HL Deb 08 December 1987 vol 491 cc72-8

3.15 p.m.

Lord Beaverbrook

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

Moved, That the House do now again resolve itself into Committee.—(Lord Beaverbrook.)

On Question, Motion agreed to.

House in Committee accordingly.

[The LORD ABERDARE in the Chair.]

Clause 28 [Introductory provisions]:

Lord Lloyd of Hampstead moved Amendment No. 124: Page 13. line 8, leave out subsections (2) to (4).

The noble Lord said: This is no more than a probing amendment which seeks a degree of clarification. It was pointed out at Second Reading that one of the agreeable features of this complicated legislation was that a great effort had obviously been made to draft a Bill in a logical and well-structured form and, so far as possible, to avoid obscurities of language. As some Members of the Committee may recollect, I was one of those who praised the Bill on this account. Equally, one has to admit that in one or two places some degree of obscurity or doubt has been introduced.

It is in that context that I wish to draw attention to the three subsections of Clause 28 which seem either to be described in difficult or even impenetrable language, or to be unnecessary.

Perhaps I may deal with the three subsections in succession. First, subsection (2) lays down: Where it is provided by this Chapter that an act does not infringe copyright, or may be done without infringing copyright, and no particular description of copyright work is mentioned, the act in question does not infringe the copyright in a work of any description". So far as I am able to understand, that subsection seeks to say that where there is a purely general reference to a work—as in the case of Clause 31 which deals with fair dealing with a work—it is to be taken to refer to any work. My doubt on this matter concerns whether it is really necessary to have this complicated subsection simply in order to say that. In a case such as Clause 31, it is obvious that what is meant is that there is fair dealing with any work. Why is it necessary to have this rather complicated subsection which is more likely to cause confusion than to shed light?

Subsection (3) is rather more difficult. It is quite short and so it has the merit at least of brevity. It reads: No inference shall be drawn from the description of any act which may by virtue of this Chapter be done without infringing copyright as to the scope of the acts restricted by the copyright in any description of work". I find that subsection distinctly difficult if not impenetrable. I pay the draftsman the compliment of assuming that he has some clear objective in inserting the subsection. Perhaps we could be told what it is and why it is necessary to say that.

Subsection (4) is quite short. It says: The provisions of this Chapter are to be construed independently of each other, so that the fact that an act does not fall within one provision does not mean that it is not covered by another provision". There again it seems to me that that sounds, so far as I am able to understand it, a rather obvious proposition and something that is not normally in drafting. It is not normally considered necessary to put in an explanation of that kind.

Therefore, I venture to ask the Minister whether he can clarify the meaning and aim of that subsection. As I made clear at the beginning, the object of this exercise is purely to probe for clarification and not in any way to press the amendment. I beg to move.

Lord Denning

I agree that subsections (2), (3) and (4) are obscure. It would be enough to leave the first subsection as it is, but it is just put in to get over the legal technicalities of some lawyers and I do not object at all to its being in. It just gets rid of a lot of legal objections that some lawyers might take.

Lord Broxbourne

Unlike the noble Lord, Lord Lloyd of Hampstead, and, with qualifications, the noble and learned Lord, Lord Denning, I find the words of these subsections both intelligible and helpful. I see that the noble Lord, Lord Lloyd of Hampstead, has been conscripted by the chief patronage secretary. No doubt we can await with pleasure his coming to join us on these Benches, and then we shall be able to echo the words of Virgil: "Non tali auxilio, nec defensoribus istis".

Reverting, if somewhat reluctantly, to the terms of the amendment, for myself, and I think possibly for some of my noble friends, I find the words both easy to understand and helpful in interpretation. They will of course, like other useful legislation, no doubt have the necessary detriment in the eyes of some of diminishing the possibilities of litigation. I am not sure whether the noble Lord is still in practice at the Bar, in which case I can well understand his reluctance to have these clarifying words. For myself there is no such conflict of interest, and I hope that my noble friend will defend the clause as it stands.

Lord Morton of Shuna

I very much agree with the noble Lord, Lord Lloyd of Hampstead, in moving this amendment. I cannot see that these three subsections add anything to the sense. It is no doubt my fault. Perhaps when answering the Minister will tell us what they mean other than a statement of the obvious.

Lord Lloyd of Kilgerran

Perhaps I may express surprise at the speech of the noble Lord, Lord Broxbourne, on this point. He is a great expert on copyright matters; at any rate he was when he introduced a Bill in the other place some years ago. There was a reference made to certain clauses in the Trade Marks Act by a distinguished lawyer. He said that it was full of fuliginous obscurity. I feel that those strange words are applicable in this case.

I support what the noble Lord, Lord Lloyd of Hampstead, has said. Subsections (2), (3) and (4) seem to be wholly unnecessary and difficult to construe. I am not here to help lawyers increase their fees in any way, but I should like to see these subsections dismissed.

Lord Simon of Glaisdale

I should have thought myself that subsections (2), (3) and (4) merely state what the courts would in any case do as a matter of ordinary statutory construction. As for subsection (3), although the noble Lord, Lord Broxbourne, managed to find it easy to understand, when a former Quain professor of law declares that he cannot understand it I am bound to ask: what chance has the ordinary artist or literary man who is affected by it?

Lord Campbell of Alloway

I do not understand it, and I have no hesitation or shame in admitting that. Certainly I find it very difficult.

Lord Beaverbrook

Clause 28 provides an introduction to the various exceptions to copyright set out in Chapter III. The deletion of subsections (2) to (4) would remove helpful general provisions on construction and interpretation. Subsection (2) provides that where an act is permitted by any of Clauses 29 to 68 and the clause does not specifically limit the provision to particular descriptions of works, then the provision applies to all descriptions. for example, Clause 29 is confined to literary, dramatic, musical and artistic works but Clause 30 makes no mention of descriptions of work and so is applicable to all descriptions of works.

Subsection (3) has the same effect as Section 49(9) of the 1956 Act. It makes plain that no inference can be drawn from the fact that a certain act is permitted under the provisions of Chapter III with regard to the scope of the acts restricted by copyright in any description of work. For example, the 1 per cent. exception for educational establishments in Clause 36 does not inevitably mean that to copy 1 per cent. of a work would otherwise be an infringement.

Finally, subsection (4) specifies that the provisions of Chapter III are to be construed independently. For example, because certain copying does not fall within the library exceptions in Clauses 38 to 43, it does not mean that it does not fall within the fair dealing provisions of Clause 29, and vice versa.

The reason for these subsections is simply that it has been discovered, including in the course of consultation, that there can be considerable doubt in the minds of some if express provisions of this nature are not made. Subsection (4) in particular was expressly asked for in responses to our consultation during the summer. These are useful provisions which I believe assist the interpretation of this Bill.

Lord Lloyd of Hampstead

I am naturally grateful, as I am sure the Committee is, to the Minister for his explanation. I am bound to say that I still remain somewhat unpersuaded that these provisions are strictly necessary. However, as I indicated at the beginning, I have no intention of pressing this amendment, and therefore I beg leave to withdraw it.

Amendment, by leave, withdrawn.

Clause 28 agreed to.

Lord Morton of Shuna moved Amendment No. 124A: Before Clause 29, insert the following clause:

("Public interest.

Copyright is not infringed by anything done in the public interest.")

The noble Lord said: The purpose of this amendment is to add a defence of public interest to this section of the Bill. It is not to change the law in any way because this defence has, over recent years, been recognised and it is available in the copyright section of the law as in the section dealing with confidence, and is available in certain limited circumstances. The whole purpose of this clause is that the defences in copyright should be stated in the Bill rather than be left unknown, so that somebody who is reading the Bill can see that there is a protection of public interest rather than having to know the common law of the land as well.

This defence is recognised in certain restricted circumstances. I have not sought in this amendment standing in my name and that of my noble friend Lord Williams to define the circumstances because, as the noble and learned Lord, Lord Hailsham, said (I think it was last Thursday, in another context) it is not necessarily appropriate to limit the way judicial decision may define or confine or extend public interest.

The grounds of the defence are extremely limited. The defence is: It would justify the disclosure of matters carried out or contemplated in breach of a country's security or in breach of law, including statutory duty or fraud, or otherwise destructive of the country or its people including matters medically dangerous to the public and other misdeeds of similar gravity. According to the textbook on copyright, it extends to cases where the subject matter of the alleged confidence is dangerous or absurd and ought, in the public interest, to be disclosed. This is especially so when the information is being suppressed by methods which are regarded as unfair. It is to allow this type of defence to be clearly available, and to be stated on the face of the Act as being available, that the amendment is tabled. I beg to move.

3.30 p.m.

Lord Denning

I hope that the Committee will not accept this amendment. When read as it stands, any publisher will be able to get away with the matter by saying that he copied this, that or the other only in the public interest. That is much too wide and one could almost laugh it out of court or out of this Committee.

The so-called defence of public interest is of recent origin. It arises from a case in 1973 where a young woman on the staff of the Observer wrote a memorandum about a Minister, Mr. Reginald Maudling. Private Eye obtained the memorandum, published it with no acknowledgment and made scorn of it. Private Eye put forward the defence that it published the memorandum in the public interest, if you please. In 1973 Mr. Justice Ungoed-Thomas, in the case of Beloff v. Pressdram Limited said: Public interest, as a defence in law, operates to over-ride the rights of the individual (including copyright) which would otherwise prevail and which the law is also concerned to protect". The judge then defined the public interest: Such public interest, as now recognised by the law, does not extend beyond misdeeds of a serious character and of importance to the country, and they are, in my view, clearly recognisable as such". In other words, this amendment deals with a limited class of public interest which does not amount to an infringement of copyright. It is so narrow a ground that I do not think it should be included in the statute. It is better to leave the matter to be dealt with by the judges as each case arises in order to ascertain whether there is a defence of public interest. It should not be included in a statute such as this.

Lord Campbell of Alloway

Is not the problem that if the amendment stands as it is— and I accept the spirit behind it— the courts may well construe it as extending public interest beyond the confines of case law as it exists today?

Lord Beaverbrook

We have had very little time to look at this amendment but its purpose seems clear enough. It is intended to provide express recognition by statute that, in the ultimate, the public interest overrides copyright.

There are obvious difficulties in defining the public interest, and the noble Lord's amendment does not attempt to give any guidance on the matter. The result is therefore that the matter would be left to the courts, but this is already the situation. In the Lion Intoximeter case the court held that there was a public interest defence to a copyright infringement action. This was in the context of the publication, allegedly in breach of copyright, of papers supporting allegations that the breathalyser device in question was inaccurate.

There is little point in codifying in statute what is already achieved by the courts, unless decisions need developing or refining. The amendment does not add to the principle already established by the courts in any way, and I am not aware of any pressing need. On the other hand, there is danger in attempting codification since one loses the flexibility of case law.

Consequently, we feel it right to leave Chapter III as it stands without this amendment. The chapter sets out specific exceptions to copyright, all of them being judged to be in the public interest, and does so in a way which, as far as possible, puts clear limits on the scope of the exception. It leaves in the hands of the courts the task of dealing with those exceptional cases where it is necessary to balance public interest criteria with the rights of copyright owners.

The Bill does not and cannot cover every single aspect of the law of copyright. For example, the question of whether a bequest is a specific bequest relevant to Clause 85 will depend upon the general law of succession and not on anything in the Bill.

Lord Graham of Edmonton

I have been interested to hear the drift of the arguments. The point is not so much that there may not be a public interest but that one ought not to write that into the Bill. The noble and learned Lord, Lord Denning, invited the Committee to leave the matter to the judges. There may be some parliamentarians who would prefer to leave the matter to the will of Parliament. If we are being invited by the Minister to say that this is unnecessary, that is another argument. if we are being invited to believe that, in the absence of precise wording, these matters invariably find themselves in the courts and will therefore be determined by the courts, that is a further argument. However, the noble and learned Lord, Lord Denning, attacked the argument saying that the matter would be laughed out of court. I am not as learned in these matters as are other members of the Committee but I fail to understand that point.

Clause 29 states: Fair dealing with a literary, dramatic, musical or artistic work for the purposes of … does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement. The amendment seeks not to interleave into the Bill the premier consideration but to introduce before Clause 29 the provision that: Copyright is not infringed by anything done in the public interest.". I understand what the noble and learned Lord has said. The provision is very wide and it will probably be used often by many individuals as a licence to publish under its cover. However, these matters often end in the courts and the judges, quite fairly and properly, must arbitrate on whether the words in the Act have been grossly abused. I can understand the case made by my noble friend on the Front Bench. However, having heard the arguments in Committee, I shall be interested to hear what he has to say.

Lord Morton of Shuna

The omission from the Bill of the fact that there is the defence of public interest has caused concern to those involved in reporting news. It is a matter which deserves more serious consideration, for the lack of which I am partly responsible because I tabled the amendment rather late. I apologise.

I attempted to make clear that in tabling the amendment I am merely stating the principle. I do not see that the noble and learned Lord, Lord Denning, is correct in saying that it will open the floodgates. Surely, it will cause people to look up to ascertain the public interest and then return to the judgment referred to by the noble and learned Lord. I think that he is being a little unreal in saying that that case saw the origin of the defence of public interest, because on that occasion the judge's finding was based strongly on the noble and learned Lord's judgment in two earlier cases as to what the public interest was and how it was defined.

However, I do not think that it is appropriate to divide the Committee on this matter and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Dundee

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.