§ Mr. Blair
I beg to move amendment No. 310, in page 13, line 10, leave out from 'the' to end of line 1:5 and insert—'purpose of—
does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement'.
- (a) private study, and
- (b) research other than commercial research,
§ Mr. Speaker
With this it will be convenient to consider the following amendments: No. 304, in page 13, line 22, at end insert—'(4) This section does not apply in terms of fair dealing to copies made for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.
No. 43, in clause 38, page 16, line 43, leave out 'research or private study' and insert
'private study, or research other than commercial research'.
§ No. 305, in page 17, line 5, at end insert—
- '(d) This section does not apply to the supply of copies by a librarian to persons requesting them for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.
No. 313, in clause 39, page 17, line 13, leave out 'research or private study' and insert
'private study, or research other than commercial research'.
No. 306, in page 17, line 21, at end insert—
'(3) This section does not apply to the supply of copies by a librarian to person requesting them for commercial research if or to the extent that there is a licensing scheme certified for the purposes of this section under section 137 providing for the grant of licences.'.
§ Mr. Blair
This group deals with the fair dealing provisions of the Bill. We had a full debate in Committee and I shall be brief in moving what are substantially the same amendments. The Bill provides for copyright protection but it also provides for what is known as a fair dealing exception. Where it is considered that the use of a work, even though in breach of copyright, is none the less fair dealing, the copyright rules do not apply if any infringement is made.
The question that arises, especially in relation to photocopying, is how wide the fair dealing exceptions will be. The difficulty for the publishing industry arises because, although many people photocopy documents for use in research or private study—and that is plainly fair dealing—most of our large business and commercial establishments have their own research departments where 131 photocopying is extensively used and where the circulation of the photocopy will be to several hundreds if not several thousands of people.
Throughout the passage of the Bill, industry has been saying that, in order to have a proper incentive to invest and to protect its legitimate rights, there must be copyright protection against infringing copying. The problem faced by the publishing industry in relation to photocopying is that where photocopying is done—[Interruption.]
§ Mr. Blair
The commercial research establishment of an organisation copies very generally and, effectively, the copyright in a work will be breached. That is what worries the publishing industry. It is difficult to see how the breach of a copyright in such a case lies at all adequately with the fair dealing exception. That summarises the case that has been made in favour of the amendments.
When this matter was debated in Committee the Minister used a rather curious phrase when forced to the point. I quote from memory but I think I quote him accurately. He said that he was obliged to come down on the side of those who exploit information, and had decided to come down on their side rather on the side of those who had the original copyright in a work. Since our deliberations in Committee, the Government have moved some way towards accepting some of the things that the Opposition have said. For example, in the next group of amendments they have provided for a much tighter definition of what constitutes multiple copying so that such copying will not fit the fair dealing exception.
If the Government accept—as is implicit in some of their later amendments—that one does not have to choose between those who exploit information and its original authors, they are driven to justify why they are not even becoming more precise and excluding commercial research from the ambit of fair dealing. If they do not, large-scale photocopying for commercial purposes by commercial establishments will continue.
The trend of developments abroad is much in favour of the type of licensing scheme that the Publishers Association has been mooting. There is a scheme in existence in the United States but there are arguments about how successful it has been. Whatever the situation, it is clear that it has had a significant effect on making people pay attention to the rights of publishers against those who are abusing copyright. We see these amendments as being necessary to do for our publishing industry what other industries are anxious to see in the Bill—proper protection for original creative work. In the light of the amendments that the Government will move, why are they unwilling to include commerical research when it was never the true purpose of the fair dealing exception and when the arguments in favour of our amendments are so strong?
§ Mr. Gerrard Neale (Cornwall, North)
I also wish to be brief, in view of the remarks of the hon. Member for Sedgefield (Mr. Blair), particularly as the matter was debated extensively in Committee. If the Minister is unable to accept amendment No. 310, he may consider that my 132 amendments are a little less heavy on the Bill. In his charitable feeling towards those who are interested in copyright, the Minister may, as he moves deservedly on to other things, consider the amendments not so much as probing amendments as an invitation to treat.
As the hon. Member for Sedgefield said, there is a strong feeling in the publishing industry and among those representing copyright interests that those interests have been subordinated to the interests of other industries and commerce. It is felt that it is in the interests of commerce and industry outside the publishing world to have material produced on which they can call for research purposes, so they should be required to pay for it. If they do not pay something for the copying of research material, there is a severe risk that there will be less and less incentive for those who produce and publish research material. I hope that, even at this late stage, the Minister will consider the strong misgivings in parts of the publishing industry and that he may be able to change his mind even now.
§ Mr. Eric Martlew (Carlisle)
I was pleased when we discussed commercial research and fair dealing in Committee because it was the only part of the legislation that I understood. I learned two things from being in Committee: first, never to volunteer, and secondly, not to be surprised by Government actions. I was surprised that the Government did not take the opportunity to get the Bill right or to clarify the position on commercial research and fair dealing.
My experience has been in industry. In Committee, the hon. Member for Beaconsfield (Mr. Smith) said that when he worked in commerce he would flick through the journals on his desk, find the one that interested him, make a photocopy of it and pass the journal on. I had a better system. When the journal came to my desk, I passed it on to someone else's desk without looking at it.
As my hon. Friend the Member for Sedgefield (Mr. Blair) said, the reason why I could do that is that I worked for a large organisation. I knew that somebody in headquarters went through the journals and that if anything appertained to my speciality, it would be photocopied and sent to me. I was a personnel manager and if anything on personnel or training appeared in the journals, the chap at headquarters made 15 copies and sent them off to all the personnel managers in the group. That was how the company "stole" research information. I worked for a good company and I am sure that it would be happy to come to a licensing arrangement, if it were available, to buy particular research. It is a wealthy company and could afford it. Many of the technical journals are not as well off. They are on the borderline and it would be a disaster if they went to the wall.
I must emphasise my disgust for the lobbying that has been done by some of the major companies. I understand that Shell, BP and ICI have all made representations to the Government and are twisting the Government's arm to change the legislation. That was reported in the Official Report of the Committee proceedings. I also understand that the CBI has made representations. It is a pity that the hon. Member for Beverley (Mr. Cran) is not in the Chamber. He used to be the northern director of the CBI and I used to be a regular attender at his meetings. [HON. MEMBERS: "He is here."] He is beyond the Bar, so he cannot intervene. The CBI was a short-sighted, narrow-minded organisation then and it does not surprise me that it is against giving the publishers their dues.
133 Why have the Government changed their mind? The Whitford inquiry recommended that an amendment to the law should be accepted by the Government. The Government accepted that in their Green and White Papers. It was only after an amendment in the other place that the Government decided to change their mind. I have studied what the Minister said in Committee. My hon. Friend the Member for Sedgefield drew the right conclusion about that speech when he said that the Government were on the side of the exploiter—or words to that effect. The Government appear to be prepared to exploit publishers. That does not come as a surprise to me because when I was a young lad an old Socialist told me that the Tories always sided with the exploiter. What does surprise me is the candour with which the Minister expressed that. I would much prefer the Minister to be on the side of the angels and to accept the amendment, which will help small publishing companies against the big organisations. However, the amendment will not hurt those big organisations.
One scheme to help small companies has already been accepted by the Government and it relates to education and university services. Those institutions are under licence to the Copyright Licensing Agency and pay money to it. I understand that, last year, the Government paid £900,000 to that authority on behalf of those institutions. It appears that we have dual standards. Either the Government should make an amendment to get rid of that payment or they should make private companies pay the same. It is all right to pay public money to the Copyright Licensing Agency, but it does not appear all right to pay private money to that authority. That smells of duplicity and I hope that the Minister will explain that position. I am sure that fair-minded people will wonder why those educational institutions are give such a fair deal.
My wife is a chartered librarian and is involved in issuing information. I told her that I was intending to speak on a clause that intended to exclude her from giving information to commercial organisations. She was not too pleased about that. It was only after I explained to her that she would not go to prison if caught doing so that she allowed me to come here.
I do not believe there will be any objection if the Government return to the stance they took before they were got at by big business. In the sense of fairness I hope that the Government will accept the amendment.
§ Mr. Rowlands
I underline what my hon. Friend the Member for Carlisle (Mr. Martlew) said. He illustrated the strength of the case for the amendment with his references to educational establishments and the money they pay to the Copyright Licensing Agency.
We have been lobbied for and against the Government's proposal, formally and informally. For me it is a question whether I lose my British Library friends or my publishing friends. When two sets of friends are recommending contradictory opinions, one must look for a set of principles. Occasionally I try to publish some research material in obscure academic journals. If people wish to have their research work published they can place it in the public domain. That way more and more people read it and the photocopying of that material is a compliment to their research.
My original instinct was that one should be on the side of the extensive dissemination of information. However, when one realises the way in which some of that research 134 is grossly exploited on a commercial scale by vast photocopying of key articles, often published in marginal obscure journals, one realises that there is another side to the argument. That case has been made by the publishers of some of the most marginal journals. Much research would not see the light of day were it not for these technical journals—including the historical ones in which I am interested. Many people who have done research find an outlet and make their reputations through these journals, which are often scientific and technological. Their work would not reach the larger commercial concerns without these organs.
The Government should think twice about the impact of their proposals on marginal research journals. If no compensation is paid for the mass exploitation of the research in them, their numbers will diminish and the opportunities for young researchers in, say, Welsh history or technology will decline. We have a perfectly reasonable way of handling this problem of large-scale photocopying of commercial research, so I cannot understand the Government shrugging their shoulders and saying they can do nothing about it.
Much of the Bill is devoted to establishing a copyright licensing system which is designed to deal with the large-scale photocopying of work of potential commercial value. My hon. Friend the Member for Carlisle effectively posed the question of who will be expected to obey the new licensing regulations. The answer is the public sector: libraries and education authorities will be expected to come to licensing arrangements for large-scale photocopying with the publishers and will have to pay under an agreed system.
Why should not such photocopying by commercial research organisations be put on the same footing as the operation of public libraries and education authorities? Why should not these organisations come to a deal with the publishers through a copyright licensing arrangement, the rules of which are established in many clauses of the Bill? The Minister must justify why a poor education authority such as Mid Glamorgan has to come to a deal and make a contribution to the £1 million for the publishers whereas large-scale organisations that exploit research work published in marginal journals get off scot-free. If the Minister does not answer that, we shall have a case for forcing the amendment to a vote.
§ Mr. Butcher
The hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) reminded us again that the Bill is not about which lobbyists press us the hardest but about coming down in favour of particular arguments. This debate has been especially excruciating because all the arguments have been finely balanced. As the hon. Gentleman reminded us, too, it comes down in the end to principle and the points that give us basic guidance.
The amendments fall into two groups. Those in the names of Opposition Members would mean that the fair dealing and library exceptions in clauses 38 and 39 would not be available for commercial research. The amendments in the name of my hon. Friend the Member for Cornwall, North (Mr. Neale) do not go quite as far. They would allow copying for commercial research under the exceptions if no certified licensing scheme was in place.
It is self-evident that a large amount of photocopying takes place in British commerce and industry. Whether it 135 is as much as the 1.7 billion copies that have been suggested is neither here nor there; but much copying goes on with no return to the copyright owner.
The Opposition amendments suggest that the answer is to deprive commercial research of the exceptions to copyright in clauses 29, 38 and 39.I shall not go over the arguments that were made in the Committee, but I maintain that the effect would be suddenly to shut off access to much of the information contained in journals and scientific publications. That would bring our research effort grinding to a halt. The House would find that completely unacceptable, and I do not believe that copyright owners would want us to go that far.
§ Mr. Blair
That statement is an absurd exaggeration of the position. The amendment would not mean that industry could not copy things. It would simply mean that it could copy them only with the permission of the copyright owner, which is the same position as obtains in copyright throughout the Bill.
§ Mr. Butcher
I was trying not to repeat the arguments that we had in Committee. If the exceptions do not apply to commercial research, it means that industry must obtain the consent of the copyright owner for any copying that it may wish to do, however minimal it might be. To seek out the copyright owner for every piece of copying would place an intolerable burden on industry, and if the search was unsuccessful, copying could not take place.
The amendments of my hon. Friend the Member for Cornwall, North recognise the impracticality of taking commercial research out of the exceptions completely. Amendments Nos. 304 to 306 would mean that the exceptions would continue to apply unless a licensing scheme certified by the Secretary of State were established. That approach has the merit that industry would not be prevented from making copies. Industry could make copies either freely or, if the copyright owners got together to form a licensing scheme, on payment to the copyright owners.
The central question is whether researchers of whatever sort should be prevented from, or required to pay for, fair dealing in copyright works. If we accept the basic principle underlying the fair dealing exception, I cannot see the justification for denying a researcher the benefit of the exception just because his research is directed to commercial ends. We do not want to discourage any research, least of all that which will benefit the economy. We wish to encourage research.
But that does not mean that because copying is for research purposes, it should be permitted without constraint. That is not the case now, nor will it be under clause 29. Copying beyond the limits of fair dealing is infringement if done without the licence of the copyright owner. That is true for private research, for pure academic research and for commercial research.
Copying for commercial research is either fair dealing or it is not. Copying that is not fair dealing must be paid for under the present law, and the Bill preserves that. The amendments in the next group will help to define more clearly what is, and what is not, permissible.
For similar reasons, I am not persuaded that industry should be deprived, either wholly or in part, of the 136 exceptions in clauses 38 and 39. It is accepted that libraries should be able to copy within defined limits. The amendments to clauses 38 and 39 raise again the practical problems that librarians saw about how they could distinguish between different types of research. In this context the efficiency or otherwise of licensing schemes is relevant. Even the most streamlined scheme will add burdens to the already stretched resources of libraries.
I cannot accept the amendments, for the same reasons as I rejected them in Committee. They would hamper the country's research effort. Amendments Nos. 310, 312 and 313 would make illegal what is now permitted and could mean that either industry stopped using photocopiers or was placed on the wrong side of the law. Amendments Nos. 304 to 306 would require industry to pay for something to which it is presently entitled—hardly an encouragement for research. Industry would have to pay the licence fee and carry the cost of administration of schemes which, even on a sampling basis, would involve record-keeping, staff training and so on. There would also be a burden on the library system which is best avoided.
As I said in Committee, whether the copyright interests wish to offer industry licensing schemes in respect of copying that is not fair dealing is up to them. Industry has no legitimate grounds for complaint about having to pay for copying that is not fair dealing. Although industry should not be singled out for special adverse treatment, it should not expect any sympathy for special privileges which would weaken the position of copyright owners.
I hope that hon. Members feel able not to press their amendments.
§ Mr. Blair
I apologise to the Minister for the fact that in my desire to keep up with what is happening to the Bill I omitted to congratulate him on his new appointment. He has handled the Bill with considerable sensitivity in many areas. We are sorry to lose him from the Department of Trade and Industry, but I am sure that his successor will try to live up to the high standard that he has set.
The fallacy of the Minister's line of argument is that the whole purpose of fair dealing is what the term implies—to allow dealings with copyright, though strictly in breach of copyright, where it is fair to do so. To treat photocopying for commercial ends in a different way from photocopying for private research or study is wrong in principle. Commercial companies claim the privilege of copyright for themselves in many other cases.
The problem is made all the more acute by the fact that educational establishments will be subjected to a licensing scheme. They will pay about £1 million a year to use copyright material. The Minister resisted our amendments, but a licensing scheme is already in existence for educational establishments. It is bizarre that large companies such as BP, ICI and Shell should be able to use commercial research and pay no money for photocopying when schools have to do so. The Minister has not answered that point.
I do not intend to press the amendment to a Division, but the Minister will have to keep a careful watch. In principle, the practice is wrong. Many of industry's arguments against our amendments are the ones that 137 they have used strenuously on other parts of the Bill. It is not right that publishers should be subjected to punishment for breach of copyright when that 138 punishment does not apply to anybody else. There are clear anomalies. The Minister has not addressed them adequately.
§ Amendment negatived.139
§ Mr. Butcher
I beg to move amendment No. 238, in page 13, line 16, leave out subsections (3) and (4) and insert—'(3) Copying by a person other than the researcher or student himself is not fair dealing if—
- (a) in the case of a librarian, or a person acting on behalf of a librarian, he does anything which regulations under section 40 would not permit to be done under section 38 or 39 (articles or parts of published works: restrictions on multiple copies of same material), or
- (b) in any other case, the person doing the copying knows or has reason to believe that it will result in copies of substantially the same material being provided to more than one person.'.
§ Mr. Speaker
With this, it will be convenient to consider the following: Amendment (a) to amendment No. 238, in line 9, at end insert'at substantially the same time and for substantially the same purpose.'
No. 311, in page 13, line 18, at end insert—
'(3A) Subsection (3) shall not permit any person to make at substantially the same time or for substantially the same purpose more than one copy of or from substantially the same work, or to provide systematic services for the making of copies of or from copyright works, for another person.'.
§ Mr. Butcher
A similar amendment was moved in Committee. We were asked to define cases of multiple copying that are not regarded as fair dealing. We have tried to reflect the view then expressed that we should table an amendment that provides an appropriate definition.
I should also mention that the Government are happy with the amendment of my hon. Friend the Member for Battersea (Mr. Bowis).
§ Mr. Blair
When we are given what appears to be a gift it would be strange to be churlish about it, and I do not intend to be churlish. However, we need to be told what the Government's amendment implies. Any form of multiple copying would, I understand, be excluded from fair dealing. The amendment ensures that nobody will be allowed to take more than one copy for distribution to others, which is what happens in the case of commercial research. If that is right, will the Minister tell us exactly where that leaves commercial research?
When we were discussing earlier amendments, he was asking why on earth commercial research should not be allowed without any hindrance, without the payment of any money and without it being a breach of copyright. I find the amendment slightly curious, and I have to pause before accepting it, because it appears to be saying that multiple copying is a breach of copyright and is not fair dealing. I find it difficult to put together the amendment and the position the Minister was adopting in the previous clause. That is why it is right to ask at least for an explanation.
§ Mr. Butcher
In the interests of making progress, I may have glossed over a point on which the hon. Gentleman wished to have clarification. I shall set his mind at rest. The amendment reflects a mutual concern. It seeks to define cases of multiple copying which are not regarded as fair dealing.
Clause 29 provides that fair dealing for purposes of research or private study does not constitute an infringement of copyright. Subsection (3) was included in the Bill to make it explicit that a student could avail 140 himself of the fair dealing exception even if he did not do the copying personally. We believe that to be the existing law but this statement on the face of the Bill caused some alarm, particularly among publishers. They were concerned that this could lead to systematic multiple copying—that is the key phrase—where a class of students could ask a librarian to make 30 copies of, say, a learned article and each would then rely on his own individual fair dealing exception.
As far as library copying is concerned, clause 40 already imposes restrictions on multiple copies of the same material, and subsection (4) was added to clause 29 so that those restrictions are read over to fair dealing. But, of course, librarians are not the only ones to copy on behalf of others. Copy shops do so. Industry does much in-house copying. Amendment No. 238 therefore extends the principle of clause 29(4) to the general case.
Since tabling amendment No. 238, we have had the benefit of seeing my hon. Friend's amendment (a), and in the light of this we have concluded that our original wording is rather too broad. There will be many occasions where someone copying a particular item will have reason to believe that someone else will also want a copy of it some time in the future. However, it should be possible to make a copy under this clause if there is no immediate prospect of further copying taking place. For that reason I am happy to accept my hon. Friend's amendment to my amendment.
This brings my amendment closely into line with the existing provisions in clause 40 governing multiple copying in libraries, and with the first part of amendment No. 311 in the names of hon. Gentlemen opposite. I cannot, however, accept the remainder of the wording of that amendment since the concept of systematic services for the making of copies is extremely broad and vague. It could well be that this provision would make the systematic supply of photocopiers an infringement of copyright and this would clearly be absurd.
§ Mr. Blair
I take the Minister's point about drafting, but it is not the drafting that concerns me. Perhaps if I put a specific case to him it may help elucidate the matter. If someone within a company's research department decided to photocopy a particular article and circulate it among 50, 100 or 1,000 people, would that be fair dealing or would that be excluded from fair dealing under the provisions?
§ Mr. Butcher
That is an example of the systematic and multiple copying which is not fair dealing.
In conclusion, I believe that my amendment, as amended by my hon. Friend, provides what is needed in this area. As a result of it, the hand of the copyright interests will be strengthened in negotiations for licences for copying which is not fair dealing. I hope that Opposition Members will not move their amendment 311 in the light of my remarks.
§ Mr. John Bowis (Battersea)
I beg to move amendment (a) to the proposed amendment, at end insert'at substantially the same time and for substantially the same purpose.'I am grateful for the opportunity to move amendment (a) and I am grateful to my hon. Friend for accepting it. It is slightly unusual to wait so long to speak in the debate and then to have one's amendment accepted. I am doubly grateful to my hon. Friend.
141 I have been seeking to strike a sensible balance between the interests of education and the interests of copyright ownership and to stop some of the abuses that appear to be possible. Multiple copying and systematic single copying have been referred to in that context. I had in mind to bring the academic world into line with librarians so that academic books that are not readily available from libraries could be copied for students. Without further debate or discussion I commend my amendment to the House.
§ Mr. Rowlands
We are a little unclear as to what the Government are doing in the amendments. We were somewhat relieved when the Minister promptly replied to my hon. Friend the Member for Sedgefield (Mr. Blair) saying that multiple copying inside a commercial concern is not fair dealing. That was a clear statement that we will happily bag and take away.
Amendment No. 238 refers toA librarian, or a person acting on behalf of a librarian".It then refers us to clauses 38 to 40. What is the Minister trying to do? Is he saying that if a librarian or a person acting on behalf of a librarian does multiple copying, he or she is breaching the fair dealing provision? I hope that we can obtain that clear statement from the Minister.
I want to know how this provision will be enforced. We went through all the problems when education authorities were involved. Eventually a court case arose and we moved to a licensing arrangement. The logic of much of what the Government amendments do would to be have some sort of licensing system sooner or later so that everybody knows exactly where they stand. We would like to know where we stand at the moment.
§ Mr. Butcher
The answer to the question asked by the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) is that librarians will infringe if they make multiple copies.
§ Mr. Blair
In the light of what the Minister has said, I am content not to move amendment No. 311.I am grateful to the Minister for the clear reply he gave in that in a commercial establishment, making multiple copies of a particular article or piece of material is not fair dealing and is an infringment of copyright.
§ Amendment (a) agreed to.
§ Amendment No 238, as amended, agreed to.