§ Lords amendments considered.
Lords amendment: No. I, after clause 1, insert the following new clause:
. References in the Copyright Act 1956 to the reduction of any work to a material form, or to the reproduction of any work in a material form, shall include references to the storage of that work in a computer.
§ Mr. William Powell (Corby)
I beg to move, That this House doth agree with the Lords in the said amendment.
§ Mr. Powell
Perhaps it would not be inappropiate on this final day of consideration of private Members' legislation during this Session to say that it is an extraordinary and fascinating steeplechase which enables hon. Members who have won the ballot in November to emerge in July with a piece of legislation which, all being well, will be for the public good and which has achieved the support of both Houses. In bringing my Bill to this stage, I have been greatly assisted in the other place by my noble and learned Friend the Minister of State who efficiently and expeditiously handled the conduct of the Bill.
Discerning hon. Members will notice that these amendments bear a striking resemblance to those which were on the Order Paper in February. For tactical reasons, they were not dealt with on the Floor of the House or in Committee. I am grateful for the assistance that I have received from all parts of the House which enabled the Bill to jump the queue and get out of the way of some controversial private Members' legislation, and for the amendments that at one stage were contemplated being dealt with in this House to be dealt with in another place. In other words, today we are dealing with matters contemplated for this House, but which for tactical reasons were postponed to the other place.
The amendments are straightforward, especially the first one. Even if I tried, I could not take up much time speaking to it. There was a spelling error in the long title of the Bill when it passed its Second Reading on 22 February, which relates to the word "programme". Many hon. Members are rightly proud of traditional English spelling, and the original spelling of the word 624 "programme" was in the English form. The other place has passed an amendment to change the spelling to the American form—without the second "m" and the final "e". Although many hon. Members may be reluctant to accept the amendment, there is a good reason in law why I ask the House to approve the amendment, which is that the American spelling, riot only conforms with international usage, but is approved in our courts. If the House passed a Bill which conformed with traditional English spelling, there is a real risk that a clever lawyer — through my professional background, I know many such lawyers—will say that the Bill does not apply to computer software programs because the Bill does not talk about such programs.
I ask the House to agree to the first amendment because the courts have approved the American spelling in this connection.
§ Mr. Tony Marlow (Northampton, North)
I hear and understand the point that my hon. Friend is making. Like me, my hon. Friend is an absolute patriot and is devoted to the English language, its poetry, its quaintness and everything else. I understand my hon. Friend's concern, but with his knowledge of the courts and of legal procedure surely he will accept that we should have the English spelling. It is the English language, and this is England. This is the House of Commons of the British people, and it would seem appropriate to pass laws in which we enshrine our language rather than someone else's abuse of our language. Surely my hon. Friend would feel that, were we to go ahead as he initially intended, the courts are not an ass and would eventually settle down and understand that Parliament intended that the English language should be used in its full glory and should not be abused.
§ Mr. Powell
The protest registered by my hon. Friend is entirely appropriate, but I hope that he will be content with speaking for the instincts of most hon. Members present today and will not pursue the matter. I assure him that I have accepted the amendment only because I know that the spelling introduced by their Lordships is the correct spelling in law. I would not wish the Bill to run into technical difficulties. I ask my hon. Friend not to pursue the matter, but to be content with that robust and patriotic protest.
Try as I may, I would be hard put to outline usefully any further reasons for accepting the amendment, and I shall leave it there.
The other amendment relates to a more substantial matter. The House will recall that it was first raised in the House nearly a year ago by my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) in a Bill that he introduced under the ten-minute rule. He was given leave to introduce the Bill, but it did not proceed to a Second Reading. When I had the good fortune to draw a place in the ballot for private Members' legislation, I decided to take up his Bill.
The Bill which I introduced and which was given a Second Reading on 22 February differed from my hon. and learned Friend's Bill in one important way. His Bill included a definition of the concept of "material form" in relation to computer programs. However, my Bill contained no such definition. Their Lordships decided to introduce what will in due course, assuming that the House approves the amendment, be section 2 of the statute.
The expression "material form" is a key concept in copyright law. It was used in the Copyright Act 1956 to 625 define the acts restricted by copyright, which includes reproducing the work in any material form. That is found in section 2(5) of the Act. It is also used in section 49(4) to fix the time at which a copyright work is made and, therefore, to identify the author. It is defined as the time at which a work is first reduced to writing or to some other material form. However, the expression "material form" is not defined in the Copyright Act as it currently stands.
A potential problem arises where a computer program does not start its life in conventional written form. The difficulty is important in commercial terms, because computer programs are often keyed directly into a computer by typing in from a keyboard without first being written down in a conventional form. Therefore, the electrical signals formed in the computer's memory are, in practice, the program's first physical embodiment. Similarly, copying is often carried out by loading the contents of a disc, cassette or other permanent storage device directly into the computer's memory for further processing. However, a special characteristic of the electronic memory of most computers is that it is volatile in the sense that the memory is lost when the power supply is turned off.
It has been suggested that the electronic representation of a computer program such as that formed in the computer's memory or that displayed on a VDU screen is not sufficiently permanent to be a material form for the purposes of fixing the time at which the copyright work is made, or of establishing the existence of an infringing copyright.
I shall give the House some examples of the problems envisaged if uncertainty remained as to whether forms in which computer software may be stored or reproduced are not covered by the phrase "material form". First, a programmer creating a program without first writing it down might go out to lunch; a pirate might then come in and print out the program from the computer's memory. If electronic representation in the computer's memory is not a material form, the pirate would be the author for copyright purposes. Secondly, a program entered directly into a computer's memory that was not written down on paper or recorded on tape or disc might be transmitted through a computer network. If it is intercepted by a pirate who prints it out, the pirate might be treated as the original author for the purposes of copyright. Thirdly, an infringer might put a computer program on his own random access computer memory rather than copy it on to a disc or tape and, as a result, may not infringe the copyright.
The ten-minute Bill introduced by my hon. and learned Friend included a definition of "material form". Unfortunately, when I was preparing this legislation, the view of parliamentary counsel was that it would be impossible to include such a definition that was limited to computer programs without at the same time implying something negative in relation to other copyright work. Therefore, the matter became the subject of substantial negotiations between myself, the computer software industry, which has given me generous support in the preparation and passage of the Bill, and my hon. Friend the Under-Secretary of State for Trade and Industry. I am delighted that both sides have reached an accommodation 626 and that it is now possible to incorporate a definition of "material form" into what will become section 2. It will be:References in the Copyright Act 1956 to the reduction of any work to a material form, or to the reproduction of any work in a material form, shall include references to the storage of that work in a computer.The amendment was introduced in Committee in the other place on 5 June.
This is a somewhat technical explanation, but it is important to get it on record why it is necessary because it is not a matter that the House has had to discuss until now. We are now in line with the Green Paper recommendation and the Bill confirms that the act of loading a computer program or any other literary, dramatic, musical or artistic work into a computer without the copyright owner's consent will continue to be an infringement of copyright. The amendment will also confirm that any work, be it a computer program, novel or any other type of work that is written directly into a computer, will qualify for copyright protection at the moment of its creation within the computer.
It follows that clause 2 is intended to clarify that if any existing work is copied into a computer, of which an important example is the incorporation of an author's work in a computer database, this constitutes reproduction in a material form, requiring the copyright owner's consent. I hope that that will be regarded as a comprehensive statement of why the House should accept my suggestion that we should agree with the Lord's amendment.
We have reached this stage on 5 July. How long ago the Second Reading in February seems to be. This is the first of the private Members' Bills to be discussed today. There will be others later. I heard on the radio this morning my hon. Friend the Member for Hornchurch (Mr. Squire) being ambitious and optimistic about the prospects of his Bill, which will be discussed later. The House is interested in the matter that I am introducing, but I hope that it will be possible to reach my hon. Friend's Bill in due course.
§ Mr. Marlow
I apologise for leaving the Chamber for part of my hon. Friend's speech, but I had an important and urgent telephone call to make. I am sure that my hon. Friend knows that these things happen and understands and forgives my temporary regrettable absence.
I have looked at the amendment, and while I was out my hon. Friend may have covered the point I am about to make about it. He explained earlier that his first amendment was about mutilating the English word "programme" and turning it into the American word "program". However, I do not see the word "program" in the first amendment. Will my hon. Friend briefly explain something to the House—I regret it if he has done so already—to satisfy my curiosity and my concern about the Bill? If he has not done so already, I should be grateful if he would connect the words of the amendment with his reluctant desire to inflict an injustice on the English language.
§ Mr. Powell
My hon. Friend is right about the first amendment. It refers to new clause 1. I apologise to my hon. Friend and I am certain that most of the House was able to follow me in what I said, but in giving my reasons for the two amendments I identified as the first amendment amendment No. 2 and as the second amendment amendment No. 1. I hope that there is not the slightest doubt about what I have been referring to. Not for the first 627 time, I am extremely grateful to my hon. Friend for bringing me down to earth and ensuring that we proceed in both an accurate and a common-sense way.
The House knows that I regard this as a very important measure for the future of the computer software industry. On Second Reading, I said that estimates show that losses through unlawful piracy and copying of software in 1983 totalled £150 million. In 1984, the sum was almost certainly greater than that. There is not the slightest doubt that the computer software industry has been heavily undermined by the growing practice of commercial piracy. Pending wider reform on copyright law which will come in due course, and which we hope to have the opportunity to discuss in a year or two, this Bill deals with a particularly bad practice that is undermining the industry.
I and those who have supported me on both sides of the House have not gone to the lengths that we have gone to to pass ineffective legislation. The Bill is intended to bite, and to bite hard into piracy. The House is aware of the existence of the Federation Against Software Theft, which represents virtually all sections of the computer software industry. It has set up a unit whose job it will be to prepare evidence and to bring to the attention of the police and any other public body occasions on which there have been any commercial infringements of this legislation.
I am delighted to be able to tell the House that a senior, experienced and efficient police officer of the rank of chief superintendent of the metropolitan police has been recruited. He will shortly be at work with a team which he will recruit to bring together all the evidence of piracy. The message must go from the House today to the pirates wherever they may be that their days are over and that hereafter they will face the consequences of their unlawful activities.
§ Dr. Jeremy Bray (Motherwell, South)
I congratulate the hon. Member for Corby (Mr. Powell) on his Bill. There is nothing further that I can say about the Bill or the Lords amendments, which I support for the adequate reasons argued in the other place. I wish the hon. Gentleman luck in future ballots, but I have one remark to make to him. When one is getting a fair wind in this place, it is better not to remain at sea for longer than is absolutely necessary to complete the journey, for fear of delaying colleagues with other equally important business who have been less fortunate in the ballot and for fear of running into less fair weather.
§ Mr. Marlow
I congratulate my hon. Friend the Member for Corby (Mr. Powell) not only on bringing the Bill to Parliament and through Parliament but on the way that he has spoken. I intervened in his speech, and for the first time in my life had a positive effect on our proceedings in that I was able to help my hon. Friend I am grateful to him for the way that he dealt with my intervention.
This is an incredibly complex issue and people like myself who were at school before computers became part of our way of life feel that anything to do with computers and computing is of the utmost complexity that is best left to other people. My hon. Friend has taken upon himself the task of introducing this Bill and the amendment. It is a difficult but praiseworthy task which he has done exceptionally well. The House and the country should be grateful to him for dealing with this nuisance. The fact that he got his amendments muddled up is nothing, and simply 628 goes to show how incredibly complex this issue is. It is an appalling state of affairs that after a person has done a great deal of work—
§ Mr. Deputy Speaker (Mr. Ernest Armstrong)
Order. While I am in a tolerant mood, I must remind the hon. Member that we are dealing with narrow amendments and that he must relate his remarks directly to the amendments.
§ 10 am
§ Mr. Marlow
I am attempting to do that, Mr. Deputy Speaker, and I apologise if I am straining your patience; the complexity of the subject is to blame.
Amendment No. 2 deletes part of the title, so that it will read:An Act to amend the Copyright Act 1956 in its application to computer programs and computer storage.My hon. Friend's purpose is so to define the title that protection which, sadly, has not been given to those working in computer software will be available to them in future. It is necessary for this protection to be provided in view of the great boom of computers to society. People may work all day and all night only to find that their work has been pirated or plagiarised. A lifetime's work can be rendered valueless.
Because it is important that that protection should be provided, so it is important that the title of the Bill should be clear, and I am pleased to note that not only will the title be clearer but that it will also be shorter. Anything that we can do to reduce the number of words in the written text — I was about to say that we might also try to shorten our speeches too—is of advantage.
I congratulate my hon. Friend. The House is indebted to him for the great service that he has performed in this complex and important sphere.
§ Mr. Neil Thorne (Ilford, South)
I, too, have pleasure in congratulating my hon. Friend the Member for Corby (Mr. Powell) on having introduced an important Bill which, I feel sure, will be speeded on its way today. I have taken part in a number of debates on this subject and am anxious that nothing should stand in the way of the Bil1's progress.
My hon. Friend explained, in reply to an intervention from my hon. Friend the Member for Northampton, North (Mr. Marlow), that he had dealt with the amendments in the reverse order. I am not clear, however, why amendment No. 2 is worded in the way in which it appears on the Order Paper. I appreciate that it amends the title, but although amendment No. 2 begins:Line I, leave out from",I thought that the Bill commenced with the words:Be it enacted by the Queen's most Excellent Majesty".In fact, the line 1 to which my hon. Friend is referring in amendment No. 2 begins:An Act to amend the Copyright Act 1956which seems to begin before the numbering of lines in the Bill commences. I am anxious to ensure, before agreeing to amendment No. 2, that we are doing something that is valid and will not make nonsense of the measure. I am sure that my hon. Friend has taken the best advice from the Table. Will he enlighten me?
When my hon. Friend dealt with the spelling of the word "program", I was not sure whether he was saying that the High Court had determined that, in future in English 629 law, the word should be spelt the American way or whether the High Court had been tolerant about the way in which the word could be spelt.
§ Mr. William Powell
In a High Court case a year or two ago, the Chancery Division approved the American spelling for computer programs only, not generally.
§ Mr. Thorne
I hope that the High Court will accept both spellings and not confine it in this case. I can think of a number of instances where words are spelt in a variety of ways. One need only think of the greatest literary architect, Shakespeare, to appreciate that a number of different spellings of the same word are normally accepted.
It would be unfortunate if we tied ourselves down to one narrow concept, although I would not stand in way of the Bill over that. I hope that we shall not be confined as a result of a High Court judgment and find that we are restricting our language to the American form.
§ The Parliamentary Under-Secretary of State for Trade and Industry (Mr. John Butcher)
I join hon. Members on both sides of the House in congratulating my hon. Friend the Member for Corby (Mr. Powell) on steering his ship through the legislative waters, shortly to arrive at a safe haven.
As my hon. Friend explained, a large number of people in the computer industry at large, many computer users and software authors will heave a sigh of relief when the Bill reaches the statute book. It will be an important day because we shall eliminate the high possibility that has hitherto existed of software authors being rooked of their rightful rewards and of suffering from the attentions of the pirates.
The new clause adds an important new element to the Bill and, on behalf of the Government, I warmly support its insertion. I am pleased that the opportunity was taken in another place to improve what was already an excellent Bill by extending its effect in this way.
The Bill as it left this Chamber for another place some weeks ago was concerned only with the application of copyright law to computer programs. The new clause addresses, in an effective manner, another area of uncertainty that arises out of the interaction between copyright law and computers.
Despite its admirably concise form, the new clause removes two such uncertainties. It deals with two implications of the new technology on the way copyright law works. It is concerned both with the basic question of whether copyright protection is available to works created in computers, and with the no less important issue of whether the act of copying a copyright work into a computer requires the permission of the copyright owner.
It may help if I briefly remind the House how the Copyright Act 1956 is structured to provide protection to authors and other creators of original works, or to those who own or have interest in copyright by virtue, for example, of assignment or licence or of their position as employers of the creator. The Act defines copyright as the exclusive right to do, and to authorise others to do, certain acts—known as restricted acts—in relation to the work that is the subject of copyright. One has to look first, though, at the word "work" to determine whether copyright subsists in the first place.
630 The Act states that copyright shall subsist in every original literary, dramatic, musical or artistic work, subject to certain conditions as to matters such as the nationality and place of residence of the author and the country of first publication. This applies both to published and unpublished material. There are no formalities associated with the subsistence of copyright in the United Kingdom. Copyright protection exists from the moment of creation of the work, with no requirement of registration or of any copyright notice on the work itself. Right hon. and hon. Members will know that very commonly — indeed, almost universally in published material — a conventional copyright notice is affixed to works, consisting of a small "c" in a circle, the name of the copyright owner, and the year of publication. I should explain that such a notice does not have any function in establishing the subsistence of copyright in this country. It has two roles. First, it plays a part in relation to the subsistence of copyright in certain foreign countries, most notably the United States of America. Secondly, it provides a visible reminder to the world at large that copyright is being claimed in the work, and by whom it is claimed. Thus it has practical use in this country, but is not a legal prerequisite for copyright protection.
To return to the question of what constitutes a "work", or more strictly an "original work", the use of qualifications like "literary" or "artistic" does not imply that a work has to have what would conventionally be regarded as literary or artistic merit to attract copyright protection. Aesthetic excellence is not a necessary qualification.
The courts have long since established this principle, and there have over the years been many examples of works, and types of works, which have been afforded copyright protection as "literary works" without possessing, or indeed claiming to possess, any vestige of literary merit whatsoever. These have included calendars, directories, football coupons, mathematical tables and railway timetables, and many other equally mundane items. More recently, an injunction has been granted on the basis that the sequences of randomly selected letters used in newspaper bingo games are subject to copyright. The common key to the establishment of copyright in all these cases has been that substantial independent skill, creative labour or judgment has been exercised in the creation of the new work.
My reason for placing such emphasis on this point is to stress the wide range of material that comes within the ambit of copyright protection. When one thinks, for example, of databases — great stores of information brought together, often at great cost, and with great commercial potential for exploitation and dissemination —one can recognise the immense practical significance of the fact that copyright protection has long been regarded as appropriate to this general class of material, to collations of meaningful information. The impact of computer technology in this sector has been immense and revolutionary, and has raised central questions in relation to copyright that the new clause seeks to answer.
§ Mr. Deputy Speaker
I am listening carefully to the Minister. I hope that he will refer directly to the amendment.
§ Mr. Butcher
I was referring to the first of the two questions which the new clause will resolve. That question is, put simply, when someone creates an original new work — a work of the type that certainly qualifies as a "literary work" within the broad meaning of term that I have already discussed — and when that creation is carried out directly in a computer memory, has the work been "reduced to a material form", and does it therefore qualify for copyright protection? The question arises whenever a work is composed by someone typing directly into a computer keyboard. This is one of the key points to which my hon. Friend the Member for Corby addressed himself in moving the amendment. That work may mean a novelist or some other sort of writer typing an article or a chapter of a new book into a word processor, or it may, as I have aleady indicated, mean a scientist, an engineer or a statistician putting together data in a new manner in a computerised database.
The need for protection in such cases is I believe, obvious, and the principle that such protection should apply is every bit as sound when a computer is used as when precisely the same material is put down, much more laboriously and less flexibly, on paper. Nevertheless, the question whether protection does in fact subsist when a computer is used has not been resolved in the courts, and uncertainty therefore remains. It may be that present law would be found to give this protection already if the issues were tested, but as long as the legal uncertainty remains, creators of new material will lack confidence in such protection. Computer technology needs to be seen as a support to the author, not as a threat to the legal protection upon which his livelihood, and that of his employers, rests.
The need for clear protection for a new work while it still rests only in the essentially transient form of computer memory is clear. It is vulnerable, in that form, to misappropriation. This has already been forcefully argued by the noble Lord who introduced these measures in another place, using the example of the creator of new material who left his brainchild on his computer memory while he went out to lunch, to find on his return that someone else had printed it out and had thus undoubtedly "reduced it to material form". That the law as it now stands leaves any doubt at all about the true authorship of the work in these circumstances must clearly be wrong. Therefore, my hon. Friend, in bringing forward the amendment, is doing the House a great service in seeking to eliminate an area of uncertainty.
§ Mr. William Powell
My hon. Friend the Member for Ilford, South (Mr. Thorne) raised two issues to which I shall respond briefly. First, he asked whether the amendment, in referring to "Line 1", is directed to the long title. The amendment appears under "In the Title" and refers to the first line of the title rather than of the Bill. I take my hon. Friend's point about "program". I have explained why that form of spelling should be adopted in the Bill. I hope that my hon. Friends the Members for Ilford, South and for Northampton, North (Mr. Marlow) will not push the matter any further.
§ Question put and agreed to.