Classic instruments

Wilf_4x3.jpgWilf Stevenson on the unsung scrutiny that makes up much of the House of Lords work

The pomp and ceremony of the State Opening of Parliament, the televising of Oral Questions, and the occasional news snippet of a set-piece debate are the aspects of the work of the House of Lords that most people know about. But it is not what working peers spend the majority of their time on. Many colleagues are appointed to Select Committees which are highly regarded for the reports they produce on important issues of the day, and they and others also do the heavy lifting of in-depth scrutiny on huge amounts of secondary legislation.   

Secondary legislation affects us all much more directly and often than might be imagined. While primary legislation gives powers to governments to act, the regulations specify how these powers will be used in practice – and the penalties for non-compliance.

One debate last week was, in many ways, typical of this activity, as I spent the day preparing for and then speaking in a debate on two Statutory Instruments (SIs) introduced by the government, setting up an ‘Orphan Works’ scheme. These are copyright works or performers’ rights for which one or more rights holder cannot be identified (or if identified, cannot be located), so permission to use them cannot be obtained. Such works, some of which are culturally and economically significant, can at present only be used lawfully to a very limited extent.

The need for these regulations arose from two places. In 2012 the EU issued a Directive which required member states to introduce by the end of October 2014 an exception to copyright to allow cultural and heritage organisations to digitise orphan works in their collections and to make them available to the public on their websites. And in 2011, Ministers agreed to implement one of the recommendations of the Hargreaves Report, to extend the EU Directive to enable the lawful use of orphan works for both commercial and non-commercial use in books, TV programmes and exhibitions. That, so the government argued, would enable access to culturally valuable works, contribute to economic growth, minimise existing perverse incentives to use these works illegally, and protect and remunerate right holders.

It is not possible to amend SIs, and while there was concern at some of the regulations from rightsholders, we felt the best approach was ask a series of questions and to get the Minister to put on the record some of the reasoning behind the regulations. The group that assembled to debate the SIs was small but cross-party, and as I think Hansard will attest gave the regulations a proper going over.

For me the most important issues were why there were two SIs not one; the lack of clarity of what would constitute a “diligent search” for rights holders, which the regulations require before material can be licensed; why the fees to be set aside for any right holders that subsequently come forward has to be held in escrow (with a third party) at a time when grant-in-aid funding was so scarce; and why the vesting date was not one of the Common Commencement Dates agreed for all new regulations. 

The irony of a Conservative-led government not only implementing an EU Directive but gold-plating it was not lost on the Committee, and may come back to haunt Ministers. The Impact Assessment produced by the government paints a picture of a scheme that will make a small contribution to economic growth. There may of course, be a treasure trove of millions of orphan works but the truth is that we simply don’t know. We have been promised a review of the SIs in a year’s time, when what Ministers said in response to our questions can be used to hold them to account for what has actually transpired since the scheme was introduced. Interested spectators should book their seats now for the replay!

Lord Wilf Stevenson of Balmacara is Shadow DCMS Minister in the House of Lords, and also a member of the Shadow DCMS team. He tweets @Missenden50

Published 27th October 2014

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