Some of the measures in the Act will come into effect immediately with others coming into effect in two months’ time. Many of the Act’s provisions require further public consultation and in some cases approval by Parliament, before they can be implemented.

Further information:

• Factsheet: Contents and Commencement of the Act : a summary of the Act’s contents.
• The Digital Economy Act 2010 : the Act itself.
• Ofcom Terms of Reference : Ofcom’s initial obligations and approach under the Act, and opportunities for stakeholder engagement.
• Mott-MacDonald – P2P Final report : a recent report from consultancy Mott MacDonald, advising on cost allocations with regard to the Act’s provisions.

The Digital Economy Bill is now the Digital Economy Act 2010, following Royal Assent. This note provides an overview of its contents and the commencement of its provisions.

Summary

The Act includes provisions relating to the UK’s communications infrastructure, public service broadcasting, copyright licensing and online infringement of copyright, and security and safety online and in video games.

Some of the measures in the Act will come into effect immediately with others coming into effect in two months’ time.

Many of the Act’s provisions require further public consultation and in some cases approval by Parliament, before they can be implemented.

What is in the Digital Economy Act?

Following Government amendments in the House of Commons, the Act’s provisions cover:

• Ofcom Reports – to require the sectoral regulator, Ofcom, to carry out an assessment of the UK’s communications infrastructure every three years;
• Online infringement of copyright – to tackle online infringement of copyright, by placing obligations on Internet Service Providers to work with rights holders and, if necessary, to take technical measures against infringing subscribers. It also provides a power for the Secretary of State to introduce Regulations for rights holders to seek a court injunction to prevent access to specified online locations for the prevention of online copyright infringement;
• Internet domain registries – to provide reserve powers in respect of efficient and effective management and distribution of internet domain names;
• Channel 4 Television Corporation – to adjust Channel 4 Corporation’s functions from a focus on traditional broadcast activities to include provision of public service media content on other platforms, including the internet;
• Independent television services – to enable future alterations of the Channel 3 and Channel 5 licenses, including adjusting the requirements on Channel 3 licence holders to produce or broadcast Gaelic programming, and allowing Ofcom to provide advice to the Secretary of State on future Teletext licences;
• Digital radio – to provide arrangements for digital switchover by making changes to the existing radio licensing regulatory framework, varying the conditions for multiplex licence holders and facilitating the relaxation of the localness requirements of local licences;
• Access to electromagnetic spectrum – to allow for the charging of periodic payments on auctioned spectrum licences, and confer more proportionate enforcement powers on Ofcom;
• Video games – to make changes to how video games should be classified in the UK. This will put age ratings of computer games on a statutory footing for ratings of 12 years and above;
• Public lending right – to extend eligibility for PLR to non-print books which are not currently eligible under the existing PLR scheme;
• Copyright penalties – changes to levels of penalties for copyright infringement.

When does the Act take effect?

The online infringement of copyright provisions of the Act will require secondary legislation before they can be implemented.

The majority of the Act’s provisions come into effect two months after the Act is published.

Some of the Act’s provisions come into immediate effect, including:

• Sections 5-7 regarding the initial obligations code;
• Section 15 regarding the sharing of costs in relation to provisions on online infringement of copyright; and
• Sections 30 to 32 regarding digital radio switchover and renewal of radio licences.

Other provisions come into affect on a date to be appointed by the Secretary of State in secondary legislation.

The Government is now publishing its draft replacement clause 18 . Lord Mandelson has written to Jeremy Hunt and Don Foster setting out Government’s concerns with the current clause and explaining the draft amendment.

The Government proposes to introduce this amendment immediately after Second Reading in the House of Commons. The Government believes that the amendment delivers the effect that the House of Lords wanted to achieve when it voted clause 18 into the Bill, but in a way that takes account of the legal and other concerns to which the clause gives rise.

• Number10.gov.uk news story
• Press release: £30 million institute for Web Science will lead the way in Web 3.0
• Transcript of the Prime Minister’s speech
• See what people are saying about Building Britain’s Digital Future on Twitter

Video of the Prime Minister’s speech

http://webarchive.nationalarchives.gov.uk/20100511084746/http://microsites.oii.ox.ac.uk/digital-exclusion/

Please do comment and provide feedback and circulate the link to anyone you know who would be interested in the work too.

That was the message from Stephen Timms, Minister for Digital Britain, in his keynote speech at the Digital Inclusion Conference 2010 in London on 10 March 2010.

The speech follows the Government’s announcement of a National Digital Participation Plan, which aims to get 60% of those people not online, online by March 2014. This equates to 7.5m people.

You can read the full transcript of the speech at the BIS speeches page.

Participate in the conversation by joining the Digital Engagement Ning group.

Follow the event via the official conference Twitter profile @civicagenda and post-event discussion by using the hashtag #NDI10

Debate in the House covered Clauses 31 to 42, and the Government agreed to consider in principle two amendments tabled by Viscount Bridgeman, Baroness Buscombe (Conservative) and Lord Clement-Jones (Liberal Democrat) to Clause 42, concerning the representation of creators by extended collective licensing bodies. As the Minister, Lord Young, said, “The Government have always intended that extended licensing schemes should be run by representative licensing bodies. We therefore agree to consider Amendments 155A and 155B and will bring our proposals to Third Reading.”

According to Cabinet Office Guidance, “The principal purposes of amendments on Third Reading are to clarify any remaining uncertainties, to improve the drafting and to enable the Government to fulfil undertakings given at earlier stages of the Bill. Amendments are restricted to technical points to tidy up the Bill. An issue which has been fully debated and voted on or negatived at a previous stage of a Bill may not be reopened by an amendment on Third Reading. Notice is required if any Member of the House wishes to move an amendment to leave out a clause or schedule on Third Reading, just as it is on Report.”

Finally, a new copy of the Bill as amended in Report has been made available, for those of you wishing to follow the latest changes to the Bill.

The Government opposed an amendment put forward by Lord Clement Jones (Liberal Democrat) and Lord Howard (Conservative). However the House of Lords supported the amendment, the result of which was to replace clause 17 with provisions regarding “Preventing access to specified online locations for the prevention of copyright infringement”. The amendment passed by the House of Lords raises significant issues which will need to be addressed as the Bill progresses through Parliament.

Debate came to an effective end at 7.40pm, having reached Clause 30. We had hoped to make further progress, but business scheduled in the dinner-break ran on and sitting was adjourned before we could return to the debate.

We look forward to resuming the remaining clauses at our next day in Report on the 8th of March.

Introduction
There are several areas where copyright law in the UK is currently developing. This includes provisions in the Digital Economy Bill to create regulated schemes for licensed use of orphan works and extended licensing by collecting societies. This factsheet explains some key issues and corrects some of the more common misconceptions about the Government’s plans and policies.

We are aware of some concerns about how these changes might affect the way professional photographers do business, so parts of this factsheet are particularly aimed at them.

What are Orphan works?

Orphan works are works protected by copyright, but where the rights holder cannot be identified or found, even after a genuine and diligent search has been made. Although all types of work can become orphaned, the problems for the most part arise from unpublished letters and diaries, old books, or archival sound and video recordings held in museums and libraries. These may of course include photographic illustrations, or separate photographic works.

Why is the Government acting?

Access to orphan works is important from both a cultural and economic perspective. The BBC and British Library both experience difficulties – the British Library estimate that up to 40% of its archive collection is orphaned. Some institutions have very reasonable plans to use orphan works – digitising and making available historic material – but without the permission of the copyright holder such use may be an infringement of copyright and possibly a civil or criminal offence.

What is the Government doing?

The provisions in the Digital Economy Bill introduced on 18th November 2009 and currently before parliament will enable the Government to create a solution to the problem of Orphan Works. The changes will provide the Government with powers to authorise and regulate suitable bodies to operate orphan works licensing schemes. Before any of this can happen the Government is committed to a wide ranging public consultation, to make sure the rules are fair and workable.

When will this happen?

Public consultation is currently planned for some time in the second half of 2010. The consultation will be wide ranging to ensure as many stakeholders as possible have the opportunity to make their views known and are able to help shape the details of how orphan works will be licensed. Following that consultation work will be done to develop the secondary legislation to create the first authorised schemes.

How exactly will the schemes work?

Until the consultation has taken place it would be premature to speculate on exactly who might have access to licences, how the licence fees would be held and other administrative details. The system will be a flexible one, as it is clear that what is appropriate for one set of circumstances won’t be appropriate in another.

What does this actually mean for photographers?

Although the administrative details have yet to be worked out, the important thing to note is that any schemes created will operate on a regulated and licensed basis. That means that before a user can apply for a licence to use the work, they must first carry out a diligent search for the original owner of the right. The required steps are outlined in the Bill itself, but as the appropriate searching techniques are likely to be different for different sectors, the details for specific types of work will be fixed in the secondary legislation, after consultation.

Will this allow people to use works for unfair prices?

Certainly not! The Government is aware of many photographers’ concerns that orphan works will create a means for content users to appropriate large amounts of their hard work at an unfairly low cost or for free. Any use of an orphan work will require payment of a fair licence fee, and this fee will be held safely and kept available to be claimed by the rightful owner should they come forwards.

The Government’s intention is that there should be no financial advantage from mis-identifying a work as an orphan work and that deliberate or negligent mis-identification should carry an appropriate penalty. Subject to consultation, any regulations would be designed on that basis. The Government takes this to imply that licensing of orphan works would be at the market rate, where one exists; the intention would be that, as far as possible, rights holders would get a similar return regardless of who licenses their work (for instance, whether a collecting society or other body). Not only would this minimise any financial incentive to misidentify works, but it would also guard against unfair distortion of existing markets by protecting the interests of returning rights holders.

What happens if people use photographs that shouldn’t be considered orphan?

Currently, if photographic works are used without permission, the rightful owner usually has to take legal action to gain redress for the unauthorised use. However, if such a use is made under an authorised orphan works scheme, then there will be a clear point of contact and a simple process by which the rights holder can check for use of their works and claim the money that is being held for them.

Furthermore, if a content user fails to act properly and comply with the terms of the orphan works authorisation (for example by not carrying out a properly diligent search), then they would be subject to regulation and revocation of their permissions, as well as being liable for substantial financial penalties. It is anticipated that this will actually improve the situation for creators such as photographers whose work is sometimes orphaned.

Shouldn’t this be limited to non-commercial use?

The key point to ensure fairness to rights holders is not an arbitrary distinction between commercial and non-commercial use: it is about ensuring that there is adequate regulation of organisations running orphan works or extended licensing schemes. The Government is aware that different sectors have different needs, and these provisions will give the Government the flexibility to tailor the details of licensing schemes so that they are appropriate for different areas. If it proves impossible to devise a scheme for a particular area that does not unfairly disadvantage rights holders interests, then the Government will have the flexibility to not authorise any schemes to be set up in that areas.

What did the delegated powers committee say?

The Delegated Powers Committee suggested that the clause should include an explicit definition of orphan work, and that regulations (secondary legislation) made under the provisions should be subject to affirmative procedure (which means they will be debated and voted on in both houses of Parliament). The clause has now been amended to address both of these points, as well as a number of other minor concerns raised by the committee.

Metadata is easily stripped from photographs, doesn’t this make everything on the internet ‘orphan’?

No. Just because a photograph does not have a by-line or electronic metadata attached does not mean it can be considered orphan. A diligent search will in most cases still allow the original rights holder to be identified through the searching of databases, advertisement of the intention to use, use of electronic messaging (in the case of sites such as Flickr for example) and other steps. The effectiveness of electronic searching will also increase as image recognition technology improves. The effectiveness of available search tools will be taken into account when considering whether or not it is appropriate to authorise a scheme covering a particular type of work.

It should also be noted that there are already provisions in law to prevent the removal of metadata if the person doing so is aware that it may facilitate infringement of copyright (see section 296ZG of the Copyright Designs and Patents Act 1988). This means that stripping photographers’ work of metadata to claim it as “orphan” is now and will continue be unlawful.

Isn’t it unfair to do this without changing moral rights?

The provisions in this Bill do not change the existing system of moral rights. We are aware that some creators would like a change in the way moral rights work, particularly with regard to the right to identified as author of a work. This is however a polarised debate: publishers and users of copyright works are concerned that any change would prevent them from carrying out legitimate editing activities and add unacceptable overheads to established business practices.

The government has committed to continue to keep the case for a change under review.

What can you do if you still have concerns?

If the Digital Economy Bill becomes law, then the government has committed to a broad consultation before legal rules for orphan works schemes are developed. At this time (planned to be the second half of 2010) we would like to hear from creators and copyright owners of all types, as to what they believe the issues are for them. The consultation process will be widely publicised, and you will be able to contribute your views at that time.