Unfair contracts under review
THE COPYRIGHT sections of the Enterprise and Regulatory Reform Bill were debated at "Report Stage" in the House of Lords on Monday 11 March. None of the amendments that were debated were passed. But practically every amendment that sought to clarify the safeguards for creators in the proposals for extended collective licensing and licensing orphan works got a satisfactory reassurance from the Minister, Viscount Younger, that the points raised would indeed be included in the "Statutory Instruments" that are due to contain the nitty-gritty detail of the proposed changes to copyright law. Those reassurances are the goal of the Lords who put the amendments.
The Minister promised to meet with creators, particularly the Creators' Rights Alliance to discuss the issue of unfair contracts being imposed on sole traders by powerful corporations. Lord Clement-Jones, raising the issue, reported that he has "sent the Minister a paper suggesting how such a review might take place. It would be an independent review of copyright contracts for creators and would explore how copyright contracts could be made fairer to ensure that creators receive a fair share of the money that consumers pay for copyright content and that the purpose of copyright in stimulating and sustaining creativity is met.".
Only one amendment was voted on. Lord Howarth and others spoke for "The Great Cultural Institutions" (inter alia the British Library and the BBC) - seeking to overturn the provision in the Bill that says licenses to use orphan works - those whose creators cannot be found - must be paid for in advance. The only speaker against him was the Minister: we had the pleasantly disquieting experience of hearing him repeat arguments that we creators have made since the issue of orphan works was first raised.
"Making payment discretionary would risk undercutting the market," the Minister said: "It would also risk rights holders not receiving the remuneration that they would otherwise be due. Therefore, to avoid unfair competition, it should not be cheaper to use an orphan work than a non-orphan work. Where cultural institutions are acting commercially, it seems only fair that they do not receive preferential treatment to other parties licensing in the market." The amendment was defeated by 214 votes to 194.
We continue to comb the Minister's statements checking for loopholes and looking for promising avenues for further discussion.
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