3)(a) are-
(a) licensing bodies;
(b) associations of publishers or authors;
(c) systems for identifying works of the type concerned;
(d) published library catalogues and indexes;
(e) public databases, including public records that may indicate successors in title.
(5) For the purposes of sub-paragraph (3)(b) a recording's apparent country of origin is the country which the person carrying out the search reasonably believes is most likely to be-
(a) the country of the recording's first publication, or
(b) if the recording has not been published, the country with which its making is most closely connected.
(6) The notice required by sub-paragraph (1)(b) is notice of the proposal to enter the interest concerned in a register kept in accordance with paragraph 1CB(1), published in a way designed to bring the proposal to the attention of the copyright owner.
(7) The Secretary of State may by regulations amend any of the preceding provisions of this section.
1CB (1) Regulations made by the Secretary of State must provide for an authorisation under paragraph 1A or 1B to have effect in respect of an interest of a missing rights owner only if the interest is entered in a register kept by the authorised person (an "orphan rights register").
(2) The regulations must-
(a) specify the form of an orphan rights register and how it is to be kept, and
(b) provide for an orphan rights register to be made available to the public.
(3) An entry in an orphan rights register must include a sufficient record of the steps taken for the purposes of paragraph 1CA(1)(a) and (b).
(4) An authorised person must not enter an interest in an orphan rights register unless the authorised person-
(a) has taken the steps referred to in paragraph 1CA(1)(a) and (b) and has not found the owner of the interest, or
(b) has reasonable grounds for believing that another person has taken those steps and that the owner of the interest has not been found.
(5) If an interest is entered in an authorised person's orphan rights register and the authorised person finds the owner of the interest, the authorised person must remove the entry.
(6) If in relation to an interest entered in an authorised person's orphan rights register, the authorised person-
(a) is aware that any of the steps referred to in paragraph 1CA(1)(a) and (b) was not taken, or
(b) is aware of information that makes it no longer reasonable to rely on the steps taken, the authorised person must as soon as possible take those steps or remove the entry.
(7) Where an interest is entered in an orphan rights register, regulations under paragraph 1A or 1B may provide for an authorisation under that paragraph to have effect in respect of that interest despite a failure to take steps referred to in paragraph 1CA(1)(a) or (b) or to comply with any of sub-paragraphs (4) to (6).
(8) But a failure by an authorised person to comply with any of sub-paragraphs (4) to (6) is actionable as a breach of statutory duty owed to the owner of the interest concerned (and see paragraph 3 of Schedule A1 as it applies by virtue of paragraph 1D).
(9) Any guidance issued by the Secretary of State must be taken into account in deciding whether a person has taken the steps referred to in paragraph 1CA(1)(a) and (b) or has complied with sub-paragraph (6).
(10) The Secretary of State may by regulations amend any of the preceding provisions of this section."
183: Schedule 2, page 64, line 43, leave out "and 1B" and insert "to 1CB"
184: Schedule 2, page 64, line 44, leave out "and 116B" and insert "to 116CB-
185: Schedule 2, page 64, line 46, after "rights" insert ", and
(b) as if the reference in paragraph 3(1)(ba) to section 116CB(4) to (6) were a reference to paragraph 1CB(4) to (6);"
186: Schedule 2, page 65, line 1, leave out "1C" and insert "1CB"
187: Schedule 2, page 65, line 9, at end insert-
"( ) Before making provision as to requirements for a person's becoming or remaining authorised under paragraph 1A or 1B, the Secretary of State must consult the persons the Secretary of State thinks likely to be affected (or persons who represent such persons) and such other persons as the Secretary of State thinks fit."
188: Schedule 2, page 65, line 10, leave out "1C" and insert "1CB"
189: Schedule 2, page 65, line 19, leave out "1C" and insert "1CB"
190: Schedule 2, page 65, line 20, leave out "paragraph 1C or another" and insert "any"
Amendments 178 to 190 agreed.
Clause 48 : Commencement
Moved by Lord Young of Norwood Green
190A: Clause 48, page 55, line 43, leave out "40(1) to" and insert "40(2), (3), (4) and"
Amendment 190A agreed.
Amendment 191 had been withdrawn from the Marshalled List.