§
Amendment made: No. 162, in page 12, line 26, at end insert—
'section (Transfer of copies of works in electronic form) (2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy),'.—[Mr. Butcher.]
§ The Parliamentary Under-Secretary of State for Corporate Affairs (Mr. Francis Maude)I beg to move amendment No. 242, in page 12, line 31, leave out from beginning to 'or'.
§ Mr. Deputy Speaker (Sir Paul Dean)With this it will be convenient to discuss the following amendments:No. 6, in page 27, line 26, leave out clause 69.
§
No. 234, in clause 69, page 27, line 26, leave out from 'private' to end of line 35 and insert—
'purposes of—
does not infringe any copyright in the broadcast or cable programme.(2) An act done with a view to the thing made being sold or let for hire, played or shown in public, broadcast or included in a cable programme service shall be treated for the purposes of this section as not done for private purposes.'.
§
No. 316, in page 27, line 29, leave out—
'or in any work included in it'.
§ Government amendment No. 243.
74§ Amendment No. 25, in schedule 2, page 152, line 21, leave out from 'purpose' to end of line 23.
§ Mr. MaudeThis amendment is about time shifting and it is a subject that has given pleasure to many people. I am bound to say that I have some hesitation tonight in proposing to the House that we should remove from the clause that element that has given so much innocent fun to so many.
In Committee, when I moved the proposal to legalise private recordings which were kept for 28 days or less, I did not foresee the excitement that that modest proposal would generate. It was regrettable that those who expressed opinions so vividly and so swiftly left out the usual preliminary stage of finding out what the proposal was about. I was astonished, for example, only a day or so after the Committee had reached its decision, to read in the newspaper the remarks of a Queen's counsel who thought that the Government's proposal was outrageous and that it was quite wrong to use the criminal law to prohibit home copying. The propositions that we were invoking the criminal law and that in some way we were taking steps to restrict home copying were wrong, as a cursory examination of the proposal would have disclosed.
I am bound to say that, in the middle of all the innocent fun that was had, some serious harm was done by those who reacted in a somewhat hysterical way to the proposal.
I received a number of letters from people, especially from the elderly, who were in genuine distress and anxiety at the spectre of police invading their homes to check the age of their video recordings. The pundits and the politicians who made those fanciful suggestions must or should have known how far from the truth they were.
Let us be quite clear about the present position. It is a breach of copyright to copy any television programme except a live broadcast of, for example, a sporting event. Therefore it is legal to record the test match live in the afternoon—should there be any play and should anyone want to—but not legal to record the highlights in the evening. Presently, virtually all video recording of television programmes is in breach of copyright law. The amendment that was passed by the Committee was thus a liberalising measure and not a restrictive one. Perhaps I should read that out again at dictation speed to make sure that it is understood. The amendment made legal much more than is at present legal. It sought to bring within the law those people who are at present outside it.
Because it is widely accepted that the practice of time shifting—the recording of a programme in order to watch it at a more convenient time—does no harm to the copyright owner, we have sought to make it legal. Because the building up of video libraries by individuals may well cause detriment to the copyright owner, it is necessary under the Berne convention that copyright law should continue to apply to those recordings.
Clause 69 will allow recording of a broadcast or cable programme solely for the purpose of enjoying it at a more convenient time without infringement of any copyright, whether of the broadcast or cable programme or of any work included in it. Under its provisions, Members of this House could set their video recorders to record this evening's television broadcasts in order to view them tomorrow morning or at the weekend and they would not infringe any copyright.
When the clause was introduced in Committee, we added the 28-day proviso since we thought this would 75 provide an additional safeguard to copyright owners against practices which damage their interests. The rest, as they say, is history. The rule gave some people a lot of fun, some of it perhaps at my expense. I do not begrudge them their fun all that much.
It occurs to me that there may be those—no doubt the same people who criticised the first proposal—who will seek to present this amendment as a U-turn. They would be as wrong now as they were then. The 28-day proposal made the law more liberal than it is now. By removing the 28-day proviso the law will be more liberal still. So, far from making a U-turn, this is a further move in exactly the same direction.
Clause 69 minus the 28-day rule still only permits time shifting. It does not permit the recording and long-term retention for repeated viewing of television programmes. Such practices may, and in the case of broadcast feature films do, damage the copyright owner's interest by their impact on the rental market, and to a lesser extent on cinema exhibition.
The adoption of amendments Nos. 242 and 243 will allow the public to record television programmes for the purposes of time shifting. In passing I assume that amendment No. 25 is an error and was tabled in over-enthusiasm to remove the 28-day period. The 28-day period in schedule 2, which amendment No. 25 would delete, is concerned with the broadcasters' so-called "ephemeral right" only and is set out in clause 67.
I commend the amendment to the House.
§ Mr. Mark Fisher (Stoke-on-Trent, Central)We have heard a delightful and extremely subtle speech from the Minister. Anyone coming into this debate might have felt that he was treating us to an example of time shifting since there were times during his speech when I thought I was back in Committee listening to exactly the same speech that he gave us about 28 days ago.
Perhaps people will wish to delete both speeches and erase them from their recorder and library of video tapes of the Minister's favourite speeches. Hon. Members who have been treated to his speech before found it a little rich that he tried to pass this off as a great liberalising measure. He may have convinced himself, but I doubt whether he will convince many members of the public who have suffered anxiety and distress on this score. He limited legality to 28 days and said that from then on people would be in breach of the law, which caused anxiety, so it was difficult for him to say that it was an example of his great liberalising mood. However, he kindly said that he did not begrudge us our fun—adding slowly, "all that much." His hon. Friends behind him may not have seen his icy, stretched smile when he said that. Nevertheless, the words came out even if the eyes and mouth remained static.
The truth is that the Government and the Minister got themselves into the most almighty mess in Committee and were justly ridiculed there and, the next day, in the press. One of the more serious newspapers referred to the Minister as a parliamentary jester. Many hon. Members might think that my hon. Friend the Member for Newham, North-West (Mr. Banks) fills that role to everyone's satisfaction, but obviously the Minister was trying to compete with him. He certainly awoke to fame the next morning, but it was fame of an unfortunate sort. 76 Being a reasonable and sensible man, he set to work with his civil servants to review the matter and find some alternative. The difficulty was that he had considered the obvious solution—to delete subsection (2)—in Committee and categorically refused it. I do not want to rub salt in his wounds, but it is worth repeating his words: that deleting subsection (2)
would be in breach of the Berne Convention and it would not be a reasonable balance between the rights of copyright owners and the users."—[Official Report, Standing Committee E, 9 June 1988; c. 479.]Having so categorically ruled out the one thing that would get him off the hook, the Minister has had difficulty in recent weeks squaring the position. I am delighted to say that he has now come forward with an amendment that will delete subsection (2), in spite of the fact that, as far as I can see, nothing has changed. Certainly, the Berne convention has not. If the Minister believed this was in breach of it then, it still is now. Nor has the Government's view of the convention changed; nor has the balance between the rights of consumers and users. In any case, the Government have come to their senses and now propose to leave out subsection (2). If hon. Members look at the Order Paper they will notice that it must be enormously encouraging for the Government to know that they have the unqualified support of the hon. Member for Northampton, North (Mr. Marlow), without which no Government can survive.Although this is a huge improvement which will relieve the anxiety and distress to which I have referred, the provision is by no means perfect yet. There are still problems. I hope the Minister understands them. The last seven words of subsection (1)—
or in any work included in it"—mean that internal composite copyrights as part of any broadcast are still included. That presents some problems, unfairnesses and potential dangers which could, in future, become very serious.There are still anomalies in merely deleting subsection (2). Hon. Members on both sides must understand that the Minister is legalising off-air recording, but tape-to-tape recording will remain illegal. The Minister may have some way out of that, in which case I hope he will tell us about it. The distinction between off-air recording and tape-to-tape is not easily made. Even after the Government amendment goes through, tape-to-tape will be illegal, and off-air recording legal. Is that reasonable? How can the Minister possibly enforce it? It is as unenforceable as his original 28-day ruling.
7.15 pm
There is a further difficulty, in that the rights of copyright owners will be harmed. Libraries of film, opera and other broadcast work will be able to be built up, to the financial detriment of copyright owners. That is in breach of the Berne convention, article 9 of which states that unless there is compensaion such actions are serious matters. So, although this gets the Minister out of being ridiculed by the popular press and most people in pubs all over the country, the new provision does not deal with these and other anomalies and problems which remain.
The difficulties are genuine. We all want time shifting for domestic purposes to be legal—so much is common sense. Broadcasters want that, too. However, we should not ignore the rights of copyright owners and of composers which, in five or 10 years' time, when there will be different technology, more tape-to-tape machines, more 77 stereos with better quality of recording for sound and more satellite services, will be more complex than we can anticipate now. So we must get it right now. I fear that although we have freed ourselves of one difficulty with this amendment, which we welcome, we have not solved all the problems.
Possibly the only way to deal with this is the tape levy, which we shall consider later. It is a solution that other European countries have come up with. But for the time being, we welcome the Minister's having admitted, with some dignity, the error of his former ways on time shifting—though not perhaps with the enormous grace and humour for which we had hoped. In doing so, he has pleased a great many people.
§ Mr. Simon Coombs (Swindon)I join the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) in congratulating my hon. Friend the Minister on the way in which he has escaped from his dilemma and spoken about the subject.
I had the misfortune not to catch the eye of the Chairman of the Selection Committee and was not a member of the Standing Committee. I learned of this proposal on a Friday morning while mowing my lawn. I received a phone call from my local newspaper reporter who asked me for a comment. It is said that we can all remember where we were when the late President Kennedy was assassinated. I can vividly remember the sense of shock on coming to the phone and being asked to comment on a proposal by the Government that we should impose a 28-day restriction on the recording of programmes from the television.
My immediate reaction is recorded in the Swindon Evening Advertiser as having been an expression of surprise, which was an understatement. I used rather stronger language than that. I said that I thought the proposal would be unenforceable and that it was very unlikely that a civil action would be taken by film manufacturers—in the case of films shown on television—or by the television companies which caused the films to be shown. I wondered aloud to my friend the reporter how the evidence would be obtained which would show when recordings had been collected, and the most recent occasion when they had been used, which would call into question the number of days for which they had been kept.
The hon. Member for Stoke-on-Trent, Central put the argument clearly and I shall not repeat it. Time shifting cannot reasonably be limited to 28 days. I received a letter from the wife of an army officer who is serving abroad. She said that she would like to be able to keep programmes that she had recorded until her husband's return from his next tour of duty abroad, which would not be within 28 days. Under the Bill, that would constitute a more reasonable time, but it would not be within 28 days.
People have told me in my surgery that they have stayed within the law all their lives but wonder whether they will be put outside it by this provision. However innocent and well intentioned my hon. Friend's proposal may have been, it caused genuine distress to a large number of people. What is time shifting? Under the Bill, even with subsection (2) deleted, we are told that it is keeping a recording until a more reasonable or convenient time in order to watch a product that has been recorded. Why is that not the case with a tape library compiled by someone who is busy in his normal life but considers that he would like to watch a film in the future which he does not have 78 time to watch at present? It could be argued that tape libraries fall within this general principle of time shifting, and I invite my hon. Friend to comment on that.
I am delighted that the Government have not looked for half measures and have not tinkered with the subsection, but have agreed to delete it completely. That is much the best way of resolving the problem. I welcome the Minister's conversion, and I enjoyed the way in which he justified it in terms of greater liberalisation. It is interesting that the Government are prepared to change their mind on the matter not once, but twice. It gives me hope that they will listen to our arguments on another important aspect of the Bill. When we come to the debate on home taping, we must persuade the Government to change their mind on that aspect, too. In the end, it is not the change of mind that matters but getting the Bill right. In this instance, they have got it right—for the time being. In the other case, we still have an argument to make. I am pleased to support the amendment.
§ Mr. PageI welcome the withdrawal of the subsection. I was a member of the Committee—I heard my 5 per cent. of the debate—and I was grateful to the Whip on duty who released me from the Committee five minutes before the end, which enabled me to turn a cowardly cheek towards the more ribald comments of my less-than-respectful constituents during that weekend.
But the withdrawal of the subsection does not mean the disappearance of the problem of breach of copyright. In the absence of compensation to copyright owners under clause 69, it is doubtful whether it complies with article 9 of the Berne convention. We shall have more than enough time during the debate on the blank tape levy to deal with those points, but I hope that my hon. Friend the Minister will consider the protection of copyright and the introduction of some recompense to copyright owners when the Bill proceeds to another place.
§ Mr. MaudeI appreciate the dilemma in which my stance put the hon. Member for Stoke-on-Trent, Central (Mr. Fisher). He could not make up his mind whether to carp or gloat, so he did a bit of both. But his carping was misplaced. He asked about my remarks in Committee on the Berne convention. The convention says that copying must not conflict with normal exploitation of the work, or unreasonably prejudice the legitimate interests of the copyright owner. Even without subsection (2), the clause is limited to time shifting and, as we have said on previous occasions, time shifting does not conflict with normal exploitation or unreasonably prejudice legitimate interests.
Subsection (2) was included to reinforce the fact that subsection (1) does not permit indefinite retention of recordings, but we now accept that specifying an arbitrary limit would produce the wrong result in many cases of genuine time shifting. Removal of subsection (2) legitimises genuine cases, but practices going beyond time shifting will continue to infringe copyright. The Berne convention must be given an interpretation that produces a realistic and practical result, and we consider that our approach in this difficult area does that.
My hon. Friend the Member for Swindon (Mr. Coombs) said that his constituents who had always abided by the law were anxious that my proposals would put them outside the law. That is not the case. Anyone who has been recording television programmes has been in breach of 79 copyright law. The proposal that I moved in Committee would have brought some of them within the law. It would not have put outside the law anyone who is at present inside it. It is important to get that straight. It is not a question of withdrawing the amendment that we moved in Committee, which was a liberalising measure. Removing the 28-day subsection is a further liberalising measure. Both move in the same direction: bringing people who carry out an essential innocent activity within the law. I commend the amendment to the House.
§ Amendment agreed to.