Enterprise and Regulatory Reform Bill
Debate between Lord Stevenson of Balmacara and Lord Howie of Troon
Lord Howie of Troon
My Lords, I want to make a very brief observation with regard to orphan works. The existing definition of an orphan work is not terribly satisfactory. The matter came before the previous Government in their last weeks—I see my noble friend Lord Young nodding over there—when I was successful in persuading them to accept a new definition of what an orphan work actually was, so that people would be in no confusion as to what they were dealing with. Unfortunately, this was the declining days of that Government and that part of the legislation disappeared in the wash-up. I wonder whether the Minister might look back to the Hansard of that period for the redefinition of orphan works and, perhaps at a later stage of this Bill, bring it back in.
Lord Stevenson of Balmacara
My Lords, this has been a very powerful debate. In contradistinction to what have been discussing in the immediate run of amendments, this seems to be a situation where the Government are trying to be a little too definitive in primary legislation. My point would be, to support the comments made on this side, to suggest that the Minister might wish to review that.
We have heard that we are talking about hundreds of millions of works, which are—in the words that my noble friend used—underused, understudied and undercelebrated. There is no contention that the repositories in which these works lie are happy to pay for the cost of the administration of the scheme that is to be used to provide access to them. The concern is that by providing a very inflexible approach to this, these institutions will effectively have been taxed to provide funds which will go to the Crown under the bona vacantia rules. This seems extraordinarily unfair and I urge the Government to think again about this issue. I am aware that it has already been the subject of some discussion and debate but, given that we have at least another 10 days until the final stages of this Bill, perhaps there is still time for the meeting or discussion that I might encourage the Minister to have. We would certainly be very willing to meet his timetable in order to progress this.
The point must surely be that there ought to be a way round this that would accept the overall architecture of the structure of the orphan fees arrangement but would not penalise or tax those who have to operate it for the benefit of the public good. We have already had some suggestions that would perhaps include something to do with digital photography, which will always be a difficulty in this area. That might be a step too far. However, there are other ideas around, such as that the escrow account might be not returned to the Crown but made available for cultural work or, more particularly, returned to the original institution if the money is not claimed by a bone fide rights holder.
There might be a case for trying a pilot scheme, which would allow us to test out a number of options. Whatever there is, there is certainly a willingness on our side to see if we can get this right. This scheme is a good scheme. It is one that we on this side want to support, but we find it very difficult to see the right way forward if the Government insist on the present wording of the Bill.