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Digital Economy Bill [HL]

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.