Several amendments to the Orphan Works section of the Digital Economy Bill have been tabled by Lord Mandelson today, ahead of tomorrows IPO meeting with photographers' representative organisations. There are no changes to the Bill that we regard as significant or helpful. Rather the amendments seek to add supposedly reassuring detail to existing S42 clauses relating to orphan works, but they do not render them any less problematic. In any event, note Schedule 2 (7) : "The Secretary of State may by regulations amend any of the preceding provisions of this section". The Lord giveth and the Lord taketh away. This is becoming the signature characteristic of the DEB.

These amendments will be considered during the Report stage in the Lords, which commences Monday 1 March, and will probably last 3 days. It will then go to the Commons, but there is not enough time for it to complete its passage in a properly considered manner because of the forthcoming election. Parliament will be in recess for a week over Easter, leaving just 4 or 5 days for legislation before it dissolves, probably around 12th April.

This will be a frantic period, known as the "Wash-Up" as the Government has the DEB, Equality Bill, Finance Bill and Budget, all of which it will try to get passed into law.

The "Wash-Up" is notoriously undemocratic as debate is curtailed and votes taken according to agreements cobbled together between the parties. There is a high probability that the DEB and Orphan Works licensing will go through "on the nod" unless pressure is maintained on MP's by photographers. By mid-April we could be living with a law that erodes our copyright in a major way, which some MP's haven't understood and will never debate before voting.

This makes it even more essential for us to tell them what they're doing. In addition to the MP letter templates EPUK and CopyrightAction have put together a briefing paper that outlines the major issues with the Bill, and a position paper that outlines changes photographers need to see.

The Amendments

 

Clause 42

LORD MANDELSON

Page 49, line 23, after "the" insert "missing"

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."

Page 49, line 27, leave out "may" and insert "must"

Page 49, line 35, leave out from "in" to end of line 36 and insert "a register kept in accordance with section 116CB(1)."

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."

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."

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."

Page 52, line 20, leave out "section 116C or another" and insert "any"

Page 52, line 28, at end insert—

""missing copyright owner (in relation to an orphan work)

section 116CA";"

Page 52, line 29, leave out "116C" and insert "116CA"

Page 52, line 30, at end insert—

""missing rights owner (in relation to orphan rights)

paragraph 1CA of Schedule 2A";"

Page 52, line 31, leave out "1C" and insert "1CA"

Schedule 2

LORD MANDELSON

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"

Page 60, leave out lines 33 to 38

Page 61, line 1, at end insert "or other person"

Page 61, line 5, at end insert "or other person"

Page 61, leave out lines 6 to 13

Page 61, line 15, leave out "such provision" and insert "provision under paragraph 1"

Page 61, line 16, at end insert "or other person"

Page 61, line 17, leave out "sub-paragraph (1)(b)" and insert "paragraph 1(1)(b)"

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."

Page 61, line 27, after "116B," insert—

"(ba)

any of subsections (4) to (6) of section 116CB,"

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."

Page 62, line 23, leave out "may" and insert "must"

Page 62, line 32, leave out "an orphan rights register (see paragraph 1C)" and insert "a register kept in accordance with paragraph 1CB(1)."

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."

Page 64, line 43, leave out "and 1B" and insert "to 1CB"

Page 64, line 44, leave out "and 116B" and insert "to 116CB—

(a)

"

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);"

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."

Page 65, line 19, leave out "1C" and insert "1CB"

Page 65, line 20, leave out "paragraph 1C or another" and insert "any"

http://www.publications.parliament.uk/pa/ld200910/ldbills/032/amend/am03...