Copyright, Designs and Patents Bill [H.L.]

HL Deb 08 December 1987 vol 491 cc148-93

House again in Committee.

Clause 34 [Performing, playing or showing work in course of activities of educational establishment]:

[Amendments Nos. 142 and 143 not moved.]

Baroness Birk moved Amendment No. 144: Page 15, line 6, after second ("is") insert ("generally").

The noble Baroness said: We have suggested the addition of the word "generally" to open up the whole question of the restriction in this clause and to see whether we can eventually come to a better drafting of it. The amendment refers to the restriction in the Bill to teachers and pupils at an educational establishment if there is any activity or performance. We feel that this makes the clause extremely restrictive; and also, from my inquiries, it seems that the law will be honoured much more in the breach than in the observance.

The clause means that although at performances in which children take part parents, grandparents and friends would usually attend a school, it will be quite illegal if one person other than a teacher or a pupil arrives at a performance. It then becomes a public performance for which consent is necessary. We find this rather unpleasant as well as being extremely restrictive.

It is quite unreasonable to expect any school performance to be limited in this way and, since schools nowadays are inclined to be very much more adventurous and put on more contemporary work, it is a great restriction. My small grand-daughter, who thought she was starring in something the other day, would not have been very impressed if I had said, "I cannot come because I shall be infringing the copyright Act". We are in a ridiculous position. Therefore the word "generally" is just to open up the position and try to deal with that problem.

We also maintain that certain performances of plays such as I have described ought to be exempt from the need for a licence and payment of a fee for a public performance. Where school children are concerned, I should have thought the argument was so strong as to be practically unanswerable, although there may be some doubts where institutions of higher education are concerned. But even there, if the performance is a non-profit making venture the argument for exemption can still be made strongly. The question which I am sure the Minister will bring out is the distinction between public and private performances and copyright law. They turn on whether the performance is given to a domestic or quasi-domestic audience. The definition of that, as I understand it, is a matter of fact and degree.

But certainly as regards a performance in a school it would be very difficult to argue that that is not a domestic or quasi-domestic performance, because I cannot imagine anybody who has no connection with one of the children taking part in a play being quite so masochistic as to want to go along to the school just for the sake of it. It will not be that kind of performance. One is there to applaud, however good or bad one's beloved child or grandchild is.

The Government should look seriously at this matter. It is another hangover emerging from the 1956 Act. We should remember that we are now in 1987. By the time the Bill gets through it may well be 1990. We should take that into account as well and look to the future.

The Earl of Dundee

This amendment raises similar issues to the last of the amendments moved by the noble Lord, Lord Peston, which we have discussed before dinner. As I have indicated, our obligations under the Berne Copyright Convention do not allow any derogation from the principle that authors of dramatic or musical works should have the exclusive right lo authorise public performance of their works. So long as audiences for performances in schools and colleges are strictly limited to teachers, pupils and persons directly connected with the establishment—not necessarily including parents—the performance can be said to be in private and to be permitted under Berne without the need for authorisation to use copyright material.

If the public can be admitted, even as a minority in the audience, the performance is by definition a public one, and could not take place within the exception without breaching our Berne obligations.

I should point out to the noble Baroness and to the Committee that just because a performance does not come within the exception in Clause 34, that does not mean that it cannot take place. The Performing Right Society has special tariffs under which it licenses music in its repertoire for performance in schools. Other collecting societies do the same. Publishers of plays and other dramatic works will also normally grant licences for the use of their works, but where the work is put on for general entertainment and the public is invited to watch or listen to it it is only right that the normal controls of copyright should apply.

The question of profit does not come into the matter from the point of view of the author's right. What matters is whether or not the performance is public. Therefore, I am grateful to the noble Baroness for enabling this area to be debated, but in view of the difficulties which I have outlined I wonder whether she may feel able to withdraw the amendment.

Lord Morton of Shuna

I wonder whether the noble Earl has dealt with the point totally. If a parent turns up who is not interested in the production but happens to wander in, does that turn the production into something that needs some kind of a licence? If a parent turns up because Johnny's maths has not been very good and he wants to see the maths teacher, who happens to be performing in a school play, so what? As it is at the moment, it seems to be quite definitely limited. The point of the word "generally" was to prevent this kind of extraneous visit by somebody who was not concerned from raising some terrible problem of copyright.

Lord Mottistone

It may help if I say that it seems to me quite clear that the person so described by the noble Lord is another person directly connected with the activities of the establishment.

Lord Morton of Shuna

If he is a parent, he is not. If he is a parent he is completely excluded even if he is a guardian. A parent, in relation to a guardian, includes any person who has actual custody of the pupil. A person is not directly connected with the activities of the educational establishment simply because he is the parent of a pupil at the establishment. So we are stuck with that; parents are excluded.

8.45 p.m.

The Earl of Dundee

I certainly have some sympathy with the point which the noble Lord, Lord Morton of Shuna, raises. I shall take the matter away and look at it without commitment, but, as I said in my earlier remarks, the general context is that we cannot act in a way that opens out too much into the public for fear of contravening the Berne Convention.

I add more specifically on the point that the noble Lord makes and the example that he gives—that a parent may suddently turn up and wander in—that no doubt a de minimis inclusion of one parent in the audience may well be regarded as not causing an infringement, but if parents are allowed in generally the exception should not apply.

Lord Morton of Shuna

That is precisely why the amendment suggests the word "generally", because a parent is specifically excluded by the subsection that we are discussing. If we put in the word "generally" the condition is that the audience is generally limited to teachers and pupils. If we leave it out, any parent who for whatever purpose may be coming in merely by accident to see a teacher about something else throws the whole copyright position up into the air.

The Earl of Dundee

I take the noble Lord's point on the distinction between generally and any parent. I am prepared to reconsider the matter and see what we can do to help.

Baroness Birk

I hope that the Minister will do that because, as my noble friend so rightly put it at the same moment that I was about to get up and make the same point, the Bill is quite specific about that. The Minister may be being generous and kindly in saying that he does not think it would count, but that is not what the Bill says. The Bill does not mention an exclusion for parents who may pop in for another reason or not realise that there is a performance going on. The Bill does not say any such thing. That is how the position stands at the moment. I am arguing that what we should look at is whether in these cases it should be considered a private rather than a public performance. That is all. That would cover teachers, pupils and close relatives. As I tried to explain, it would not really be of interest to anybody else.

As I am quite certain that so much of this goes on unnoticed and unremarked, I do not like the idea of legislation which is not adhered to. I should rather have legislation which was at least practical and had some pragmatic qualities and to which people adhered. Will the Minister look at this matter, which affects the activities of schools which have quite enormous numbers of performances? They seem to be holding shows and plays all the time. One does not wish to discourage them from using authors, composers or other people whose work is still in copyright.

The Earl of Dundee

I said to the noble Lord, Lord Morton of Shuna, and repeat to the noble Baroness that I am prepared to look at this matter again. I agree that we do not wish more than is necessary to set up rules that will only be broken if the signs are that they are not adhered to. At the same time, we need to have guidelines so that some kind of norm in this matter is established. I am certainly prepared, without commitment, to look at that again.

Baroness Birk

In the circumstances I shall withdraw the amendment and think about it. However, I hope that the Government will have something to say on the matter at the next stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 145 and 146 not moved.]

Clause 34 agreed to.

Clause 35 agreed to.

Clause 36 [Reprographic copying by educational establishments]:

[Amendment No. 147 not moved.]

The Deputy Chairman of Committees (Viscount Simon)

I should point out to the Committee that if Amendment No. 147A is agreed to, I shall not be able to call Amendment No. 148.

Lord Morton of Shuna moved Amendment No. 147A: Page 15, line 27, leave out from ("than") to end of line 30 and insert ("five per cent of any work may be copied by or on behalf of an establishment in any period of twelve consecutive months.")

The noble Lord said: This amendment seeks to change the wording of Clause 36(2). As it is at the moment, one is allowed to copy not more than 1 per cent. of any work in any quarter, and the various quarters are laid out. We are suggesting that that provision should be omitted and that 5 per cent. of any work may be copied by or on behalf of an establishment in any period of 12 consecutive months.

That is the arrangement which has been agreed by local authorities with one of the licensing authorities. It is one which has some sense to it. There is something rather odd about the suggestion that if, for example, one is dealing with "Hamlet", and if copyright is attached to "Hamlet", one can copy 1 per cent. up to 31st December, another 1 per cent. up to 31st March and another 1 per cent. up to 30th June. Then one would have a completely useless permission to copy between July and September. I suggest to the Committee that that is generally known to be a period when schools are on holiday; it is therefore unlikely to be used.

If as I understand the position 5 per cent. per annum is a matter of agreement with one of the licensing bodies which has been set up, it would be reasonable to have 5 per cent. per annum. That would be a sensible situation if one copied something for a year's study. It would meet the position of the present agreement between the local authorities and the publishers. One per cent. per quarter seems to me to be totally useless. If 5 per cent. per annum were accepted, it might mean that the agreement which has already been entered into would be accepted by more publishers than at present accept it, and it would not be very different from 4 per cent. per annum, which is what, if one is careful, one can achieve under subsection (2) as it presently stands. Therefore, for the purposes of sheer utility, I beg to move.

Lord Kilbracken

It may be for the convenience of the Committee if I speak now on the next amendment, Amendment No. 148, which cannot be called if my noble friend's amendment is agreed to. I should prefer agreement on my noble friend's amendment. I think it is far better to agree that 5 per cent. of a work can be copied in any period of 12 consecutive months.

On the other hand, if the Government are not prepared to accept that amendment, I suggest that it would be far more satisfactory and simpler to take up my amendment. Under that amendment instead of stating that a work may be copied in any quarter—that is, in any period to 1st January, 31st March, 1st April, 30th June and so on—we should simply say that it may be copied during any period of three consecutive months.

The Committee will have noticed that under the present wording it would be possible to copy 1 per cent. on 31st March, another 1 per cent. on 1st April and so on. There is no possible reason for confining the periods of consent to three consecutive calendar months. Therefore, in the event that my noble friend's amendment is not acceptable, I feel that my amendment is much simpler and more straightforward.

Lord Graham of Edmonton

I wonder whether the Minister can help someone like myself who has taken an interest in the Bill but who clearly is not as privy as many others are to the vast panoply of consultation that must have taken place between the Minister and his advisers before the Bill was drawn up. For instance, when in Clause 36(1) we are talking about an educational establishment, can the Committee be told precisely what was in the Minister's mind concerning the interpretation of those words? What is an educational establishment? What are its ranges, and so on?

Clearly the genesis of the amendment was sound judgment, experience, a plea or a desire to meet a situation. Those words were not conjured out of the air. They represent the genuine view of the Minister and his advisers that the clause meets a situation. Yet, listening to my noble friend on the Front Bench and my noble friend who sits behind me, their speeches draw to my attention, as someone untutored in the detail of the Bill, some valid reasons why the words in practice, will not meet the situation.

When one looks at Clause 36(1), which mentions "an educational establishment" and copies made for the purposes of instruction without …infringing any copyright", clearly the Minister and his advisers in drawing up the Bill wished to meet the legitimate educational needs of establishments. Therefore, I am seeking information. However, I am bound to say that my noble friends on the Front Bench and behind me have convinced me that if what we want to do is what the subsection seeks to do, there are better ways of doing it along one or other of the lines suggested.

Lord Mottistone

Surely the noble Lord, Lord Graham, has been making a clause stand part speech. He has not addressed himself to the amendment at all. He asked a question about educational establishments. That is dealt with in Clause 158. One ought at least to read the Bill. It is not quite within the normal practices of the Committee to make a speech on an amendment which does not have any relation to the amendment.

Baroness Birk

I think my noble friend was absolutely in order on his point concerning educational establishments. He had obviously listened carefully to the debate we had earlier, As far as the Bill is concerned, an educational establishment is a school. However, when we are talking about photocopying we are thinking in terms of institutions and establishments of higher education as well.

Lord Mottistone

No.

Baroness Birk

Yes, we are. One of the practical effects of the amendment is, having regard to the fact that spending by students on books has declined by 30 per cent. over the last 10 years, that the problems and the expense of paying for photocopying are going to mount tremendously and it will be even more expensive in the future.

Lord Graham of Edmonton

In response to the remarks of the noble Lord, Lord Mottistone, I thought I was addressing myself to the amendment. It deals with Clause 36(1) and seeks to alter its meaning. I acknowledge that the noble Lord, Lord Mottistone, is better versed than I am in the genesis of the Bill and in many other matters, but I was genuinely asking what consultation had taken place.

Lord Mottistone

The amendment relates to Clause 36(2).

Lord Graham of Edmonton

If in order to make my case on Clause 36(2) I need to refer to the previous subsection, am I being invited to believe that 1 am out of order or ultra vires? If I ask the Minister to tell me the context in which Clause 36(2) has relevance and relate it to Clause 36(1), have I committed a cardinal error? The noble Lord shakes his head. I shall remember that in future debates. I wish to tell the Committee that I am not as well versed in the Bill as other noble Lords may be. I intend to move other amendments in which I am better versed. If the noble Lord suggests that, not being well versed but needing to ask a question, I should nevertheless not ask that question, it is a strange context in which to proceed.

I am sure that the Minister has good answers. When I ask him to explain what is meant by an "educational establishment", although that is covered in the Bill, I want him to say what consultation took place before Clause 36(2) was drawn up. It must have been done with advice, suggestions or pleading from somebody. I want the Minister to tell the Committee the product of his researches. I apologise not to the noble Lord, Lord Mottistone, but to other Members of the Committee for apparently upsetting the noble Lord's concept of how we should proceed.

9 p.m.

Lord Howie of Troon

The noble Lord, Lord Mottistone, on reflection might come to believe that his intervention was ill-advised. Indeed, he may have prolonged the proceedings rather than accelerated them, which was perhaps his intention.

I support my noble friend on the Front Bench. I think the amendment is correct. Although, on the quarterly basis it would be possible to have the 1 per cent. of each of the four quarters of the year and to make copies in the summer when schools and educational institutions are not in session, the need for the copies arises while they are in session. Thus, three quarters of the year are more important than the fourth quarter. To take the year as a whole is a more sensible way to deal with it.

I have what may seem a trivial question. Why is it 1 per cent. or 5 per cent.? One per cent. of a work is not very much. It is one page in 100. That is not a great deal for an educational requirement. Even the most concerned author may feel it appropriate and reasonable in this case to give a helping hand to the young. I note that my noble friend Lord Willis thinks that one page is too generous. In the face of his disapproval, I subside.

Lord Kilbracken

It is 800 words out of a full length book. My noble friend Lord Willis is a great champion of authors and will not give an inch in any direction. However, 1 am bound to say that he does not speak for every author. If anyone wishes to take 800 words out of any of my books for the sake of education, he is very welcome.

Lord Willis

I hope that I am not opposed to education, but I take a firm stand. The copyright belongs to the author and creator. If somebody wants to copy one page or 100 pages, he is very welcome to do so as long as he pays. It is as simple as that.

It is a crime if one robs a man of £1 million. It is equally a crime if one robs a man of £1. The problem is that we are going away from the fundamental proposition that the copyright belongs to the creator, whether he is a composer or an author. If anyone wishes to copy one page or 100 pages, he is perfectly entitled to do so if he recognises the copyright and pays. That is why there are the safeguards that we have been developing in the past few years, which can be very successful. I know that the Government are sympathetic to this. If there were a licensing scheme there would be no problem about universities, schools and so on. They could produce one page or 50 pages if they paid a licensing fee. I draw the line at the copying of anything the creator makes. I do not care about fair dealing. I take the firm and fundamentalist stand that the work belongs to the creator and whoever wants to copy it must pay.

The Earl of Dundee

With the leave of the Committee, I shall speak to Amendments Nos. 147A and 148.

At face value Amendment No. 147A may seem fairly harmless. After all, the difference between four helpings of 1 per cent. and one helping of 5 per cent. of a work is not that much. Five per cent. of a work is the upper limit of the amount of work that may be copied under the terms of the agreement reached between the local education authorities and the Copyright Licensing Agency. Therefore, it represents the upper limit of that which copyright owners are prepared to license voluntarily. Taken with subsection (4), the amendment would mean that what has been agreed to be a maximum will be a minimum.

If Amendment No. 148A were to succeed, 5 per cent. of the work could be copied freely rather than under licence as at present. Under the terms of the Berne Convention exception to the author's basic right to authorise copying is permissible only under declared conditions. Copying is not permitted if it conflicts with the normal exploitation of the work or unreasonably prejudices the legitimate expectations of the copyright owner. If the licensing of 5 per cent. of a copyright work forms, as it does, part of normal exploitation we cannot except such copying from copyright as proposed in this amendment.

It is of course true that over a 15-month period a school could build up 5 per cent. of the work under the terms of the exception as drafted. The copying which the amendment seeks to permit can therefore be done in theory. In practice, however, I believe that schools will not systematically exploit the exception to the limits but will use it reasonably for the intended purpose; that is, to make compilations of very small extracts of works. I certainly do not believe we should facilitate copying to any greater extent. It is one thing to allow copying to a very limited extent, quite another to remove all obstacles from the substantial free use of other people's property.

The 1 per cent. exception, as we have come to know it, was originally conceived as allowing 1 per cent. per academic term. However, it soon became clear that this was not practical since academic terms vary considerably both between establishments and in the length of different terms in any one educational establishment, not to mention the differences between England and Scotland. Therefore, we adopted the approach set out in Clause 36 and referred to specific calendar periods. I think we must retain clearly defined periods for practical reasons. Copyright owners need reassurance that this exception will not be abused. To identify copying within a defined period is a fairly straightforward process but if the time period is an ever moving one it becomes almost impossible to keep a check on things.

In view of my reply, I ask noble Lords to withdraw these amendments. Before I sit down, however, let me answer the noble Lord, Lord Graham of Edmonton, and I am grateful to him for his remarks. He commented, first, on the purpose of Clause 36. This clause is designed to meet the situation where a teacher wishes to make an educationally useful compilation of very short extracts of copyright works. For example, a teacher may wish to compare a few bars of music by one composer with part of the work of another composer.

The noble Lord, Lord Graham, also asked about the definition of "an educational establishment". We debated this before the dinner break. The answer is to be found in Clause 158, and for further enlightenment on this point perhaps the noble Lord will await tomorrow's Hansard in order to read the report of our proceedings.

Lord Graham of Edmonton

Is the noble Earl going to deal with my point on consolidation? That is the genesis of my argument.

The Earl of Dundee;

I shall read what the noble Lord said and come back to him on that point.

Lord Kilbracken

The noble Earl said that he would deal with my Amendment No. 148 at the same time, but he has not yet done so.

The Earl of Dundee

I have attempted to deal with the noble Lord's Amendment No. 148.

Lord Morton of Shuna

The noble Earl has done his best and we must compliment him on that. I am interested to know whether he or the department for which he speaks at the moment has had any consultation at all with the Department of Education and Science. If he looks to his left he may receive help from that direction. This appears to be a completely unworkable provision.

How does the noble Earl consider that the provision will be enforced? How will it be possible to check that a teacher of, say, English, history or whatever it may be is not taking 1 per cent. of a book between 1st October and 31st December and copying that, another 1 per cent. between 1st January and 31st March, another 1 per cent. between 1st April and 30th June and in Scotland—the noble Earl is as well aware of the position as I am—in the holiday period taking another 1 per cent. and having a total of 4 per cent.?

What is the point of that, bearing in mind that there is an agreement between all the local authorities which are education authorities and an organisation known as the Copyright Licensing Agency which allows local authorities, for a fee, which I understand is in seven figures, to copy 5 per cent. of material? Would it not be better to take the existing agreement, if the noble Earl is aware of it (the Department of Education and Science is probably fully aware of it) and use it in the Bill as the standard to see whether it can be set as a general standard? That would seem to be common sense.

Surely one of the things we want to do in the Bill is to instil a little common sense into the law of copyright, patents and designs, if at all possible. Therefore, the idea of having 1 per cent. per quarter is totally unreal, but 5 per cent. per year has a certain basic common sense about it. Why is it so objectionable, considering that that is the agreement that the local authorities have reached? I see that assistance is coming to the noble Earl. It is not a matter of dire principle but a practicality. Surely it is something that could be worked out.

I hope it will not be what we have become so accustomed to receive from the Government—-anything a local authority suggests, agrees or does is ipso facto wrong. It is something upon which the Scottish local authorities, the Association of County Councils and the other education authorities in England are at one. If the Department of Trade and Industry is not aware of that, perhaps it will consider the matter and find out what the position is. The Minister's response was unreal and impractical. I hope something more constructive will emerge.

9.15 p.m.

Lord Howie of Troon

I hope that the noble Earl will agree with me that the northern reasonableness of my noble friend on the Front Bench is persuasive, and especially so in the intervention that he made a moment ago. Surely the noble Earl will consent to consider this matter most carefully. Two points in the noble Earl's response startled me a little. It may be that I misheard or misunderstood what he was saying. At one point he seemed to be talking about the difficulties of dealing with a movable time-scale. I imagine that he was referring to Amendment No. 148, but of course the 12-month time-scale is not movable. It does not suffer from that dilemma.

The other matter that bothered me a little was that I thought that the noble Earl said that the 5 per cent. would become a minimum. Was that right? The amendment provides that not more than 5 per cent. may be copied. That would make it an almost unique minimum. I may have misunderstood or misheard the noble Earl because he was speaking a little rapidly for me, or even have made the whole thing up. He should think carefully about the persuasive and reasonable comments of my noble friend Lord Morton before he discards the amendment.

The Earl of Dundee

I am grateful to the noble Lords, Lord Morton and Lord Howie. Picking up one of the points recently made by the noble Lord, Lord Howie, I agree with him that I always feel like being persuaded by the northern reasonableness of the noble Lord, Lord Morton. On the point about consultations made by the noble Lord and the noble Lord, Lord Kilbracken, the 1 per cent. exception was drawn up following detailed discussions between the departments concerned. In particular, Clause 36 was drawn up in close consultation with the Department of Education and Science. It represents a balance between the need for teachers to have access to copyright material and the legitimate rights of copyright owners.

Lord Morton of Shuna

I hope that the noble Earl will forgive me for interrupting. The Department of Education and Science is interested in many subjects but it does not employ teachers. Did the Department of Trade and Industry in any way consult local authorities which employ teachers who teach? If so his reply may be more interesting. If there were just London/Whitehall discussions without any discussion with people who are at the sharp end, that is not of so much importance, at least to some of us.

The Earl of Dundee

It is my impression that the discussions that have taken place have been with all the relevant parties. However, I should certainly wish to confirm that to the noble Lord.

On the point of how the exception is to be enforced, I have already said that this exception is one we expect to be used sensibly and reasonably by schools. It is a matter that educational interests have said that they want. I do not think that they would abuse the exception.

Subsection (2) of Clause 36 specifies the limit of permitted copying, as we know. The notion of 1 per cent. of the work has indeed been criticised as being perhaps less than clear; there may be different ways of interpreting it. Bearing in mind the way that the exception is likely to be applied, and the fact that rights owners are likely to spend time and effort counting lines of the printed page to try to discover minuscule infringements and so forth, it seems better to leave the matter to the courts to apply common sense to the facts should any case come before them, rather than to attempt a complex definition.

Lord Morton of Shuna

I am very much obliged to the noble Earl. This discussion seems to be an application of the rule that is alleged to belong to a certain Professor Parkinson: that a matter of less importance takes up more time in this Chamber than a matter of greater importance.

I do not intend to press this amendment. I should be interested to know if in the Government's view "all the relevant parties" includes the local authorities. There are certainly occasions in the educational field when the expression does not include the local authorities. That may also apply in other fields where local authorities have jurisdiction or duties under various statutes. Leaving that aside, in the hope that we shall eventually come to the end of the Committee stage at some time either this year, next year, or the year after, the best thing that I can do is ask leave to withdraw this amendment. I suggest that I may return to it at the next stage of the Bill.

Amendment, by leave, withdrawn.

Lord Kilbrackenmoved Amendment No. 148: Page 15, line 28, leave out from first ("any") to end of line 30 and insert ("period of three consecutive months.").

The noble Lord said: I referred to this amendment in the course of the discussions on the last amendment. The noble Earl then said that he would deal with this amendment in the course of his remarks. If he did so, I missed them. I should be grateful if he could tell me his reasons for not agreeing to Amendment No. 148. I beg to move.

The Earl of Dundee

I apologise to the noble Lord, Lord Kilbracken, if I gave the impression that I had already addressed Amendment No. 148A.

Lord Kilbracken

No. I referred to Amendment No. 148.

The Earl of Dundee

I have indeed already addressed Amendment No. 148.

Lord Kilbracken

I asked whether the noble Earl could kindly repeat what he said.

Lord Brain

Perhaps I may assist the Minister from memory. He said that the problem was that three consecutive months was very difficult to monitor, whereas four distinct periods of three months were much easier to monitor. That was his reason. I have no doubt that by now he may have sorted his way through his paperwork. I think that a message has arrived. However, I believe that that was the correct reason.

The Earl of Dundee

I am grateful to the noble Lord. In a Bill such as this when one returns to previous amendments, that may cause—I shall not say a copyright problem—a not totally dissociated problem. The 1 per cent. exception that we have made was originally conceived as allowing 1 per cent. per academic term. However it soon became clear that this was not practical as academic terms vary considerably, both between establishments and in the length of the different terms in any one educational establishment. The noble Lord, Lord Morton, has already agreed with me about the differences between lengths of terms in England and Scotland.

We therefore adopted the approach set out in Clause 36 and referred to specific calendar periods. We must retain clearly defined periods for practical reasons. The copyright owners need reassurance that this exception will not be abused. To identify copying within a defined period is a reasonably straightforward process, but if the time period is an ever moving one it becomes almost impossible to keep a check on matters. That is the main reason that I give to the noble Lord, Lord Kilbracken, and I hope it may be of some assistance.

Lord Kilbracken

I am grateful to the noble Earl. I must have dropped off to sleep when he was saying that before, because I certainly do not recall it. I believe that my wording is much simpler, but it is such a tiny point that I intend to withdraw the amendment immediately.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 148A: Page 15, line 37, leave out from ("editions") to end of line 39 and insert ("must permit the proportion of work specified in subsection (2) to be copied without charge.").

The noble Lord said: The last two lines of Clause 36(4) state that arrangements for terms of licences: may not restrict the proportion of a work which may be copied to a greater extent than the limit specified in subsection (2)". What is not clear, and what the noble Lord who intends to reply to this may be able to tell us, is whether this means that the 1 per cent. in subsection (2) or the 5 per cent. for which I was arguing has to be paid for or not. That ambiguity sits in the middle of subsection (4). It is not at all clear whether this 1 per cent. requires to be paid for under the terms of a licence granted. If this is intended, so be it, but if it is not intended—and I suspect that it is not intended that it should be paid for—the amendment standing in my name and in the name of my noble friend Lord Williams of Elvel makes that ambiguity clear. That is the purpose of the amendment. I beg to move.

The Earl of Dundee

I am grateful to the noble Lord. It appears that this amendment seeks to reduce the cost of photocopying licences to schools by providing that copying which falls within the limits set out in Clause 36(2) shall be free. In other words royalty payments could only be calculated for copying which goes above those limits. I must resist this. The purpose of Clause 36 is purely to ensure that very small-scale copying can always be carried out in schools. The kind of copying that we are talking about is where a teacher makes up compilations of short, comparative extracts from books and musical works for teaching purposes. We were persuaded that it was desirable on educational grounds to ensure that this kind of copying could not be prevented by the failure of copyright owners to offer appropriate licences.

However the clause is not intended to deny the copyright owners a royalty if they are prepared to grant the necessary licences. We accept that schools should pay for all photocopying carried out for classroom needs under licences, such as the licence agreement now operating between the Copyright Licensing Agency and the local authorities. The royalty should be a reasonable one and the provisions of Chapter 7 ensure that this will be so by enabling schools to take disputes over the terms and conditions of the licence to the Copyright Tribunal for arbitration.

Consequently, we feel that the only safeguard that is required in Clause 36 is what subsection (4) provides as it is presently drafted; namely, that the copyright owners cannot negate the benefit that the Clause 36 exception gives to schools by offering licences of narrower scope than the limits in subsection (2).

9.30 p.m.

Lord Morton of Shuna

I tried to follow the noble Earl's reply. It is late at night and it is difficult. Clause 36(1) deals with copying by educational establishments. Subsection (2) appears to suggest that that copying—the 1 per cent.—is free whether or not there is a licence; and in particular if there is no licence there is no charge. If I am wrong about that no doubt the noble Earl will intervene. If it is free, and I see that he is remaining in his seat—

The Earl of Dundee

If it could be of assistance to the noble Lord perhaps I will intervene. Where there is licensing there will always be a charge. It only arises that it is free if there is no licensing arrangement. In those circumstances it would be free for the 1 per cent.

Lord Morton of Shuna

If that is so, I find great difficulty in the last two lines of subsection (4) because, for the life of me, I cannot see anyone—even, if I may be so bold at this time of night, a Tory local authority—agreeing to pay for a licence to copy less than can be got free. That is what the last two lines of subsection (4) appear to envisage.

The Earl of Dundee

Perhaps I may intervene again. I would see the logic of the noble Lord's argument if it were always the position that the school would take the initiative over starting the licensing arrangement. But that is not the case. It is the copyright owners who take the initiative. Therefore if the copyright owners take the initiative and have a licensing scheme the schools do not have a choice in the matter. They would then be obliged to pay. Their exemption from payment only ever arises where the copyright owners have riot initiated a licensing scheme, and that is where the exemption for up to 1 per cent. applies.

Lord Willis

May not the schools say, "There is a licensing scheme in operation but we do not want to join it. We have heard what has happened in Ealing. We do not want to join this scheme because we can reproduce as much as we like without it"?

Lord Morton of Shuna

It is really very difficult. Perhaps I may refer to an education authority which does not exist but used to exist—the Dundee education authority. If it were to suggest that it wanted only 4 per cent. a year and could work it out because it had foresight that it could do 1 per cent. per quarter, why should it enter into a licensing agreement if the licence agreement cost it money? It can get away with 4 per cent. without paying anything. I cannot see the logic in that.

I have been accused—and it is very worrying to me though I shall no doubt recover from it at some time—of being both logical and reasonable this evening. The noble Lord the Chief Whip on the government side seemed to be worried about that. But am I missing the point somewhere?

The Earl of Dundee

There may be a slight aspect to the point which the noble Lord may have overlooked. I agree with him entirely that if schools had the choice not to enter into a licensing arrangement it would not make sense for them to do so if they could get something free. But that is not the position. The position is that if the copyright owners choose to initiate a licensing arrangement the schools do not have a choice in the matter and will then have to pay.

Lord Morton of Shuna

I am very sorry but—

The Earl of Dundee

Perhaps I may just add to that a comment on what would happen if schools refused to join a scheme. Subsection (3) provides that there is no free licensing, if licences are available, whether the schools take them up or not.

Lord Morton of Shuna

I see. Is it the position therefore that if a licensing authority chooses to offer a licence, then the education authorities have to accept it whatever the price, subject, of course, to going to the Copyright Tribunal? In that situation I would ask leave to withdraw my amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 36 shall stand part of the Bill?

The Earl of Stockton

During the debate on this clause we have, as yet, had no convincing exposition of the Government's intentions towards the whole question of copying by educational establishments. The only explanation that I can come up with is that the negotiations referred to by my noble friend Lord Dundee were the outcome of some historical internecine struggle between the Department of Education and the Department of Trade. The clause makes no sense at all and is in direct contravention of Article 9, Section 1, of the Berne Convention. I ask my noble friend the Minister whether he can give an undertaking to have another look at this clause and see whether he can settle the dispute between his department and that of my noble friend Lady Hooper, who I am pleased to see in her seat.

In subsection (3) the Government refer to the existing licence scheme available through the Copyright Licensing Agency. The CLA operates throughout the public sector and a good deal of the private sector of the education system. It is important that the Government continue to resist any suggestion that the 1 per cent. of any work be increased to 5 per cent. or higher, and in that I am sure I have the support of the noble Lord, Lord Willis.

I put it to the noble Lord, Lord Lloyd of Kilgerran, that 1 per cent. of the Encyclopaedia Britannica is as much as most pupils would want to consult of that work in any one year, let alone in any one period. The existing voluntary limit successfully negotiated between the Copyright Licensing Agency and the local authority associations is for 1 per cent. and is limited to this figure by subsection (4). It is not clear if the 1 per cent. refers to each of the time periods outlined in subsection (2). Therefore is it 4 per cent. in any one year, or is it 1 per cent. for the whole year? If the former, then of course if 5 per cent. were introduced it would become 20 per cent., and I am sure that even the noble Lord, Lord Peston, would agree with me that that is probably over the top.

If my noble friend the Minister is not going to have another look at this clause and come back to your Lordships on Report, can he at least make it clear whether the permitted percentage is an annual or quarterly figure, or—in view of the amendments proposed by the noble Lords, Lord Kilbracken and Lord Morton of Shuna—a trimestrial figure? Also, whatever the period, the question of Berne still has to be addressed.

Lord Willis

I should like to support the noble Earl, Lord Stockton, on this. I have a great suspicion of this clause arising out of my experience as a writer. All my life as a writer I have been cheated by unscrupulous people. I have also been treated fairly by a great number of very decent people, among whom I am happy to name the noble Earl, Lord Stockton.

I do not trust people to take 1 per cent. in three months. I do not trust people to take 5 per cent. in a year. I do not trust them at all. Once you open the door just that little bit they start taking everything, and that has been my experience as a writer. That is why I am suspicious of this clause and totally opposed to all amendments which talk about three months here, or 1 per cent. there, or 5 per cent. here.

The only answer is the answer which is in the Government's grasp and which we have already started in various ways, and that is a proper licensing scheme. Then if you want to do 1 per cent., 5 per cent., or 10 per cent. you pay for it, and you pay for it in a decent way.

I apologise for returning to this point but by creating so many exceptions in the Bill we are destroying the concept of copyright belonging to the creator. Maybe the point will not appeal to the legal minds, but I suggest that we keep the matter more simple and state, as we state at the beginning, that the copyright belongs to the creator and if one wants it one has to buy it. In that way one buys it through a licensing scheme, whether it is for 1 per cent., 5 per cent. or 10 per cent.; whether it is for three months, six months or nine months. It is for that reason that I support the noble Earl, Lord Stockton.

Lord Howie of Troon

I confess to a certain amount of muted emotional turmoil in respect of Clause 36. As a publisher I am drawn towards the arguments expounded by the noble Earl, Lord Stockton, and I see his point of view clearly. As a writer, albeit a minor one, I am drawn towards the arguments posed by my noble friend Lord Willis, who defends the writer just as the noble Earl, Lord Stockton, defends the publisher.

At the same time, as an educationist I am drawn towards the as yet unspoken views of the noble Baroness, Lady Hooper, who decorates the Front Bench mute and silent. I think that in this matter the importance of education should override the severity with which the noble Earl, Lord Stockton, and my noble friend Lord Willis have applied their logic. Firm and strong as their logic is, I think that it should be tempered with a little mercy, and allowing the educationists a little leeway does not harm—

Lord Willis

If my noble friend will allow me, when have educationists ever shown a smidgen of mercy to any of us?

Lord Howie of Troon

In so far as I am one, I am being merciful towards my noble friend now, as he well knows. I think that the severity should be tempered by mercy. The 1 per cent. of the Encyclopaedia Brittanica, to which the noble Earl referred, may seem a large amount of work but the 99 per cent. which is left is enormously greater. I think that not much harm is done around the edges.

Much as I agree in the main with the noble Earl and the noble Lord, I think that we should leave well alone and leave a little chink for education. I support the views of my noble friend on the Front Bench whose amendment was so cruelly treated a little while ago.

Lord Willis

Does my noble friend mean that the author has been raped only once and that the other 99 times do not matter?

Lord Howie of Troon

I would not quite call it rape; he was probably paid.

Lord Peston

It seems to me that there is a fundamental conflict of values or of interpretation of what we are observing. I have consistently argued that the granting of copyright to the author and others is a privilege granted by society. Others seem to see it as an inalienable right. It is not; it is granted by society.

With due respect to the noble Earl, Lord Stockton, what he says seems to me to be somewhat greedy. I believe that essentially there is a great deal of material in the public domain on which all authors build. Overwhelmingly, I regard the case for allowing the education exception as extraordinarily narrow and ungenerous, but let us not argue about that because I lost my amendment in respect of it. I regard the exceptions as ungenerous, and the notion that they should not exist at all is surely preposterous beyond belief. Without education none of the noble Earl's authors would exist in the first place.

As regards the idea that somehow those of us in education are ungenerous, I constantly read material that is totally parasitic on my own work. I regard myself as a teacher and that is why I do it. I am really very shocked to hear that the noble Earl, Lord Stockton, desires not to make the education concession at all. It seems to me to be going beyond any reasonable view of what is due to the author. A great deal is clearly due to the author. We are all agreed that a great deal is due to him.

Lord Willis

What would you have done 30 or even 50 years ago when there was no reprography?

Lord Peston

I should not have known about it 30 years ago, but I know now that there is reprography. However, I want to make certain things that we do lawful because none of us likes to discover that some of the things that we do turn out to be unlawful. That seems to be central to the issue. The idea that those of us who do a tiny modicum of copying are somehow stealing from authors seems to me to be extreme beyond belief.

The Earl of Dundee

I should like to begin by agreeing with my noble friend Lord Stockton. In view of the discussions that we have had, which have tended to centre on the various options of 1 per cent. and 5 per cent. and so on, he may well be excused for being somewhat confused. At the same time, I hope that it was nevertheless very plain from subsection (2) that the limit was quarterly; namely, 1 per cent. in each quarter.

In reference to Article 9, my noble friend mentioned the exception to the author's exclusive right in special cases provided that the exception does not conflict with normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. We believe that the 1 per cent. exception set out in Clause 36 complies with all the criteria in Article 9.2.

I think that the comments made by the noble Lords, Lord Howie and Lord Willis, reflect very correctly the concern that the interests of the copyright owners and the interests of schools need to by very delicately balanced. However, we believe that within the details of Clause 36 we have achieved a balance which, if not perfect, is perhaps as good as it can be.

Clause 36 agreed to.

Clause 37 agreed to.

9.45 p.m.

Clause 38 [Copying by librarians: articles in periodicals]:

Lord Williams of Elvel moved Amendment No. 149: Page 16, line 11, leave out ("and") and insert ("or allow to be made or").

The noble Lord said: I beg to move Amendment No. 149, which stands in my name and the name of my noble friend Lord Morton of Shuna. This is a very simple amendment which is designed to rectify what we feel is a drafting problem in Clause 38. We are all familiar with a situation in which we may go into a library and, although the librarian does not make a copy, he or she allows us to make a copy. This procedure is not covered by the Bill. The noble Lord may say that it is implicit in the Bill, in which case I should be happy with the explanation. I beg to move.

Lord Beaverbrook

This amendment would allow someone other than a librarian to make the copy. That would not be right. The strict requirements of the exception in this clause and Clause 39 rely to a considerable extent on trusting the librarian to stick to the rules. Copyright owners may be prepared to place such trust in librarians. I doubt whether it would be right to compel them to trust library users as well.

We cannot allow the librarian to say to a customer who is asking for a copy, "I shall not make you a copy but you have my authority to go and make a copy for yourself". The librarian could have no control over such copying and there would be no way of ensuring compliance with the various conditions set out in this clause to safeguard copyright owners. Therefore, I do not believe that this amendment would improve the Bill.

Lord Williams of Elvel

I am most grateful to the noble Lord for his response. I accept that my amendment may be defective in its wording, but would it not then be better to say "allow to make a supervised copy"? Every time a librarian is asked to make a copy one simply cannot insist that the librarian himself has to go to the photocopying machine, operate the machinery and do all the rest of the work while we are not allowed to do that under supervision. However, there is a point here which I hope the noble Lord will consider.

Lord Ardwick

I hope that we shall have a fuller discussion of this point on a later amendment.

Lord Beaverbrook

I hear what the noble Lord, Lord Williams, says. I shall study his suggestion without commitment and see whether perhaps this wording could be tidied up.

Lord Williams of Elvel

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

Amendment, by leave, withdrawn.

Lord Peston moved Amendment No. 150: Page 16, line 13, at end insert ("The librarian may also make and supply for general use, in the library, one copy of an article in a periodical without thereby infringing any copyright in the text, in any illustrations accompanying the text or in the typographical arrangement.").

The noble Lord said: With permission, I should like to speak also to Amendment No. 158. I make my usual preliminary remark that I may not understand the Bill at this point; so perhaps your Lordships will forgive me if I have got it completely wrong. This relates to a matter I raised during the Second reading debate which has puzzled me for a long time. Under the law as it is—and as it will be—I understand that if I, as a teacher, recommend that my students read a particular article and each of them goes to the library to make a copy of such article for personal use, then that is, and will remain, legal within the Bill.

On the other hand, if I ask the librarian to make a second copy of the article, which they could all share, he is unable to do so without permission of the author. The result, given the general bureaucratic problem of getting in touch with the author, is that one has an extremely wasteful way of dealing with this; namely, all the students xerox their own—I am sorry, I mean copy or reproduce their own—version of the piece within the normal limits specified elsewhere in the Bill. I, as an economist, find this extraordinarily wasteful because students do not each need an individual copy. However, one does need more than the one copy which, given the present budgetary restraints—certainly within higher education—we are certainly not likely to buy in terms of the journal.

The purpose of my amendment is not in any way to take anything away from the dual ownership of authors. They are not going to get anything either way. It is, if anything, to take something away from the profits of the "xeroxgraphy", as it were. It is not at all unreasonable that the librarian should have that little bit more flexibility where a copy of the journal—from which students can make copies anyway—has already been bought. One could instead give the librarian at least the possibility of making a second copy. That is the purpose of the amendment. I say again, as an economist, that it seems to me to make perfectly good sense.

Lord Ardwick

My noble friend uses the words journal and periodical indiscriminately. I understand that the public libraries make the distinction that a journal is a very serious, rather learned, paper. It is in respect of journals that public libraries have rights that they do not have in respect of periodicals, which are the more commercial side of publishing.

Lord Willis

I hesitate yet again to oppose my noble friend Lord Peston, but I have some doubts about the amendment for two reasons. The first relates to making one copy. When? Every day? Every other day? Twice a week? I ask my noble friend: when? The amendment I am afraid is rather flexible about that. Secondly, if there is really need for another copy—just one copy for display in the library—cannot another copy of the periodical be bought? Why not?

The Earl of Stockton

This is the sort of proposal that, on the face of it, seems eminently reasonable hut, in fact, could do considerable damage to the publishers of learned journals and, more importantly, to the writers of the original articles. I am aware that the noble Lord, Lord Peston, does not write for any other motive than increasing the sum of human knowledge and perhaps for glory. However, I can assure him that any diminution of the margins of learned journals would mean that his articles probably would not be published at all. Therefore it is important that short-term loan of a journal or an article placed in the library for students to read must be licensed and paid for. This proposal has been agreed by the publishers of the learned and professional journals with the committee of vice-chancellors and principals for an experimental year, with the universities operating the licences. I hope that my noble friend the Minister is not going to throw out the experiment before we have at least had the time to evaluate it.

Lord Howie of Troon

I very much enjoyed being on the same side as my noble friend Lord Peston during the debate on Clause 36 stand part. I am happy to say that on this occasion I am on the side of my noble friend Lord Willis, who is totally and absolutely correct as he often, though not always, is.

The question is quite a simple one. The goal towards which my noble friend Lord Peston aims is sensible; that is, he wishes information to he readily available to students, readers and others in the library and no one in the Chamber would dissent from that goal. His method of achieving it is, I am perfectly sure, the wrong one and the alternative proposed by my noble friend Lord Willis is the more sensible one.

Quite apart from anything else, if, as I understand it, the intention is to make one photocopy of an article and have it passed about from hand to hand among a bunch of grubby students, or even perfectly clean ones, it will quite soon become tattered, illegible, dog-eared and useless for the excellent purpose which my noble friend intends. The solution is simple and is the solution proposed by my noble friend Lord Willis, which is that if the library wants another copy of the article it should buy another copy of the magazine or periodical and make it available—there is no point in the noble Lord shaking his head yet; I have not finished—for those students, grubby or otherwise, where it will be in a more accessible, long-lasting and durable form.

This would have a number of advantages. It would achieve the aim of my noble friend in spreading knowledge, it would assist the students in gaining knowledge and it would have the added advantage of neither antagonising the publishers nor, as my noble friend Lord Willis would put it, robbing the authors. I think that my noble friend Lord Peston is, with the best of intentions, wrong on this occasion and he should forget his amendment.

Lord Beaverbrook

Perhaps I may just step into this skirmish on the other side of the Chamber. First, I should like to say to the noble Lord, Lord Ardwick, that there is no distinction between journals and periodicals. All periodical publications are periodicals. This amendment would allow the librarian to make a copy for general use, whatever that expression may mean, without any of the controls that are applicable to copies made on request. Clauses 38 to 43 provide a regime for copying in libraries which meets the needs of students and the operational requirements of libraries and archives, while safeguarding the interests of copyright owners.

Clauses 38 and 39 will enable the student to obtain copies. Clause 41 allows libraries to make copies for supply to other libraries. The new exception in Clause 42 will allow libraries to preserve material they hold so that copies, rather than originals, may be made for—if I may borrow the expression—general use in the library. Clause 43 provides for copying of unpublished works.

To go further than these provisions and give libraries a free hand to copy material without control, including material that can be readily purchased, would destroy the careful balance set out in these clauses and, I believe, would potentially be seriously detrimental to copyright owners.

Lord Peston

I know that I should not put on my professorial hat and get annoyed with those who do not understand what it is I am trying to say, because all good teachers must persevere. The point of my amendment is precisely that at the present time, and under the Bill as it exists, there will be plenty of copying, because the whole point is that the copying that goes on is completely wasteful.

When I say to the students, of whom I may have 50, "Why don't you read such-and-such? It is an important article", they all trot down to the library and every one of them makes a copy, which I understand is completely legal. What I want to be able to say is, "Why don't we make one extra copy and do it that way?". In other words, what I fail to understand from those who seek to rebut my view is that there is no extra copying involved here.

My point is simply that the amount of copying currently going on is absurdly wasteful. The notion of buying an extra journal clearly shows that my good friend Lord Howie of Troon has had no contact with higher eduction institutions for some time. There simply is no money. Most of us spend our time, as I did just a few weeks ago, with a list which states: "These are the following journals currently being bought by your department. Would you please strike off 10 because there is not the budget for all of them?".

I must tell the Committee that that occurs in serious academic institutions. We live in a world where we are now asked to strike off journals because we can no longer afford to buy them, although we know that we need them for serious academic purposes. The idea that we can buy more copies of journals is so far fetched that one is almost hysterical with laughter. It simply is not the case in higher education at the present time that if we are not allowed to copy we shall buy more journals. Therefore the notion that we are taking anything away from the author is simply preposterous.

I hate to get slightly angry about this. Those who have no connection with higher education but who are concerned with making money in the private sector from publishing should know the state of higher education as regards purchasing these things. When we come to debate these matters I hope to hear those noble Lords supporting us to find more funds. That is not the case at the moment. Therefore I reject very strongly the suggestion that I should not copy because I can buy. I cannot buy. It is as simple as that.

10 p.m.

Lord Willis

I wish to ask the noble Lord a question. I feel as angry as he does but in an opposite direction. Is he saying that academic institutions can afford to buy photographic machines, machines for reprography and the paper that goes with them but not copies of publications? I understand the problems with education. I understand about all the cutbacks that have been made and I understand all the difficulties, but somehow we have to strike a balance.

I am striving to achieve balance in the Bill. The only way to do that is by licensing. The preposterous suggestion that you can make an extra copy and that will prevent a lot of other copies being made is frankly nonsense. I hate to say that. I hope that the noble Lord will not get angry. We are trying to debate the matter in a reasonable way.

But I feel angry at the way in which academics calmly think that they can pick up the work of an author's brain, whether he is just writing an article or whatever, and reproduce it without payment. Then they say, "Well, we shall only produce one every three months or so". I feel furious about that, because I know a lot of hungry authors but I do not know one hungry academic.

Lord Kilbracken

I find myself standing between two angry men—an academic and an author. I wish to point out one matter to each of them. To my noble friend Lord Willis I point out that in this matter it makes no difference at all to the author how many copies of a periodical are sold. He writes the article, it is sold to the periodical in question and he receives his fee. The number of copies that are sold does not affect the author in any way.

Lord Willis

That is totally wrong.

Lord Kilbracken

Perhaps my noble friend could explain in what way I am totally wrong.

Lord Willis

That is wrong because we are demanding and trying to get through this Bill a licensing fee which would enable the author to get his original fee for the article. If that article is reproduced 100 times by academics in universities and schools we expect that the author will get some recompense for the 100 times it is reproduced. At the moment he does not. We are negotiating. We have some successful schemes which will enable the author to get some kind of recompense. But one cannot say that an author just produces an article once, gets his fee and therefore should be happy. That is not the situation.

Lord Kilbracken

In my experience if I am paid a fee for writing an article that is what I get, unless it is syndicated into another country. That is all I get.

I ask my noble friend Lord Peston how it is possible for those 50 students of his to derive very much benefit from having one copy made of the article. How will they all manage to use that one article?

Lord Williams of Elvel

At the risk of cutting short the debate between my noble friends, perhaps I may play the role of Minister for the moment. I feel that we ought to be getting on with the Bill. I very much hope that my noble friends will settle their differences. It is useful for us all to read through the debate in Hansard, and perhaps we shall come back to the point at a later stage.

Lord Howie of Troon

Yes, but not right away. I do not wish to detain the Committee. However, my noble friend Lord Peston rebuked me for my lack of knowledge of higher education. I bear that heavily. If he had been present earlier, he would have heard me confess that I was the Pro-Chancellor of the City University. It is a humble school, I know, but it is the best I have. I have some knowledge of higher education and its trials and tribulations in these days. However, we are not quite at the stage that we cannot buy the odd periodical.

In any case, the argument of my noble friend is totally flawed by his unsupported belief that his 50 students would not copy one article each simply because there was one tattered copy lying about the library. It does not add up.

Lord Beaverbrook

Perhaps the noble Lord will give way. I think we have been through this country before. Perhaps we can move to the next amendment. We are not getting very far on the Bill. Perhaps noble Lords can have a discussion concerning the matter outside the Chamber.

Lord Peston

I am not anxious to prolong the debate. However, I am anxious to get the argument correct. I am delighted to hear that the City University is so well off compared with the University of London. I am worried that we are debating at cross-purposes. I am not opposed to licensing schemes or any of the things that my noble friend Lord Willis and the noble Earl, Lord Stockton, wish to see happen. I am asking only for a modicum of reason.

I am not pressing the point. At this time of night, I am as anxious as anyone else to get home. However, this is a matter of fundamental importance which concerns the behaviour of libraries. The matter should not be allowed to drift in a negative fashion. I have made my point and I shall withdraw the amendment. However, I do not think that it is a minor matter.

Amendment, by leave, withdrawn.

Lord Williams of Elvel moved Amendment No. 151: Page 16, line 15, leave out ("satisfying") and insert ("certifying to").

The noble Lord said: In moving Amendment No. 151, standing in my name and that of my noble friend Lord Morton of Shuna, I ask the leave of the Committee to speak to Amendment No. 151A, in the name of the noble Lord, Lord Cullen of Ashbourne, and to Amendments Nos. 158A, 162A and 165.

All those amendments attempt to perform one specific task; that is, to relieve the librarian of the obligation of satisfying himself and to introduce some objective criterion which the librarian can show. In other words, the librarian does not have to make inquiries. There should be some sort of certificate, in whatever form is appropriate, so that the librarian can say, "I have received the certificate and somebody has certified to me that they are this and that". That relieves the librarian of his responsibility. I beg to move.

Lord Mottistone

My noble friend Lord Cullen has asked me to speak for him on these points. I speak only to add to what the noble Lord, Lord Williams, has said, and to the same purpose. Amendment No. 151A is doing the job in Clause 38 in a slightly different way. I am open to choice. However, I think one or the other ought to be there.

Amendment No. 158A makes the amendment in Clause 39, Amendment No. 162A makes the amendment in Clause 40 and Amendment No. 165 makes the amendment in Clause 43. The amendments apply in the same situation and do the same thing. Perhaps the Government will be reasonably favourable to that matter, because it is obviously such a sensible way of relieving the librarian of an unnecessary and indeed impossible task.

Lord Kilbracken

Perhaps the noble Lord, Lord Mottistone, can explain a point on Amendment No. 162A. In the other amendments the word "certificates" is to be substituted in place of "satisfies". In Amendment No. 162A the word "satisfies" is retained and not amended to "certifies".

Lord Mottistone

In Clause 40 the situation is different from that in the other cases. The amendment is therefore more appropriate.

Lord Beaverbrook

Perhaps it would be for the convenience of the Committee if I speak to Amendments Nos. 151, 151A, 158A, 162A and 165.

Under the present Library Regulations, those requiring copies have to sign and deliver to the librarian a form which gives both a declaration that the copy is to be used for the purposes of private study or research and an understanding that it will not be used for any other purpose. A similar form will be provided under the regulations to be made under this Bill, suitably modified to take account of the exclusion of commercial research and the provisions of Clause 40.

The question arises: what responsibility should the librarian have for checking the veracity of any declarations made to him? The effect of the amendments would be to absolve him of responsibility. Providing he has received a duly signed form, he may make and supply copies. We have some reservations but recognise that as a practical matter the librarian cannot normally be expected to inquire closely into the honesty of the declarations made to him. We would like to give the matter some further thought and perhaps return at a later stage.

The amendments in the names of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, address Clauses 38 and 43 only. If something needs to be done, it will arise in Clauses 39 and 40, as recognised in the amendments tabled yesterday by the noble Lord, Lord Cullen. In this connection I have assumed that Amendment No. 162A was intended to refer to certification since the amendment tabled has no substantive effect. If I have missed the point, I apologise; and I must try and take up the concern in my offer to look at this question again. I hope that the noble Lords will not wish to pursue the amendments.

Lord Mottistone

I wish to correct a point and to apologise to the noble Lord, Lord Kilbracken. I now realise that there is an error in the wording of Amendment No. 162A, as it appears on the Marshalled List. It should read, "certifies", not "satisfies". I draw the point to the attention also of my noble friend the Minister.

Lord Williams of Elvel

I am grateful to the Minister for his appreciation of the problem. We look forward to the amendment that the Government will bring forward at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 151A and 152 not moved.]

The Deputy Chairman of Committees (Lord Airedale)

In calling Amendment No. 153 I have to say that, if it were to be agreed to, I could not call Amendment No. 154.

Lord Williams of Elvel moved Amendment No. 153: Page 16, line 20, leave out from first ("article") to ("and") in line 21.

The noble Lord said: I wish to speak also to Amendment No. 154 which addresses the same problem. Clause 38(2)(b) states that, no person is furnished with more than one copy of the same article or with copies of more than one article contained in the same issue of a periodical".

Any person who wishes to be furnished with copies of more than one article contained in the same issue of a periodical has only to go to the next library to obtain another copy of the same article. This really does not seem to be sensible legislation, and I believe that my noble friend Lord Kilbracken is addressing himself to the same point. It seems to be an error in parliamentary draftsmanship which the Government may wish to look at. I beg to move.

10.15 p.m.

Lord Kilbracken

With the leave of the Committee, I also speak to both amendments. With the greatest respect to my noble friend, I do not agree that paragraph (b) has quite the effect he says that it will, because the second half says that one of the conditions is that, no person is furnished … with copies of more than one article contained in the same issue of a periodical". If in a journal or periodical there are two articles of interest to a reader, he cannot have copies of both of them. He can only obtain a copy of one. Therefore, he must get a copy of one article in one library and go to another library for a copy of the other article. This is an extraordinary provision and I should like to see the passage deleted. It is extraordinary that not more than one article in any periodical may be copied. It may be a very long journal with a number of important articles in it, but under this provision only one may be copied by the librarian of a prescribed library. That seems to be a completely unnecessary restriction. Instead, my Amendment No. 154 simply provides that he may make copies of a reasonable number of articles in any periodical—"a reasonable number" being a phrase which is commonly used in this Bill. If my noble friend's amendment, which I prefer, is not agreed to then I believe that my own amendment has merit.

Lord Beaverbrook

For the convenience of the Committee, I speak to Amendments Nos. 153 and 154. The purpose of the library exceptions is to facilitate study and research by allowing small portions of works to be copied. This clause restates the existing provisions of Section 7(2) with only one change. It is made clear that it is one article per issue of a publication that can be copied. Section 7(2) could allow copying of one article from different issues of the same journal.

We believe the limits imposed by Clause 38 strike a fair balance between the needs of students and the legitimate interests of authors and publishers. To accept Amendment No. 153 would distort the picture. The amendment would in fact allow a copy to be made of every article in the publication—effectively a complete copy of the periodical rather than just a portion. If that much of a periodical is wanted, the person concerned should go out and buy a copy, or at least pay for the photocopy under a blanket licensing scheme. Amendment No. 154 is less harmful but begs the question as to what is a reasonable number. The present rule is clear-cut and both libraries and publishers know what is permissible.

Lord Williams of Elvel

I am grateful to the noble Lord for his response. I shall not press this further, but I hope he understands the basic idiocy of what is in the Bill as drafted, as I have tried to explain. If the Government wish to maintain that provision on the grounds that the noble Lord has put forward, that is up to them. However, it seems to be a very curious piece of legislation. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kilbracken moved Amendment No. 154: Page 16, line 20, leave out ("one article") and insert ("a reasonable number of articles").

The noble Lord said: Although I spoke to this amendment with the previous amendment, I do not think that the Minister's reply was reasonable. He said that the word "reasonable" is not defined and that it is not clear what it means. However, it is a word used again and again in the Bill. If he casts his eye down to line 38 on page 16 he will see: a copy of more than a reasonable proportion of any work". Reasonable is not an exact term, but we understand it, and it is frequently used in the Bill.

It is extraordinary that it is proposed that I can have a copy of an article in each of 10 periodicals but I cannot have copies of two separate articles in one periodical. That does not seem to be logical. It would be better to say that I can have copies of a reasonable number of articles. I beg to move.

Lord Beaverbrook

All that I can do is to repeat what I said earlier. The government view is that the present rule is clear. Both librarians and publishers know what is permissible.

Lord Kilbracken

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Howie of Troon moved Amendment No. 154A. Page 16, line 21, after ("periodical;") insert— ("( that all such copies furnished under this section shall bear an identification mark in such a position that it would appear on any subsequent mark in such position that it would appear on any subsequent copy of it;").

The noble Lord said: The last time I spoke the Minister drew me to a close unduly abruptly. I gathered from the conclusion of that debate that what Back Benchers talk about is of no great interest to either Front Bench, but it is of interest to us.

If the Bill takes a long time to go through this place it is not because we are wasting time; it is because it is a big Bill. Because it is a big Bill, it will take a long time. Because it is an important Bill, it cannot be rushed. I advise the Minister to exercise the same patience throughout the remainder of the Bill as he has shown most of the time until now.

I shall not try the Minister's patience with Amendment No. 154A: I move it merely by saying that its four lines are self-explanatory. I beg to move.

Lord Beaverbrook

I am most grateful to the noble Lord for the brevity with which he moved the amendment. It contains an interesting suggestion which in principle is applicable to any copying done under Clause 39 and perhaps the other library exceptions and could, I suppose, be even more generally applicable. The intention underlying the amendment is the worthy one of seeking to deter further copying of material which has been copied by the librarian.

The marking of copies is something we have considered and the Committee will note that in Clause 47(3) we propose that there should be the possibility to require that copies made should be marked. So we do not oppose the principle. Clause 38 as drafted does not of course preclude the possibility if the Secretary of State were persuaded that marking was desirable. He could include such a provision in the conditions. But I do not think we should require him to do so.

To require that copies be marked would impose a burden on librarians. That might be justified if it would prevent or seriously deter abuse. But there is no evidence of extensive multiple copying or other exploitation of copies supplied by librarians. Even where a company makes multiple copies of a single copy obtained from a library, the presence of a mark is unlikely to deter it. Nor does marking assist as evidence. The quality of copies today is so good that it would require expert evidence to establish which was the marked original copy and which was a copy of that copy. And of course if someone is found in possession of multiple copies it does not need marking to establish that many copies have been made.

I believe that the best course is to leave this matter open. The Secretary of State may impose such a condition if he feels it would serve a useful purpose which warrants the additional burden on libraries.

Lord Howie of Troon

I am grateful to the Minister for his detailed and full reply to my amendment. I shall look closely at what he has said and consider the implications. I may come back to this at a later stage. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 155 not moved.]

Clause 38 agreed to.

Clause 39 [Copying by librarians: parts of published works]:

Lord Kilbracken moved Amendment No. 156: Page 16, line 28 after ("dramatic") insert (", artistic").

The noble Lord said: I am sure that it will be for the convenience of the Committee if in speaking to Amendment No. 156 I speak at the same time to Amendment No. 157. As briefly as possible I point out that in Clause 39(1) there is a reference to infringing the copyright in, any illustrations accompanying the work". However, Members of the Committee will see that this refers only to a published edition of a literary, dramatic or musical work and not to any artistic work: but unless an artistic work is involved it cannot have any illustrations accompanying it. We therefore have to insert, so far as I can see, the word "artistic" after "dramatic". It is then unnecessary to include the words, in any illustrations accompanying the work". That is what this amendment proposes. I beg to move.

Lord Beaverbrook

I shall speak to Amendment No. 156 and also to Amendment No. 157. In our view these amendments would have undesirable effects. Clause 39 is primarily intended to cover library copying of books. It has limitations on the extent of the copying which is allowed, as one would expect. However, artistic works, including drawings as well as photographs, appear as illustrations in books, and in copying a part of a book under the exception one could copy one or more artistic works in their entirety. This is reasonable to the extent that these works accompany and are part of the text. However, to treat artistic works separately, and thereby subject each individual work to the conditions attached to Clause 39, would give rise to a difficulty. For example, the result of Clause 39(2)(b) would be that one is limited to copying no more than a reasonable part of an illustration because the illustration is itself a complete work.

The effect would be to make it extremely difficult to make reasonable copies without breaking the law and this is undesirable. The owners of artistic copyrights have the choice of whether their works are used as illustrations in the first place. If they choose to allow their works to be used in this fashion, I do not think they can reasonably object to copying under the library exception, even though this will on occasions result in complete works being copied.

Lord Kilbracken

I intend to withdraw the amendment because I do not feel that it is worth arguing about. If this clause does not authorise making copies of artistic work, then no copyright in any illustrations can be involved. However, I note what the Minister says. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 157 to 159 not moved.]

10.30 p.m.

Lord Ardwick moved Amendment No. 160: Page 16, line 39, after ("work") insert ("as defined in regulations to he made").

The noble Lord said: Much earlier in the Bill we agreed that there would be a breach of copyright if somebody copied a substantial part of a work without permission. I tried to argue for a definition of "substantial part", but I was ruled out. I was not able to succeed with that amendment. The point of it was that "a substantial part" does not merely indicate quantity but also quality.

Here we have a further clause that deals wholly with quantity, not with quality. It is the clause that gives a librarian under certain conditions the right to make and supply a copy of a part of a literary, dramatic or musical work other than an article in a periodical. The conditions must stipulate that no person may be furnished with a copy of more than a reasonable proportion of any work. The amendment proposes that the "reasonable proportion" should be defined in regulations to be made.

The 1956 Act referred to conditions intended to be made in regulations, but these regulations were never made except for articles in journals. Surely it is essential now for the position to be clarified, especially now that licensing is under development. A publisher may refuse permission to copy on the grounds that a licence is available, even though that licence may be unsuitable for the prospective user. Libraries now fear that they might be forced into licensing schemes in order to provide what they describe as a statutory service.

For 20 years, although these regulations did not exist, the problem was not too onerous because there was a statement by the British Copyright Council which gave an explanation produced by copyright owners of what they thought to be not unreasonable. But the statement was withdrawn in 1985 as a precursor to licensing. Yet, in spite of the withdrawal, the definition in the statement has become established as common practice. The statement accepted as "a reasonable proportion" a single extract of up to 4,000 words or a series of extracts, each of up to 3,000 words, but not more than 10 per cent. of a book or 25 per cent. of a short or complete work, pamphlet, poem or essay or one journal article per issue or one paper per published volume of proceedings. It is suggested that these provisions or something like them should now be incorporated in regulations. That is the object of the amendment. I beg to move.

Lord Beaverbrook

I think the noble Lord, Lord Ardwick, will understand that I would never undertake to deliver something that I could not fulfil. I cannot guarantee to deliver the definition of "a reasonable proportion". There comes a point in any law when further definition is fruitless. I think we have reached that point here. Reasonableness is a concept which occurs in many areas of law without any further definition and it is right that it should. Any further definition would be unlikely to make matters clearer and it would risk cutting out some things which were reasonable and including other things which were not. For that reason I must resist the amendment.

Lord Kilbracken

When I put down the word "reasonable" to appear in my amendment, I was told that "reasonable" was a word that absolutely should not be used because it was very vague, nobody knew that it meant, and so on, and the Government could not possibly accept it. Now the Minister tells us that he does not object to my noble friend using the word—my noble friend wants the word to be defined—and the Minister is saying that "reasonable" is a word that we all understand perfectly well; it has been defined by statute, etc. Why is it so different when I use it and when the Government use it?

Lord Beaverbrook

I believe the noble Lord, Lord Kilbracken, has misheard me. I said that I believed that any further definition was fruitless.

Lord Ardwick

I am not asking for a definition on this clause. I am asking for a measure, and for the same kind of measure, that has existed for more than 20 years.

On Question, amendment negatived.

[Amendment No. 161 not moved.]

Lord Williams of Elvel moved Amendment No. 162: Page 16, line 44, leave out subsection (3).

The noble Lord said: This is in some sense a probing amendment but it conveys a worry about subsection (3) of Clause 39. Again it seems to us that the onus on the librarian is too heavy. Subsection (3) states: at the time the copy is made the librarian making it knows, or could by reasonable inquiry ascertain". It is the words "by reasonable inquiry ascertain" that we find difficult. It seems rather hard on the librarian if, every time he is required to make a copy, he has to ask himself, "Could I by reasonable inquiry ascertain the name and address of a person entitled to authorise the making of the copy?" That is why we have put down this rather blanket amendment which I accept is not meant to be other than a probing amendment. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord for describing his amendment as a probing amendment. It has indeed enabled us to have another look at this point.

Subsection (3) of Clause 39 is a restatement of what I think it is fair to say is a little known provision of the 1956 Act. I am not aware that the subsection has been used to any great extent, and it may be that the conditions which are attached to the use of this clause in subsection (2) are of themselves sufficient. However, before deleting a longstanding provision which seems to have caused no difficulties, I should like to consider the implications carefully. Therefore, while I cannot accept the amendment at this stage, if the noble Lord will agree to withdraw his amendment, I will gladly undertake to look at the question and come back with a firm view one way or the other at a later stage.

Lord Williams of Elvel

I am grateful to the noble Lord. We shall come to another clause in a few minutes which again relates to a provision of the 1956 Act which has never been used. I shall adduce the same arguments at that point. In the meantime, I am happy to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 39 agreed to.

Clause 40 [Restriction on production of multiple copies of the same material]:

[Amendment No. 162A not moved.]

Lord Ardwick had given notice of his intention to move Amendment No. 163: Page 17, line 7, at end insert— ("(1A) Copying on a machine for making facsimile copies which is accessible to registered members of a prescribed library or archive shall be the individual responsibility of a member, or of another person acting on his behalf, provided—

1. (a) notices are displayed prominently about copyright, with guidance on infringement and prohibition of misuse of the equipment, and
2. (b) conditions of access to the library contain copyright provisions.").

The noble Lord said: The amendment simply says that when registered members of a prescribed library use one of its copying machines they should take personal responsibility for what they copy. The noble Lord is nodding. I am not sure whether this is one of the amendments he said he would consider when he was considering a similar batch a few minutes ago. Is he including this amendment in the batch of rather similar amendments?

Lord Beaverbrook

I was not, but I can assure the noble Lord that I am going to be sympathetic.

Lord Ardwick

I shall not press it any further. The feeling is that members should be responsible just as if they were operating a copying machine at home. That is not such an unlikely possibility as these machines now cost only £160 and will soon cost even less. It is too onerous for a librarian to have to stand over a member using a copier and count the number of words or pages he is copying. It would be enough to have a proviso near the copying machine giving guidance about the infringement of copyright and about the misuse of the machine. The conditions of access to the library must contain copyright provisos. However, I shall not move the amendment.

[Amendment No. 163 not moved.]

[Amendment No. 164 not moved.]

Clause 40 agreed to.

Clauses 41 and 42 agreed to.

Clause 43 [Copying by librarians or archivists: certain unpublished works]:

[Amendments No. 165 and 166 not moved.]

Clause 43 agreed to.

Clause 44 agreed to.

Clause 45 [Parliamentary and, judicial proceedings]:

The Earl of Stockton moved Amendment No. 167: Page 18, line 29, at end insert— ("( ) The judgments of any court, written or extempore, and Acts of Parliament and other forms of legislation, are not entitled to copyright.").

The noble Earl said: I am sorry at this late hour to embark on a rather complicated subject. In moving this amendment, for the convenience of the Committee I shall speak also to Amendment No. 168, in the name of the noble Lord, Lord Lloyd of Hampstead.

Some of the clauses in this Bill have been worded in a fashion that has struck the Committee as bizarre, ungrammatical, obscure and occasionally wrongheaded, but I believe that this is the first occasion when we have come across a clause whose intent is malign. During the Second Reading debate I drew the attention of my noble friend the Minister to what I assumed then to be an oversight, a drafting anomaly. But to my dismay and that of the noble Lord, Lord Lloyd, whose experience of these matters is far greater than mine, here it is again.

It cannot be right that Her Majesty's Government wish to turn the proclamation of the laws of the land into a profit-making concern. Crown copyright covers whole areas that, had they been included in amendments to this Bill on behalf of the copyright owners, would have been pooh-poohed by the copyright Minister. And now they want still more.

No doubt my noble friend on the Front Bench will tell us of the exploitation of Crown copyright by publishers. The rapid, efficient and above all frequent updating of statute and case law, whether in book, loose leaf, or database is an essential part of the political process. I am no lawyer, but I have seen counsel in the courts of the realm from the lowest to this, the High Court of Parliament, parry precedent, countering case with case, judgment with judgment. And on submissions great decisions are made, including whether to deprive a man of his liberty or, perhaps graver still, whether to release some fiend back into society.

In his report, Mr. Justice Whitford said that Acts of Parliament and judgments given in open court should be in the public domain. Ignorance of the law is no excuse. Mere financial expediency by the Government is a worse one. I beg to move.

Lord Morton of Shuna

I strongly support this amendment, which seems to be totally reasonable. The Government's position seems to be totally unreasonable.

Lord Beaverbrook

That is certainly to the point. These amendments would remove copyright from two separate categories of work; namely, court judgments and Acts of Parliament or other forms of legislation. In relation to court judgments, Clause 45 already provides that nothing done for the purpose of judicial proceedings or for reporting such proceedings infringes copyright. This ensures that there is no copyright obstacle to the conduct of proceedings or to widest possible dissemination of judgments.

Clause 45 is drafted in considerably wider terms than the corresponding exception in subsection (4) of Section 6 of the 1956 Act. It now applies to all copyright works and to all acts restricted by copyright. Consequently, it is necessary to ensure that any publisher who produces reports of judicial proceedings does not find his skill and effort in editing, annotating and type-setting the report plagiarised by another publisher, and the purpose of subsection (2) of this clause is to prevent such plagiarism.

We therefore consider that the clause provides satisfactorily for the public interest in the wide dissemination of court judgments and for the publishers' interests in their published reports of such judgments. We do not therefore believe that the amendments are necessary so far as they bear on these matters.

As to Acts of Parliament and other forms of legislation, the Committee will be aware that these are published by Her Majesty's Stationery Office and are Crown copyright. We see no reason to change this situation by denying them copyright, the effect of which would no doubt be to expose HMSO to selective competition from commercial publishers. I say selective competition because, while HMSO is under an obligation to publish, commercial publishers would no doubt only do so when they see the possibility of profit. I do not think that the public interest would best be served by such a situation, particularly when the public is well served by the present arrangements for obtaining copies of all legislative instruments.

10.45 p.m.

Lord Morton of Shuna

Is it not the position that the stationery office calculates the cost by working out the price or printing the number upon which it decides and dividing by that number? Therefore, there is no real profit element to be considered. Why should there be a monopoly? Do the Government intend to privatise this at some later stage? If so, perhaps the monopoly will be increased.

Lord Beaverbrook

That is a very interesting idea but I cannot comment upon it fully. I do not know how HMSO calculates its costings and therefore I cannot help the noble Lord.

Lord Monkswell

Perhaps the Minister will comment on the position that if copyright did not exist for documents under Crown privilege, there would be a risk of documents purporting to be Acts of Parliament or court proceedings being published by commercial publishers for profit. They would not be the correct works in their entirety and it would therefore lead the public into misapprehension as to the correct legal position. I hope that I have made myself clear.

Lord Morton of Shuna

If the noble Lord will permit me, the answer is in Clause 72, which provides for the right of the author not to suffer unjustified modification of his work.

The Earl of Stockton

I thank the Minister for his assurances and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 168 not moved.]

Clause 45 agreed to.

Clauses 46 to 50 agreed to.

Clause 51 [Design documents and models]:

Lord Lucas of Chilworth moved Amendment No. 169: Page 20, line 27. leave out ("an article which is not an artistic work") and insert ("a useful article").

The noble Lord said: The amendment entails the deletion of the words: an article which is not an artistic work". They are replaced with the words, "a useful article", which I confess may appear to be a little clumsy. The purpose of the amendment is to avoid difficulties of interpretation arising from the working of Clause 4. The Committee will recall that I drew attention to this during the Second Reading debate.

In Clause 4 artistic work is defined as including a graphic work or sculpture, irrespective of artistic quality. I fear that, for example, the mould used to produce an industrial product could fall within the definition of an artistic work as being a sculpture, irrespective of its lack of artistic quality. Of course it is not for me to decide what is of artistic quality.

In order to reinforce my argument, if the matter is not totally irrelevant, I should like to draw on the experience of the New Zealand courts in connection with the manufacturing of a frisbee. For those Members of the Committee who do not know what a frisbee is, my interpretation—and I have played with it—is that it is a plastic disc which one player throws to another. It goes through the air somewhat like—

The Earl of Stockton

A flying saucer.

Lord Lucas of Chilworth

I thank my noble friend Lord Stockton for that suggestion. It is essentially a game. Nobody could really think that a frisbee was an item of artistic quality. However, the New Zealand courts found that the mould was subject to copyright protection under the law, notwithstanding the fact that it had no design drawings. It is to the expression "artistic work" in this Clause 51(1) that I draw the Committee's attention.

In order to ensure that the purpose of this clause is achieved—namely, that articles which are not truly artistic should not be protected as works of artistic copyright—it is suggested that the expression "useful article" should be used (although I accept that it is not perhaps very accurate and is indeed rather clumsy) rather than the expression "artistic work", which has already been defined to include works irrespective of artistic quality.

I ask my noble friend whether he can explain to the Committee exactly what the Government mean by that expression. I do not propose to take this matter terribly far, though of course that depends upon my noble friend's answer, but I think it important that we should know what the Government intend, in the light of what I have said. I beg to move.

Lord Morton of Shuna

There seems to be a difficulty philosophically with the noble Lord's amendment, because apparently a useful article by definition is not an artistic article or work. There may be all kinds of difficulties which a number of Members, and especially some of those who are not at the moment able to be present in the Committee, may wish to raise as to whether an artistic work is necessarily unuseful or whether a useful article may not of itself be artistic. However, it seems to me that there is some lack of definition in drawing that plain distinction between "useful" and "artistic".

I suggest that discussion on this clause and Clauses 52 and 53 in a sense should be deferred until we come to Part III of the Bill, because Clauses 51, 52 and 53 are determined by Part III of the Bill from Clause 192 onward in the definition of a design right. It is slightly unreal to be discussing those clauses before we go into what is unregistered design under the new design right proposals.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

I think I should point out that there is no Motion for postponement of discussion of these clauses.

Lord Morton of Shuna

I agree that there is not. Unfortunately it was proposed in the marshalling that the Motion should be dealt with somewhat later.

Lord Kilbracken

I think it was Oscar Wilde who said, "All art is absolutely useless", by which he meant that if something is a work of art then ipso facto it does not have any use. As the noble Lord, Lord Lucas of Chilworth, pointed out, in Clause 4 an artistic work is defined as an artistic work irrespective of artistic quality. I do not see how that can be relevant in this particular case.

Lord Beaverbrook

Clause 51 is a very important clause. and I am grateful to the noble Lord for giving way because I think that what I have to say may well assist the Committee. The function of this clause is to take industrial designs out of copyright law, and I was very pleased to hear that this is also the intention of the amendment put down by my noble friend Lord Lucas. In this respect, I must congratulate the noble Lord, not only on his very clear explanation but also on his very clear amendment. Indeed, were it not for the fact that in one particular case his amendment seems to give the wrong result, I should be very sympathetic. However, I think it is the case that the clause already achieves the result that the noble Lord seeks.

The borderline between the protection of artistic works given by copyright law and the protection of industrial designs is complex and difficult and I will, with the Committee's leave, explain a little of the background to the problem before coming on to the solution.

Under Clauses 1 and 4 of the Bill, artistic copyright subsists in, among other things, original drawings irrespective of artistic quality; that is to say, whether or not they are of an artistic nature. Consequently, many engineering and design drawings qualify for copyright protection; it is of course quite right that they should. However, under Clause 17(3), this protection extends to making three-dimensional copies of the subject of the drawings. What is more, under Clause 16(3)(b) it would not matter that a person manufacturing an article had never seen the original design drawing because indirect copies, such as those made by copying an article made to the design, would still infringe the copyright in the drawing.

Now this sort of protection is needed in the artistic field. For example, sculptors often start with design drawings or sketches, and if this sort of protection were not available there would be nothing to stop anyone plagiarising their work by making sculptures copied from the sketches. The Berne Copyright Convention requires us to give this sort of copyright protection. But it is here that, if I may say so, the amendment of my noble friend goes wrong. It is perfectly possible for an artistic creation to be a useful article of the kind which the amendment would exclude from copyright. An example is an artistically crafted vase. A vase is a useful article. It is used to hold flowers.

Clause 51 as drafted, on the other hand, approaches the problem in a different way. It provides that it is not an infringement of copyright in a work to do certain things involving the making of an article where, or in so far as, the work is a design document embodying a design for an article which is not an artistic work. It is very important to note here that there are two quite distinct aspects of this.

First, there is a copyright work and, secondly, quite separately, there is an article represented in that work. The first question that must be asked is whether the copyright work embodies a design for an article; that is, a design intended to be applied to articles. If the answer is no, then copyright applies. However. if the answer is yes, then we must ask a second question: is the article itself an artistic work? If the answer to this question is yes, then again copyright still applies. In most cases the answers to those two questions will be self-evident.

I accept that there will always be some cases where there will be some doubts. This is inevitable, given that the answers hinge to some extent on the intentions of the author of the work. In these cases the wording of Clause 51 as drafted will allow the courts the freedom they need to reach sensible conclusions. The most important thing that this clause has to do is to cut ordinary, truly industrial designs out of copyright and keep truly artistic works in copyright. In our view, the clause as drafted achieves the necessary certainty in these areas. I hope that those explanations have been of some assistance to my noble friend.

11 p.m.

Lord Lucas of Chilworth

I am grateful to my noble friend the Minister for his explanations, to which I shall return in a moment.

I should like to say first of all that the noble Lord, Lord Morton of Shuna, actually put his finger on it because this really has very little to do with Clause 51. It is all about the later Clause 192, and I think the remarks I made at Second Reading illustrated that point. When the noble Lord said that it was perhaps unreal to discuss it now, I had a little quarrel. I think it is important that we discuss it now, so that we lay the groundwork for the discussions which will come on whenever they may come on.

The reliance of the noble Lord, Lord Kilbracken, on Clause 4 I found false, if he will allow me to say so. To come to the reply of my noble friend the Minister, I hope the Committee will forgive me if I say to my noble friend, "Thank you very much for nothing", because he dismissed the amendment. I thought, rather out of hand. I do not believe that we can dismiss it quite so easily, because there is a contrariness of purpose here between that which has preceded our discussions up to this time tonight and that which will follow on later days. I do not believe that there is self-evidence of what is artistic and what is useful. I said at the outset that that was a clumsy expression. What is artistic to one person is not so to another; I grant that. But in relation to Clause 192 we are talking about useful items—products which enhance the usefulness of the main business. I shall return to that later.

I do not want to go on for long at this extraordinarily late hour to discuss something which, I believe, is fundamental to that which we are to discuss later; and the question was, I believe, begged when we discussed Clause 4. If my noble friend Lord Beaverbrook will allow me, I should like to take note of what he said and give it consideration in the light of what we are going to talk about on later days. I may well wish to return to this matter at Report stage, because I do not think that my noble friend has quite grasped the harnessing of Clause 51 with the elements that I shall want to discuss at much greater length when we come to Clause 192. I think that my noble friend will probably accept that, and on that basis I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 51 shall stand part of the Bill?

Lord Morton of Shuna

Like the noble Lord, Lord Lucas of Chilworth, I believe it is necessary in dealing with this clause and the next two clauses in a sense to put down a marker for what happens on Clause 192. The difficulty here is that these three clauses attempt to take out of copyright something that is to be given a design right, and we are not at all certain that the Government have got it right. The Government have changed their mind, because in the White Paper, at paragraph 321, they said: The Government has concluded that some protection should be available to give the manufacturer who has spent money on design the opportunity to benefit from the investment, thus providing an incentive to further investment. It is also concluded that protection should extend to spare parts, but it readily accepts that full protection of copyright law would be excessive". So far as at any rate the last part of that goes, we would on the whole agree. But that is not what the Bill is providing, as I understand it. It is providing no protection for any spare parts, and it could be argued that what the Government have done is to consider the spare parts issue from the point of view of manufacturers of exhausts and door panels in the motor trade and then generalise that out to all manufacturers of spare parts of whatever nature. That seems to us not necessarily to be correct and certainly to be the wrong approach. Therefore all I wish to do at this stage is to suggest that there are difficulties in this part of the Bill. The Government have changed their mind between the White Paper and now.

There are a vast variety of interests in Britain that are not connected with the motor trade, although the Government seem to be interested only in solving the problems of motor manufacturers and manufacturers of spare parts for the motor trade. There are others who have interests, such as, for example, as no doubt many Members of the Committee will have heard, the people who are involved in the manufacture of aircraft, helicopters and highly technical elements involving the defence industry, who view the provisions of this part of the Bill—by that I mean Clauses 51, 52 and 53 and Part III—with considerable alarm.

Therefore all I wish to do at this stage is to say that we are not happy with the Government's provisions. I did not wish the silence on this side of the Committee to be regarded in any way as consent to what the Government wish to do. Having laid down the marker so to speak, I have concluded what I wish to say.

Lord Monkswell

I too should like to lay down a marker. I apologise to the Committee straight away for coming into this rather late. I have in fact tabled some amendments on the clauses that we shall speak to, as the noble Lord, Lord Lucas of Chilworth, said, later tonight. I admit that that is terribly late for our deliberations on this Bill.

I agree, surprisingly for me, with the noble Lord, Lord Lucas; I think that this is one of the key aspects of the Bill and something that we have to try to sort out and get right. I advise the Committee that I have a vested interest in the sense that I work for a manufacturing company as an engineer. I am not a design engineer but an engineer in another capacity. The success of the company that I work for is in no small measure bound up with the provisions that will be determined in this Bill.

But having said that, I should like to mention one little thing; that is, the concept of something that is artistic. From the point of view of an engineer, which I am, there are an enormous number of engineering designs that I should consider works of art. That poses a problem straight away in terms of the definitions of artistic merit and so forth in the Bill. No doubt in years to come if we are faced with that problem I could readily argue in a court of law that my judgment of something that is artistic is just as good as an artist's. But having said that, I do not wish to prolong the debate at this time of night and I shall conclude my remarks.

Lord Lucas of Chilworth

I am grateful to the noble Lord, Lord Morton of Shuna, for putting down a marker, because unless we get a proper understanding of what we are about in Clauses 51, 52 and 53, we most certainly shall not arrive at a sensible conclusion when we get to the serious matters contained in Clause 192.

I did not know that the noble Lord, Lord Monkswell, was an engineer, so immediately on this occasion my sympathies go to him. I think we have to think rather more broadly than motor parts. I know that that is emotive and I understand that it is going to excite a number of Members of the Committee when we eventually come to Clause 192, which is about the motor components and parts. However, it spreads across to domestic appliances. We shall no doubt talk about the soup tureen, spoon and ladle. That is important as well.

Unless the Government understand the relationship in the earlier clauses, we are going to come desperately unstuck when we reach Clause 192. Christmas is coming and I should not want to spend more than two or three hours on Clause 192. Before we get there, if possible we must have a better understanding of the Government's attitude on these matters. Alternatively, we shall arrive at Report stage in January or February or whenever it is. Having said that, I am not sure what the noble Lord, Lord Morton of Shuna, is going to do. However, I think I have a shrewd idea.

Clause 51 agreed to.

Clause 52 [Effect of exploitation of design derived from artistic work]:

Lord Mottistone moved Amendment No. 170: Page 21, line 4, leave out subsection (2).

The noble Lord said: This is a probing amendment. We are talking in this clause about the effect of exploitation of design derived from artistic work. Subsection (2) says that such design only has a copyright of 25 years—we are still talking about copyright—whereas the artistic work itself, under Clause 12(1), will have 50 years of copyright. That seems to be inconsistent. Perhaps my noble friend can explain why subsection (2) is so worded and how that particular figure was arrrived at. It does not seem to fit the bill. For instance, in the case of an artistic work from which a design was made, why should the work itself be able to be duplicated through the design results in 25 years when the artistic work itself has 50 years? I hope that my noble friend will explain that. I beg to move.

Lord Beaverbrook

This amendment would deprive Clause 52 of any effect. Apart from leaving a rather strange non-clause in the Bill, the result would be that full term, life plus 50 years copyright would continue to apply even where the copyright owner has authorised the exploitation of his work in the mass market.

That is something which I must oppose strongly. The truncation of copyright where a work has been exploited in the mass market is well established from Section 10 of the 1956 Act. I acknowledge that Section 10 was, and is, controversial. But the controversy arises on a completely separate point which we have already dealt with in Clause 51. The point that we have to deal with here is straightforward. Should copyright be of limited duration in relation to the mass marketing of articles derived from or carrying the work? The answer is a firm yes.

Lord Mottistone

I think that is probably a very satisfactory explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 52 agreed to.

Clauses 53 to 55 agreed to.

Clause 56 [Public reading or recitation]:

The Earl of Stockton moved Amendment No. 171: Page 22. line 29. at beginning insert ("Notwithstanding the provisions of section 19 above.").

The noble Lord said: This is also a probing amendment. I am sure that the Minister will be able to explain to me the relationship of Clause 56 to Clause 19. I regret that I find, it difficult to reconcile the two.

11.15 p.m.

Lord Beaverbrook

The amendment is not necessary. I remind the Committee of the provisions of Clause 16(4). The rights conferred by Chapter II, including those in Clause 19, are all subject to Chapter III. Thus the exception defined in Clause 56 allows public reading or recitation, notwithstanding any copyright that may subsist in the literary or dramatic work. If the noble Lord had his way here, we should need similar wording at the beginning of each of Clauses 29 to 68. That, if I may say so, is the kind of Gothic drafting for which the 1956 Act is criticised and from which we are attempting to get away.

The Earl of Stockton

I thank the Minister for his explanation. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 56 shall stand part of the Bill?

Lord Williams of Elvel

We believe that Clause 56 is not in accordance with Article 11 and Article 11^ter of the Berne Convention. Article 11 gives authors of dramatic, dramatico-musical and musical works the exclusive right of authorising public performance. Article 11^ter gives the authors of literary works the exclusive right of authorising public recitation of their works. Clause 56 is contrary to both those provisions.

I understand that the Government are about to assent to the Paris text of the Berne Convention. If they assent to the text, I believe that the Bill will be in contravention of it.

Lord Beaverbrook

I take note of what the noble Lord says about the Berne Convention. I cannot comment usefully this evening on his views. It is obviously important for us to take another look at this to make sure that we have it right. If we are in contravention of the Berne Convention, I undertake to return to the matter.

Clause 56 agreed to.

Clause 57 [Representation of certain artistic works on public display]:

On Question, Whether Clause 57 shall stand part of the Bill?

Lord Williams of Elvel

I wish to ask the Minister about picture postcards of sculptures. A curious interpretation of the clause arises here. Whereas buildings and sculptures are included in the clause and copyright is not involved, pictures, paintings or picture postcards of sculptures may not be included.

Lord Beaverbrook

I believe that the answer is in the affirmative.

Clause 57 agreed to.

Clause 58 [Making of subsequent works by same artist]:

On Question, Whether Clause 58 shall stand part of the Bill?

Lord Williams of Elvel

A few minutes ago I referred to another part of the 1956 Act, in this case Section 9(9), which had never, in the experience of our advisers, been brought into play at all. Clause 58, which we are now discussing, states that the copyright, is not infringed by the making of another artistic work by the same author if in making the subsequent work he does not repeat or imitate the main design of the earlier work. The Committee will be aware that Cézanne painted Mont Ste. Victoire many times and that Monet painted Rouen Cathedral many times. I can give several other examples where artists have repeated and imitated the main design of an earlier work. I use those examples to show that this clause is something of a nonsense which the Government may well wish to look at again.

Lord Beaverbrook

I have listened with interest to the points raised by the noble Lord, Lord Williams. I should say a certain amount about this clause because, although it may not be immediately apparent, Clause 58 has an important purpose. To remove it could obstruct the creation of certain types of artistic work in a way which I think most of us would consider unreasonable. I am thinking particularly of sculptors, architects and those specialising in decorative arts of one kind or another.

This clause restates in simplified form Section 9(9) of the 1956 Act, which was itself an attempt to clarify a comparable, if rather obscure, provision in the 1911 Act. The intention is to allow the author of an artistic work—for example, an ornamental pattern or design applied by an architect to a building—to reproduce some part of the motif of the original design in some other work. Thus, he may make use of a mould, cast or sketch of the earlier work, or part of it, without infringing copyright in that work, provided he avoids repeating or imitating the main design. It would hardly be reasonable to expect an architect never to repeat a design of a doorway, staircase or window surround. This clause is only relevant in cases where the author does not own the copyright—for example, where he has assigned or otherwise disposed of the copyright in the original work—as one cannot, by definition, infringe one's own copyright.

Lord Williams of Elvel

I am grateful to the noble Lord but will he look at the drafting of this clause? When an artist like Monet paints a picture of Rouen Cathedral and wishes to sell that, and the copyright with it, to someone else is he not then allowed to paint another picture of Rouen Cathedral without infringing that copyright?

Lord Lucas of Chilworth

I have only one perhaps over-simple comment to make on my noble friend's explanation of Clause 58. As written, the clause is not complete. It does not explain the exact intention. My noble friend should take away this three-line clause for it to be rewritten. It may end up with six, nine, 12 or 15 lines, but it should more expressly describe exactly what is meant, because I do not believe that it is clear. While my noble friend's explanation, when we read it in Hansard tomorrow, may be clear, I believe we should have that clarity expressed in the Bill. I hope he will consider the provision with a view to making the clarification more perfect.

Lord Beaverbrook

I will of course consider what has been said about this clause. The noble Lord, Lord Williams, asked about an artist repeating a work that he has previously painted. Clause 58 creates an exception from what would otherwise be an infringement. His example of Monet and Rouen Cathedral would probably not involve infringement in the first place.

Lord Williams of Elvel

It would involve an infringement if the artist produced a painting of Rouen Cathedral which had been sold cum copyright, if I may use that expression or if it has been commissioned by someone.

Lord Beaverbrook

If the second painting were identical to the first, and the artist had sold the copyright, there might well be an infringement. if there were some small differences—for example, if the artist had developed the style or altered the view of the cathedral—he would not infringe the copyright that he had sold.

Clause 58 agreed to.

Clauses 59 to 61 agreed to.

Clause 62 [Incidental recording for purposes of broadcast or cable programme]:

[Amendment No. 172 not moved.]

Clause 62 agreed to.

Clause 63 [Recording for private purposes]:

Lord Mottistone moved Amendment No. 173: Page 24, line 20, leave out ("any") and insert ("the").

The noble Lord said: This is a brief amendment. Its purpose is to make it clear that only copyright in the broadcast or cable programme as a whole is intended and not the copyright in any literary or artistic work which may be included in the programme or broadcast; for example, if one recorded "Desert Island Discs" relaxation would be permitted for the complete programme. If one were to extract from it one of the tunes played, that should still be subject to copyright, as I see it. I hope that my noble friend will accept the amendment or give a good explanation as to why the clause is worded as it is. I beg to move.

Lord Beaverbrook

This clause is intended to reenact the existing law in Sections 14 and 14A of the 1956 Act. The copyright in a broadcast or cable programme is not infringed by copying it for private purposes. Such copying will however infringe the copyright in any copyright work—play, music, sound recording, film—included in the broadcast or cable programme.

The phrase "any copyright" has been adopted in this clause and elsewhere because there may be cases where there is no copyright in the work in question, in this case the broadcast or cable programme. To say "the" copyright, rather than "any" copyright, begs the question of whether there is any copyright in the broadcast or cable programme. What "any" does not mean, however, is any copyright in works included in the broadcast. I ask the Committee to look, for example, at the drafting of the next clause, Clause 64, where references will be seen to any copyright in the broadcast or cable programme or any sound recording or film included in it. Clause 63 does not cover copyright in works included in the broadcast. It provides an exception in respect only of the broadcast or cable programme itself.

Lord Mottistone

I thank my noble friend for that explanation, and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 63 agreed to.

The Earl of Dundee

The Committee may feel that we have reached a suitable moment at which to break. If so. I beg to move that the House do now resume.

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

House resumed.