.....but it's not called Clause 43 anymore? Maybe having it under a different number next time around makes it harder to spot, meaning less people are likely to notice, therefore they won't (can't) protest? Or is that too cynical an outlook?
Clause 66 of the Enterprise and Regulatory Reform Bill to which Laurence linked may appear at first sight to be Clause 43 brought back to life, but closer inspection will show you that it is not intended to give the Secretary of State the same sweeping powers to amend the CDPA that Clause 43 would have done. In fact its sole purpose is to allow the Minister to bring into UK law new EU directives concerning copyright, in such a way that the penalties from infringement under UK law are not watered down, which would be the case if the European Communities Act 1972 alone was used as the authority to make such changes.
As far as orphan works are concerned (see Clause 68 in the above link) we already have an EU Directive on this, so the principle is established. The important thing is that UK law should not make the implications of orphan work licensing more severe than the Directive requires. We won't know the detail about this until the secondary legislation has been drafted. However it is known that the UK position proposes to allow a greater role for purely commercial players, whereas the EU Directive limits the bodies authorised to exploit their holdings of orphan works to institutions such as museums, libraries, archives and public service broadcasters.
Also, since the Bill has passed through the Commons, there is little to be gained by writing to your MP now. If anyone feels the need to lobby Parliament, then I suggest they contact a member of the House of Lords who is taking an active role in scrutinising the Bill. My suggestion would be Lord Clement-Jones.
As can be seen from my earlier posting in this thread, I have been bemused by some of the hyperbole surrounding this issue. The IPO now issued a fairly straightforward rebuttal of many of the sillier claims which have made in the press and around the forums. You can find it here in pdf format.
For those who are still worried about the threat to their work of the yet-to-be-written regulations for running the orphan work scheme, I suggest you make your views known to the Association of Photographers who are one of two bodies representing photographers in the working group which will advise and guide the IPO on the content of the Regulations. The other body is Stop43, who to my mind, have sacrificed some of their credibility by their shrill pronouncements, many of which the pdf above was issued to refute. However if you are a member of one of the Societies, you could contact them as they will be passing on representations from members to the AoP.
The Enterprise and Regulatory Reform Act 2013 – Your photos and you.
Myth: the provisions remove the automatic right to copyright for owners of photos posted online
Fact: The powers do not remove copyright for photographs or any other works subject to copyright.
Myth: anyone can use a photo they have found on the internet as an “orphan” if they cannot find the copyright owner after a search
Fact: A licence must be obtained to use a work as an “orphan”. This will require the applicant to undertake a diligent search, which will then need to be verified by the independent authorising body which the Government will appoint before a wor k can be used.
Myth: works will have their metadata stripped and be licensed en masse as orphans under the Extended Collective Licensing provisions
Fact: the Orphan Works scheme and Extended Collective Licensing (ECL) are separate and the orphan works scheme is about licensing of individual works. The Government will have no power to impose ECL on a sector, and the safeguards included in the scheme mean that ECL is only likely to be an option where there is strong existing support for collective licensing. Any rights holder who is worried about how their work could be used under an ECL scheme will always retain the ability to opt out. It is unlikely that ECL will be an option for photography where there is a strong tradition of direct licensing: there is no collecting society for photographers in the UK, so no application for an ECL is feasible at present.
Myth: anyone will be able to use my photos for free if they cannot find whoowns them?
Fact: If a work is licensed following the verification of the diligent search, there will be a licence fee payable up front for its use. The fee will be set at the going rate.
Myth: anyone can use my photos without my permission
Fact: Anyone wishing to use a work as an orphan must first undertake a diligent search for the rights holder which is then verified with permission to use the work granted by the Government appointed independent authorising body. If the work is not genuinely orphan then the rights-holder should be found, if the search is not properly diligent, no licence will be issued.
Myth: the Act is the Instagram Act
Fact: Given the steps that must be taken before an orphan work can be copied, such as the diligent search, verification of the search and payment of a going rate fee, it is unlikely that the scheme will be attractive in circumstances where a substitute photograph is available. The rate payable for an orphan work will not undercut non-orphans.
Myth: a company can take my work and then sub-license it without my knowledge, approval or any payment
Fact: The licences to use an orphan work will not allow sub-licensing.
Myth: the stripping of metadata creates an orphan work
Fact: the absence or removal of metadata does not in itself make a work “orphan” or allow its use under the orphan works scheme
Myth: I will have to register my photos to claim copyright
Fact: Copyright will continue to be automatic and there is no need to register a work in order for it to enjoy copyright protection.
Myth: the UK is doing something radical and unprecedented with the Orphan Works powers
Fact: Other jurisdictions already allow the use of orphan works. The UK powers are largely based on what happens in Canada - which has been licensing orphan works since 1990.
So how will the Orphan Works scheme work?
Any person wishing to use an orphan work will need to apply for a licence to do so and payment for the licence payable up-front at the going rate. As part of that process they must undertake a diligent search for the rights-holder which will then be verified by the Government appointed independent authorising body.
Only then will a licence to use the orphan work be issued. Licences will be for specified purposes and subject to a licence fee which is payable up-front at a rate appropriate to the type of work and type of use.
The licence fee will then be held for the missing rights-holder to claim.