stop confiscation of your property and Human Rights in the UK Enterprise and Regulatory Reform Bill

Liberal Democrats propose amendments to Clause 43 for Second Reading

The Liberal Democrats will try to introduce these amendments to Clause 43 on Tuesday, when it receives its Second Reading, and probable wash-up, in the House of Commons.

Don Foster MP, Liberal Democrat Shadow Culture, Media and Sport Secretary, and Olympics, has said in an email to Stop43:

“The LibDem team is clear that many of the bits of clause 43 are important BUT that the particular case of photography has got wrapped up in it in a way which isn't right... we are trying to do something more immediately and are seeking amendments to remove photography from the legislation. They are listed below.”

Exempt recent photography from orphan works licensing

* Clause 43, page 52, line 20, at end insert 'subject to subsection (1A) below.

(1A) The regulations may not authorise the grant of a licence in respect of works of photography created after 1950.'

Exempt photography from extended licensing

* Clause 43, page 53, line 7, at end insert -

', or

(c) in respect of works of photography.'

We recognise and appreciate the good intentions behind this attempt. Unfortunately, the road to hell is paved with good intentions.

The Liberal Democrats reckon that they can tell a photograph made after 1950 from one made before. How? Carbon dating? Does this mean therefore that the Liberal Democrats now consider that it is reasonable to allow the use of orphan works while allowing them to continue to be mass produced? This is the fundamental flaw with Clause 43, and why at this stage, and because of Government's truncation of due Parliamentary process, we believe its removal is the only viable option.

The Liberal Democrats want to exempt photography from Extended Collective Licensing. That is a substantial improvement on the current wording but leaves no door open to re-negotiate inalienable moral rights or proper sanctions against copyright infringement, which could be raised if Clause 43 is deleted, and upon which point all photographers’ organisations, the NUJ, BAPLA, Getty Images and others are unanimous.

3. Stop 43 and EPUK were informed last Monday, 29th March, that there was
little or no chance of further amendments being made to the Bill - only wholesale removal of clauses or subclauses. How confident are the Liberal Democrats of getting their amendments read, voted on and incorporated?

If the Liberal Democrats fail in their attempt, what is their fallback position? Enact Clause 43 or delete it? Please forgive us, but we have little faith in the implementation of assurances given by the present Government, won as concessions in return for the withdrawal of Lord Clement-Jones’ Amendment to remove Clause 43.

After the Second Day of the Lords Report Stage
Lord Clement-Jones, Liberal Democrat Spokesperson for Culture, Media and Sport, wrote the following to EPUK about the briefing paper we sent to him and his use of it in his Amendment to remove Clause 43:

“I certainly did base my remarks on your paper-immensely useful. It's always annoying to have to pull punches and not be able to vote but we wouldn't have won sadly. That means I just had to make threats about how we would scrutinize the regulations, and we will. In practice I think if you keep up the campaign they will find it very difficult to include commercial photographers in the Orphans works regulations.”

We read that as saying that the Liberal Democrats wanted Clause 43 removed but felt that they would not have won a vote in the Lords if they had insisted upon it. Why has their position subsequently changed?

We believe that there is no viable middle way. We call upon the Liberal Democrats to withdraw their proposed amendments and act now to remove Clauses 43 and 46 from the Digital Economy Bill.

As concerned photographers we, and we hope other photographers and creatives, recognise that there are legitimate "cultural" uses for orphan works and are eager to help. Given that this is probably the first occasion on which creatives en masse have had their views properly heard in this debate (as distinct from their "representatives", the "
creative industries"), we wish to be given the opportunity to introduce new thinking into this debate. We are willing and ready to help start building a new primary-legislation Bill to replace Clause 43, and to define and implement our new thinking.