HL Deb 08 December 1987 vol 491 cc85-136

4.3 p.m.

House again in Committee.

Clause 29 [Private study and non-commercial research]:

Lord Williams of Elvel moved Amendment No. 125: Page 13, line 20, leave out ("dealing with") and insert ("practice in respect of").

The noble Lord said: I beg to move Amendment No. 125 standing in my name and that of my noble friend Lord Morton of Shuna. In Clause 29 we come to the question of defences against copyright infringement and we first come to the expression "fair dealing". I am aware that this is a phrase which occurred in the 1956 Act and I am also aware that the courts have appeared to have no particular difficulty with it. Nevertheless in the Explanatory Memorandum to the Bill it is stated by the Government that Part I repeals the Copyright Act 1956 and, replaces it with a fresh statement of the law on a more logical and consistent basis".

Therefore I have to say that I do not necessarily believe that everything in the 1956 Act is necessarily sacrosanct.

The Committee will be aware that in the United States the American copyright Act refers to "fair use" as opposed to "fair dealing" which we have in the Bill, and I ask the Government whether it would not be somewhat better to adopt the American principle rather than the fair dealing principle that is in the 1956 Act and is continued into this Bill. As I understand it—and no doubt noble and learned Lords and noble Lords will correct me if I am wrong—"dealing" implies some form of transaction. "Use" does not imply any form of transaction.

In this amendment I have sought to introduce, instead of the word "use", the word "practice", not simply to be contrary but to try to represent more of the American thinking in this clause than we have at the moment. It is, if you like, something of a halfway house between fair dealing and fair use. I believe that if we were to incorporate words of this nature—whether "fair use" or "fair practice"—in the Bill we would go some way to resolving the problems over the blank tapes which your Lordships will be debating later on in the proceedings of the Committee. I do not want to anticipate that debate, but I think that the wording that we have chosen, if the blank tape levy debate does not result in any change in the Bill, might well help to solve the problems that are raised and will be raised in that debate.

Amendment No. 125 is, to a certain extent, linked with Amendment No. 126, but I do not intend to speak to No. 126 at this point because No. 126 involves a rather different principle. Nevertheless, we have thought of them as two integrated amendments although the principles are different. Therefore the point that I should like to address first is "fair dealing" versus "fair use" or, in our formulation, "fair practice". It is therefore in the nature of a probing amendment. I obviously do not wish to divide the Committee on this matter, but I think it is worth the Committee discussing for a moment why the Government persist with the "fair dealing" formulation rather than changing to the American "fair use", which is defined in extenso in the American copyright Act 1976. I beg to move.

Lord Denning

As my noble friend has invited the views of the lawyers, perhaps I may say a word upon this. "Fair dealing is a term of art which the courts have considered on many occasions. It appears in the 1956 Act and we have had to consider it many times. It would be a mistake to alter those words now in this Bill. Perhaps I may say I happened to be involved in what is perhaps the leading case upon fair dealing. It was a case called Hubbard v. Vosper in 1971 and the facts are rather striking. A Mr. Ron Hubbard founded a church in California called the Church of Scientology—

Lord Hailsham of Saint Marylebone

I was in that case.

Lord Denning

My noble and learned friend reminds me that he was in it. There was the Church of Scientology and Mr. Hubbard made millions of pounds out of it. He wrote books on what he called scientology. That is his invented word. Those works were supposed to be philosophical. In truth they were the most obscure, unintelligible and newly invented works that I have ever seen.

After Mr. Hubbard had published several books one of the stewards who had worked at his college in East Grinstead for 14 years left the cult and wrote a book about it. He gave the book the illustrative title Mind Benders. In effect he was saying that scientologists were mind benders. In the book the author took long extracts from Mr. Hubbard's books and said what rubbish they were. He said that they bent people's minds and he made other such statements. That is a view with which I personally agree but that was not the point with which we had to deal when Mr. Vosper was charged with infringement of copyright because he had used so much from Mr. Hubbard's books. Mr. Vosper said that that was fair dealing because he was dealing fairly with the various points that Mr. Hubbard had made. We went into all the cases on this, of which there were quite a few. Finally, we held that this came within the fair dealing provisions. Therefore there was no infringement of copyright or of confidence.

That is an illustration that the courts have dealt with such matters and are continually dealing with them. It would be a mistake to take those words out of the Bill and put some others in. I hope that the Committee will not accept the amendment.

Lord Williams of Elvel

With great respect to the noble and learned Lord, Lord Denning, in moving my amendments I try very hard to avoid making errors. These words were contained in the 1956 Act and the courts have dealt with them very successfully. However, I try to present viable alternatives. I understand that the courts deal with these words very successfully but in spite of that Parliament may decide that an improvement could be made in the wording.

Lord Hailsham of Saint Marylebone

While I commend the attempts from the Opposition Front Bench to improve the language of the Bill, I respectfully agree with my noble and learned friend Lord Denning that the one thing we do not wish to result from this new legislation is a flood of actions on bad copyright for the courts to decide. They will only be authoritatively decided if they reach the House of Lords and a decision is made there.

As my noble and learned friend has said, there is as a matter of fact a fairly well articulated and definite jurisprudence about the expression fair dealing. I am not saying a priori that if one started from the drawing board another phrase might not have been more useful, but I suggest to the Committee that the sensible thing is to recognise that, if one uses a slightly different expression, the floodgates will once more be opened and there will be a vast series of copyright actions deciding whether and to what extent the previous jurisprudence is still applicable. I would in this case therefore wholly agree with what my noble and learned friend on the Cross-Benches has said.

The Earl of Stockton

Fair dealing, while not defined in statute, is an expression which is both well known and clearly understood both by the professionals and by the lay persons involved in it. As an example of a rather less esoteric case than that quoted by the noble and learned Lord, Lord Denning, there was the case of Coles Notes. Some of the Members of the Committee may have had occasion to refer to those notes in the weeks prior to their final examinations. In that case Mr.Sillitose had an action against McGraw Hill in 1981 in which the rules for fair dealing as regards those kinds of dealings were laid down.

The amendment put forward by the noble Lords opposite is an attempt not to define the practice but I fear to widen the scope, and as such should be resisted by the Government. Any widening does of course lead to great blurring at the edges and I should resist it most strongly.

4.15 p.m

Lord Havers

I wish to make a short plea on behalf of the lawyers, by which I mean the barristers and the solicitors. They always have an enormous problem advising their clients. As has been said by both noble and learned Lords, fair dealing has a meaning which is well understood. If we change those words we shall again open up the gates to having it redefined by the courts all the way to your Lordships' Judicial Committee. I beg the Committee not to expose lawyers to that.

Lord Lloyd of Kilgerran

I am afraid that I found certainly the introduction to the speech of the noble Lord, Lord Williams of Elvel, quite persuasive because he cited the preface to Part I of the Copyright, Designs and Patents Bill where it states: The Bill repeals the Copyright Act 1956 and… replaces it with a fresh statement of the law … taking into account the technological changes of the last 30 years". I am familiar with many cases on fair dealing but I wondered whether the fair dealing aspects of those cases deal with certain technological advances that have been made recently in relation to the use of computers, databases, data-processors and other such things. I agree with the noble Lord, Lord Williams of Elvel, that the term fair dealing implies some kind of transaction whereas "practice in respect of", to use the words of the amendment, is wider. Therefore I wondered whether it would be a solution, having regard to the preface and having regard to technological changes, to have both fair dealing and the words of the amendment included in the Bill. I should support some modification to take into account technological changes and introduce the words relating to use or practice, as is contained in the amendment.

Lord Somers

I think that the noble Lord, Lord Williams of Elvel, is being a little unfair to the English language. After all, it is perfectly common usage to say of somebody that he dealt with someone very unfairly. Dealing does not necessarily mean a commercial transaction at all.

Lord Beaverbrook

I. should agree with the noble Lord. In this speech I am dealing with this amendment but I am not engaged in any transaction. The expression fair dealing has a long history in coyright law. On more than one occasion it has been suggested that fair dealing should be defined in statute so as to make its meaning more widely understood. For example, there have been suggestions that legislation should lay down the proportion of a work which may be copied free of copyright restraints. However the Government are satisfied that no general formula along these lines could be devised which would be appropriate in all cases. Unfairness, either to copyright owners or to users, would inevitably result. The alternative would be to frame a statutory definition in generalities but, as we said in the White Paper, we do not see any advantage in this.

This amendment would replace the expression fair dealing altogether, but since the alternative offered is no more precise we cannot see what would be gained. I do not believe that American terminology would help. As I have said, fair dealing is a term of art in copyright law and a change of the kind proposed could be construed as changing the law. It may well be a case of better the devil you know.

Lord Williams of Elvel

I am grateful to the noble Lord for his response and I am grateful to those Members of the Committee who have taken part in this debate. I tend to disagree with the noble Lord, Lord Somers, and agree with the noble Lord, Lord Lloyd of Kilgerran, that fair dealing implies to the layman some form of transaction. I was trying to look forward to the next 20 or 30 years to see whether that really was something that would cover what we are trying to do and trying to enshrine in statute which must last that long. The noble Lord, Lord Beaverbrook, in his response said that the Government have decided that the American wording, fair use, was not applicable or appropriate. I cannot remember his exact expression; I believe that it was something like that. Perhaps the noble Lord can enlarge on that and explain why "fair use", which is well understood in the United States and well defined in the American copyright Act, is not a proper expression in United Kingdom law.

Lord Beaverbrook

The gist of my argument was that we should continue with the terminology as we have it in the Bill. I do not see that making any change whatsoever would be helpful. The American wording would itself require interpretation in the courts, and since only very general guidance as to its meaning is provided in the American statute it is surely better that United Kingdom courts should operate on the basis of the consideration which they have already given to the words "fair dealing".

Lord Williams of Elvel

I am grateful for that response. I understand that there is a weight of opinion which is in favour of keeping the expression that is in the Bill on the grounds that it is understood and that we should keep it because it is understood. I am not wholly persuaded by the argument. However, I shall read carefully what the noble and learned Lords and the noble Lord have said. We may wish to come back to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Elvel moved Amendment No. 126: Page 13, line 20, after ("work") insert ("including").

The noble Lord said: I beg to move Amendment No. 126, standing in my name and that of my noble friend Lord Morton of Shuna. The White Paper of 1986 and earlier documents have been against having a general fair dealing defence, leaving the courts to balance competing interests as occasion required. Again, that is contrary to the American copyright Act of 1976, which in Section 107 provides: The fair use of a copyright work, including such use by reproduction in copies or phonorecords or by any other means, for purposes such as criticism, comment, news reporting, teaching, including multiple copies for classroom use, scholarship or research, is not an infringement of copyright". It then goes on to explain what the further factors to be considered in a fair use debate shall include.

As I understand it, the United Kingdom argument is that such provisions would be vague and unworkable. There is bound to be uncertainty; one must recognise that in deciding whether use, practice or dealing is fair. All cases must be judged on the basis of fact and, to a certain extent, degree. However, we do not believe that a wide provision such as we are attempting to introduce with the amendment would add greatly to uncertainty. It would give courts greater flexibility in adjusting the balance between owners and users of works.

It seems to us that inserting a general fair dealing defence—which may include certain specific things on the face of the Act—would give the Bill the sort of flexibility that we believe it will need if it is to last the time that we expect it to last. I beg to move.

Lord Denning

I am against the amendment. It would bring a great deal of width and uncertainty into the law, and we do not want that. I believe that we should leave it as it is.

Lord Kilbracken

I find some difficulty in understanding exactly what the wording would be. If the word "including" is included, the sentence would read: Fair dealing with a…work including for the purposes of Perhaps there is a word missing. Should it read: including use of the purposes of"?

Lord Hailsham of Saint Marylebone

It is clearly ungrammatical.

Lord Williams of Elvel

I am grateful to my noble friend. There may well be a mistake in the amendment. I am not trying to do the Government's drafting. I am trying to introduce a general defence. I may have missed out a word. However, I hope that will not destroy the purpose of the debate.

Lord Havers

Before the noble Lord sits down, perhaps he can give the Committee some examples of other occasions on which it would not be subject to copyright. There are two examples set out in the Bill. The amendment is obviously intended to widen that enormously. Perhaps he can say what occasions he is thinking of.

Lord Williams of Elvel

I am grateful to the noble and learned Lord. The example that I have mainly in mind is commercial research. We shall come to that amendment in a minute. I am going to argue that that is extremely badly defined. Our objections are not those of the noble Lord, Lord Mottistone, who will move that amendment. We put our names to the amendment on the grounds that commercial research is so badly defined in the Bill that the general defence is necessary. That is one example. If the noble and learned Lord wishes me to read the factors in the American Act, I can do so. Perhaps I have said enough.

Lord Hailsham of Saint Marylebone

I am half American myself. However, the one thing that I do not admire about the Americans is their tendency to become a nation of hypochondriacs and litigants. I should have thought that the amendment would undoubtedly develop litigation on a scale hitherto unheard of in this country in that particular field, for the reasons which my noble and learned friend on my right and the noble and learned Lord, Lord Denning, have put forward. We are told that it includes only the well-known jurisprudence. What else it would include is known only to the all-knowing.

Lord Beaverbrook

Fair dealing under the 1956 Act is permitted for private study and research, criticism and review and for reporting current events. All these aspects of fair dealing are reflected in Clauses 29 and 30, although the provisions now cover more descriptions of works than the 1956 Act.

The amendment seeks to make fair dealing a general exception, not limited to these very specific purposes. As we know, fair dealing is a somewhat nebulous concept at the best of times, and at least under the present law and the Bill as drafted it is kept within the confines of well-defined purposes. To set the concept at large would create much doubt without any great benefit to anyone, especially authors, who would see this as an already quite extensive exception to their copyright made very elastic. We cannot accept such a broadening of the fair dealing exception, particularly since we do not know how far this amendment would extend the exception.

Lord Williams of Elvel

I am grateful to the noble Lord and to the noble and learned Lords for their interventions. I shall not press the amendment. I recognise the force of the argument which has been made against it. If the noble and learned Lord, Lord Havers, wishes a further example, I can give him one. It could be argued that the general fair dealing defence might justify the making of back-up copies of computer programmes. That is specifically provided for in the United States legislation. It is not provided for here. It is also provided for in Australian legislation.

Nevertheless, I recognise that the Government wish to go down that particular track. We on this side will read very carefully the arguments that have been made. We are not prepared to accept that everything should be enshrined in concrete just because it is in the 1956 Act or because the Government say that it is right. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Lord Mottistone moved Amendment No. 127: Page 13, line 23, leave out ("other than commercial research").

The noble Lord said: With the agreement of the Committee, I should like to speak also to Amendments Nos. 152, 159, 263ZA and 267A. Perhaps my noble friend the Minister does not have the last two amendments on his list; they are definition amendments. In addition, I shall speak to Amendments Nos. 155 and 161, which take a slightly different angle and which I shall explain as I go along.

As I understand it, the exclusion of commercial research for fair dealing is a change in practice from that allowed in the present Copyright Act. I think that it is not warranted. I suggest that the exclusion of commercial research from fair dealing is unworkable. I shall endeavour to give some examples of why that might be so. It may be thought that this implies that unlicensed commercial photocopying is invariably theft or in some way amounts to wrong, doing. In my view that is a misconception.

I suggest too that the proposed exclusion of commercial research copying is based on a further misconception of the use made of photocopying by industrial and commercial firms. They do this for convenience. Such copying does not result in loss of sales for the publisher or the author. As long as the dealing is fair, photocopying ought to be permitted without payment, as the copyright owner thereof suffers no harm and commercial research and innovation is not hampered. The loss of commercial research from the fair dealing exception in addition will impose severe administrative burdens on industry and commerce in terms of cost and loss of time. The administrators of the licensing schemes and not the copyright owners will be the beneficiaries.

I deal next with the distinction drawn between private study and research. These are not defined. I suggest that the distinction is often impossible to draw and does not reflect modern practice and conditions. Perhaps we may look at the distinction between research and commercial research. Research clearly covers innovative activities aimed at new product development and so on. How many other activities is it intended to cover in the course of which a commercial organisation might carry out fair dealing copying? For example, a commercial organisation might copy information from a newspaper, a trade journal or even a railway timetable. Is that commercial research because it is a commercial organisation or is it a straightforward fair dealing research that does not deal with the commerce in which the organisation normally operates? All these questions arise. I could go on, but I may have said enough to show that I do not believe that it is easy or fair to make the distinction.

I turn now to Amendments Nos. 155 and 161. The object is to make some provision in the event that the earlier amendments are accepted. I recognise that the supply of copies by prescribed or other libraries to a commercial user relieves him of the need to purchase his own copy of a periodical. In principle it might therefore be right that he should be charged for this. Accordingly Amendment No. 161 makes provision for charges to be introduced by order if this is seen to be appropriate.

Clause 39 as drafted would in practice make it impossible for any commercial organisation to use the service of the British Library or prescribed libraries unless and until licensing schemes have been set up. This again would place an inappropriate and quite unacceptable burden on industry. Before an order was made giving effect to the terms of the proposed licensing scheme under the clause, the Secretary of State would need to satisfy himself that its benefits to copyright owners outweighed its disadvantages, and particularly that its administrative costs did not take up a disproportionate part of the money collected. He would also wish to consider its effects on the competitiveness of British industry, recognising that a substantial part of the payments would be for the benefit of foreign publishers.

To sum up, I think that it is not easy to tell the difference between research and commercial research, it is not fair to exclude from fair dealing commercial organisations and it will increase the already high costs of running such organisations. It is not in the interests of the country to have more unnecessary cost burdens placed upon industry, because it is upon industry that all our well-being ultimately depends. I hope that my noble friend the Minister will be able to take a favourable view of the amendments. I am fully prepared to accept that some may not be appropriate and could be improved, but I hope that he can accept the principle. I beg to move.

Lord Denning

I hope that Members of the Committee will not accept the amendment. Both the Whitford Committee and the Green Paper said that if companies use the work of a scientific author they ought to pay for it. The Green Paper refers to the suggestion of Whitford to restrict the scope of "research" or "private study" to exclude research carried on for the business ends of a commercial organisation. Clause 161 defines "commercial research" as meaning: research done for the benefit of a trade or business carried on for profit". These can be readily distinguished.

I refer to organisations like ICI. Such businesses have their own research establishments or pharmaceutical companies engaged in trying to discover new materials for sale to the general public. Those research establishments are saved a great deal of work by being able to go to scientific periodicals that university fellows have prepared and published. I take here the example of my son, who teaches science at Oxford University. He prepares papers of scientific knowledge after much research which are published in the periodicals. He has done all the work. If the research establishment of an organisation like ICI takes his work, uses it and saves itself work, ought it not to pay for that facility? My son would not want the money; he does the work simply for the sake of general knowledge. If big companies benefit from the research and their researchers are saved from further work, ought not the companies to pay for the work as a matter of justice?

The opposing argument says that this is unworkable; that one cannot choose between one and another and that it will be necessary to have an expensive licensing organisation. This is referred to later in the Bill. The argument goes on to say that such matters will have to go before the copyright tribunal to ascertain whether there is a proper licensing system for people to use the results of commercial research. It is claimed that this is very expensive. A similar scheme in America does not work.

I hope that the Committee will not be too impressed by what is proposed. I should have thought that great organisations like the research establishments of ICI and other companies would be only too glad to pay a small fee to fund the research of university teachers and others and so remunerate those who have undertaken the valuable work. Whitford, the Green Paper and the White Paper all agreed on the exclusion of commercial research. I hope that the Committee will not accept the amendment.

Lord Mottistone

Before the noble and learned Lord sits down, will he not give thought to the many struggling small businesses? There are very few ICIs and there are an enormous number of small businesses which require all the help they can get. They must not be forgotten.

Lord Quinton

In supporting the amendment put forward by my noble friend Lord Mottistone I declare an interest because I am chairman of the board of the organisation which, at the distributing end, is at present most elaborately involved in making copies of commercial and other periodical material for distribution to interested persons; namely, the British Library.

It is naturally in our interests that this measure should not be introduced, not simply because it increases the charges we have to make to our users—though of course that is a consideration—but because it would be exceedingly difficult to administer for the reasons that my noble friend stated. First, there is the difficulty of distinguishing between commercial and other research. Is it commercially intended? Is it primarily for a commercial institution? Secondly, it is, after all, an endeavour to deal with a very large number of small units. The requirements for this kind of material are typically for a single periodical article or a few pages of it. A very large number are dealt with and each would have superimposed on it a great deal of, so to speak, bureaucratic fuss.

A further consideration is that, as things stand, I believe the majority, and perhaps the very great majority, of suppliers of the material to learned periodicals do not receive any payment whatever. This would be the introduction of a new development. If one contributes to learned periodicals, one is occasionally offered—but in my experience seldom receives—sums of money for republication in American anthologies, but normally the prime contribution is not paid for at all. Of course, it is essential for the academic to publish. It is his well-known life-preserving specific against perishing; and the great way not to perish, despite all the mockery which has been expressed on this topic, is to have one's work published in a highly regarded learned periodical.

I speak of course as somebody connected with an institution that does a great deal of this work. We believe we are doing much useful work in disseminating information at no serious cost to the ultimate producers and those who have a moral right to remuneration, to whom the noble and learned Lord, Lord Denning, referred.

The point is that experience in the United States seems to suggest that practically all the money it is reasonable to charge for the use of these items is consumed by the activity of collecting those sums. This is connected with the difficulties I mentioned earlier as regards discrimination and the smallness of the individual units. I believe it is the case that it took five years from the installation of this system in the United States for any moneys actually to reach the primarily interested parties; namely, the large commercial publishers which sustain the learned periodicals involved. They may possibly receive some benefit at the end of the day, but it would be an extraordinarily uneconomically achieved benefit because it would still be a very small proportion of the total sum raised. There is nothing disreputable about this—it is the mere geometry of the situation—but a great deal of the money will stick to the palms of the people who have to do all this minuscule dirty work in arranging for the payment of these comparatively modest sums for this huge flow of fairly small items. Therefore, I hope the Committee will support my noble friend's amendment.

4.45 p.m.

Lord Lloyd of Kilgerran

I am, in a sense, grateful to myself for giving way to the noble Lord, Lord Quinton, because he brought an air of practical reality to the discussion. The inclusion of the words "other than commercial research" has resulted in a large increase in my postbag containing protests against the phrase and I am happy to support the main theme of the comprehensive presentation of the noble Lord, Lord Mottistone.

From a personal point of view, perhaps I may say that the noble Lord, Lord Adrian, the Master of Pembroke College, Cambridge, apologises for not being here today to support this amendment. I am sorry, but I see that noble Lord, Lord Adrian, is in fact here. I have a letter from him to say he would not be in his place!

Lord Adrian

My letter referred to a previous Committee meeting at which I thought this amendment might have been reached.

Lord Lloyd of Kilgerran

It shows how important this amendment is that a former Vice-Chancellor of the University of Cambridge has abandoned other plans to be here.

The Royal Society states that it, is, extremely concerned to see that the' restrictions relating to commercial research had been included in the Bill, specifically under Clause 29 on fair dealing and Clauses 38 and 39 on copying by librarians … The Society considers that the requirement for licensing of single photocopies for commercial research purposes as stated in the Bill, will create a severe impediment to the research process. This will not only affect industry but also has implications for Universities, Research Associations, Government Research Institutes and individual consultants who may also undertake research sponsored by industry, and could therefore be required to license for single copying. Even in industry itself, the vast majority of single copying of copyright material is of journal articles for deferred reading, and cannot be said to damage the rights owners' markets. The Bill as drafted seriously affects not only the progress of reseach but, as the noble Lord, Lord Quinton, said, administration in libraries. I have had a letter from the Committee of Vice-Chancellors and Principals of the Universities of the United Kingdom enclosing a memorandum from the Standing Conference of National and University Libraries strongly protesting against the inclusion of these words in the Bill. The British Library, in a letter to me referring to the exclusion from "fair dealing" by Clause 29 of single copies for the purposes of "commercial research", states that this is, causing concern not only to libraries like ourselves but also to commercial users of research information, particularly in the science based and high-tech industries. I do not wish to elaborate further on this matter. I hope I have given some indication of the protests I have received from extremely important sources.

Lord Williams of Elvel

As the third name on the amendment perhaps I may be permitted to speak to it. The arguments put forward by the noble Lord, Lord Mottistone, and the noble Lord, Lord Lloyd, seem to me to be wholly convincing. I was glad that the noble Lord, Lord Quinton, with his distinguished position in the British Library, was present in the Committee to bring an air of practicality to our debate, as the noble Lord, Lord Lloyd, said.

The fact is that the definitional problems involved in this expression, "other than commercial research" seem to us to be insuperable. How does an academic distinguish between teaching and consultancy or other sponsored research when there is so often an overlap? How would research associations operate? Is an academic working as a consultant operating a business? Is an author in business? What position would professional institution libraries adopt? If the supplier, like the British Library, had to decide what was commercial—and the noble Lord, Lord Quinton, may well agree with me—the British Library itself would be put in an impossible position.

This sort of discrimination against commercial research would also seem to be contrary to government policy because government policy, as I understand it—and I think the noble Lord, Lord Mottistone, brought this out—is to encourage businesses large and small. The Government stated their aim of assisting the development of information provision and information storage and retrieval in the British Library service—in their observations on the service in April 1981. They stated there that the development of information provision should not be hampered by copyright. The Government seem to have taken a different tack now to the one that they took in 1981.

A number of noble Lords have made the point that the Americans would have the advantage over us if these words were included in the Bill. American researchers, and possibly researchers in other countries which allow fair dealing for any research, would probably obtain an advantage. As I have already said, in the American 1976 Act the equivalent of our "fair dealing" is "fair use". The definition of "fair use" indicates that commercial aims would be a factor in arriving at a judgment in infringement cases but without prohibiting "fair use" individual copying. Hence such copying is done in any research context.

Since the United States of America is the largest exporter of copyright materials, we should find ourselves in the ridiculous position that we should have to pay for their copyright but they would not have to pay for ours. Researchers would find themselves in an anomalous position. As the United States Act is just completing its second five-year review of operation and no changes are contemplated, that is a position which will attain in the United States for some period to come.

I do not want to duplicate what the noble Lord, Lord Mottistone, has said. I enjoyed the interventions of the noble Lords, Lord Quinton and Lord Lloyd of Kilgerran. I hope that the Committee will support the amendment moved by the noble Lord, Lord Mottistone, to which the Opposition have put their name.

Lord Howie of Troon

I do not find this an easy matter to deal with. It is clearly advantageous that small businesses should be helped as much as possible, as the noble Lord, Lord Mottistone, has rightly said, and it is important that educational research should be assisted as much as possible, as other noble Lords have said. However, I found the earlier speech which described the work of the British Library disquieting. Part of the British Library's work involves disseminating large quantities of other people's intellectual property.

In some ways that might be admirable but. whatever it is, it is not fair dealing. It is going far beyond fair dealing to make a large business out of' such distribution. It is not correct to say that there is no loss to the authors or the publishers in such cases. That is not true. There is loss. The loss is direct, real and probably measurable.

On a visit to the laboratory at Harwell I saw a photocopy of a page of one of my journals being used by a researcher. I was pleased and thrilled about that. I was not too worried that one laboratory used one page from one of my journals, but I should not like to think of the British Library flooding the country with them at our expense. Publishers do not merely publish magazines, periodicals and newspapers; they also publish hack numbers, and photocopying deprives them of that part of their market. They also publish reprints of their articles and charge for them. Photocopying deprives them of that part of their market.

There is a further loss. It has been common in the past for research institutions and other bodies to buy several copies of a publication for use by members of their staff. With the advent of the photocopy, it is common for such organisations to buy no more than one copy of a magazine, mark up those parts which are of interest to particular members of their staff, photocopy them and distribute them to the people who want them. There is no point in noble Lords opposite saying that there is no loss. There is a real loss. It is borne by the publishers. The Government should stand firm against this amendment and resist it.

The Earl of Stockton

We alluded to this issue at an earlier stage of the Committee and on Second Reading I bored the Members of this place at some length. I wonder whether the noble Lord, Lord Williams of Elvel, excludes publishers of learned journals from the list of commercial firms. I am grateful to the noble Lord, Lord Howie, for having outlined the operation of such firms.

It has been suggested that the librarian cannot know to what end use the copy will he put. The clause merely states that the librarian has to satisfy himself for herself that the immediate intention is to use the copy for private research. That can be achieved by expanding the existing form to include a statement that the copier is not taking the copy for commercial reasons.

The British Library insists on a form being completed before making a copy for research purposes. It charges £2.40 for the administration—the work, the paper and the use of the copying equipment. That differs slightly from the free and easy air described by my noble friend Lord Quinton. Why cannot it add the charge, where appropriate, for copyright? Is it beyond the capabilities of the minions of my noble friend Lord Quinton to charge on behalf of the copyright holder when they charge for the British Library? He described the operations of the American counterpart of the copyright licensing agency as incompetent. I make no comment about that, but after one year in operation the copyright licensing agency is already distributing moneys. I think that his comparison was unfair.

Lord Willis

I wish to make just a couple of points on this subject. After a great deal of thought I am opposed to the amendment. One or two points have been wrongly put; for example, there has been some criticism of the American scheme compared to what might happen here. The argument has been that we would not collect much money and that it would all be used up in organisational costs and so on. That has nothing to do with it.

The principle remains sacred. As I said at an earlier Sitting of the Committee, it was expressed by the noble and learned Lord, Lord Hailsham: if it is worth copying, it is worth protecting. There has been a great plea for the rights of small businesses. There are many small authors who grub a living by writing an article here and an article there. They are entitled to protection.

I hope that the amendment will be lost because I believe in the sacred principle that the copyright belongs to the author. If one wants to reproduce something, one must ask his permission—many authors would gladly give the work free for commercial or educational research—or pay him, but one must not steal it.

Lord Peston

I support the amendment, which is extremely important. The subject was discussed on Second Reading. There was an impressive speech from the noble Viscount, Lord Eccles, on the subject, which many Members of the Committee will remember. Others spoke in favour of the equivalent of leaving out "other than commercial research". We argued it, first, on pragmatic grounds. It seems strange that the Government, who are anxious to see the advancement of research in the private as well as the public sector, and who are even more anxious to see joint work done in the public and private sectors, should make the whole process infinitely more complex by saying, "We can draw a line", where no line can be drawn.

Those of us who work in the private sector can cite countless examples. I assume that when we work with colleagues in the private sector we must discuss which part of the work might be of commercial significance and say, "I am afraid you cannot use our library copying machine for that, but for this part, which we agree is academic, you can use it".

It is not easy in the modern research environment to determine the difference between what is research (whatever that is) and what is commercial research. I go further. I am not convinced that it is all that desirable. I do not speak as someone who is enamoured of certain commercial operations, but I find it hard to go along with the notion that we can easily make the division and insist on it. In other words, in so far as the exceptions being made here are to do with the public interest, I should have thought that the public interest lies in easing the matter by dropping the words "commercial research".

Let me add a further cynical point. I take a very dim view of those people in commercial enterprise who in their own work say that they totally favour removing "other than commercial research" and then adopt the view, "what I have I hold", with regard to their own intellectual property. I have in mind the owners of computer programs who may say that they are very keen to copy for research purposes but then take a very tough view of those of us in academic life who would like access to those programs.

Perhaps I may put the point quite bluntly. I regard this as a kind of exception to copyright, but those who would benefit from that exception ought to recognise that they have responsibilities in helping other researchers. This is an enormously important amendment. I have not spoken to the noble Lord, Lord Mottistone, but I hope that he is not persuaded to withdraw the amendment unless the Minister says that he accepts it in some form or another.

5 p.m

Earl Attlee

The noble Lord, Lord Mottistone, and I are normally at one on nautical matters. However, I have to admit that I am against his amendment. I am also against my noble friend Lord Lloyd of Kilgerran. If one considers the words "other than commercial research", one asks: why do companies carry out commercial research? It is in order to make money. If they are going to use the thoughts and brains of certain people then I believe that they should pay. I support what the noble Lord, Lord Willis, said. To carry out commercial research is great. There is only one reason that companies do so: to make money: If they are going to make money they should pay something—however little—for the research.

Viscount Brentford

As has been said many times in debates on this Bill, copyright is a question of balance between the different participants. I believe that to remove any payment to the copyright owner for commercial research where the business, be it small or great, will be gaining financially, is wrong. The cost, even to a small business, will not be great. However, the benefit to the copyright owner—perhaps many small authors—would be quite substantial in proportion. I therefore strongly oppose this amendment.

Lord Beaverbrook

With the leave of your Lordships' Committee, in responding to the amendment, I shall speak also to Amendments Nos. 152, 155, 159, 161, and the two amendments put down by my noble friend Lord Mottistone, Amendments Nos. 263ZA and 267A.

Amendment Nos. 127, 152 and 159 would remove one of the more significant changes we are proposing in the Bill. Under the 1956 Act, fair dealing is allowed for private study and research purposes. This means that not only the student but also major industries can use copyright material freely. The amount of copying in industry and business has increased enormously since 1956, largely due to the advent and development of the photocopier, and what may have been appropriate 30 years ago is not so today. It seems unjust that commercial organisations should be able to make free use of copyright material on such an extensive scale.

Copyright material is rightly seen as a valuable resource for industry. That being the case, it is difficult to see why it should be a resource that is provided freely when all other materials used in industry have to be paid for. Why should research based industries, many of whom rely heavily on the exploitation of their intellectual property, be free to use the intellectual property of others without payment?

As I have said, both in Committee and during our Second Reading debate, the Government believe that it is in principle right that industry should pay for its use of intellectual property. However, we have to recognise that the application of this principle could create practical difficulties. If licences are available, all well and good. But what if licences are not available, what can industry do then?

A similar problem faced us in the field of educational recording and there we have proposed that copying should be free unless and until licensing schemes are established. We see there is much to be said for extension of the principle to this problem. Indeed, the noble Lord, Lord Mottistone, in his Amendments Nos. 155 and 161 has put forward such an idea and we are grateful to him for his suggestion.

My noble friend Lord Mottistone mentioned the difficulty of deciding when research is commercial. The difficulty of the definition of the words "commercial research" has been exaggerated. The vast majority of photocopying carried out under the present fair dealing provision fits clearly into one class or another. It is either carried out by business or by publicly funded institutions. I accept that there will be some less clear-cut situations where some thought will be necessary to decide whether the definition in Clause 161 applies or not. I suggest that once thought is given the answers will be clear.

My noble friend Lord Quinton asked about the mechanics of licensing. Reference has been made by a number of noble Lords to the difficulties that exist in this area. I should point out, however, that there is already a fund of experience on photocopying licensing. The copyright Licensing Agency which represents and benefits both publishers and authors already operates licensing schemes for photocopying in schools and universities. I recognise that there are doubts about whether the terms of licences will be reasonable and whether administration of the licence scheme would be too great a burden. This is why the Bill provides that all of the terms and conditions attaching to licences can be taken to the Copyright Tribunal if the licensee believes that they are unfair.

My noble friend Lord Quinton also asked about the problem for the librarian in distinguishing between private study and commercial research. At present the library provides a copy to its customers only if they have signed a declaration that they require the copy for private study or research. I should make it clear that I am speaking of the British Library in this instance. Under the terms of the Bill the declaration would be amended to exclude commercial research. The obligation of the library will not change. The librarian need only satisfy himself, and we are to consider that obligation in connection with Amendments Nos. 151,151A, 158A, 162A and 165.

The noble Lord, Lord Williams, asked how a university researcher can distinguish between his teaching research and his research as a consultant. The definition of "commercial research" in Clause 161 states that it means "research done for the benefit of a trade or business". I emphasise the words "for the benefit". The question is not how the researcher is paid, but for whom he is doing the research.

Lord Williams of Elvel

Will the noble Lord allow me a question? If the researcher carries out a piece of research which is academic and then tries to sell it to a trade or a business, in which position does he find himself?

Lord Beaverbrook

I believe that I am right in saying—I shall let the noble Lord know if I am not—that we are talking about the primary purpose of his research. In that instance the primary purpose would obviously be for his academic endeavours. If that purpose were later to change, I do not believe that that would have any bearing on his primary purpose at the time.

Lord Peston

May I ask a similar question? What about researchers who are employed by commercial companies, many of whom do very serious academic research? Would it be good enough within the Bill for a researcher to truly believe himself that this work is academic so long as he can say to himself "I have truly looked in myself. I believe it is academic", and therefore it is academic? I cannot see anything in the Bill that says that. But is that the answer to the question?

Lord Beaverbrook

It is, if his primary purpose is of an academic nature. For it to be so, he must presumably believe that it is so.

Lord Simon of Glaisdale

Where does the Minister find the concept of "primary purpose"? The words in line 21 are "for the purposes of".

Lord Lucas of Chilworth

Before my noble friend answers, does the Committee believe that it would be better if we heard the Minister's full answer to the various points? Then we can question him upon them if we are not totally satisfied.

Lord Beaverbrook

I am grateful to my noble friend. I had thought that perhaps three interruptions on the trot were enough.

I was replying to the noble Lord, Lord Williams, on his question about distinguishing between the two types of research. I intended to tell him that the university researcher acting as consultant will decide whether his research is commercial research, depending on who his client is. For an author doing research for his own purposes, that would depend on whether his writing was for profit or not. If he lives wholly or partly on receipts from his books, his research will be commercial. Is that unfair? I think not. He would not expect his travel and accommodation for example, to be provided free; nor should his research be provided free.

The Government will now give careful consideration to the proposals that copying by libraries for the purposes of commercial research should be free to the extent that no licensing scheme covering the works in question has been established. Any scheme could be certified by the Secretary of State under the provisions of Clause 131. He would not come to any judgment about the terms of the licence offered; that would be for the copyright tribunal. But he would certify the existence of a licence, which thereby terminates the free copying entitlement.

This seems to us to be an attractive solution. Authors and publishers would be able to obtain remuneration for the use of their works. Industry would be assured of the availability of material either freely or on reasonable terms. We shall certainly explore this further with a view to introducing our own amendment at a later stage. I hope that all noble Lords will feel that these amendments can be withdrawn today on the basis of my assurance.

Baroness Seear

Before the noble Lord sits down, may I ask him one question? When is research academic and when is it not? The Government are extremely keen (are they not?) that universities should enter into contracts with industry to do in university laboratories work which is on contract to businesses. As that is to be the preferred way of raising money for academic research, a great many people will be conducting research in this way. The ultimate purpose will undoubtedly be to help commercial enterprises because they are paying for it. Is that commercial or is it academic when they are on contract?

Lord Beaverbrook

The noble Baroness has made an important point. I shall reply to her and to the noble and learned Lord, Lord Simon, at the same time. The question of primary purpose relates to the intention of the person making the copy at the time that he made the copy. His subsequent purposes do not affect the matter. Therefore, if ultimately the use of the research was for commercial purposes it would not affect the matter at that time, so long as the research had been made originally for private research purposes.

5.15 p.m.

Lord Hailsham of Saint Marylebone

Perhaps I may say just one thing; I shall be brief. The suggestion made by my noble friend on the Front Bench ought to be accepted at this stage. It is very difficult to draw a line between the intellectual property one confers upon an author and the right of monopoly which goes with it. It is not an easy road to tread. I think my noble friend probably has the right answer, but it is not yet in the Bill.

I was reminded enormously, as the discussion proceeded, of the tortuous and prolonged discussions inside the various administrations of which I have been a member about the public lending right which ultimately prevailed after tremendous battles with much blood spilt. In the end, it was accepted that the proprietary right of the intellectual property owner prevailed, and if people wanted, even in a public library, to lend it for profit or for the purposes of the public, a licensing scheme should be put into operation. I believe that a licensing scheme is the right answer. As I understood my noble friend on the Front Bench, he is contemplating erecting one for the purposes of the Bill. If I am right, his suggestion that at this stage we should withdraw these amendments is the right one.

Lord Mottistone

I am afraid that my noble friend went rather fast. He seems to have explained himself very well to my noble and learned friend Lord Hailsham, but right at the end he said that he hoped his undertakings would satisfy noble Lords and that they will feel free to withdraw their amendments. However, I did not hear the undertakings. Can my noble friend spell them out rather more slowly?

Lord Beaverbrook

For the benefit of my noble friend, I shall repeat what I said. I said that we shall certainly explore this further with a view to introducing our own amendment at a later stage. Given that assurance, I hope the noble Lord will feel able to withdraw the amendment.

Lord Mottistone

What is the purpose? I did not know what purpose my noble friend was referring to.

Lord Beaverbrook

I said that the Government will give careful consideration to the proposal that copying by libraries for the purposes of commercial research should be free to the extent that no licensing scheme covering the works in question has been established.

Lord Mottistone

I am still a bit vague. I am terribly sorry, but it is frightfully important to get this right. I must ask my noble friend to say it again, because I just did not hear him.

Lord Beaverbrook

I will say it again. The Government will now give careful consideration to the proposal that copying by libraries for the purposes of commercial research should be free to the extent that no licensing scheme covering the works in question has been established. Is that of help to my noble friend?

Lord Mottistone

I think that my noble friend has gone as far as I would wish him to go at this stage. I hope very much that when he considers this matter and all that has been said he will make sure that whatever arrangement comes forward does not bear unfairly on small firms. I think it will be all right, but that is the main aspect that I hope he will include. At this stage, therefore, and watching carefully what the amendments will be for the next stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Stockton moved Amendment No. 128:

Page 13, line 31, at end insert— ("(4) Fair dealing does not include systematic single copying by libraries.").

The noble Earl said: This is by way of being a probing amendment. I am aware that the wording of the amendment is open to question. I am asking the Government to take the thoughts behind the amendment and to compare them with Clause 40(2)(a) and (1)) so that the limitations on fair dealing apply equally to the regulations to copying by librarians and to the wider scope of fair dealing.

Perhaps I may suggest to my noble friend that at page 13, line 31, he considers a new subsection along the lines of: The fair dealing mentioned in subsection 1(1) or (2) does not extend to any copying for similar requirements as those requirements are regarded at Section 40(2)(a) and (b)".

I beg to move.

Lord Peston

Can the noble Earl clarify the amendment to some degree? The only word in the amendment that seems to have significance is "systematic". I am puzzled by what he might mean by "systematic". What has to happen for someone to fall foul of the amendment?

The Earl of Stockton

I am aware that the word "systematic" is not identified in the Bill but it has been in common use in the publishing industry. Systematic single copying was the practice in some schools, with copies of a copyright work being made for an entire class or for an entire group of students.

Lord Williams of Elvel

Does the noble Earl also refer to the British Library interlending practice as systematic copying? Is that one of the points he is making?

The Earl of Stockton

I am sorry. I had not considered the British Library interlending practice.

Lord Beaverbrook

I am grateful to my noble friend Lord Stockton. I would not want to consider the detailed wording of his amendment today but I am happy to look carefully at the point he is making.

The Government are aware of the concern of authors and publishers over what they term "systematic single copying". It is, I think, generally accepted that the making of multiple copies does not constitute fair dealing. But if a group of people all make a single copy for a related purpose, multiple copies result with potentially the same adverse effect on copyright owners.

We have recognised this in Clause 40 by providing that the regulations governing copying in libraries will not permit related multiple copying. We recognise that there could be a loophole if such copying were permitted under Clause 29. We will look at this again and endeavour to make sure there is no loophole here. I hope the noble Earl will feel able to withdraw this amendment, while we look at the question again and see whether it would be possible to provide an amendment in due course.

My reason for not wishing to go further than that at this stage is the problem of distinguishing between the case in which a number of individuals, each on his own acting perfectly fairly, make essentially similar copies, without any involvement or connivance by the library, and that in which exactly the same copying is facilitated in some way by the library.

Lord Williams of Elvel

When considering the amendment, will the Minister ask his officials to consult with the British Library documents supply centre which supplies documents both on individual request and on multiple requests? For obvious reasons of practicality it prefers to make a multiple dispatch of the same document, which I suppose the noble Earl might call "systematic copying", rather than make each one individually.

Lord Beaverbrook

Yes, of course we shall look at that point. I think it is a very important one.

The Earl of Stockton

I thank my noble friend for those assurances, and I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

Viscount Caldecote moved Amendment No. 129: Page 13, line 31, at end insert— ("( ) If an abstract of an article in a periodical is published in the periodical, dealing with the abstract for the purpose of disseminating scientific or technical information does not infringe any copyright in the abstract or in the article or in the periodical provided that such dealing is accompanied by a sufficient acknowledgement.")

The noble Viscount said: The Committee will be aware of the major activity of publishing abstracts, mainly of technical papers, but as there may be some misunderstanding of the amendment, perhaps I may spend a few minutes on words of explanation.

The purpose of the amendment is to enable the activity of abstracting to continue without the restraint in Clause 29(1)(b) which excludes protection for fair dealing in relation to commercial research. For the past 100 years, the scientific and technical communities have relied on abstracts of published papers to alert them to current developments in their fields. Collections of these abstracts are published mainly by learned societies as a service to their professions at large and are carefully indexed and classified by experts to facilitate rapid access to any particular subject of interest. They are also used extensively by workers entering a new field of research to discover what of relevance has already been published. The societies publishing such abstracts are often called secondary publishers.

There are three main abstract sources used throughout the world. The sources are in chemistry and in the biological sciences—both of which originate in the United States of America—and also in the areas of electrical and electronic engineering, computing and control, and physics, which is dealt with by the Inspec service of the Institution of Electrical Engineers, a United Kingdom body under Royal charter, and a charity. For the past 20 years, these abstracts have also been made available through computerised data bases, again on a world wide basis.

The existing Copyright Act 1956 does not specifically render the use of such abstracts for this purpose non-infringing but Section 6 which provides for fair dealing has been relied upon to omit such activity, and no actions have been brought up to now to seek to prevent it. Nor have any complaints been made by copyright owners. Nevertheless subsection (1)(b) of Clause 29 would clearly exclude such use and make secondary publishers involved in this activity liable to be sued.

The rapid reproduction and dissemination of these abstracts is essential to the communities which they serve and is generally welcomed by both publisher and author: by the publisher, because it may lead to further sales of the journal containing the paper; and by the author, because it publicises his work. In addition, the author will almost certainly have relied heavily himself on such abstracts in producing his own work.

Historically, such abstracts were written by the secondary publisher but over the years many authors have expressed the wish to write the abstracts themselves to ensure that what they regard as the most important aspects of the topic are covered. Such abstracts are usually only a hundred words or so in length out of perhaps 10,000 words in the full paper. They are not a substitute for the articles but serve to indicate to the researcher the relevance of the full article to his or her work. The lnspec database alone contains some 3 million such abstracts, with 240,000 more being added each year. It is not therefore just a photocopying service but a high class publishing activity involving well written concise summaries of the papers concerned.

It may be argued that the author, or more likely the publisher, should be able to choose whether or not a published abstract should be free of copyright and that a licensing scheme should therefore be introduced. In the case of the United Kingdom's Inspec abstract service, this would involve applying to the publishers of 4,000 journals throughout the world. It could take anything up to 10 years to obtain all the relevant licences during which time the operators of the service could face not only civil charges but also criminal ones for infringement.

Alternatively, it may be suggested that some kind of association or club of publishers should be formed to act on their behalf and to which secondary publishers could apply for licences. This, too, would be a most cumbersome arrangement involving substantial administrative costs and bureaucratic delay. Experience elsewhere, particularly in the United States, of schemes of this kind, as suggested by the noble Viscount, Lord Eccles, at Second Reading, indicate clearly that this is not a practical alternative.

If excessive constraints were put on United Kingdom operators of such services, then other countries would be more than willing to provide them. The loss would be not only to this country; for as long as it took to build up comparable expertise, the scientific community would suffer. The aim of the amendment is to permit the continuing operation in the United Kingdom of a valuable abstracting service of the type which I have described. No complaints have been made in the past and I submit that any change in the law would be inappropriate, unnecessary and would seriously impede the flow of information within the scientific community. The amendment harms no one. It promotes the dissemination and use of scientific knowledge and it costs Her Majesty's Government nothing. I beg to move.

5.30 p.m.

Lord Hailsham of Saint Marylebone

I just put this up for my noble friend on the Front Bench. As I read the amendment in the names of my two noble friends, it is not basically necessary in the Bill as it stands. An abstract is an extremely familiar and well-known form of enabling the scientific or other community to know what is contained in a wide range of different journals. I would not dispute at all anything that my noble friend has said about it. But as I understand it, it is not copying under Clause 17 unless the copyright of the original work is infringed by Clause 17.

I suggest to him that a proper understanding of what constitutes copying for the purposes of Clause 17 gives him the safeguard that he wants. I say this publicly not because I have enormous confidence in my own opinion—because I am not a copyright lawyer and I would not pretend to be one—but on the other hand I say it in the presence of my noble friend on the Front Bench in order that I shall be told that I am wrong, if I am wrong.

Viscount Caldecote

I am absolutely no expert of any kind in copyright law, and I defer completely to the noble and learned Lord, Lord Hailsham. However, if he is saying in effect that this amendment is totally unnecessary and that those secondary publishers who provide abstract services (as they have for the past 100 years or so) can continue to do so without any fear of prosecution or of being sued in some way for payment, then of course I am absolutely satisfied and all is well; but can we have that assurance?

Lord Denning

May I say a word? I should think that it is a good thing to have this amendment to get the matter clear beyond doubt. I know what my noble and learned friend Lord Hailsham says, but I support the amendment.

Lord Howie of Troon

I have only one small doubt about this amendment. In a case where an author provides an abstract of a paper in a publication—for example, the proceedings of the Institution of Civil Engineers—and a secondary publisher of some sort takes that abstract and publishes it, I presume that he would be infringing the copyright; and in that case he should pay something to the author of the original paper. In the instance I quoted, the author would probably not want anything, but in so far as the abstract is made by the company which publishes it, it is clear that there can be no payment. If the abstract is taken from somewhere else, I think there should be.

Lord Graham of Edmonton

I rise only to say that the mover of the amendment made an impressive case in general terms. As I think he acknowledged, there are others in the Committee with far greater experience than either he has or certainly I have, and whose opinions we deeply respect. I listened carefully in an earlier debate to the words of the noble Lord, Lord Willis. He was quite clear and strong—and quite rightly—in wanting the original creator of works, to have either acknowledgment or payment.

In this amendment the final words are: provided that such dealing is accompanied by a sufficient acknowledgment". Certainly the uses to which this amendment relates are impressive. To someone who is taking a general interest in the Bill, it is clear that what we are about is trying to marry two interests. One is to pay due acknowledgment to those over a wide range of abilities to get proper reward for their creation. and at the same time to acknowledge that they can still get some reward for that creation by having their works widely disseminated if not directly by themselves.

When I listened to the noble Viscount, Lord Caldecote, making his case, I was sympathetic to him. At the same time, we have the words of the noble and learned Lord, Lord Hailsham, and the noble and learned Lord, Lord Denning, legitimately raising questions as to whether the words in this amendment should necessarily go into the Bill in order to achieve the aims of the amendment. We go from pillar to post. On one occasion we are told that they are not needed, but as I understand the noble and learned Lord, Lord Denning, he says that perhaps these words would be helpful if they were in the Bill.

Lord Denning

That is what I said.

Lord Graham of Edmonton

Therefore, you pay your money and you take your choice. I am of the view—and always have been; perhaps because I am on this side of the Chamber—that I would much rather see the words in the Bill even though people tell me that they are not really needed. There is great comfort and peace of mind for the layman if he can refer to something, even though he is told that it is covered by something else or covered in another Act. I hope that the Minister will be helpful to the Committee, as I believe he has been all along, and that if he cannot accept the amendment he will say something that will be helpful to those of us who are sympathetic to the aims of the amendment.

Lord Beaverbrook

First, I say to my noble and learned friend Lord Hailsham that he may just have slightly misread the amendment. It is concerned with copying of the abstracts themselves, not the articles from which they are abstracted.

This amendment would allow commercial abstracting services to reproduce abstracts published along with articles in periodicals, and disseminate those reproductions to their clients without seeking authority from the owner of the copyright in the abstract. The sole condition would be that an acknowledgment must be given. I do not think that this would be right. It is not permissible under the existing law. It is said that the dissemination of abstracts in this way not only would do no harm to the author and publisher of the abstract but would, as confirmed by my noble friend Lord Caldecote, be positively welcomed by them, since the acknowledgment of the abstract's origins might well increase demand for the original article.

I do not doubt that this is true in many cases. But in those cases the correct way to proceed is for the copyright owner to indicate that his abstract may be dealt with in this way. This can easily be done in the original publication itself, though I accept that if it is not done it will be necessary for the abstracting service to obtain the necessary consents from the copyright owners concerned. This should not be too onerous since consents given by publishers will normally be of a blanket nature. In other words, they will not be given item by item but for all items in specified publications over a specified time.

The essential point is that in some cases the copyright owner may not wish to see his abstracts dealt with commercially by others. If so, he should retain the right to prevent this. For example, if a publishing company were to provide paying customers with collections of abstracts taken from its own periodicals it would be unfair if that company were unable to prevent rival companies from duplicating that service.

I should point out to my noble friend who moved the amendment that the activities of commercial abstracting services are not permitted under the fair dealing provisions of the 1956 Act, as I think he may have suggested. What has happened in practice is that publishers and authors have, by their tacit acceptance of the practice, given consent. They can continue to do so under this Bill.

Viscount Caldecote

Is not the agreement of the Minister that tacit acceptance has been given a clear indication that nobody is worried, nobody has been harmed? The publishers of these articles who have had abstracts made by such organisations as the Institution of Electrical Engineers over the years in large quantities have never complained. They have given their tacit consent, just as somebody gives tacit consent on a right of way. If nobody objects, people go on doing it and it becomes almost legal. Surely the fact that this tacit consent has been given indicates that this is a sensible amendment, tabled in order to clarify the position.

Lord Brain

I think that the commercial aspect of abstracting is one that, perhaps fairly, needs control. However, photographic abstracting, which has been carried out for many years and is regarded internationally as the sole source of photographic information from international resources and journals, is carried out by volunteers in the Royal Photographic Society, which is a charity. It is not carried out commercially in any way, although it is now circulated more efficiently on a wider commercial basis and is recovering its costs.

The tightening of fair dealing in relation to commercial research—if it is tightened, and I add that reservation in view of what was said by the Minister on the last group of amendments—needs to be watched where it is done entirely voluntarily, on no commercial basis.

Lord Lucas of Chilworth

I should like to intervene, because it appears to me that my noble friend and I are being confused by a number of irrelevancies. In tabling the amendment we are endeavouring to ensure that the practice that has been carried on for years will not fall foul of the provisions in an Act which replaces one of some 30 years of age.

The noble Lord, Lord Howie of Troon, introduced the payment element. There was no such position previously and people were apparently happy. The noble Lord opposite introduced the amateur photographic reproduction of the abstract and spoke of what should happen in that connection. I think that many complications are being created. I believe that when the noble Lord, Lord Peston, spoke at Second Reading—and I am sorry that he is not present today—he said that as an academic he was happy to have his work reproduced. Therefore it follows that he will be happy to have abstracts of his works reproduced so that what he says will be more widely disseminated. He did not ask for payment but he would gladly accept an acknowledgment, for which our amendment provides.

I am not sure what my noble friend wishes to do. I suggest that we take careful note of what the noble and learned Lord, Lord Denning, said. Why not include the amendment to set the matter beyond doubt? There appear to be a number of doubts. At the same time I should like to pay close attention to what the Minister said as to whether this is necessary. We may wish to consider what has been said and come back at a later stage.

Lord Howie of Troon

I do not want to become involved in an internecine struggle with a sister engineering institution. However, am I right in supposing that the Institute of Electrical Engineers charges people for abstracts? If that is so, would it not be sensible for it to pay for the materials it uses when that is appropriate?

Viscount Caldecote

In certain circumstances the institute charges because this is an expensive operation and many experts are involved in carrying out the work. It also provides an extremely useful service. Those of us who are interested in this matter are concerned about the fact that everything has gone along smoothly and happily and good service has been provided to research workers over the past 100 years. However, if the amendment is not accepted the situation will change and it will become more difficult to carry out the abstracting work which was previously done and the scientific community will suffer.

Lord Beaverbrook

Before the noble Viscount sits down I should like to say that tacit acceptance, given now, will not necessarily continue in the future as commercial practices change. Abstracting services have changed their nature and past consents may well relate to former practices where the abstracting service provided much or all of the wording of the abstract.

There is nothing to stop the secondary publisher producing his own abstract. It should not be permissible for the secondary publisher to copy abstracts written by others without their consent.

Viscount Caldecote

The noble and learned Lord, Lord Denning, made the point that it would be useful and helpful to have the amendment included in the Bill. We do not want to press the matter to a Division at this stage, but will the Minister undertake to look at the point that we have made so as not to interfere with the valuable service which has been of great use to the scientific community?

Lord Beaverbrook

Of course I shall look carefully at everything that has been said by all Members of the Committee. I cannot make any commitment as to whether we shall be able to change our view, but I hope that what I have said will enable my noble friends to withdraw their amendment.

5.45 p.m.

Viscount Caldecote

With that assurance, and on the understanding that we may wish to return to the matter at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 agreed to.

Clause 30 [Criticism, review and news reporting]:

[Amendment No. 130 not moved.]

[Amendment No. 131 had been withdrawn from the Marshalled List.]

Lord Kilbracken moved Amendment No. 132:

Page 13, line 35, at end insert ("unless the work is a photograph.").

The noble Lord said: I now turn to fair dealing for the purpose of reporting current events. Earlier in the debate the Minister said that this issue was already covered under the 1956 Act. That is the case, but he did not mention the fact that under the 1956 Act, first, it is confined to use in a newspaper, periodical, broadcast or film, and that restriction has now been removed; and, secondly, that in the present legislation it is not extended to the use of artistic works but only to the use of literary, dramatic and musical works. That means that for the first time fair dealing, with reference to the reporting of current events, includes fair dealing if the work being used is a photograph.

When I first read the Bill I thought that that must in some way have been a slip. Possibly it was not recognised that artistic works were included for the first time and, therefore, the use of fair dealing in photographs for the purposes of reporting current events had been included in error. I do not know whether that is the case, but if photographs are included I wish to oppose the provision as strongly as possible. In doing so I have been assured of the full support of the National Union of Journalists by many press and other photographers.

I cannot see any circumstances under which it would be right to use the photograph under the fair dealing provisions for the reporting of current events. If that happened it would enable any photograph to be used, provided that current events are being reported. That would greatly be to the detriment of most press photographers. By excluding photographs from the artistic works which are otherwise included my amendment would remedy that position. I feel that for photographers and journalists this is an important matter and I hope that the Committee will support my position. I beg to move.

Lord Morton of Shuna

I support this amendment. First of all it appears that a photograph of a current event—and one can think of certain photographs that have been taken of dramatic current events—is not to be protected at all if somebody else uses it for the purposes of reporting the event. For example, if a photographer from The Times takes a photograph of an event, any other newspaper can reproduce it without being accused of breaching copyright and the photographer will merely be told that it is fair dealing.

If my reading of this section is wrong, no doubt the noble Lord will explain why; otherwise it seems that one is saying to professional press photographers that they have no rights in the copyright of their work.

Lord Denning

I also should like to say a word or two on this matter. At many current events there may be dozens of photographers present, each of whom is taking photographs in order to show a different angle of the event. The best photograph may get into The Times or another newspaper. Does that mean that other people can copy the photograph and say that it is fair dealing? I agree with the National Union of Journalists that a professional photographer's record of a current event is his copyright and he ought to have it.

Lord Ardwick

That is the way that most photographers and journalists have read this provision. I should like to support the amendment very heartily.

Lord Brain

Perhaps I may give the Committee another brief example of this situation. Suppose that someone has on file a photograph for which he has quite justifiably paid a reproduction fee on a previous occasion. Suppose further that an event takes place and that the photograph is then taken out of the file with the argument that it illustrates a current event. There will be no need to pay and that will be fair game. I do not think that that is fair dealing. I support the amendment.

Lord Beaverbrook

This amendment would remove the possibility of dealing fairly with a photograph for the purposes of reporting current events. All other kinds of work, including literary works, drawings and paintings could be dealt with in this way.

Fair dealing with any artistic work for reporting current events is not possible under the existing law. However, we have drafted the Bill on the principle that distinctions should only be drawn between copyright works when there is a positive need to do so. It is difficult to see such a need here.

The particular concern has been expressed that a newspaper could publish a rival's scoop photograph under this provision. This is not the case, however, any more than it is possible under the existing fair dealing provisions for literary works to publish a rival newspaper's news reports. It is established in law that reproducing a work for the very purpose for which it was intended does not amount to fair dealing. In the recent case concerning the unauthorised publication in a newspaper of the Duchess of Windsor's correspondence it was held that it was not fair dealing for a trade rival to take copyright material and use it for his own benefit.

It is in fact difficult to conceive of many circumstances where the Bill's fair dealing provisions would allow the reproduction of complete photographs in news reporting. It might, on the other hand, be fair to reproduce part of a photograph of a group of people to illustrate a news item about one of them. The fair dealing exception allows small matters of this kind to be done without formality. It is a narrow exception, particularly where photographs are concerned, and we feel that it should be allowed to remain in its present form.

Lord Denning

I should like to say that I have been convinced by what the noble Lord has said. He is quite right. Fair dealing does not allow any rival to reproduce a photographer's work.

Lord Kilbracken

I am grateful to those members of the Committee who have supported me on this amendment. Of course I regret that the noble and learned Lord, Lord Denning, has changed his mind.

The noble Lord, Lord Brain, raised a very significant point, if I may say so. He referred to a situation in which a photograph is bought by a newspaper at the time when it is first taken; it is then used before being stored away in that newspaper's picture library. A time comes later when it is desired to use that photograph again, perhaps because a person who is pictured in it is once more in the news. The ordinary procedure in such cases ensures that when the picture is used again the photographer again gets paid for it. However, it very often happens that a picture editor will forget to pay for the re-use of the photograph. I have often seen used in a newspaper photographs taken by me five years earlier and I wait for six months or so in the hope of receiving a cheque for them. I wait that length of time so that it cannot be made out that the cheque was just going to be sent. When the newspaper does not send the money, I ask my picture agent to raise the matter quite forcefully. It is done in the hope that no one will notice.

So far as I can see, this provision would make it perfectly all right for the newspaper to use such a photograph again without paying for it. The noble Lord shakes his head. He gave the example of a small part of a photograph that had been published being used again and as I understood him, he said that that would be acceptable. However, if that applies to a small part of a photograph I do not understand why it does not apply to the whole of the photograph which is the artistic work in question. I wonder whether he could possibly give a quite definite example of the kind of circumstance under which a photograph could be used under the fair dealing provisions for the purposes of reporting current events.

Lord Ardwick

Perhaps I may make a suggestion. There may be a group of people who appear in a photograph and some weeks later—perhaps months or even years—one of those persons becomes a very newsworthy figure. It is possible to isolate that person from the picture, to blow up the detail and for that picture to acquire a very considerable value. However, that would not be the case under this clause. It would be perfectly open to anybody to publish it.

Lord Beaverbrook

First of all I think I should say to the noble Lord, Lord Kilbracken, something about the example that he gave of a case in which a photograph taken by him some time previously was published six months or perhaps a year or five years later. The noble Lord's rights as the photographer would of course already exist and he would already be protected under this exemption. The newspaper, magazine or other publication would not be able simply to over-ride his rights as the photographer of that picture.

The noble Lord went on to ask me to give a specific example. I think that I have already given him an example, in that it might be fair to reproduce part of a photograph in order to illustrate a news item about one of the people in that photograph—but no more than that. I do not believe that that would damage particularly the rights of a photographer. In dealing with the question of why, if it is fair to use part of a photograph, it is not fair to use the whole photograph, I should say that such circumstances may exist but that they do not readily come to mind. Much of what has been suggested in this debate as falling within this clause is not fair dealing but cheating.

Lord Ardwick

The noble Lord has not dealt with the point that I raised about the photograph of a person being abstracted, blown up and sold.

Lord Beaverbrook

I shall let the noble Lord know if I am wrong but, as I understand it, if the photograph were used to illustrate a story about a person who had become famous since the photograph was taken, I do not believe that that would constitute fair dealing.

Lord Kilbracken

If, as the Minister indicated, fair dealing should be confined to nothing more than using a part of a photograph taken some time ago, then many of the objections to the present wording would be removed. I have personally never seen a full definition of what is meant by fair dealing. We have heard the Minister say that it is well understood and that the meaning has been established in law. But, as a matter of fact, after a good many years in journalism, it is not a phrase that I have ever come across before. This is perhaps because I have been engaged solely in writing and taking photographs and not in the legal niceties of the Copyright Act.

I do, however, feel somewhat reassured by what the Minister said when he indicated the limits which would be applied in deciding whether something amounted to fair dealing or not. I do not intend to divide the Committee and therefore, with a certain amount of reluctance, while not giving any undertaking not to raise it again, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6 p.m.

Lord Morton of Shuna moved Amendment No. 133: Page 12, line 38, leave out subsection (2).

The noble Lord said: This amendment is to leave out subsection (2). It is really a probing amendment to inquire why this subsection does not appear to correspond with the obligation under Article 10b of the Berne Convention and the Paris Act. It seems to be entirely different. The Bill says that no acknowledgement is required in connection with the reporting of current events by means of a sound recording, film broadcast or cable programme. Article 10 appears to say, firstly, that in the question of reporting other articles the source must be clearly indicated. Paragraph 2 of the article says: It shall also be a matter for legislation in the countries of the Union to determine the conditions under which, for the purpose of reporting current events by means of photography"— That is not, as I see it, in subsection (2)— cinematography, broadcasting or communication to the public by wire, literary or artistic works"— It is not, as this clause is, dealing with all copyright works— seen or heard in the course of the event may, to the extent justified by the informatory purpose, be reproduced". It seems to me that that conveys an entirely different meaning to what is in subsection (2). I shall therefore be pleased to hear if the noble Lord the Minister has an explanation at this stage. I beg to move.

Lord Beaverbrook

The corresponding provisions to this clause are to be found in Sections 6(2) and (3) and Section 9(2) of the 1956 Act, but they have now been made applicable to all descriptions of work.

Your Lordships will note that under Section 6(2) of the 1956 Act—which provided the current affairs exception in respect of literary, dramatic and musical works—no acknowledgement was required in the case of reporting by means of a broadcast or film. The reason for this is simply one of practicability. Consider, for example, a television news report of the Notting Hill carnival, with a mass of musical and artistic works.

When we circulated a draft of Part I of the Bill earlier this year it did not contain subsection (2). We received many representations to the effect that the essence of the 1956 Act should be retained on this point since acknowledgement in a film or broadcast is not always practical. It is as a result of those representations that we have included subsection (2) in this clause. Subsection (2) is what has been asked for and we believe it should be retained. We also believe that this subsection is not in breach of the Berne Convention. We will, however, look at this point again in order to be absolutely sure that we are right.

Lord Morton of Shuna

I am pleased to hear the noble Lord the Minister say that. After as careful an examination as I was able to make at the time, it did seem to me that the subsection was totally different to Article 10. The 1956 Act may be very interesting, but the Berne Convention was amended as late as October 1979. Therefore, it has to be brought up to date again. At this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lloyd of Kilgerran moved Amendment No. 133A: After Clause 30, insert the following new clause:

("Copyright in broadcast recorded speech.

. Where copyright subsists in a literary work by reason only that speech has been recorded otherwise than by or at the request of the speaker, copyright in the work is not infringed by the inclusion of the work in a broadcast or by dealing with the work for that purpose.").

The noble Lord said: No doubt many in this House have been approached by persons associated with broadcasting —

Lord Strabolgi

I am sorry to interrupt the noble Lord, but I do not think we have had Clause 30 stand part of the Bill yet.

The Deputy Chairman of Committees (Lord WellsPestell)

That is quite right. I am so sorry. The Question is that Clause 30 stand part of the Bill.

Clause 30 agreed

Lord Lloyd of Kilgerran

No doubt your Lordships have had many representations from broadcasters in regard to the difficulties that now arise due to the fact that the Bill gives protection as a literary work to the spoken word if it is recorded in any form.

The object of this amendment is to preserve the ability of broadcasters to give broadcasts of speech. Hitherto, it has been a precondition for copyright protection that the words should first have been written down by, or on behalf of, the author. This Bill now proposes to change that position. Copyright protection is given as a literary work to the spoken word if it is recorded in any form as set out in Clause 3 of this Bill.

It may seem unfair that under the present law a brilliant off-the-cuff lecturer, or a person being interviewed or a public speaker should be unable to prevent a third party from making a recording of his talk and using it, or a transcript of it, for commercial or other purposes, without further reference to him. I have been advised in this matter by the head of the copyright division of the BBC and I read from his letter. Cases of such abuse are to some degree preventable if the speaker takes care to jot down his thoughts beforehand. By giving copyright protection to the spoken word per se, the Bill would give rise to new problems out of all proportion to the 'mischief it is designed to prevent. The unique difference of broadcasting over the print media is that it can present people speaking. Sometimes a speaker may regret what he has said or, for any number of other reasons, may try to prevent it being broadcast. If the bill is not amended the onus will be on to the broadcaster to prove either the existence of an irrevocable licence to broadcast, or that the usage will fall within one of the limited range of 'fair dealing' exemptions defined in the Bill". We have discussed that for some time today. I am instructed that broadcasting journalism may thereby be severely hampered.

However, there would appear to be a simple solution which would preserve the general thrust of the Bill's intentions but which recognises the unique feature of broadcasting. This new clause Amendment No. 133A—if added after the present Clause 30—would enable it to be made quite clear that neither the live broadcasting of a spoken literary work nor the use for broadcasting purposes of a recording made by the author speaking of such a work, if the recording was not made by him or at his direction, would not infringe the copyright in the work. I beg to move.

Lord Denning

I suggest that this is a most important amendment, dealing with a most important new introduction into copyright law. Until this Bill becomes an Act, the spoken word is not protected by copyright. If I make a speech extempore without notes, as I often do, or if I give a lecture extempore, without notes, there is no copyright whatever in me at the present moment under the law as regards what I have said.

Under this Bill, once a speech is recorded there is copyright in the record. At the moment, if I make a speech and it is taken down by a reporter, the copyright is not mine. The copyright is in the reporter and not me, because he is the first person who has made it a literary work. He has put it down in writing. The copyright in all the speeches or lectures which I give extempore is in the reporter. That is the position at the moment. If I make a few notes and read from the notes, I have copyright in my notes. That is the law at the moment.

The important amendment made by this Bill is in Clause 3(1), which reads: 'literary work' means any work which is written, spoken or sung"— and so we have copyright. "Literary work" includes an extempore speech, an extempore lecture or anything of that kind. But under subsection (2), Copyright does not subsist…unless and until it is recorded, in writing or otherwise". So once it is recorded on any recorder at all there is copyright in it, and, as I understand it, copyright not only in the speaker but in the person who makes the report or the record.

I am not sure that I agree with this amendment. When a man makes a speech and it is recorded on any recorder, then, according to this exception, the broadcaster can take that record and broadcast it or deal with it as he likes without the consent of the original owner or the recorder. I am not sure that that is a wise introduction. I am not sure that we ought not to let the law operate as it will do. There is copyright in the spoken word once it is recorded, and even if a broadcasting company or other person deals with it without the owner's consent it ought to be an infringement. I draw attention to this point only because it seems to me a most important amendment, and if it is justified at all it is justified only by the ground which my noble friend Lord Lloyd of Kilgerran has put in—that broadcasting is in a special position.

Lord Morton of Shuna

I support this amendment because it seems that unless an amendment on these lines is made it will be quite impossible for any form of broadcasting to go through safely on any matter of current events or any form of investigative journalism. There are occasions when people say to television or radio reporters things that they would in retrospect wish they had not said. It would be very difficult if a broadcasting company were then to he in a complete state of uncertainty as to whether it had the person's permission to make a broadcast. I therefore suggest that something along these lines is absolutely essential.

As I understand the position—and no doubt the noble Lord, Lord Lloyd of Kilgerran, will correct me if I am wrong—the speaker who is being recorded will have the protection, in any event, of Clause 72 to stop a broadcaster unjustifiably modifying what he has said, which will be important if it frequently arises.

Baroness Seear

I should like to ask a question for information. The speeches that we make here are recorded in Hansard and are used by the BBC in "The Week in Westminster". Where does "work" stand?

Lord Denning

Speeches in this Chamber are not protected by copyright, so far as I understand. There are later provisions about that.

6.15 p.m.

Lord Beaverbrook

The noble Lord, Lord Lloyd of Kilgerran, has raised an important point. I can understand the concerns of broadcasters that they should not be unduly obstructed by copyright considerations from broadcasting recordings of interviews which they themselves have set up and organised. But it is pushing precautions against this to somewhat drastic extremes to deprive an interviewee, or the maker of an impromptu speech, of any possibility whatever of controlling whether or not the interview or speech is broadcast. The maxim which has several times been quoted during our proceedings is relevant here—what is worth copying is worth protecting. One might as justly say: what is worth broadcasting is worth protecting.

However, I do not think that broadcasters need have undue cause for concern, for three reasons. In the first place, not everything that is spoken is necessarily a work, and if it is not it is not protected. Whether or not a specific item of recorded speech constitutes a work in the first place is a question of fact to be determined in the particular case. A casual conversation will probably not be a work, whereas an impromptu dissertation or statement may be. To try to determine by statute where the line should be drawn would be a hopeless task, and both the 1956 Act and the Bill rightly avoid any attempt to do so.

Secondly, if what broadcasters fear is that copyright will be involved to prevent their using or editing short interviews intended to be included in news bulletins or current affairs programmes, that is covered by the exception in Clause 30 covering fair dealing with a work for the purpose of reporting current events.

Thirdly, there is the point that if a person willingly comes into a studio to be interviewed, or allows an extempore speech to be recorded by a broadcaster, he may well be held to have granted that broadcaster an implied licence to use the material in question. Consent to be interviewed probably implies consent to use the interview unless some other condition is expressly imposed. If, on the other hand, an interview or speech is recorded without the speaker's consent, it is only right that if it is such as to constitute a literary work the author should have control over the uses to which it is put.

I hope that what I have said has persuaded the Committee that this amendment is unnecessary in order to protect broadcasters, and that it would unfairly restrict the legitimate rights of copyright owners.

Lord Broxbourne

May I, just as a footnote, come to the question raised by the noble Baroness, Lady Seear? The answer was given by the noble and learned Lord, Lord Denning, who was right as always. The provision is Clause 45 of this Bill.

Lord Lloyd of Kilgerran

I listened very carefully to what the Minister referred to as an important point raised by me, but he went on to say that this important point has no substance whatsoever. I find that a little bewildering, especially when the British Broadcasting Corporation says so strongly that, If the Bill is not amended, the onus will…be on the broadcaster to prove either the existence of an irrevocable licence to broadcast, or that the usage will fall within one of the limited range of 'fair dealing' exceptions". The BBC seems to be in a difficulty. It is an important point, according to the Government, and yet nothing is done about it. Would it be impertinent for me to ask the Minister whether he would care to reconsider the position in the light of the fears of the British Broadcasting Corporation?

Lord Beaverbrook

I said we believe that if an interview or speech is recorded without the speaker's consent it is only right that if it is such as to constitute a literary work the author should have control over the uses to which it is put. This hinges very much upon whether or not the work is a literary work but if it is a literary work we believe that the author should have some control. If it is not a literary work then it is not protected.

Lord Lloyd of Kilgerran

I am very much obliged to the noble Lord for repeating what he has already told me. I wish to make it quite clear that I have no interest whatsoever in this matter. But in view of the representations made by several broadcasters—I understand that the ITV organisation is also supporting the general theme of this amendment—I shall consider what the noble Lord has said.

Lord Williams of Elvel

There is some communication going on on this.

Lord Lloyd of Kilgerran

I thank the noble Lord for indicating that there is communication going on between certain Members of this Committee and the Minister. I do not know whether it is copyright material. It probably is as it is now in writing.

Baroness Seear

It is not a message at all.

Lord Lloyd of Kilgerran

I see. It is not a message at all. I have to thank Mr. Williams for misleading me and for forcing the Committee to put up with me for another two or three seconds. I apologise if I referred to the noble Lord, Lord Williams of Elvel, as Mr. Williams. The noble Lord appreciates my difficulties at the present time in trying to accede to what he expressed to me about a note passing to the Minister.

Lord Cawley

I do not know whether my noble friend is aware that the courts have held that a literary work may be something quite trivial; for example, a letter of 106 words was held to be the subject of literary copyright. Therefore a comparatively short conversation on the television might easily be held to be a literary work when recorded.

Lord Morton of Shuna

If one looks at the definition in the Bill one can see that a literary work means any work which is spoken which is not a dramatic or musical work. One word apparently, according to that definition, would be a literary work.

Lord Cawley

There is also authority for saying that mere slogans and that kind of thing are not literary works.

Lord Harris of Greenwich

I hope that the noble Lord will look at this matter between now and Report. When the principal broadcasting organisations in this country express serious concern in a matter of this kind, I think it only reasonable that the Government should consider their position again before Report. There are clearly some major issues involved here which could seriously inhibit the quality of British broadcasting in the future. That being so, I very much hope that the noble Lord will agree to look at this matter before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 31 [Incidental inclusion of copyright material]:

Lord Kilbracken moved Amendment No. 134: Page 14, line I, leave out ("its") and insert ("the").

The noble Lord said: As this comes immediately after the important amendment of the noble Lord, Lord Lloyd of Kilgerran, I should begin by saying that this is not a matter of very profound importance.

But I draw the Committee's attention to Clause 31(1), which states: Copyright in a work is not infringed by its incidental inclusion in an artistic work".

My Amendment No. 134 goes hand in hand with Amendment No. 136. This would mean that the above wording would be changed to read: is not infringed by the incidental inclusion of all or part of it in an artistic work".

It seems fairly clear that an entire work would never be infringed incidentally. My noble friends wish to change that in the next amendment into "unintentional". A whole work could very seldom be included unless it consisted of only one or two words. Incidentally, I suppose a well known single word such as "eureka" when it was first uttered went into history and the copyright of it still belongs to Archimedes. It may be said that if copyright is not infringed by the whole work it certainly could not be infringed by a part of it, but that is not what the Bill says. Perhaps it would be better just to word it: copyright in a work is not infringed by the incidental inclusion of a part in it".

Although I am not sure that this is a necessary amendment I should be interested to hear what the Minister has to say about it. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord, Lord Kilbracken. The exception in Clause 31 ought indeed to apply to parts of works as well as to whole works. However, it already does so by virtue of subsection (3)(a) of Clause 16, which provides that: References in this Part to the doing of an act restricted by the copyright in a work are to the doing of it— (a) in relation to the work as a whole or any substantial part of it". The Committee will recall considering the merits of "substantial" a little earlier in our proceedings. I am aware that the amendment does not include the word "substantial" so as to be capable of covering any part, however small, but since an infringement cannot be committed with less than a substantial part there is no need for any exception to deal with less than a substantial part.

Lord Kilbracken

I am grateful to the noble Lord. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 135: Page 14, line 1, leave out ("incidental") and insert ("unintentional").

The noble Lord, said: This amendment is linked with Amendment No. 137, which is to leave out subsection (3). It is concerned with the meaning of the word incidental in this situation. If we go to subsection (3) of the clause we are told: A musical work, or…a sound recording, broadcast or cable programme as includes a musical work, shall not be regarded as incidentally included in another work if it is deliberately included". That seems to mean that it may be incidentally included if it is accidentally included. If the meaning that is sought for incidental is intended to mean unintentional, would it not be better to say so? Is it intending to mean that it is some minor part of the work, something that according to the Oxford English Dictionary's secondary definition of incidental is: Forming no essential part of it"? Does it mean that and if so why, because it would form no essential part of the whole thing that is being broadcast? Why is it not infringed if somebody takes what may be the whole of a copyright work and puts it casually into a broadcast? Why on earth is that not a breach of copyright? I can see why it may not be if it is an accidental inclusion of a copyright work, but if it is intended to include something that is intentionally done it seems to me that it is wrong to do so. I beg to move.

Lord Denning

I should have hoped that the word "incidental" would have been defined or at all events that it would have been capable of some ascertainment. I do not accept that it is the same as "unintentional" or that unintentional would be right. But I can foresee, unless there is some definition or explanation of the word "incidental" that there will be quite a number of problems for the courts to decide. It may be impossible to get it clearer than that but certainly what is incidental to a work is very difficult to say offhand in regard to any particular thing. Apparently the Shorter Oxford Dictionary definition is: not forming an essential part of it". That may be the nearest one can get to it, but at all events I fear that the word "incidental" will give great trouble to the courts hereafter.

6.30 p.m.

Lord Kilbracken

A problem arises here because subsection (3) applies only to musical works, whereas subsection (1) refers to copyright works of any description. Although one can perhaps imagine a musical work being included unintentionally, it is hard to imagine a literary work being included unintentionally. That would be included if the word "unintentional" was substituted in Clause 31(1).

Lord Brain

Perhaps I may once again use very briefly the magic word of the Opposition Front Bench—collage. A large collage can contain the whole of a photograph. It may be incidental in some of the legal definitions of "incidental". However, it is very important that the photograph should not be taken out of copyright purely because incidental to the collage is the whole of the copyright photograph.

Lord Lloyd of Hampstead

I respectfully agree that there seems to be some difficulty in deciding why it is necessary to have the provision whether the word is "incidental" or "unintentional". So far as concerns "unintentional", we already have Section 87, which gives one a defence if one did not know or had no reason to believe that copyright subsisted in the work. It is not altogether plain why this particular limitation is being imposed on the copyright owner.

I think that we have all been extremely impressed by the attitude which the Minister has adopted in his desire on repeated occasions to preserve as far as possible the rights of copyright owners. That is a refreshing view on behalf of the Government.

However, it seems that here something is being taken away from the copyright owner. It may become plain when we receive a further explanation. It is not plain at the moment why such an encroachment is being made. I therefore suggest that it would be helpful if the Minister explains exactly why Clause 31 is included in the Bill.

Lord Beaverbrook

Under the Bill as drafted the exception which allows incidental inclusion of a musical work in another work—for example, a film or television broadcast—without infringement of copyright does not apply if the musical work is deliberately included. Thus, if an outside broadcast of a sporting event happens to pick up the sound of records being played over the public address system, that will not infringe copyright in either the sound recording or the musical works contained in the recording. But if a radio is heard playing in the background in an episode of "EastEnders" or "Coronation Street" the inclusion of the musical works and sound recordings or broadcasts containing them is to be regarded as not being incidental.

The playing of the radio may be merely part of the scene-setting. But the producer had a choice as to whether it was to be included. This applies even more forcefully to a specially written musical sound-track to a film. It may have been specially commissioned but could still be described as incidental to the screenplay. Where background music is intentionally included in another work in this way, the copyright owner ought to be able to secure remuneration.

The effect of the amendment moved by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, will be to treat incidental inclusion of other kinds of work—artistic, literary, and so on—on the same footing as musical works. I am not convinced that that is appropriate or necessary. The outside broadcast of a sporting event which I cited as an example just now might easily include incidental shots of an advertising hoarding or a building. That could hardly be said to be unintentional since the film maker would be perfectly aware of the fact that he had included what in copyright law would be an artistic work and a work of architecture. But it would not be fair to expect the film maker to have to obtain the consent of the artist of the hoarding or the architect of the building to do so.

The noble and learned Lord, Lord Denning, wondered whether the word "incidental" should be defined. I am slightly surprised that the noble and learned Lord should think that a definition is needed. He usually says that words of that sort are best left undefined. What is incidental will depend on all the circumstances of each case and it would be impossible to provide a satisfactory definition for all circumstances. The word already appears undefined in Section 9 of the 1956 Act.

Lord Denning

I agree with a great deal that the Minister has said. I should like the courts to be able to look at Hansard and the speech of the Minister. They would then see what the meaning of "incidental" is intended to cover. I agree that it is almost impossible to get a real definition. It can be dealt with only by illustrations, and the illustrations given by the Minister probably cover the position.

Lord Morton of Shuna

I shall not press the amendment. However, it seems that there is a distinction between the treatment of musical works and subsection (1). "Incidental", using it in its sense of not being a very important part of the broadcast or whatever we are dealing with, could mean quite a large chunk of the literary work. It is difficult to see how that would not be deliberately included, and it is difficult to see the distinction in principle between treating musical works in one way and literary works in another.

I can see that a film of a marathon race would include various artistic works and architectural works and might well include advertising hoardings. After all, the possibility of getting them on television is the reason for their being there in the first place. Surely that would mean that "incidental" meant "casual".

Lord Beaverbrook

Before the noble Lord goes further, perhaps I may be able to help him. The distinction drawn between the treatment of musical and other kinds of works reflects the reactions of copyright bodies in the consultation process preceding the Bill. Owners of copyright in musical works have expressed concern over an exception for inclusion that is both incidental and unintentional, but other groups have not done so. The distinction may have a practical basis rather than a theoretical one, but I believe it is workable.

I concede that there is no real difference of principle between a musical work and a literary or artistic work which might be deliberately included in, say, a film or television programme, though only as incidental background. I do not believe non-musical works are likely to be used in this way on the same scale as musical works. If the noble Lord has evidence of that, I should be pleased to consider it.

Lord Morton of Shuna

I am grateful to the Minister. However, I shall still do what I was going to do and ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 136 and 137 not moved.]

Clause 31 agreed to.

Clause 32 [Things done for purposes of instruction or examination]:

Lord Lloyd of Kilgerran moved Amendment No. 138:

Page 14, line 18, at end insert— ("(3) Copyright in a musical work or a sound recording is not infringed by the inclusion of that work as part of the sound track of a film where the making of that film is for the educational purpose of teaching film-making.").

The noble Lord said: I should like to speak also to Amendment No. 146. The amendment came to me via a distinguished practising silk at the Patent Bar. He wishes to help the Royal College of Art. I am instructed that the college has a film department. United Kingdom schools are very good at making films for television and cinema. The problem is common to all those schools.

The amendment would insert the words: Copyright in a musical work or a sound recording is not infringed by the inclusion of that work as part of the sound track of a film where the making of that film is for the educational purpose of teaching film-making". It is essental for a film to have background music. Students must learn how to use it. In practice they incorporate sound recordings from existing records into the sound-tracks that they make. It is impractical at that stage to contact the copyright owners for permission. There is not sufficient time and there is no administration to do the job. Copyright owners would naturally wish to oversee and control what is going on and their interference would be wholly unacceptable.

Amendment No. 146 deals with the making of such films and the difficulties of copyright that arise in the course of this educational exercise.

These are useful amendments intended to help schools that make films for educational purposes, in particular the Royal College of Art. I beg to move.

Lord Lloyd of Hampstead

As my name appears on the Marshalled List, I wish to speak briefly in support of the two amendments, having some experience of the matter, if I may say so, as the chairman of the National Film and Television School. The problem has been a vexing one in the school and in other similar establishments. The noble Lord, Lord Lloyd of Kilgerran, mentioned the film department of the Royal College of Art, which performs a similar function. The Government, in giving considerable financial and other support to the National Film and Television School, recognise the importance of film education as an essential arm of the film industry of this country. It is therefore desirable that such an institution should not be impeded on what is a rather technical ground. After all, the use of such background music for the purposes of teaching film is not likely to cause any great harm. In practice, as the noble Lord, Lord Lloyd of Kilgerran, pointed out, it is hardly practicable for such institutions to apply to copyright owners each time that it is necessary to incorporate part of a musical work as background music to a film.

This is a most useful and practical addition to the Bill to which it would be difficult to take serious exception. I invite the Committee to support the amendments.

Baroness Birk

We on these Benches support the amendment. I have had something to do with the work of teaching film-making as a governor of the British Film Institute for many years and chairman of its education committee.

Since the 1956 Act there has been a complete revolution leading to a great increase in the teaching of film-making. It is an important part of education today. We have to start with small steps. It would be interesting to extend this to apply to all educational purposes. However, one should not be too greedy at this point.

Viscount Mersey

I wish to add a comment about the realism of training people for making films. A student may be put into a false position here. If the amendments, were agreed to, he could freely use Mahler's Symphony of One Thousand or the latest top of the pops record. Part of his training is budgeting. Might he not have a rude awakening when he goes into the harsh commercial world of professional film-making? He will be on a tight budget, he will no longer have this privilege and perhaps all that he can afford is a solo guitar.

Lord Reilly

I strongly support the amendments. I speak as a former governor of the Royal College of Art.

The other day I happened to meet a Mr. Richard Ross, head of the films and television department, who told me that he frequently finds himself on the wrong side of the law by incorporating and encouraging his students to incorporate music from existing discs into the programmes that he is teaching them to make. I therefore hope that the Committee will consider the amendments carefully.

6.45 p.m.

The Earl of Dundee

I am grateful to the noble Baroness, Lady Birk, and to all noble Lords who have spoken. I am sympathetic to the underlying reason for Amendment No. 138. Indeed, the clause as drafted provides much of what is required since a recording may he made of a musical work for the purposes of instruction by the teacher or student without infringement; subsection (1)(b) of Clause 32 excludes copying by means of a reprographic process, but the definition of "reprographic process" in Clause 161 excludes the making of a film or sound recording. The person making the film will normally want to incorporate a sound recording in his sound-track, and Clause 32 does not allow this. The answer is not to extend Clause 32(1) to include the copyright in a sound recording or film since this would open the door to educational copying of records and videograms. Any exception in respect of a copyright in a film or sound recording must be limited to copying in the course of teaching the art of film-making, as the noble Lord, Lord Lloyd, proposes.

We believe that the drafting of the amendment is not wholly consistent with what is adopted elsewhere in this clause. An amendment will also be required in Schedule 2 to permit this type of copying without infringement of any rights in the performance on a record that is to be used. We think we should build on the firm foundation provided by the proposal of the noble Lord, Lord Lloyd, and consider also the copyright in films. For instance, the teacher may wish to copy clips from films to show to his students or the student may wish to incorporate clips in a film he is making. Perhaps the exception should cover such practices.

I ask the noble Lord, Lord Lloyd, to withdraw his amendment on the understanding that we will table an amendment either here or in another place to deal with the matter.

I deal next with Amendment No. 146, to which we are less sympathetic. We accept that as far as possible those involved in the teaching or study of film-making should be on the same footing as teachers or students of any other subject. Hence our support for changes to Clause 32. However, this amendment would put film schools in a better position than other educational establishments. Clause 34 at present allows films to be shown, at an educational establishment … for the purposes of instruction", without any infringement. Therefore, there is no problem with "class room use"—if I may use that expression.

However, under the 1956 Act, and Clause 34 as drafted, a performance to an outside audience—for example, a school concert given principally for the benefit of parents and relatives—does not benefit from the exception. It would not be appropriate for films to be a special case so that a film school can give a public showing of its films while, say, a music school could not give a free concert.

It is open to the noble Lord, Lord Lloyd, or any other Member of the Committee to argue that the condition in subsection (2) should be that the audience is a non-paying audience, and to table amendments accordingly. The Government will need to be persuaded of the merits of that case as and when it is made; but we really cannot accept that film schools should have freedom from copyright constraints which is denied to other educational establishments.

Lord Lloyd of Kilgerran

I am grateful to the Members of the Committee who have supported me on both these amendments. If it is not disclosing any great secret, I was informed that on the first occasion the noble Earl, Lord Dundee, would be dealing with amendments it would be one of my amendments. I believe it was implied that I should treat his baptism of fire with some leniency. However, on Amendment No. 138 he has silenced my guns because he has agreed that the Government will table another amendment, with improved drafting. With that undertaking, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 32 shall stand part of the Bill?

Baroness Birk

I raise a point on the wording of subsection (2) of this clause. Unless it is redrafted so that copyright, and so on, is not infringed by being copied, or by adaptation of it, it appears that there will be no exemptions in respect of adaptations. Such an exemption exists under the 1956 Copyright Act and it is difficult to see why the present exemption is more restrictive. Rather than draft an amendment to this I have raised this query in clause stand part to elicit a reply from the Minister. I should also like to know whether this clause covers the Open University, because there is no reference to it.

Lord Somers

Subsection (1)(b) removes the immunity from works which are not copied by means of a reprographic process—not a word I have come across before—and I assume that that includes photocopying.

When I was a director of music at a large school there were many occasions when I wanted extra orchestral or choral parts and I would have given my heart and soul for a photocopier. We did not have one, and copying all had to be done by hand. For those Members of the Committee who are not accustomed to copying music, I can say that it is extremely hard and tiring work. Therefore, I believe that that line could be deleted. I realise that there are difficulties. There is the danger that the photocopier will be misused to produce far more copies than are required, but there may be ways of avoiding that. I shall be interested to hear the noble Earl's comments.

Lord Brain

The copyright relates to people being taught to copy artistic works. If it is a painting, or something of that nature, there is no problem because it can never be the same. However, where someone is being taught to copy photographs, the resultant copy of the original photograph will be identical. It will not be identified as a copyright item. If it is a particularly valuable photograph it may go on to the market for the benefit of the teacher or the student at a considerable price. That is something which needs to he looked at and borne in mind. I have a concern about it, but I go no further than that.

The Earl of Dundee

In reply to the first point made by the noble Baroness, Lady Birk, I understand that Clause 68 provides the answer and satisfactorily deals with adaptations. The Open University is certainly covered and no problem arises. Indeed, as I understand it, the Secretary of State has the power, on application, to designate any educational establishment that he sees fit.

The noble Lord, Lord Brain, asked about the distinction, or non-distinction, between photographs and photocopies. I shall have to come back to the noble Lord on that point.

Clause 32 agreed to.

Clause 33 [Anthologies for educational use]:

Lord Peston moved Amendment No. 139: Page 14, line 21, leave out ("educational establishments") and insert ("education").

The noble Lord said: With the permission of the Committee, I also address my remarks to Amendments Nos. 140, 142, 143 and 145, which all include substantially the same point or argument. I also preface my remarks by saying that I speak entirely as a layman, not as an expert in intellectual property law or the law of copyright more narrowly defined.

However, I am interested in education and I start by noting in the Explanatory and Financial Memorandum that, Clauses 32–36 provide for various exceptions to copyright where the copying is carried out for educational purposes". The part of the Bill which we are currently discussing is headed "Education". However, in the clauses, education- more or less disappears and is replaced by "educational establishments". The main point I wish to argue is the fairly obvious one that education does not solely take place in educational establishments. In so far as there is an argument that an exception ought to be made, which I hope we all agree, the law ought to make exceptions for education. That is the gist of the argument I am about to develop.

If we ask why we make the exception in the first place, it is clearly on the grounds of public interest. If we then ask what is the public interest and why should the monopoly, in a sense, be somewhat limited for this purpose it seems to me that there are two kinds of reason, and they are fairly symmetrical. One is that all who create intellectual property and are granted it by legislation of this kind have built on common knowledge and on our common culture, which, after all, can in a broad sense be defined as intellectual property; but it is public intellectual property. Therefore, the theoretical case is based, at least partly, on the fact that we are repaying what we have taken, and to my mind that is a very valid argument.

Equally, the case is made on the fact that we constantly need to rebuild the stock of public intellectual property, and in granting these private monopoly rights we must do very little or nothing to infringe the ability to recreate this public intellectual property. That seems to be the broad reason why education is singled out for exceptional treatment. Having listened to many of the debates on this Bill, that seems to be at least the common sense reason why it should be so; and I suppose I suffer from the layman's delusion that what is common sense also ought to be legal. That may horrify more learned colleagues, but it makes good sense to me. I believe that those are fundamental arguments.

I am thinking also of the educational activities in which many bodies which are not educational establishments engage. I could produce, and if the Minister insists I will produce, an enormous list. They all make the same point As I understand it, if the BBC produces a programme on first aid which a health authority wishes to use to educate and instruct some of its staff (my legal colleagues at St. Mary's College whom I have asked about this agree) such activity would not be excepted by the Bill as drafted. A standard example which has been drawn to my attention is that if a road safety programme were used by the police authorities to educate and instruct police constables that would not be covered. As I say, I can produce more examples.

If I am right about that, there is something wrong with the Bill, because it is not doing what it set out to do—to make an exception for education. I then thought that I had better look in the Bill for the definition of "education". I searched happily in my uneducated (in this area) way and looked at Clause No. 158. I suddenly find that it again directs me not to "education" but back to "educational establishments". I am even more horrified by that part, although I was reassured by the noble Lord's intervention on the previous amendment. "Educational establishments" seem overwhelmingly to mean schools. Then, if the Secretary of State so decides, he will publish a list of some other educational establishments, which we hope will include universities. I have been reassured, because we have been told that it will include the Open University.

I am taken aback by the fact that we must rely on: The Secretary of State may by order provide", and so on, what will turn out to be an educational establishment. That makes me even more unhappy about the part relating to "educational establishment" in the first place.

A wide range of activities is going on in our society which can correctly be defined as educational. Many of them have been developed in recent years. A great deal of work is done by the training bodies about which the Government are keen. Those activities are "education", and they clearly need these exemptions. I therefore put forward my amendment. Every time I see the words "educational establishment" I tell myself that the Government want to make exemptions for education. I therefore ask why they do not put that in the Bill.

Lastly—and I hope that they turn out to he wrong—my academic colleagues have said, "You are an idiot. Do you not know that it is impossible legally to define 'education'?" If that is true, it horrifies me. If it is the case, I do not see how the word finds it way into the Bill in the first place.

7 p.m.

Baroness Birk

I and my colleagues support what my noble friend Lord Peston has just said. It is essential to clarify the matter because, as my noble friend pointed out, it is not clear how "educational establishment" will extend to educational institutions other than schools. Even if the Secretary of State wants to designate other establishments, it is doubtful whether he has the power. I am going on what is in the Bill.

If the Secretary of State has the power, will he use it? If he is prepared to use it, why do we leave this matter to subordinate legislation? I have a horror of doing that. Too often, in too many Bills, too much is left to the Secretary of State's power, whichever Secretary of State it may be and whichever department he commands. So far as possible matters should be clearly written into the Bill so that there is little room for doubt. It would be far clearer and cleaner to refer in the legislation to primary, secondary and tertiary education. Perhaps the Minister can tell me why that has not been done, or say that it is a good idea and that he will go away and bring back the proposal.

The way the provision is worded in the Bill, it cuts out many other important avenues of education. My noble friend Lord Peston said that he had a list of them. So do I, but I will mention only one or two. Many art galleries and museums now have education officers and extraordinarily good education programmes. On the whole, they have all sprung up since the 1956 Act. They extend educational horizons, but again they could not possibly come within the definition contained in the Bill. Then there are the community arts. Their educational organisers are not employed by local authorities. If they use material which is not covered by the Bill they will have to pay a fee. This again is a new and important phenomenon which has arisen since 1956.

Artists as educators constitute another educational resource; for example, there are the artists in residence whom the National Gallery and other galleries and museums use considerably. It is of the greatest importance to clarify the point so that we can be satisfied that "educational establishment" covers a wider and more detailed list of organisations, or we should leave the matter open so that "education" is the key word and the other matters fall.

The Earl of Stockton

I fear that, while all right-minded people must be sympathetic with the broad-brush picture painted by the noble Lord, Lord Peston, I am extremely concerned that the effect of his amendment would be not only to include the Red Cross and the police but any home or company premises. If his amendment stands, what is to stop me claiming that my reading of extracts of his economics books in my office is part of an educational process for me? It undoubtedly would be, if I understood them. But neither he nor his publisher would be especially happy about that.

Lord Willis

I am sorry to rise once again to oppose my noble friend Lord Peston. I hasten to add that I do not share his academic colleagues'opinion of him. His sketch of the source of intellectual property, his dream picture of writers and authors drawing on our great culture over the years and therefore creating something which does not belong to them because they have drawn upon our culture, is a bit far-fetched. One could say that Dickens, Tolstoy or Shakespeare drew on the culture of their times, but nobody would dream of saying, were they living today, that they were not entitled to a copyright.

Instead of clarifying the situation, this amendment makes it more difficult. "Education" is such a broad term. In this country, training films are increasingly being made on video. It is a very important industry but is is being massacred by the copyists. If one makes a training film on road safety, or any other subject, it will be copied wholesale, and the worst offenders are the educational establishments—the universities and the schools.

I had a letter the other day from a firm. I took the trouble to ring it up. It is almost going out of business because it spends, say, £25,000 on making a training film which is issued half a dozen times. It is copied wholesale on video and everyone thinks that it is quite legitimate so to do. Many of these people who are copying it would come under this loose definition of "education" but could not possibly be defined as an educational establishment. I therefore think that this definition is far too wide and I much prefer that of the Government.

Lord Simon of Glaisdale

In addition to the instances which have been given by the noble Lord, Lord Peston, and the noble Baroness, it seems that the amendment has this advantage. It says in one word what the Bill says in two. In consequence a large passage can be omitted from the definition section, Clause 158.

I venture to disagree with the noble Lord, Lord Willis. Everybody knows what "education" is. I cannot see any difficulty if that word were substituted. It may well be that the Minister can improve on that. The definition of "educational establishment" seems to me extremely cumbrous. The noble Baroness characteristically—if she will allow me to say so—would like to incorporate in the Bill everything that might be in ministerial orders so that if the amendment is accepted by the Government the matter on which we have differed before will disappear and amicable relations can be restored.

It seems to me on the ground of economy that there are advantages in this amendment. I can see the attraction for the Government of "educational establishments" with a definition. But as I listened to the debate it seemed to me that the argument for "educational establishments" is overdone and that "education"—which must be a word which occurs without definition in countless statutes—would be preferable.

7.15 p.m.

Lord Somers

I agree entirely with the amendment of the noble Lord, Lord Peston. I had in mind the private music tuition of young people. On the other hand, I can see that there are dangers in that anybody might pose as being a professor or teacher of music simply for the sake of evading the copyright.

Can we not say "professional education"? That means anybody who demands a fee for teaching. That might possibly avoid the difficulty.

Lord Lloyd of Kilgerran

Perhaps I may intervene briefly. I listened with tremendous sympathy to the amendment moved by the noble Lord, Lord Peston, and supported by the noble Baroness, Lady Birk. I find myself in the dilemma that the noble Earl, Lord Stockton, expressed just now. It seems to me that the word "education" is too wide. I ask this question rhetorically. Would not this amendment open up use to all commercial instruction establishments, even driving schools and similar establishments? Would that not allow an obviously unacceptable free use of copyright works?

The Earl of Dundee

The exception in Clause 33 allows inclusion of short excerpts from copyright works without the consent of the copyright owner in collections made for use in educational establishments. It is subject to certain well defined limits which are intended to ensure that the basic rights of an author to control the exploitation of his work are not significantly curtailed or endangered. In the main it is a re-enactment of similar provisions in the Copyright Act 1956 which have stood the test of time.

We have nonetheless significantly widened the scope of the exceptions in the Bill as printed in one important respect. In the 1956 Act the exception only applied to collections made for use in schools. In the Bill it applies to collections made for use in any educational establishment as defined for the purposes of this Part in Clause 158. The definition in Clause 158 is a wide one and includes a power for the Secretary of State to designate which establishments shall be included. The definition will certainly extend to universities and other tertiary educational establishments, and to the Open University, as I said in connection with the debate on Clause 32.

The amendment moved by the noble Lord, Lord Peston, seeks to widen the scope of the exception yet further so that it would apply to collections intended for educational use in the most general sense. 1 cannot believe that curtailment of the rights of authors to this degree would be acceptable to Members of the Committee. All sorts of publications for the general market can be claimed in some sense to be educational. The exception could thus be invoked to cover all sorts of compilations for which it was not intended and in which the educational element was in truth incidental. A fruitful ground would be created for disputes about whether the true purpose of a publication was or was not educational.

The noble Lord, Lord Peston, has himself said that the number of examples which he thinks should be covered by these exceptions is enormous. This highlights the difficulties that copyright owners would face in monitoring and exploiting their rights. The requirement that an anthology benefiting from the exception should state in its title that it is for use in educational establishments will inhibit abuse of the exception much more effectively than a mere statement that its purpose is educational.

I take it that the noble Lord is also speaking to Amendments Nos. 142, 143 and 145. They also seek to loosen the carefully defined limits placed by the Bill on the exceptions permitting free use of copyright material in education. Clause 34 allows such use for purposes of performance but in such a way as to ensure that this can occur only in the course of the activities of an educational establishment or at an educational establishment for the purpose of instruction. Audiences must be limited to teachers and pupils and other persons directly connected with the establishment.

Under Amendments Nos. 142, 143 and 145 performance of all kinds of work without the consent of the copyright owner could take place freely, subject only to the condition that the performance should take place only for some kind of educational or instructional purpose but not necessarily in schools or colleges. The condition as to audiences would be loosened in the same way. It is not difficult to see how abuses could follow. Performances of almost any moderately serious piece of music, sound recording, film or play could be presented as being for an educational purpose. Copyright owners would be placed in a quite impossible position in defending their legitimate interests.

A further point concerns our obligations under the Berne Convention. This convention does not permit any derogation whatsoever from the exclusive right of authors of dramatic or musical works to authorise public performance of their works. Performances within the limits of the exception in the Bill as printed would be private, not public, and therefore permitted under Berne. Performances under the exception as modified by this amendment could as readily be in public as in private and would therefore clearly be in conflict with our Berne obligations.

I am grateful to the noble Lord, Lord Peston, and to all Members of the Committee for enabling this area to be debated, but in view of the difficulties I have outlined I urge him to withdraw the amendment.

I should perhaps reply to the noble Baroness, Lady Birk, who raised a point about educational establishments, which are defined largely by reference to a power enjoyed by the Secretary of State. The reason for relying largely on subordinate legislation to define an "educational establishment" is simply one of practicality. The nature of educational establishments is so wide and varies so frequently as different types come into existence that it would be a great mistake to ossify a definition in the Bill. Schools are expressly mentioned because they are already in the 1956 Act. We want to assure schools that they will continue to benefit from these exceptions. However, with regard to the rest, the flexibility of using subordinate legislation is an advantage and not something to be mistrusted. I should also point out that Clause 158(2) extends the concept of "educational establishments" beyond the narrow concept of "establishment" in order to cover the kind of education which takes place outside an establishment as such.

Lord Peston

Before making my final remarks I wonder whether I am in order to ask the Minister two questions. First, why does the Bill in several places refer to "education" when it does not mean education? Secondly, what is this curious objection that we see yet again because something happens to be commercial? As far as I am concerned education is education. If there is, as it were, a commercial element, that does not derogate from the educational value. I find this antipathy to making any commercial concession to education very odd. I ask those two questions before making my concluding remarks.

The Earl of Dundee

I have some sympathy over the language. The noble Lord asks why "education" is used when in some senses it is not all-embracing. But we should be in a difficult position if we allowed the whole understanding of education to be as general as is proposed in the amendment.

In relation to the noble Lord's second point, I hope that he will be happy if I write to him on it.

Lord Peston

Listening to the debate I remain completely convinced that from the common sense point of view I am entirely correct. It seems to me that the argument is to make the exception for education, which I do not think for one moment is meant to detract from the copyright that is given to the creative people who produce these works. My basic argument is that they build on what is there in our common culture and therefore when granting a copyright we expect something back. Expecting something back broadly in education would not damage the rights of the original authors and owners to the degree 'that some noble Lords say. I remain convinced of the correctness of my argument. On the other hand I have no great wish to divide the Committee, but I believe that I shall have the privilege of returning to the theme on a later occasion. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 140 not moved.]

Baroness Birk moved Amendment No. 141: Page 14, line 28, leave out subsection (2).

The noble Baroness said: This point must have arisen before. There is a very harsh subsection in Clause 33. For educational purposes the clause seeks to increase the latitude in subsection (1): intended for use in educational establishments". But subsection (2) reads: Subsection (1) does not authorise the inclusion of more than two excerpts from copyright works by the same author in collections published by the same publisher over any period of five years". That seems to us to be extremely restrictive. I am aware that this was enacted in the 1956 Act in Section 6(6). But there seems to be no reason why, because it was there, we should not consider it again and try to make it very much more flexible.

If a publisher such as OUP or any other, produces a number of anthologies this is an extremely stringent provision; it is far too harsh. It undoes what subsection (1) attempts to do. Although the effect of the whole of Clause 33 is extremely restrictive, this is the worst part of it. The context of the clause makes its interpretation rather doubtful. Presumably it applies only to schools. But for the reason given I hope that, although the Minister may not be prepared to accept the amendment as it stands, at least he will consider it so that the provision is not left as it is now in contradiction of Clause 33(1).

Lord Monkswell

I rise to support the remarks of and the amendment proposed by my noble friend Lady Birk. I suggest that the deletion of the subsection will confer benefits on the holders of copyright. It will prevent the restriction of advantage that would accrue to them from the provision of subsection (1) that: the inclusion is accompanied by a sufficient acknowledgement". This was not appreciated in the debate we have just had on the amendment moved by the noble Lord, Lord Peston, but in practice whenever a short piece is taken from a published work and used in an anthology there is a requirement for that to be acknowledged. Every time a little section is published, effectively the copyright owner is given a little advertising. I am speaking more to publishers and authors, but the more advertising one can have the better. It is unreasonable to restrict the use of the works of what might be described as good authors and reputable publishers from the kind of advertising they will get from this inclusion.

The Earl of Dundee

Like the amendment of the noble Lord, Lord Peston, which we debated just now, this amendment seeks a substantial widening of the exception allowing inclusion of copyright material in anthologies for use in schools and other educational establishments. This time the effect would be to remove limits of any kind on the number of short excerpts from the works of a particular author which a publisher could include in educational anthologies or collections.

As I explained earlier, the exception must be carefully circumscribed if it is not to create conflict with the normal exploitation of the works involved or prejudice the legitimate interests of the authors concerned. This is a requirement of our membership of the Berne Copyright Convention. In our judgment the amendment would expose popular authors in the educational field to unauthorised and unremunerated use of their material by unscrupulous publishers to a quite unacceptable degree. It would certainly lay us open to accusations of failure to comply with Berne. I must therefore urge the Committee to reject the amendment.

Before I sit down I should like to refer to a point raised by the noble Lord, Lord Monkswell. He asked about authors benefiting from having extracts published. Any author wanting the advantage of publicity could consent to having more extracts published.

Baroness Birk

I shall read what the Minister has said, think about it and perhaps come back to the matter at another stage with a more precise amendment, not so wide as this one but at least extending the present clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 33 agreed to.

Lord Beaverbrook

Before the House is resumed, perhaps I may suggest that we do not return to the Committee stage before 8.35 p.m. I beg to move that the House do now resume.

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

House resumed.