CABLE PROGRAMMES (Hansard, 25 July 1988)

§ Miss Emma Nicholson (Torridge and Devon, West)
I beg to move amendment No. 321, in page 4, leave out lines 19 to 26.
The purpose of my amendment is to ask the Government why they do not intend to provide adequate protection for the part of computer software that is known as interactive or expert or knowledge-based systems. In Committee the Minister said that these were excluded from the protection provided by the clause because such communications were private. I challenge that thinking on three counts and ask the Minister how else he intends to protect this valuable and fast-growing area of computer software work.
First I shall deal with the question of privacy. If it is accepted that such communications are private—and I do not accept that premise—why should privacy and protection be seen as incompatible? It could be said that correspondence on paper between two people is private, but such letters are protected. The author of a letter holds the copyright and the recipient cannot publish without the author's consent. Where a computer system encodes, transmits and displays a letter, why is that letter excluded from copyright protection when one manually scripted or typewritten on to paper, transported by the Post Office and opened on arrival at its destination has copyright protection?
Electronic mail cannot be considered to be private because one may walk into any office and see the recipient's mail or messages on screen for all to see. We do not wish to see the exclusion of expert systems. What is an expert system and why does it need protection under this law? An expert system is one in which the system, or rather the database making up the system, is self-modifying in response to external interrogation and data input. This adaptive feature explains another system name—knowledge-based—although of course it is not the system that is knowledgeable but the team of software designers and programmers that has created it.
What are the practical applications of expert systems and how will those applications be threatened by exclusion from the clause? An easy example is the airline reservation system. Without my amendments, clause 7 would ensure that computer hackers—the catchphrase for unwanted electronic breaking and entering—are not prosecutable under copyright law. If the hacker were a bucket shop operator he could obtain valuable information on the availability of airline seats to be used commercially without investment in the reservation system.
A medical diagnostic database is available to doctors on-line. That means it is open all the time to communication. It is altered by the data put into the network and those data affect the response to the next 114 interrogation. Such a network is at present excluded by clause 7(2)(a) from being a cabled programme service and thus excludes the information being conveyed on the network from the protection given to information conveyed on a licensed cable programme service. Why should it be protected through copyright? The European Green Paper on copyright and the World Intellectual Property Organisation, which is known by the comfort-able name of WIPO, although I am not sure whether it means wipe it on or wipe it off, suggest that copynght is the most suitable law to protect against copying for computer programs. I suggest that as this is recognised by nearly all our trading partners, and as our industry has to operate in the real world, this is the way forward.
I cannot resist commenting on a powerful article in last Thursday's Financial Times. It suggested that a special legal framework should be created for computer software. However, the European Green Paper published on 1 June says that author's rights and neighbouring rights are the primary means of protecting computer programs, both at the level of Community member states and at international level, and that copyright is the best way of ensuring adequate protection programs against unauthorised reproduction.
In 1983 the World Intellectual Property Organisation said at a discussion meeting that the special treaty giving sui generis protection, which the organisation had identified in 1979 as the way forward, should no longer be pursued. It said that instead, WIPO and UNESCO, the two bodies responsible for the main international copyright conventions, should study further software copyright protection. The result was that in 1985 its committee of Government experts showed that, by that time, copyright protection for computer software existed in the most industrialised countries and in nearly all the European Community member states. We have now advanced to the possible European Community draft convention which will be at least partially, if not wholly, based on the Bill.
Perhaps it is because of all these things that through the amendment I ask the Minister to explain the exclusion of expert systems and reassure the computer software industry that the totality of its work is within copyright protection through the Bill.

§ Mr. Butcher
I am grateful to my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson) for providing the opportunity for me to make a clarifying statement. I understand that the amendment is intended to ensure that interactive cable services are not excluded from copyright protection. We have put considerable effort into devising a definition of cable programme service in the Bill that will cover the elements of an interactive service, in which sounds, images or other information are conveyed to the user without any modification by him, but which will exclude the elements that are genuinely interactive, in the sense that input from the user modifies what is contained in or sent through the system.
The reason for that approach is that, while we obviously want the definition to cover all the elements of a database, for example, that are capable of purely passive reception—even though the system may be capable of being used interactively—it would not be right to bring within copyright control those elements that are essentially private communications between a single user of the service and the provider of it.
115 Thus, with teleshopping through Prestel, we want to cover the display of catalogue pages, but not the placing of orders. With a medical diagnostic service, we want to cover the sending of information to the user, but not the act of inputting data by the user. I am confident that the definition that we now have in the Bill, which we dealt with at some length in Committee on 12 May, provides the best answer that we can hope for at this stage.
My hon. Friend is admirably persistent in these matters, so may I say that if I am wrong and the definition, when tested in the real world, turns out to be deficient, we have the possibility of putting matters right through an order under subsection (3). However, to remove subsection (2)(a) from the Bill altogether would bring within the controls of copyright a variety of private communications that should remain free of them. I must therefore ask my hon. Friend to withdraw the amendment in the knowledge that she will at least have an insurance policy.

§ Miss Emma Nicholson
With that assurance from the Minister, I beg to ask leave to withdraw the amendment.

§ Mr. Page
I beg to move amendment No 265, in page 5, line 4 leave out 'premises run as a business' and insert 'any premises'. I am moving the amendment in the unavoidable absence of my hon. Friend the Member for Beaconsfield (Mr. Smith), and I do so for the purposes of clarity. The amendment makes it clear that cable services operated as part of the amenities provided for the residents or inmates of any premises are not exempt from the Bill, regardless of whether the premises are run as a business—for example, a private apartment block—or are publicly funded—for example, prisons or hospitals. No distinction should be made between the different premises that use cable services. The amendment is self-explanatory, and I look forward to the Minister's reply.

§ Mr. Butcher
The amendment would bring within the definition of "cable programme service" a closed-circuit cable system operated as part of the amenities for residents and inmates of the premises that are not run as a business. My hon. Friend gave the obvious example of a cable system in a public sector hospital or a prison.
I am sorry to have to disappoint my hon. Friend, but I have to say that the amendment is not acceptable to the Government. We do not consider that a cable system in the special circumstances of a hospital or a prison, to take the examples to which I referred, can be put on the same footing as a cable programme service offered to the public in general.
The inmates of both hospitals and prisons have one thing in common: they are not there by choice. If they watch videos on an internal cable system, it is for the most part a straightforward substitute for watching a video recording or television broadcast at home, which 116 circumstances have deprived them of the opportunity to do. In prisons, particularly, there are security reasons for preferring to show videos on a closed-circuit system rather than by the traditional use of television sets and video recorders.
We accept that in premises run for profit, a closed-circuit cable system may exploit copyright material in a way which will result in financial benefit to the operator. For that reason it is right that such systems should be subject to the controls of copyright, and that goes as much for a hospital run for profit as for any other kind of premises.
In non-commercial premises, cable systems will generally, as I have said, be a substitute for domestic television or cable reception. It is therefore right that they should be no more caught by copyright law than is watching a television at home. If, in the future, it can be shown that this exception is being abused and the interests of copyright owners unfairly damaged, the exception could, if necessary, be amended by an order under clause 7(3).
In common with my hon. Friend the Member for Torridge and Devon, West (Miss Nicholson), my hon. Friend the Member for Hertfordshire, South-West (Mr. Page) also has a fall-back position and insurance policy. In the light of what I have said, I hope that he will be willing to withdraw his amendment.

§ Mr. Page
I was unaware that prisoners in Her Majesty's prisons were forced to watch videos and various programmes that come through cable services. In view of my hon. Friend's startling revelations, I am forced to withdraw my amendment.
I am happy to note that under subsection (3) there is opportunity for an order to be introduced if it is discovered that prison inmates can watch various programmes voluntarily.