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

HL Deb 14 December 1987 vol 491 cc520-35

House again in Committee.

Clause 119 [Licences for reprographic copying]:

Lord Morton of Shuna moved Amendment No. 243B: Page 49, line 43, after ("copied") insert— ("( ) the nature of the work itself,").

The noble Lord said: Clause 119 refers to licences for reprographic copying. The one thing which it does not tell the tribunal to consider is the nature of the work. There is a distinction between a work which is the length of the Bible and something the length of a one-stanza poem. It would appear that the nature of the work should be considered when licences for copying are being considered. I beg to move.

Lord Beaverbrook

Clause 119 specifies conditions to which the tribunal must have regard on references or applications relating to the licensing of reprographic copying of published literary, dramatic, musical or artistic works or the typographical arrangement of published editions. The clause gives effect to policy announced in paragraph 18.13 of the White Paper regarding reprographic copying. Paragraph 18.12 pointed out that special factors may arise in particular photocopying licence disputes. For example, it may be appropriate that a licence distinguishes between copying for archival purposes as opposed to onward transmission to a customer who could reasonably be expected to pay a copyright royalty.

In the educational field teachers sometimes wish to use extracts selected from a range of publications when purchase of the individual copies cannot be justified. A material factor in most cases would be whether the photocopy was competing with other current means of exploiting work, as it would, for example, in the case of photocopying from a book currently on sale but not if the book were out of print.

The criteria set out in Clause 119 seem to us the most relevant ones in relation to disputes over schemes or licences for reprographic copying. I find it hard to see what the noble Lord's amendment would add to that. If I may say so, it is a rather curious criterion. It does not make at all clear what aspect of the nature of the work is to be considered and how it is supposed to influence the tribunal's decision. Is it intended that the tribunal should increase the fees that may be charged where the literary or musical quality of the works is especially high? Will higher fees be chargeable for copying historical or scientific works than for copying science fiction? I think that the amendment will only complicate and obscure the deliberations of the tribunal.

Lord Morton of Shuna

If I may say so—it is perhaps logical in one sense—the response which the Minister read out did not quite meet the point I was trying to deal with. If one has a copyright work which is fairly short, the question whether there should be licences for reprographic copying may be entirely different from if the work is very long and one is only copying an excerpt from it. We are dealing here with anything at all—literary, dramatic, musical or artistic work—and the amount of variation is almost unending. I should have thought that without a provision which allows the tribunal to consider the nature of the work itself, there is one element which is totally missing from its consideration. I hope that the Minister is prepared to consider the matter.

Lord Beaverbrook

I am grateful to the noble Lord for his explanation as to what he intends by the expression "the nature of the work". The length of the work will be relevant to paragraph (b) of the clause on the proportion of the work to be copied. That is set out in Clause 119(b).

I believe that we have it right. I shall look carefully at what the noble Lord has said to see whether in our response to his amendment we have perhaps misinterpreted the intention. I cannot make any commitment. However, we shall look carefully at what has been said in his explanation of the amendment.

Lord Morton of Shuna

I am grateful to the noble Lord. Perhaps 1 may take an example with a biblical connotation. If copyright was involved in the Song of Solomon, the proportion of the work, if it was one work, would be different from if the Song of Solomon was part of the Bible. Therefore, the proportion would be totally different and that would perhaps he the nature of that work. However, in view of that friendly response, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Cullen of Ashbourne moved Amendment No. 243C: Page 49, line 43, after ("copied") insert— ( ) the amount of loss (if any) which the owner of the copyright would suffer as a result of the copying to be permitted under the scheme,".

The noble Lord said: Industry believes that if it is required to take out licences to cover photocopying, particularly if the licences are required for photocopying that which has hitherto been permissible as fair dealing, the licence fees payable should reflect any loss suffered by a publisher as a result of the copying which is to be carried out. The proposed amendment seeks to clarify the matter.

The Government argued on Tuesday in the debate on Clause 29 that industry should also be making some payment for the use of copyright works. If so, that seems to be a new principle which I should have thought ought to be fully debated in the Committee to ensure that the Bill provides adequate guidance for the tribunal. I am hoping that my noble friend will say that the Government will table an amendment at the next stage of the Bill to achieve that purpose. I beg to move.

Lord Morton of Shuna

Perhaps I may ask a question which I perhaps should have asked at a different stage. There is a type of machine—the fax machine—which sends copies. As I understand it, in order to send a copy, a photocopy must first be taken and then put through the machine. The copy then appears at the other end. Is that the type of copying which is to be struck at by the legislation? That would be of considerable importance to all sorts of professions, trades and industries.

Lord Beaverbrook

I am not sure that I can comment this evening on the technical procedures concerning a fax machine. Obviously, as the Bill is going to have to serve us in law for the next 30 years or so—a similar length of time to the last one -we must look at that matter. As we all know, technical advances are coming very fast.

Clause 119 lists certain criteria which are to guide the tribunal in references or applications related to reprographic copying. I am not certain that adding the criterion in the amendment would serve a useful purpose. If the matter was relevant, I think that the tribunal would have to take account of it in any case. However, we shall look at the point without commitment.

I should say in addition to my earlier point to the noble Lord. Lord Morton of Shuna, that I believe that sending copies via a facsimile machine is a form of reprographic copying with relevance to Clause 161.

Lord Cullen of Ashbourne

I am grateful to my noble friend for that assurance. I beg leave to withdraw the amendment.

Amendment. by leave, withdrawn.

Clause 119 agreed to.

Clause 120 [Licences for educational establishments in respect of works included in broadcasts of cable programmes]:

On Question, Whether Clause 120 shall stand part of the Bill?

Lord Willis

I wish to raise rather an important point on this clause because it seems to me that there is a confusion here which I hope that the Government will consider.

There are several separate and distinct rights in any intellectual property. For example, if I write a play for television I receive an initial fee for that play. I receive additional fees if the play is transmitted and sold to Australia, America, Germany or anywhere else. I earn another fee if the play is then reproduced in some form or another.

I think that this clause smudges the issue. Let me put it at its simplest; I am sure that when the Minister was appointed by the Government they did not say to him, "With regard to your salary we are going to adjust it because we know you have income from other sources." That is what the clause suggests as it stands at the moment.

There is a condition imposed on the tribunal to take account of other income of the copyright owner. That is absolutely wrong. There are separate and distinct rights. All that we and the tribunal should be concerned with is what should be paid for each particular right. It should not be said. "You have received so much money from this, therefore we arc going to pay you less for that". That is a matter of bargaining and of contract. It is not a matter to be discussed in that particular way.

Lord Morton of Shuna

I agree with my noble friend. There appears to he a confusion of two ideas. If a fee is paid to a person because his copyright is used on a broadcast, surely that is something totally different from whatever fee, if any, he may be entitled to receive if an educational establishment wishes to make use of that broadcast in another way. It seems to me that there is a complete confusion there. Why should the broadcasting authority in a sense have to pay for the freedom of the educational establishment?

Lord Beaverbrook

I am grateful to the noble Lords, Lord Morton, and Lord Willis. The purpose of this clause is to ensure that the owners of rights in works including broadcasts and cable programmes which are recorded for educational use under a licensing scheme certified under Clause 131, can obtain a reasonable but not excessive return for this further use of their work.

As noted in paragraph 18.14 of the White Paper which announced the intention to introduce this provision, many or most of the television and cable programmes for which educational recording licences will be sought will have been made on the assumption that the only source of revenue available to the owners of rights in works included in the transmission would be the fees for the broadcast or the cable programme itself.

The tribunal will have to judge the extent to which these fees included an element of compensation for the fact that the broadcasts or cable programmes will be recorded for educational use. To the extent that they did it may consider that a reduction of the charges allowable under the scheme would be reasonable. That seems to be a fair condition. I do not believe that copyright owners need to fear that their legitimate interests will be damaged in any way.

Clearly if the original terms contained no element of compensation for likely recording by educational establishments and this can be established then tribunal awards in relation to schemes for this purpose will not be reduced.

Lord Willis

What is objectionable is simply that the creator of intellectual material has to be judged on the basis of what fees he has received for previous broadcasts or productions of his work.

We have a system now in which educational and schools broadcasts, writers and other people take lower fees. We do that deliberately because we realise the importance of the process. It is a matter for our judgment and not the judgment of someone else.

I object very strongly to anybody having the power to say: "Because you have earned so much from this particular play we think you should take this amount." If the noble Lords, on the Front Bench below the Bar would lower their voices we might be able to hear a little better.

What I object to is the fact that we have a double standard. It is a voluntary act on our part to reduce fees for educational and schools broadcasts. I object to this clause because it imposes—possibly imposes—or gives somebody the right to impose lower fees. I think that is wrong in natural justice and that is why I oppose the clause.

Clause 120 agreed to.

Clauses 121 and 122 agreed to.

8.15 p.m.

Clause 123 [Licences in respect of works' included in re-transmissions]:

Lord Beaverbrook moved Amendment No. 244: Page 50, line 36. leave out subsection (1) and insert— ("(1) This section applies to references or applications under this Chapter relating to licences to include in a broadcast or cable programme service—

1. (a) literary, dramatic, musical or artistic works, or
2. (b) sound recordings or films,

where one broadcast or cable programme ("the first transmission-) is, by reception and immediate re-transmission, to be further broadcast or included in a cable programme service ("the further transmission").")

The noble Lord said: Clause 123, makes provision in respect of tribunal decisions in cases concerning broadcasts or cable programmes which are subject to immediate rebroadcast or retransmission by cable.

In moving my Amendment No. 244 for the convenience of the Committee I shall also speak to Amendments Nos. 245, 246, 247 and 248. I shall also speak to Amendment No. 244A in the name of the noble Lord, Lord Lloyd of Kilgerran.

This is a complex area and I have to say that in the Bill as printed the drafting of Clause 123 is still not quite right. Amendments Nos. 244 to 248 will rectify this.

There is no change of purpose or effect intended. As to Amendment No. 244A in the name of the noble Lord, Lord Lloyd of Kilgerran, I think that if the noble Lord were in the Chamber and he were to look carefully at Clause 123, as we are amending it, he will see that the amendment is not necessary. Certainly one of the cases that we wish to cover is a reference of a licence to include works in a broadcast or cable programme which is retransmitted, but I can assure him that the clause does that. I would also point out that the tribunal will have no jurisdiction over any retransmission outside the United Kingdom, although the clause may require them to take such retransmission into account.

Clause 123 has four main purposes. It is intended, first, to ensure that if copyright owners license inclusion of their material in a foreign broadcast or cable programme service on terms which cover retransmission of that broadcast or service in the United Kingdom, any tribunal award that they may obtain in the UK in respect of royalties due from UK cable operators or broadcasters for retransmitting the foreign broadcast are abated to the extent that this retransmission was allowed for in the terms of the initial licence. The intention is to avert double payment to rights owners in respect of what is essentially a single transmission (or chain of transmissions) reaching the same audience. This policy is unchanged from the 1956 Act, where it is implemented by Section 28.

The second objective is to ensure that, when broadcasts or cable programme services are retransmitted within the intended reception area of the broadcast or service (and this applies particularly to "in-area" retransmissions abroad of UK satellite broadcasts), and right owners obtain payment from the cable operator for the retransmission under local law, tribunal decisions on licences in respect of the original broadcast shall take this into account.

The third objective is to ensure that when broadcasts or cable programme services are retransmitted beyond or outside the intended reception area of the broadcast or service, the broadcaster or provider of the cable programme service which is retransmitted cannot he made to pay royalties in respect of the retransmission. It is up to the rights owners concerned to use any rights available in the country or area of the retransmission to reach an agreement with those responsible for it. If such rights do not exist it should not fall to the broadcaster to reimburse copyright owners for that fact.

This provision, however, is subject to subsection (4), which is a consequence of the fourth objective; namely, to ensure that copyright owners are adequately remunerated when a broadcast containing their works is retransmitted by cable beyond the intended reception area of the broadcast in consequence of a "must-carry" obligation which the Cable Authority has placed on a provider of a cable programme service. As amended by Amendments Nos. 244 to 248 standing in my name, I believe Clause 123 will more satisfactorily achieve the objectives I have just outlined. I beg to move.

Baroness Seear

On behalf of my noble friend who is unavoidably absent until about half-past nine, I should be grateful if the Minister would spell out why he considers that his amendment is no longer necessary in view of the amendment moved by the Minister. It is not immediately clear to me.

Lord Williams of Elvel

We accept that Clause 123 was probably not drafted in the way that the Government would have liked and we accept that this is an extremely complicated area.

My only comment on the amendments that the Minister has moved concerns the footprint of a satellite broadcast which is indeterminate and depends on the size of a dish and, to a certain extent, on weather conditions. Is the Minister satisfied that the copyright is respected in respect of that complication? For example, if I may mention the French satellite, I understand that French satellite broadcasting—I think it is TVS—will be able to reach Scotland with a large dish. It will certainly be able to reach London with a small dish—a 90 centimetre dish as I understand it—and it may well go beyond Scotland with an even larger dish.

In moving these amendments is the Minister saying that the Copyright Tribunal cannot influence this in any way if it is going beyond the established footprint of the satellite, or is he saying that the Copyright Tribunal can do its best but cannot influence what fees are paid in respect of copyright material? It seems to me that the noble Lord, Lord Lloyd of Kilgerran, has a point when he seeks to insert in the Bill in any part of the world''. That establishes very firmly that the satellite footprint does not exactly determine where copyright material is chargeable, if I may use that expression.

Lord Beaverbrook

First, I turn to the point raised by the noble Baroness, Lady Seear. I said in speaking to the amendment in the name of the noble Lord, Lord Lloyd of Kilgerran, that certainly one of the cases we wish to cover is the reference of a licence to include "works" in a broadcast or cable programme which is retransmitted abroad. I assure the noble Lord that the clause does this. I also point out that the tribunal will have no jurisdiction over any retransmission outside the United Kingdom, though the clause may require it to take such retransmission into account. Let me also say to the noble Baroness that under the provision as amended by Amendments Nos. 244 to 248 the tribunal will be required to take account of retransmissions anywhere in the world if within the area of the original transmission. I believe that that renders Amendment No. 244A unnecessary.

Baroness Seear

The Minister will understand that I am only a caretaker speaker on this occasion so I have to be rather fussier than normal. "Abroad" is not the same as "anywhere in the world". It may well be that there is an important difference in saying that the transmission is "abroad" and in covering it more fully by saying that it is "anywhere in the world". If there is doubt, is there any serious objection to including this phrase in the clause?

Lord Beaverbrook

I think that the expression "abroad" includes anywhere else in the world other than the United Kingdom, which, if this Bill becomes law, it will cover. However, I will look to see whether there is any objection. We are not in the business of trying to add words to the Bill but we will of course see whether clarity could be improved by the inclusion of those words.

Turning to the point raised by the noble Lord, Lord Williams of Elvel, the principal point of this clause is to ensure that copyright owners are not paid twice in respect of transmissions that happen to overlap transmissions that are already made or licensed in the United Kingdom.

As regards the French satellite system, I am advised that if a cable operator retransmits a satellite broadcast outside the area of reception of the broadcast—that is, the footprint—the tribunal is not to require the original broadcaster to pay for the extra audience.

Lord Williams of Elvel

I shall read carefully what the noble Lord said because this is an important point. A broadcast can be transmitted and retransmitted by satellite and will or will be in the future, be received in either cable form or through a private reception mechanism known as a dish. We must look at what the noble Lord has proposed in his amendment, and what he said in moving it and replying to our comments, to see whether that is adequately covered. At the moment I am not convinced, but I shall read what he said.

On Question, amendment agreed to.

[Amendment No. 244A not moved.]

Lord Beaverbrook moved Amendment No. 245: Page 50, line 46, leave out ("the licences") and insert ("licences for either transmission")

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 246, 247 and 248:

Page 51, line 2, leave out ("first") and insert ("other").

Page 51, line 7, leave out ("the licences") and insert ("licences for the first transmission").

Page 51, line 13, leave out ("the licences") and insert ("licences for the first transmission").

On Question, amendments agreed to.

Clause 123, as amended, agreed to.

Clause 124 [Mention of specific matters not to exclude other relevant considerations]:

On Question, Whether Clause 124 shall stand part of the Bill?

Lord Williams of Elvel

I am sorry to intervene when we are trying to get on with the Bill but would the noble Lord explain exactly what Clause 124 means, because I am quite uncertain as to its purport? It states that, Copyright Tribunal is to have regard in certain classes of case does not affect the Tribunal's general obligation in any case to have regard to all relevant considerations". This seems to me to defeat itself. If the tribunal is to have regard to certain relevant considerations and certain classes of case, it is bound to have regard to all relevant considerations in all classes of case.

Lord Beaverbrook

The clause ensures that whatever specific matters may need special attention in a particular case, the tribunal must always take all considerations into account which are relevant to the case. Although this has always been tribunal practice, the obligation to take all relevant matters into account is not specifically stated in the 1956 Act.

Lord Williams of Elvel

I hear what the Minister says and I am grateful to him, but would it not be better to say that the Copyright Tribunal is to have in all cases regard to all relevant considerations?

Lord Mulley

I support my noble friend Lord Williams because the experience we have had in independent broadcasting is that if the Copyright Tribunal—and I have no wish to prejudge it before it exists—should in any way resemble its predecessor, the Performing Rights Tribunal, it is relevant that it should have a statutory duty to consider all relevant factors—because that is something which the PRT has never done since it was set up. That is what the clause is seeking to do, to ensure that the obligation of taking all relevant matters into account is fully stated, as it was not stated in the 1956 Act.

Lord Williams of Elvel

Will the noble Lord have a look at the drafting of this clause to make sure that the difficulties that the Opposition find with it are not reflected in the final Act when it becomes a statute?

Clause 124 agreed to.

Clause 125 [Implied indemnity in certain schemes and licences for reprographic copy]:

8.30 p.m.

Lord Cullen of Ashbourne moved Amendment No. 248A: Page 51, line 20, leave out ("general").

The noble Lord said: These are purely probing amendments to establish the intention of the Government behind Clause 125. Industry certainly welcomes the proposal that certain types of licensing scheme should carry an implied indemnity of the sort set out in subsection (3). Indeed, if it were not there already industry would argue that it ought to be.

However, the way this clause is currently drafted seems to make it extremely limited in its application. The scheme appears to be only a general scheme or general licence if it does not specify the works covered with sufficient particularity to enable the licensee to know what he is buying. Surely this would be the case if the scheme itself has been appallingly badly drafted? Perhaps my noble friend can explain to the Committee what this really means. I beg to move.

Lord Williams of Elvel

I should like to support the noble Lord, Lord Cullen of Ashbourne, in his amendment and I should also for the convenience of the Committee like to speak to Amendments Nos.248B, 248C, 248D, 248E and 248F, if I have the agreement of the Committee.

On the Opposition side we are always somewhat suspicious when a clause in a Bill starts with, "This Section applies to general schemes". "General" is a word that is frequently used and indeed frequently misused. I think the problem is that using the word "general" in subsection (1), however it is defined in subsection (2)—which does not seem to us to add anything—opens up a whole range of schemes or things that might be called schemes which ought not to be included in this particular clause. I accordingly look forward to the comments of the Minister on what exactly the Government mean by all this. I am afraid our suspicions are aroused by this and that is why I am speaking in support of the amendment. Perhaps the Minister can allay our suspicions when he gives his explanation?

Lord Beaverbrook

Clause 125 provides for an indemnity to be implied in every general licensing scheme for reprographic copying and every general licence granted by a licensing body for such copying.

Lord Williams of Elvel

Will the Minister confirm that he is also speaking to Amendments Nos. 248B, 248C, 248D, 248E and 248F?

Lord Beaverbrook

I apologise to the Committee. I am indeed speaking to the grouping as set out on the list that was issued.

This is to indemnify the licensee in regard to any infringement in respect of copies made in circumstances within the apparent scope of the licence. This clause puts into effect, with slight modifications, the policy set out in paragraph 8.7 of the White Paper with regard to licensing schemes and general licences for reprographic copying.

As the White Paper pointed out, the problem with blanket licensing schemes is that, unless all copyright owners producing material of a given category cooperate in setting up the scheme, there is a risk that the licensee will inadvertently copy material which is outside the scheme. Therefore the Government would like to see general adoption of the form of indemnity against copyright infringement actions by non-members of the scheme which the copyright licensing agency currently includes in its agreement.

The White Paper envisages placing a statutory obligation on collecting societies in the reprographic field to include indemnity provisions in their schemes. But the Bill follows a slightly different approach in providing that an indemnity against inadvertent infringement of copyright, outside a scheme or licence, shall he implied in every general scheme and general licence. The provisions will bite on those schemes and licences which are general in nature, such as those that do not specify that the works are covered in such a way as to make clear by inspection whether a particular work falls within them or not. If inspection makes clear that a particular work is outside the scheme or licence then the implied indemnity does not arise.

I turn now to the specific amendments of the noble Lord. Amendments Nos. 248A, 248B and 248C all concern this clause. They would remove the qualification that the indemnity provisions in the clause would only apply to schemes and licences in so far as they do not specify the works with sufficient particularity to enable a licensee to determine whether a work falls within a scheme or licence—in other words, the provisions would apply even where it can be determined whether or not works fall within the scheme or licence.

Turning now to Amendments Nos. 248D, 248E and 248F, they deal with the issue of commercial research which we debated earlier in these proceedings. The proposal is to bring photocopying for the purposes of commercial research within Clauses 126 to 131. This is an interesting suggestion. However, as I said when we debated this issue on a previous occasion, we are already considering the proposal that photocopying by libraries for the purpose of commercial research should be free to the extent that no licensing scheme covering the works in question has been established and certified under Clause 131. If we were to go down that route then the proposals of the noble Lord with regard to Clauses 126 to 130 would I think become largely unnecessary.

Lord Cullen of Ashbourne

I am grateful to the noble Lord for a very full comment about my amendments. However, I seem to see that somebody else wishes to speak on this before I do.

Lord Williams of Elvel

I am sorry to interrupt the noble Lord, but I am still unhappy about this definition of general schemes and general licences. I understand that the Minister when he gave his response read out more or less what was the text of the Bill. Indeed, I read the text of the Bill and so did he; therefore we all understand what it says. However, I am unhappy that he has not given us any further explanations, which I think the noble Lord, Lord Cullen of Ashbourne, was looking for, as to what the Government really mean by general schemes and general licences. This seems to us to give a rather blanket licence to practically anybody. Perhaps the noble Lord could help us further on this matter. If he can, we shall be very happy.

Lord Beaverbrook

The concept of a general licence is where the terms of the licence are to be negotiated between the buyer and the seller, so to speak. For instance, if the Government generally wish to negotiate terms for a general licence with a particular licensing agency, then there would be a discusssion which would lead to establishing the terms for that licence. Where a licensing scheme is in operation the terms of the scheme are usually already in existence. For instance, the price, the length of time and other considerations that would still have to be negotiated for a general licence.

Lord Williams of Elvel

I am sorry that the noble Lord still has not answered my point, which is contained in the question about subsection (2). Subsection (2), as he quite rightly says, states that: 'General licences' and 'general schemes' mean licensing schemes and licences which do not specify the works to which they apply with such particularity as to enable licensees to determine whether a work falls within the scheme or licence by inspection of the scheme or licence and the work"; in other words, nobody knows whether a work is included in this particular licence. It is a general licence, and no one has a clue as to what falls within it. If the noble Lord could help us with the criteria, we should be happier.

Lord Beaverbrook

What falls within a general scheme is to he negotiated between the parties.

Lord Williams of Elvel

I am not going to go on about this, but subsection (2) does not specify the works. No one knows what they are. That is the problem.

Lord Howie of Troon

Will the Minister tell us which parties he means when he says that the scheme will be negotiated between the parties?

Lord Beaverbrook

Will the noble Lord repeat what he said, because I could not catch it? I apologise.

Lord Howie of Troon

I thought that the Minister said that the scheme would he negotiated between the parties. I wondered which parties he meant.

Lord Beaverbrook

The licensor and the licensee would be the two parties who would have to agree the terms and other conditions. An example of a general licence would be a reference to all books published by a certain group of publishers. The copyright in some of those works may remain with the authors. In that case, the operators of the scheme must be indemnified against any possible infringement resulting from ignorance of that fact.

Lord Howie of Troon

In that case, would not the parties include the publishers concerned, the people who wish to reproduce work and the licensors?

Lord Beaverbrook

As I understand it, where a licensing scheme or a general scheme is being established, it would be between the operators of the scheme and the people who wish to use the words covered by the scheme.

Lord Cullen of Ashbourne

We have taken a long time over this amendment. My noble friend's last words have helped me a great deal; but I shall have to read through the debate. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 248B and 248C not moved.]

Clause 125 agreed to.

Clause 126 [Power to extend coverage of scheme or licence]:

[Amendments Nos. 248D and 248E not moved.]

Clause 126 agreed to.

Clause 127 agreed to.

Clause 128. [Variation or discharge of order extending scheme or licence]:

[Amendment No. 248F not moved.]

Clause 128 agreed to.

Clause 129 [Inquiry whether new scheme or general licence required]:

Lord Beaverbrookmoved Amendment No. 249. Page 54, line 2, leave out ("a new licensing scheme or general licence is required") and insert ("new provision is required (whether by way of a licensing scheme or general licence)").

The noble Lord said: It would be for the convenience of the Committee if I spoke also to Amendments Nos. 250, 251 and 252. The role of the inquiry under the terms of Clause 129 into the need for licensing arrangements for educational establishments is only to decide whether a new provision is required.

We do not consider that it is appropriate for such an inquiry to recommend whether copying in an educational establishment should be licensed under a new licensing scheme or under a general licence. We think that this is a matter best left open so that the copyright owners concerned can decide on the most appropriate course. The purpose of the inquiry is merely to decide whether the situation demands the making of a new provision. The amendment will mean that the matter of how licences are provided is not unnecessarily restricted. I beg to move.

8.45 p.m.

Lord Williams of Elvel

In replying to the noble Lord on Amendment No. 249, I shall speak also to Amendments Nos. 250, 251 and 252. We still have the problem of a general licence and how it is defined. We are not satisfied with the way that "general licence" is defined earlier in the Bill and in the debate that we have just had. Nevertheless, I should have regarded this amendment more as a drafting amendment than one of substance. As such, I do not wish to challenge it. I wish to reiterate my view that a greater definition of "general licence" is required before the Bill can be allowed to become a statute.

On Question, amendment agreed to.

Lord Cullen of Ashbournemoved Amendment No. 249A: Page 54, line 3, after ("making") insert ("for the purposes of commercial research or").

The noble Lord said: I should like to speak also to Amendments Nos. 249B, 253A and 253B. Clause 126 and the amendments to it which have been moved concern powers to extend the coverage of the existing licensing scheme. Clause 129, as drafted, is limited to copying by educational establishments and deals with the power to order new schemes where existing schemes are inadequate or non-existent. As with the previous amendments, these amendments extend the Secretary of State's power to cover schemes referred to for photocopying in industry as well as educational establishments. I beg to move.

Lord Beaverbrook

As I have already said, the amendments moved by my noble friend deal with the issue of commercial research which we debated earlier in our proceedings. As I said then, we are already considering the proposal that photocopying by libraries for purposes of commercial research should be free to the extent that no licensing scheme covering the works in question has been established and certified under Clause 131. If we were to go down that route, my noble friend's proposal with regard to Clauses 126 to 130 would become largely unnecessary.

Lord Cullen of Ashbourne

I thank my noble friend for that reply. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 249B not moved.]

Lord Beaverbrook moved Amendment No. 250: Page 54, line 23. leave out ("a new licensing scheme or general licence") and insert ("the making of new provision").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrookmoved Amendment No. 251: Page 54, line 32, leave out ("a new licensing scheme or general licence") and insert ("the making of new provision").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 252: Page 54. line 34, leave out ("licences under the new scheme, or the new general licence'') and insert ("authorisation under the new provision").

The noble Lord said: 1 have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 129, as amended, agreed to.

Clause 130 [Statutory licence where recommendation not implemented]:

The Deputy Chairman of Committees (Lord Strabolgi)

Before I call Amendment No. 253, I have to inform the Committee that if the amendment is agreed to, I cannot call Amendments Nos. 253A or 253B.

Lord Beaverbrookmoved Amendment No. 253: Page 54, line 42, leave out subsections (I) and (2) and insert— ("(1) The Secretary of State may, within one year of the making of a recommendation under section 129 for the making of new provision, by order provide that if, or to the extent that, provision has not been made in accordance with the recommendation, the making by or on behalf of an educational establishment, for the purposes of instruction. of reprographic copies of the works to which the recommendation relates shall he treated as licensed by the owners of the copyright in the works. (2) For that purpose provision shall he regarded as having been made if—

1. (a) a certified licensing scheme has been established under which a licence is available to the establishment in question, or
2. (b) a general licence has been—
1. (i) granted to or for the benefit of that establishment, or
2. (ii) referred by or on behalf of that establishment to the Copyright Tribunal under section 114 (reference of terms of proposed licence), or
3. (iii) offered to or for the benefit of that establishment and refused without such a reference.")

The noble Lord said: The proposed amendment to Clause 130 to a certain extent reflects the change made in Clause 129. It also expands the section dealing with general licences. Although the theory behind a general licence is that all educational establishments will be treated or will act in the same way, there is no guarantee that that will be the case. The amendment caters for the situation where some establishments are offered a general licence but not others. If they are not offered a licence a statutory licence may be introduced in their favour. On the other hand, educational establishments will not be able to get the benefit of the statutory licence merely by refusing the offer of a general licence without referring to the Copyright Tribunal. I beg to move.

Lord Williams of Elvel

There seems to us to be some confusion between general licence and statutory licence. All that comes from the difficulty of deciding what a general licence is in the first place. Although we shall not oppose the amendment we ask the Government to look again at the question of general licence to make sure once and for all that they have it right.

On Question, amendment agreed to.

[Amendments Nos. 253A, 253B and 254 not moved.]

Clause 130, as amended. agreed to.

Clause 131 [Certification of licensing schemes]:

Lord Williams of Elvel moved Amendment No. 254ZA: Page 55, line 37, leave out ("may") and insert ("must")

The noble Lord said: I shall not be moving Amendments Nos. 254ZB, 254ZC and 254ZD. I shall concentrate my remarks on Amendment No. 254ZA. The amendment is a simple one. It attempts to argue that any person operating or proposing to operate a licensing scheme should have not the option but the requirement to apply to the Secretary of State and should not be able to operate such a scheme unless he has done so. This seems to us a reasonable amendment. The Minister may tell the Committee that other passages in the Bill make the amendment unnecessary. However, we believe that it should be a requirement and not optional.

Lord Campbell of Alloway

Even the Law Lords seem to disagree on the distinction between "may" and "must". On the issue of whether it is to be optional, "may" would appear to be optional and "must" mandatory. In principle I agree with the noble Lord, Lord Williams of Elvel, that it should be mandatory. As the Law Lords tend to disagree, why not write it into the statute?

Lord Beaverbrook

I believe that the noble Lord may have overlooked the purpose of the certification procedure under Clause 131. The clause relates to a number of provisions in Part I under which various classes of user of copyright works are permitted freely to copy the works concerned in various ways without infringing copyright unless there is a certified licensing scheme in existence. Clause 131 provides the necessary mechanism for getting such licensing schemes appropriately certified. Although the Secretary of State may certify a scheme initially, without a tribunal decision, on whether the terms are reasonable, the Committee will note that he must amend the certification order if there is a reference to the tribunal and the tribunal rules that the scheme must be varied.

An important feature of certification is that the Secretary of State is interested not in the merits of the scheme but merely in its existence. The purpose of certification is solely to give adequate publicity to the existence of the scheme and the consequent loss of the free statutory licence. It would make no sense to make the certification procedure mandatory. There will be enough incentive for rights owners who are affected to use it as it is. It would make even less sense to apply the procedure to licensing arrangements other than those affected by Clauses 35, 66, and 135. Indeed, I do not see what would happen to a scheme if it were not satisfied and it would appear open to the operator of the scheme to ignore his apparent obligation under the amendments.

Lord Campbell of Alloway

For once, having heard my noble friend's explanation, I am delighted to say that I think he is totally right.

Lord Williams of Elvel

As I indicated when moving the amendment, I thought that the Minister might be able to direct me to certain points in the Bill that render the amendment unnecessary. I accept that he has done so. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 254ZB to 254ZF not moved.]

Clause 131 agreed to.

Lord Willismoved Amendment No. 254A: After Clause 131, insert the following new clause:

("Private recording schemes.