HL Deb 05 June 1985 vol 464 cc823-9

8.32 p.m.

Viscount Colville of Culross

My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved, That the House do now resolve itself into Committee.—(Viscount Colville of Culross.)

On Question, Motion agreed to.

House in Committee accordingly.

[The VISCOUNT SIMON in the Chair].

Clause 1 agreed to.

Viscount Colville of Culross moved Amendment No. 1: After Clause 1, insert the following new clause:

("Computer storage.

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 noble Viscount said: This is not a particularly easy point, but I hope it is one that I can explain fairly briefly to the Committee. The scheme of the Bill is to build upon the protection of copyright which is given to literary works under the 1956 legislation. The 1956 legislation has been augmented by some recent additions which increase the penalties for reproduction of copyright works in the way that I explained at Second Reading. Nevertheless, the basic scheme depends on the part of the 1956 legislation which deals with literary works. This entails the idea of having an author and the idea of producing something which can be recognised as a literary work.

From that concept there follow two things. First, you have to identify the creation of the work which is going to be protected by the laws on copyright. Secondly, you then have to make proper provision to prevent the unlicensed reproduction of the work which is so protected. That is the scheme of the Act which has been in operation for a long time now. Of course, the concept of the creation and reproduction of a literary work, which usually involves print on a piece of paper, is not immediately apt, to some people's minds at least, to describe what goes on in the electronic world of computer programs. It is probable that the 1956 Act, in this particular series of passages, did comprehend, because it was very broadly drafted, computer software as we know it and as we may try to envisage it coming about in the future. However, the whole point of the Bill is to make sure that it does and to close any loopholes.

There appear to be two loopholes which are left. The first arises out of the concept of the creation of what might constitute a work of copyright. The noble Lord, Lord McIntosh of Haringey, uses his computer a great deal more than I have ever used one in my time, but I know that you can put the raw material, as it were, of a program into a computer and that that material is then contained in the electronic memory of the machine. Into that electronic memory you can introduce material which is going to be a valuable piece of intellectual property. You can go on doing this by altering the properties of the contents of the machine until you have something you consider to be perfect.

If you switch off the machine at any time the electronic memory is erased and you have nothing left. The matter may not be complete at the time when such a disaster occurs, either by mistake or on purpose; but at the end of the time, of course, if you succeed in getting through to the perfected program you still have something which is only contained in the electronic memory of the machine. It is not written down, it is not recorded anywhere else, it is not palpable in any shape or form. Therefore, what has to be dealt with is the creation of a copyright work which can be protected by the legislation. Thus, in the amendment we are referring to the storage of the work in the electronic memory of the computer so that when you put in something which you consider constitutes a work which deserves to be protected by copyright the Bill will, in fact, protect it; that is, the creation of the work.

The Committee can imagine that if, perhaps, the composer of this program left his brainchild on the machine and went out to lunch and someone chose to print it out, it would, as the law stands at the moment, be arguable that the person who printed it out and first put it on paper was the author of the program rather than the person who actually used the brainpower to put it into the machine in the first place. Therefore we need to make sure that it is the latter person who obtains the benefit of the copyright protection.

We then come to the process of the reproduction which, of course, is one of the matters protected under the copyright law. Again, having introduced the new program on to the electronic memory of the computer it would be possible these days—and I have no doubt that further electronic developments will take place—to transmit the contents of that computer's memory to another computer without anything going on to paper, without anything written and without anything palpable except a collection of electronic impulses which can go over a telephone line. They could go over the telephone line abroad, to Jersey, the Continent, or wherever it is that someone might like to reproduce them outside the jurisdiction of this country. Therefore, in this legislation it is also necessary to cover the reproduction of what is on the electronic memory of the computer so that, in whatever form it may be transmitted, it is, from the moment of its creation, protected by copyright law against unlawful reproduction.

I am afraid that that is a fairly complicated explanation. The only comfort I have is that a number of noble Lords who are very expert in the law of copyright have been examining not only the Bill but the amendments I have tabled. I may perhaps mention, because he specifically told me I might, the noble Lord, Lord Lloyd of Kilgerran, who at the moment is enjoying the beauties of Cumbria. He agreed that I could tell the Committee that he has looked at both the amendments and that he thinks they will improve the Bill and that it will be an advantage to have them on the statute book. Subject, therefore, to anything that members of the Committee may think, I would suggest that this is an improvement which will cover some of the possible difficulties and stop up some of the loopholes. I beg to move.

Lord McIntosh of Haringey

The Committee must be grateful to the noble Viscount for that professionally expert and very clear explanation of what, as he said himself, is an extremely difficult concept—extremely difficult not only to those who have some experience of computing, but even more for those like myself who have no particular knowledge of copyright law.

On this side of the Committee we are not disposed to oppose the amendments. We accept that the argument of professionals is that this must improve the Bill, and we shall not offer any opposition to it. I would only say in addition to that that to me the concept of the storage of work in a computer, unless it is allied to the concept of access to that work and the use of that work, is a peculiarly sterile concept. I did refer at Second Reading to the practical problems raised by access to a computer program from, for example, a series of networked computers where the vendor of a computer program states in the contract that the program shall be used only from a particular machine with a metal plate on the back numbered such and such. That cannot be achieved by many users of computer software because they have this problem that they do not know which piece of electronic machinery is actually being used for access to the program. Therefore, it does seem to me that access and use is a much more active consideration than the storage itself.

The second consideration which we ought to bear in mind is the shelf life, if I may put it that way, of computer software. A pirate user of computer software—which is what we are concerned about—has to put up with a number of problems which the authorised user does not have. We referred at Second Reading to the fact that the manual of use of a software program is itself, and always has been, copyright under the 1956 Act, and if the pirate user of the software does not have access to the manual he is going to have a great deal of difficulty in understanding the software he has. There is also the undoubted fact that software becomes corrupt for electronic and sometimes for electrical and communications reasons as well, and unless the pirate user has some way of correcting the corruption he is going to find the value of his pirated possession very much diminished or even eliminated.

The most common way of correcting corruption is to pip across, to transfer from a backup copy, the program which has become corrupted and to replace it by an uncorrupted version. As I understood it—the noble Viscount will correct me if I am wrong—the Bill as originally drafted covered that point, because it covered always the reproduction of a computer program as if it were a literary work as envisaged by the 1956 Act. But, in addition to the problem of simple corruption of a program, there is the fact that there are defects in programs which are encountered when they are put to new uses, when they are applied to new data or new conditions. Here again, the pirate user of a program has no access to software maintenance to enable him to deal with those new problems he is facing, and in the extreme case it is possible that in the absence of maintenance the only way to deal with the problem may be by an amendment of the source code of the unprotected version of the software program. Here again, I understood that the Bill as drafted before these amendments clearly secured that the adaptation—that is the word used in the Bill—of the source code in order to amend computer software was encompassed within the purposes of the Bill and was adequately covered.

In am not going to dispute that the argument of the noble Viscount that storage of a work is a link in the chain which has to be protected as well as the other links in the chain, but I have not yet been fully convinced that it is as important a link as the other elements in the chain, as the elements of adaptation, of publication, of use, of communication. To that extent, if he can enlighten me in my ignorance I should be extremely grateful.

8.45 p.m.

Lord Brabazon of Tara

On behalf of the Government I support this amendment to incorporate a new clause. As my friend has explained, it concerns another aspect of the relationship between copyright law and computers which is in urgent need of clarification. The Bill as it stands is concerned only with the application of copyright law to computer programs, but it is clear that computers have a much greater impact on copyright than that. It is an everyday occurrence for many copyright works to be stored in, or even created within, computers and how copyright law at present applies in these cases is subject to some doubt.

Under existing law there is some uncertainty as to whether a work which is actually created directly in a computer by someone typing in from a keyboard, and which exists only in this form, can be protected by copyright. The amendment is particularly important in relation to computer programs, which are, of course, commonly written in this way. However it will also apply, for example, to a novel or to any other sort of work being written directly into computer storage. In so far as there is any doubt now that such a work is "fixed in material form", and therefore qualifies for copyright protection at the instant of its creation within the machine, the amendment will remove that doubt.

There is also uncertainty as to whether, if an existing work is copied into a computer, this constitutes a "reproduction in a material form" under copyright law, so requiring the copyright owner's consent. An important example would be the incorporation of an author's work in a database. It is certainly right that the copyright owner should be entitled to control this use of his work since it opens up possibilities of major exploitation. The amendment will perform an important service by removing any uncertainty in this area. It will also apply equally to the loading of computer programs as to the loading of other works.

The Government consider that clarification of the law in both the situations I have just described will give to the creators of computer programs and other copyright works the protection they need. I therefore have pleasure in supporting the incorporation of the new clause.

I also support the amendment of the Long Title. It is clearly necessary as a consequence of the inclusion of a new clause in the Bill to cover computer storage of copyright works.

Viscount Colville of Culross

I am very grateful to my noble friend Lord Brabazon. I had not actually thought of all those arguments, and they seem to me to be very telling.

If I may just go back to the points made by the noble Lord, Lord McIntosh, I think we should start by realising that this new clause does not in any way detract from what is in the Bill already. We went into all this at Second Reading, and I think we are on absolutely common ground that most of the things that he mentioned were discussed then, and we came to a satisfactory conclusion that they were in the Bill, that they ought to be in the Bill, and that they probably will work. One never knows absolutely for certain on these things, but they probably will work.

Where I think perhaps it is just worth saying a word is this. One has to realise that this is being, as it were, keyed in to the existing law on copyright, and the existing law on copyright does not really deal with the question of access because access is not normally a problem with the printed work. Very well, one gets it out of the library, but somebody has had to reproduce it in order for it to be on the library shelf in the first place, and somebody in the process of printing it has infringed the law of copyright in reproducing it. The whole concept of creating something that is not written down at all but is only in an electronic memory was not really envisaged, I think, by those who drafted the 1956 legislation. One has to bear in mind that the context of this small Bill is an adaptation of what was thought suitable for a literary composition about 30 years ago.

When that is appreciated I think that the noble Lord, Lord McIntosh, will see that, although of course in our terminology and in our practice access is all-important—and it was access that I was talking about when somebody took it away at lunch-time or when somebody transmitted it unlawfully to an overseas pirate—that is not the way in which you get at the protection that you want. You have to look at it in the terms of adapting the creation of the work, and that is why one uses the term "storing" it.

It is perfectly true, as my noble friend said, that one can put a novel on to a word processor just as much as one can an ordinary piece of computer software, and it only exists in the memory of the word processor while it is switched on; and that is also a way of creating a literary work through electronic means. Similarly, when it comes to the reproduction and the transmission of the program, we do not in any way detract from or backtrack on what is already in the Bill about the illegality of that if you can get at the thing. We are simply making sure that if it is taken in the form where it has not yet been written down it is still protected. That I think deals with the two points of substance that the noble Lord brought forward.

I am sorry that it has to be convoluted in this way, but it is because we are adapting a slightly old-fashioned, in this context, form of legislation to modern electronic conditions. I hope that if he has followed what I have been saying he will see that this is a sensible addition to the Bill. It is an additional protection. It deals with things that have not perhaps been fully worked through, although I think that they were in the original 10-minute Bill in another place in the previous Session, and therefore it is a valuable addition to the protections that we are trying to introduce in this little piece of legislation. I hope that the noble Lord will be satisfied and that the Committee will be too.

Lord McIntosh of Haringey

I just want to express my appreciation to the noble Viscount. I think that the explanation he has given is not only clear but entirely satisfactory. I want to say only one more thing. The noble Lord, Lord Brabazon, in his speech made reference to the possibility of doubt about the applicability of copyright now under existing legislation to the work of an author keyed into a database. I hope that he will think very carefully about the words that he used. It is not just the work of a novelist, as the noble Viscount said: the whole "copyrightability", if I may coin that awful word, of the material in commercial databases could be at risk between now and the passage of the Bill if it were to be stated here that there is any genuine doubt about the copyright status of material provided by information providers into commercial databases. I had always understood, and I hope that I am not wrong about this, that the arrangements that they make under copyright legislation ensure that hosts for the databases which provide access to their material are legally valid and that there is no doubt about their copyright status. It would be useful to have that assurance repeated by the Government.

Viscount Colville of Culross

I do not know whether I can fill in a moment before the Government repeat it, but I think the answer—and I shall immediately be proved wrong—is that this Bill is really only reinforcing what is probably the law already. Therefore the gap between today and what I hope will be Royal Assent in a comparatively short time ought not to be material in this respect. There is a very strong probability that the majority of what is in this Bill is already the law if the judges had to interpret it after an enormously long and complicated argument in front of them. I think that the noble Lord opposite may be reasonably happy that there will not be a nasty lacuna in the legal protection, and I shall now sit down and see whether I am right.

Lord Brabazon of Tara

I can very quickly say that my noble friend is correct.

On Question, amendment agreed to.

Clauses 2 and 3 agreed to.

In the Title:

Viscount Colville of Culross moved Amendment No. 2: Line 1, leave out from ("1956") to end of line 6 and insert ("in its application to computer programs and computer storage.").

The noble Viscount said: It was not just my noble friend Lord Morris who drew our attention at the Second Reading to the Long Title of the Bill. A number of other noble Lords made the point. There is no doubt that it can be simplified. There is no point in having a complicated Long Title, and there is in addition the question of storage which we have just been discussing. I am very pleased to have heard already that my noble friend on the Front Bench approves of this amendment.

The only other thing that I think I should say, although the noble Lord, Lord Kilbracken, is not here, is that I have had a certain amount of correspondence with people who, if your Lordships will be pleased to think of it, have followed the debate on this Bill on Second Reading, and the buffs of the computer world say that it is absolutely right that we should spell "program" with only one "m" and not another "m" and an "e". He is not here to argue, but I have taken advice on this and I believe that it is correct. It is still in the Long Title in that form, and I think that the Long Title would be improved by this amendment. I beg to move.

Lord McIntosh of Haringey

We can only be grateful to the noble Viscount for cutting the Gordian knot of the Long Title. I would only say to the Government that if they do, as we have heard, accept the amendment, we on this side shall find occasion to use this precedent to seek to adapt long titles of Bills in this way to avoid some of the difficulties which have in the past inhibited the kind of amendments that we should like to see to Government legislation. A long title, as the noble Viscount rightly said, ought not to seek to contain all of the conditions of the Bill. Governments have very often sought to use long titles in that way. We shall use this precedent to seek to prevent them.

Lord Brabazon of Tara

I have already said that I support the amendment. I should just say to the noble Lord, Lord McIntosh, that obviously we shall have to take each case on its merits.

Viscount Colville of Culross

I think that I shall leave that matter on the basis that we are agreed on this occasion this evening, and I shall leave the noble Lord to fight it out with those on the Front Bench on any other Bill that attracts his attention in this respect.

On Question, amendment agreed to.

Title, as amended, agreed to.

House resumed: Bill reported with amendments.