Lords Sitting of 23 February 1988

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Truro.

Uranium: Imports from Namibia
Lord Hatch of Lusby: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether the Ministry of Defence has imported any uranium which originated in Namibia since 1984.
The Minister of State for Defence Procurement (Lord Trefgarne): No, my Lords.
Lord Hatch of Lusby: My Lords, is the noble Lord aware that on 20th January the noble Viscount, Lord Davidson, in answering my Question as to whether there had been any importation of uranium from Namibia since 1984, said that there had been no imports by the Central Electricity Generating Board? Is this not somewhat economical with the truth? Is it not the case that the original contract for the purchase of uranium from Namibia came not from the Central Electricity Generating Board but from the Ministry of Defence? Is it also not the case that the 1,100 tonnes of uranium for that contract, or part of it, has been imported by the Ministry of Defence since 1984?
Lord Trefgarne: My Lords, the Question on the Order Paper asks whether we have imported any uranium which originated in Namibia since 1984. The Answer that I gave the noble Lord was the correct one. As a matter of fact we have never imported any uranium originating from Namibia because it is uranium ore that we import and not the metal itself.
Lord Hatch of Lusby: My Lords, surely that is even more economical with the truth. The Question that I asked the Government and which the noble Viscount, Lord Davidson, answered on 20th January was concerned with uranium ore. The Answer given by the noble Viscount was that there had been importation of uranium ore by the Central Electricity Generating Board. That is importation by this country. I am now asking whether it is the case that the original contract came from the Ministry of Defence and that that uranium ore from the Rossing mine in Namibia has been imported since 1984 by the Ministry of Defence?
Lord Trefgarne: My Lords, if the noble Lord will forgive me for saying so, it really is not very satisfactory for him to place a Question on the Order Paper, receive an Answer and then complain that he has not had the Answer to some different Question. The Question that I answered was the Question that
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appeared on the Order Paper today. The Question that my noble friend answered was the Question that appeared on the Order Paper on that day.
Lord Cledwyn of Penrhos: My Lords, does the noble Lord agree that Her Majesty's Government refuse to allow uranium from Southern Africa to be included on the EC list of sanctions? Will he also say whether or not Her Majesty's Government or this country import uranium from other countries which have in turn imported it from Namibia?
Lord Trefgarne: My Lords, certainly not recently.
Lord Paget of Northampton: My Lords, if we need uranium why the blazes should we not import it from Namibia? Namibia is a very small country which, almost alone in Africa, has the advantage of being well-governed and not starving. Why should we not assist her by importing one of her very few exports?
Lord Trefgarne: My Lords, that is because recently we have not needed any.
Lord Hatch of Lusby: My Lords, is there not another answer? Does the noble Lord agree that the United Nations has decreed that no uranium, uranium ore or uranium oxide—whichever form the noble Lord likes to take—should be imported by any member of the United Nations from Namibia so long as Namibia remains illegally under South African administration? Is it not the case that the uranium oxide which the noble Viscount. Lord Davidson, admitted had been imported by the Central Electricity Generating Board was imported in breach of the United Nations decree?
Lord Trefgarne: My Lords, I am afraid that decree number one of the United Nations Council for Namibia was made outside the competence of the General Assembly which set up that particular Council. Therefore we regard it as null and void.
Lord Mackie of Benshie: My Lords, would it not have been better for the noble Lord to have given that Answer straight away instead of trying to make a play on words as to whether or not it was uranium that was imported?
Lord Trefgarne: My Lords, I always try to answer the Questions which are either on the Order Paper or are put to me subsequently, not the ones which might unexpectedly have been in the minds of noble Lords.

Balance of Payments
2.39 p.m.
Lord Ezra: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their latest forecast for the outturn of the current account of the balance of payments in 1988.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, my right honourable friend the Chancellor of the Exchequer will be making a new forecast at Budget time.
Lord Ezra: My Lords, is the noble Lord aware that whereas the Treasury had previously forecast an outturn for this year of something of the order of a deficit of £3.5 billion, most external experts consider it to be £6 billion on the balance of payments? That therefore would be a very serious situation bearing in mind that at the present time the rate of imports is three times in volume the rate of exports. Have the Government in mind any policies which will stem the situation by stimulating import substitutions?
Lord Brabazon of Tara: My Lords, as I said, there will be a new forecast in three weeks for the current account deficit at the time of the Budget. However, as regards import figures, recent figures for import volumes have been very erratic. It is not surprising that imports are growing relatively strongly, given the rapid growth in United Kingdom domestic demand and activity. The rise in imports is not confined to consumer goods. Rising imports of materials, semi-manufactures, intermediate and capital goods reflect rising output, stock building and investment rather than a surge in consumer spending.
Lord Barnett: My Lords, does the Minister accept that the figure of £3½ billion or approximately three-quarters of 1 per cent. of GDP which the Chancellor has forecast for the autumn is not especially excessive in current circumstances? Indeed, it is well within our capacity to sustain. However, does the Minister also accept that there is genuine concern in many quarters in the City and elsewhere about the level of consumer demand? Is that concern shared by the Department of Trade and Industry, and, if not, why not?
Lord Brabazon of Tara: My Lords, I accept the first part of the noble Lord's supplementary question. The figure of three-quarters of 1 per cent. as a percentage of gross domestic product is not that great, particularly when compared with figures from, for example, the United States, Germany and Japan, where trade balances are some 3 per cent. to 4 per cent. of gross domestic product, or indeed in comparison with our own gross domestic product in the mid-1970s, which was also 3 per cent. to 4 per cent. of GDP.
In reply to the second part of the noble Lord's question about concern in the City over possible overheating of the economy, I can do no better than point to the CBI's most recent survey, which was published yesterday. That survey showed a record number of firms reporting export order books above normal. The CBI expects export orders and deliveries to rise in the next four months.
Lord Bruce of Donington: My Lords, is the noble Lord aware that CBI forecasts tend to be somewhat erratic according to the season? Will he give the House an assurance that when the Chancellor makes his forecast, that will take fully into account the increase in net contribution by the United Kingdom
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to the EC budget following the recent somewhat questionable activities in Brussels?
Lord Brabazon of Tara: My Lords, the noble Lord tempts me to go further than the Question on the Order Paper in discussing the EC budget agreement. However, I am sure that when my right honourable friend makes his Budget forecast he will take everything into account.
Lord Hatch of Lusby: My Lords, does the noble Lord agree that the problem of the current account deficit is in line with the forecast made by the Select Committee of your Lordships' House on overseas trade some two to three years ago? Does he agree with his right honourable friend the Minister for Energy in saying that oil revenues, which have bolstered the revenues of this Government, have been used to finance unemployment payments for the numbers of unemployed people, which have been rapidly increasing since the Government came into office?
Lord Brabazon of Tara: My Lords, I am not sure that I can relate what the noble Lord has just said to any statements which may have been made by my right honourable friend. As regards the noble Lord's concern about manufacturing industry, the Government are very pleased that the volume of manufacturing exports was 9 per cent. higher in the fourth quarter than it was a year ago. Output is also up by 5½ per cent., comparing the fourth quarter with a year earlier. As for the proceeds of North Sea oil, I point to the enormous increase in UK net overseas assets, which is now the largest of those of all major countries as a proportion of GDP.
Lord Mackie of Benshie: My Lords, the Minister has rightly said that the rise in imports was due to manufacturing, raw materials, and so on, as well as to consumer goods. Is he able to give us a breakdown between consumer goods and raw materials?
Lord Brabazon of Tara: Not without notice, my Lords. However, I may be able to produce some figures and perhaps write to the noble Lord.
Lord Bruce of Donington: My Lords, is it not the case that imports of raw materials into this country, expressed as a percentage of imports, is under 16 per cent?
Lord Brabazon of Tara: My Lords, as I have said, I do not have those figures with me. However, in my earlier reply I did not concentrate solely on the import of raw materials. I also mentioned the import of semi-manufactures, intermediate and capital goods, as well as stock building and investment.
Lord Tordoff: My Lords, is it not strange that the noble Lord has given an Answer such as that without having the details at his fingertips? Surely it is not acceptable in your Lordships' House to put up a smokescreen without the figures to back it up.
Lord Brabazon of Tara: My Lords, if I came to the House with all the figures which might conceivably be

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asked for on a Question such as this one, my brief would be several times larger than the one I have.
Lord Whaddon: My Lords, is the noble Lord aware that his answers appear to many of us on these Benches to be unduly complacent? With the inevitable decline of oil in the next decade or so, the balance of payments is going to undergo a dramatic reverse which will eat up the reserves of which the Minister is so proud.
Lord Brabazon of Tara: My Lords, I am by no means complacent about the figures. I attempted to point out some of the good points about the figures, such as the large increase in exports of manufactures. We have held our share in manufacturing industry in world terms since 1981, compared with many decades of decline before that.

Construction Industry: Expansion
2.50 p.m.
Lord Campbell of Croy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what is their latest assessment of the prospects for increased activity in the construction industry in the United Kingdom.
Lord Hesketh: My Lords, figures so far available indicate that increases in output and new orders in 1987 have been particularly impressive. For the first three quarters of 1987, compared with the same period in 1986 and using constant prices, output has risen by 9 per cent. and new orders by 17 per cent., or 26 per cent. if the Channel Tunnel is included. Independent forecasts suggest that the industry will continue to expand, albeit at a less rapid rate, over the next two years.
Lord Campbell of Croy: My Lords, I am grateful to my noble friend for that reply and the interesting information which it contains. Will he indicate what kinds of project are causing the increase in activity or whether a general demand for building work is producing those good figures?
Lord Hesketh: My Lords, within the total output private sector expansion has led the way with a particular boom in commerical developments in London and the South-East. The optimistic outlook is boosted by new orders for the Channel Tunnel, Canary Wharf in the London Docklands and the Dartford crossing. A recent state of trade survey suggests that the prosperity of the industry is beginning to spread throughout the country where new developments such as the Metrocentre in Gateshead have led the way.
Lord Dean of Beswick: My Lords, I welcome the general figures that have been given. I am sure that everyone is pleased to hear that there has been an increase. Is the Minister aware that the latest quarterly report of the Building Employers
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Confederation predicts a continuing downturn in council house building activity? I therefore ask him once again—and this question has been asked before from all sides of your Lordships' House—whether he will ask the Secretary of State in another place if there is any possibility of releasing further local authority capital assets in order to get on with the increased council house building programme that is so desirable and so necessary in most parts of the country.
Lord Hesketh: My Lords, the Question on the Order Paper is specifically concerned with the general state of the construction industry. If the noble Lord would like to put down a Question on the point that he has just raised I shall be more than happy to answer it.
Lord Dean of Beswick: My Lords, I am sorry that I have to come back on that reply, but the figures that the Minister has given me are from the report that I quoted. I think that it is relevant that the public sector contains the biggest building sector in the country and not the smallest.
Lord Cledwyn of Penrhos: My Lords, does not the concentration of commercial development in the South-East just referred to by the noble Lord underline once again the comparative neglect of the rest of the country?
Lord Hesketh: My Lords, I also drew attention to the most encouraging signs that this development is spreading to the rest of the country. An example was, as I mentioned, the Metrocentre at Gateshead.
Lord Molloy: My Lords, may I ask the Minister whether the Government are contemplating introducing specialist computer training at all levels of education to meet the very obvious demands in the next decade for first-class computer experts in the construction industry?
Lord Hesketh: My Lords, the Government have started an initiative through the Manpower Services Commission for some 20,000 places in order to reduce the skill shortages. I shall have to write to the noble Lord on his question on computer training in the construction industry.
Lord Mellish: My Lords, will the Minister be good enough to take note of the fact that within the construction industry there is a body called the National Housebuilders Registration Council which issues a certificate during the building of a house and on its completion stating that it is in good condition? That is welcomed by many builders but there are others who will not have anything to do with the National Housebuilders Registration Council. It may go a little wide of the Question but can the Minister tell me whether the Government intend to ask some of those builders to join the council?
Lord Hesketh: My Lords, the cowboy builder is a menace both to the reputable builder and to the consumer. In January 1987 the department launched a working party to examine ways of tackling the problems caused by the cowboys. The working party's report is due at Easter.
Lord McIntosh of Haringey: My Lords, will the Minister acknowledge that he was given by the questioner a pretty free hand in choosing the period of comparison and that he decided to refer to an upturn in construction over a period of only 12 months? Would he care to give the House any more meaningful figures covering a longer period, such as five or 10 years?
Lord Hesketh: My Lords, I shall be more than happy to do so but I suspect that I shall need to be asked a rather more specific question.
Lord Bellwin: My Lords, is the Minister aware that the amount of construction and development activity going on in the North of England, taken from a line very far above Watford, is probably greater today than it has been for very many years? If one were to look at that activity in detail it would be extremely encouraging, not least to those of us who come from that part of the world.
Lord Hesketh: My Lords, I am very grateful to my noble friend for those remarks.
Lord Glenamara: My Lords, the noble Lord has twice mentioned the Metrocentre in Gateshead, which I know very well. What has he to say about a society which allows hundreds of millions of pounds to be used to develop that centre (which simply duplicates the high street shops—the latest instalment opened yesterday, financed by the Church of England—and which provides betting facilities for children) yet at the same time does not allow surrounding local authorities to use their own resources to build houses?
Lord Hesketh: My Lords, the success or failure of the Metrocentre will depend on the consumer.

Premature Baby Care: Manchester
2.55 p.m.
Lord Dean of Beswick: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have recently received any requests from Central Manchester Area Health Authority for increased financial resources to prevent a reduction in the number of places available for treatment of premature babies in St. Mary's Hospital, Manchester.
The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale): My Lords, no such request has been received.
Lord Dean of Beswick: My Lords, is the Minister aware that that Answer is in conflict with information that I have had from the chairman of that authority? Is he also aware that that authority has had to reduce from 15 to 10 the number of beds provided for
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premature births? Is he also aware that because of the cut-back more than one baby has died while places were being sought in other authorities? Is he satisfied with the fact that the children of that area of Manchester have less than the national average chance of living? The figures for premature baby deaths, infantile mortality and deaths in the first 12 months of life in that area of Manchester now stand at twice the national average. Is the Minister happy about that situation? If he is not, when will he do something about it?
Lord Skelmersdale: My Lords, the problem which the noble Lord brings to the attention of the House today is one, as he says, of a reduction in the number of beds in that particular paediatric unit from 15 to 10. I should make the point that within that unit are exactly the same number of doctors and the same number of nurses. What has happened is that with advances in medical science, which mean that smaller babies can now be treated—for example babies under 2lb. in weight—it has become necessary to use intensive care nursing with more nurses per baby. I am aware that the district health authority is in discussion with the regional health authority to produce two more cots for the unit, but that will require extra staffing.
Lord Ennals: My Lords, how can a Minister justify a situation in which urgently needed special care baby cots are cut by a third? How long can this game of Russian roulette with children's lives go on? Does he accept that, whatever may or may not be the solutions to the problems of the NHS, the most urgent need at the moment is to stop the bleeding and to stop those beds being taken out of use, particularly when children are dying?
Lord Skelmersdale: My Lords, the point that I was trying to make clear is that there is no cut in resources in that case. I explained why; namely, because of the medical decisions made on the ward there had been a reduction from 15 to 10 cots. I also explained that discussions were going on between the district health authority and the regional health authority to have two more beds in the unit.
Lord Wallace of Coslany: My Lords, is the noble Lord aware that he is saying in fact that there is no extension of facilities, the status quo is being maintained and any increase in demand is not being met?
Lord Skelmersdale: My Lords, I am saying that the nature of the demand has changed and the circumstances have changed to take account of it.
Lord Winstanley: My Lords, bearing in mind the beds that have already been lost from the Duchess of York's Hospital for babies in Manchester, does the Minister accept that it would be highly undesirable for any further beds for premature babies to be lost from St. Mary's Hospital, Manchester? Can he give the House an assurance that there will always be beds for premature babies in the Manchester area when needed?
Lord Skelmersdale: My Lords, within the region, yes. Within any particular district I am afraid that I am unable to give that assurance. I repeat that discussions are going on to provide two extra cots for that unit.
Lord Kilmarnock: My Lords, can the noble Lord undertake that some allocation will be made from the special funds for the reduction of waiting lists to redress this problem?
Lord Skelmersdale: My Lords, yes, within the waiting list fund quite a lot of money has been found for central Manchester, as has £300,000 from the special bridging fund; and £518,000 has come from the extra allocation announced by my right honourable friend the Minister for Health in December. It is for the region and the district concerned to allocate precisely where those moneys are to go.
Lord Ennals: My Lords, is the Minister saying that the decision to reduce the number of cots available is not a matter of resources? If so, how much is saved by a reduction in the number of these cots?
Lord Skelmersdale: My Lords, to exemplify my original Answer to the first supplementary question of the noble Lord, Lord Dean, nothing is saved in this case.
Baroness Fisher of Rednal: My Lords, can the Minister tell the House how the trained nurses will fill the gap at St. Mary's Hospital? The same problem of the shortage of skilled nurses in intensive care has arisen at the Birmingham Children's Hospital. Is the Minister aware that the training facilities for these nurses are very limited? Will the Government make further provision outside the London area for the training in these specialised areas?
Lord Skelmersdale: My Lords, yes. As I told the House the other day, a new training course in Birmingham for such nurses will be provided very shortly. Over and above that, there is the problem of people leaving the nursing profession. The reason is widely regarded as being the amount of pay for particularly stressful occupations, of which I would regard paediatric nursing and intensive care paediatric nursing as two examples. We are waiting for the report of the nurses and midwives salary review body to tell us where it considers that extra moneys would be most appropriately spent.
Lord Dean of Beswick: My Lords, does the Minister recall that in my first supplementary question I made the point quite forcefully that, because of the reduction of beds in Manchester, efforts have to be made to find placements for children in Liverpool and Leeds? I understand that there has been more than one death while children were awaiting placements in some of these other hospitals.
Is he aware that I am totally dissatisfied with his answer? The Government have an overall responsibility. I wish that the Minister would stop foisting the responsibility onto regional and district
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health authorities. Is he aware that those of us who have a regard for our city of Manchester are not prepared continually to sit back while the children in this area do not have the same chances of survival as those in other areas of the United Kingdom? In the end it is the Government's responsibility and nobody else's. When will he do something about it?
Lord Skelmersdale: My Lords, the Government's responsibility is underlined by the National Health Service Act, which, as the House well knows, gives us the duty to provide health care facilities. We do this on the basis of delegation to regions and from regions to district health authorities. It has always been done in this way. The Government's primary responsibility in this area is to make enough finances available globally for such distribution.
Lord Winstanley: My Lords, will the Minister accept that babies who are born prematurely have already demonstrated a commendable lack of interest in waiting lists? We need an assurance that there will always be beds available somewhere in the Manchester area for premature babies who need hospital treatment. Can he give that assurance?
Lord Skelmersdale: My Lords, I have given the assurance that sufficient beds will be available in the region. However, for obvious reasons I am unable to do so for particular districts.
Baroness Blatch: My Lords, is it not true that a review is considering some of the problems already addressed this afternoon and the funding of the health service? Is it not also true that it is a poor use of your Lordships' time to discuss in isolation a very emotional case without the background knowledge of how the millions that are going to the Manchester area health authority are being spent?
Lord Skelmersdale: My Lords, I am able to answer the questions that are put to me only to the best of my ability. However, I confirm that the review body is being asked to recommend rates of pay for a new grading structure for clinical nurses which has recently been agreed by the nursing and midwifery staffs' negotiating council. The new structure will mean better rewards and recognition for those nurses who provide hands-on care to patients and will place more emphasis on post-basic skills in key specialisms such as paediatric nursing and intensive care.

Business
3.5 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Report stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7.30 p.m. for approximately one hour and that during this adjournment the Third Reading of the Land Registration Bill and the Second Reading of the Multilateral Investment Guarantee Agency Bill will be taken.

Dartford-Thurrock Crossing Bill
3.6 p.m.
Brought from the Commons; read a first time, and referred to the Examiners.

London Local Authorities Bill [H.L.]
3.7 p.m.
The Chairman of Committees (Lord Aberdare): My Lords, I beg to move that this Bill be now read a second time.
Moved, That the Bill be now read a second time.—(Lord Aberdare.)
Lord Graham of Edmonton: My Lords, I shall not detain your Lordships' House long but it may be helpful if I set out the basis of the Bill and its importance to London and the people who live and work in our capital city.
The Bill is designed for the improvement and development of certain local government services in London. It contains provisions in respect of the operation of night cafes, and of the problems of litter. It deals with the growing problem of abandoned shopping trolleys. A substantial part of the Bill is concerned with revising and regulating conditions relating to street trading.
The Bill is promoted by Westminster City Council but has the backing of the two local authority associations affected by the Bill: the Association of London Authorities and the London Boroughs Association. I declare an interest as the president of the ALA; and in respect of a petition lodged against the Bill I am advised by the National Market Traders Federation. They have combined with the Federation of Street Traders Unions. Together they have enjoyed a substantial amount of consultation with the promoters.
Many matters which some years ago led to dispute in the GLC general powers Bill have been resolved and the street traders wish to aknowledge this. However, a matter of substance remains unresolved. This relates to a right of appeal by traders to an independent arbitrator in the event of a dispute with a participating council—a right contained in previous legislation but absent from this Bill. I am advised by the promoters that they acknowledge this deficiency and that they are anxious and willing to satisfy the burden of the petition.
With this measure of agreement, and a desire to reach mutually acceptable solutions, I have every confidence that the Committee of your Lordships' House to which this Bill will be referred can assist in giving London and Londoners a Bill making these modest changes in the regulations that govern important aspects of our lives. That is why I commend the Bill to the House.
The Chairman of Committees: My Lords, I am very interested to hear from the noble Lord, Lord Graham of Edmonton, of his split personality in this matter, in that he is on the side both of the promoters and of
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the petitioners. However, that is his problem. All I can say is that there is a petition from the Federation of Street Traders Unions and the National Market Traders Federation, and unless this petition is withdrawn it will be referred in the usual way to the Select Committee. I commend the Bill to the House.
On Question, Bill read a second time, and committed to a Select Committee.

Consolidation Bills: Joint Committee
3.9 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I beg to move the Motion standing in my name on the Order Paper.
Moved, That the Lord Jauncey of Tullichettle be appointed a member of the Joint Committee on Consolidation Bills in the place of the Lord Ackner, resigned—(The Lord Chancellor.)
On Question, Motion agreed to.

Copyright, Designs and Patents Bill [H.L.]
3.10 p.m.
Report received.
Clause 1 [Copyright and copyright works]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 1:
Page 1, line 10, leave out ("in accordance with") and insert ("under the provisions of").
The noble Lord said: My Lords, this is a drafting amendment. We must now consider a further 400 or 500 amendments to the Bill, which begins with the words:
"Copyright is a property right which subsists in accordance with this Part in the following descriptions of work".
My amendment relates to the words:
"which subsists in accordance with this Part".
I have tabled the amendment because at present the words mean nothing. Copyright cannot subsist in accordance with a part; it subsists under the provisions of a part. That language is normally used in legislation. For example, Clause 12 reads:
"subject to the following provisions of this section",
and Clause 16 reads:
"in accordance with the following provisions of this Chapter".
If the language of Clause 1 was used in Clause 16 it would read:
"the owner of the copyright in a work has, in accordance with this Chapter, the exclusive right".
That does not make sense and therefore I propose that the subsection should read:
"a property right which subsists under the provisions of this Part".
That is the purpose of my amendment and I beg to move.
Lord Beaverbrook: My Lords, I am afraid to tell the noble Lord that I can see nothing at all in his amendment. I certainly do not see it as an improvement. If anything, the Bill as it stands is better because copyright is not something which

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subsists under the Bill but in accordance with it. I would urge your Lordships to reject the amendment on those grounds.
I should like to point out that the House has plenty of amendments of substance with which to deal. Perhaps we should not spend too much time on amendments which do not require a great deal of discussion. I believe this to be such an amendment.
Lord Kilbracken: My Lords, we all appreciate the amount of time that the Minister gave to our amendments at Committee stage. However, I regret that he has taken that point of view. I should like to point out to him that in Committee I tabled a number of drafting amendments intended to improve the language of the Bill. We need only look down to Amendment No. 4 tabled in the Minister's name, to find that my point about bad wording and bad drafting has been taken up and that he has tabled an amendment accordingly. We could go on to Amendments Nos. 33, 34, 35 and 40, all of which relate to proposals which I put forward and which have been taken up by the noble Lord. Amendments have now been tabled along the lines I suggested in order to improve the wording.
From time to time it may happen that for no apparent reason my proposal does not find favour in the Minister's eyes. However, I should like to point out that my suggestions are valued and used by him. In my opinion, I am right about this matter and he is wrong.
Lord Donaldson of Kingsbridge: My Lords, I must say that the noble Lord on the Front Bench has been a little sniffy about my noble friend's series of drafting amendments not only in this Bill but in others. I sometimes find him to be a little long-winded but, generally speaking, he has had more successes than failures and I believe that they should be welcomed.
Lord Beaverbrook: My Lords, with the leave of the House, I should like to say that I welcome the contributions to our debates from the noble Lord, Lord Kilbracken. At the Committee stage he made many helpful suggestions. Between that stage and Report I have taken as much trouble as possible to deal with the matter and I have come back with government amendments hopefully satisfying a number of the points raised by him. However, there is a limit to the number of drafting amendments which have no substantial effect on the Bill. I was making the point that there are many issues of importance which we must discuss in the Bill and I do not believe that this amendment makes any improvement.
Lord Kilbracken: My Lords, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
3.15 p.m.
Lord Kilbracken Lord Kilbracken moved Amendment No. 2:
Page 1, line 13, after ("(b)") insert ("original").
The noble Lord said: My Lords, I hope that it will save time if in speaking to Amendment No. 2 I speak
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also to Amendment No. 3. I should point out that a further matter is involved with regard to that amendment. Amendment No. 2 is not a drafting amendment. In Committee there was a proposal to omit the word "original" in line 12. That was hotly contested by noble Lords and noble and learned Lords, including the noble and learned Lord, Lord Denning. He said that it was essential that the word "original" should be included in paragraph (a) which reads:
"original literary, dramatic, musical or artistic works".
When the amendment was being moved I pointed out that there appeared to be no reason why, if the word is included in paragraph (a), it should not also be included at the beginning of paragraphs (b) and (c). On that occasion the Minister assured me that was not necessary but he gave no good reason. He said no more than that it was traditional that the word "original" should not be used in the two paragraphs.
I suggest that it is a matter of substance. As the Bill appears at present, there can be no doubt that the person reading it sees that the copyright, if it is to exist in a literary, dramatic, musical or artistic work, must be original. That point is specified. He then sees that with regard to sound recordings, films, broadcasts or cable programmes the word "original" is ostentatiously omitted. What does that mean? Is it not logical to infer that in the cases of sound recording, typographical arrangements and so forth the work need not be original? That is the only conclusion that one can draw.
With regard to Amendment No. 3, your Lordships will see that I have not only included the word "original" but I propose that the paragraph should read "typographical arrangements" instead of "typographical arrangement", because all the instances under paragraphs (a) and (b) are in the plural—artistic works, broadcasts and so forth—and I believe that for the sake of consistency the word should be plural in paragraph (c). I beg to move.
Lord Williams of Elvel: My Lords, noble Lords will remember that in Committee we debated whether the word "original" should appear in this clause, and that was an instructive debate. I believe that my noble friend has something of a point, although it can probably be explained satisfactorily by the Minister. The question is: if the word "original" is included in paragraph (a), does that by implication mean that paragraphs (b) and (c) are devoted to unoriginal works? I believe that there may be involved something more than a slight drafting point, but perhaps the Minister can explain the matter.
Lord Beaverbrook: My Lords, this is more than a drafting matter; Amendment No. 2 is clearly a matter of substance. It is precisely because the concept or originality does not work in the case of sound recordings, films, broadcasts and cable programmes that the Bill treats them differently. Sound recordings and films are covered by Clause 5(2), which provides that:
"Copyright does not subsist in a sound recording or film which is, or to the extent that it is, a copy of a previous sound recording or film".

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Amendment No. 17 would replace the word "of" with the words "taken from" to resolve a doubt about that formulation. However, that point does not affect this matter. Broadcasts and cable programmes are covered by Clauses 6(6), 7(7)(b) and 14(2) and (3). Together they provide that there is no copyright in an infringing broadcast or cable programme and that copyright in a repeat broadcast or cable programme expires at the same time as that in the original—"original" here meaning simply "first".
The reason for this treatment of sound recordings, films, broadcasts and cable programmes is that to insert "original" in Clause 1(1)(b) as proposed by the noble Lord, Lord Kilbracken, would produce the wrong result. What is an original sound recording? It could be said that once one person has made a recording of a particular work, no other recording of that work could be original, so that the first person to record Beethoven's Fifth Symphony made an original recording but everyone else who did so, at least after they had heard and been inspired by the first recording, did not make an original recording and therefore did not acquire copyright. This is not what we intend for films and sound recordings, and if it was, the relevant industries would be aghast, and rightly so. Copyright should subsist in a sound recording or a film except to the extent that it is made by taking an existing recording or film and making a copy from it. Identity of subject-matter, and thus lack of originality in subject-matter, is irrelevant. We went through all this at some length in Committee and we shall do so again in a few minutes—rather more shortly, I hope—when we consider Amendments Nos. 17 and 39 in my name, and I hope that the House can accept that originality is not a concept appropriate to sound recordings and films.
Similar arguments, although not identical, apply in respect of broadcasts and cable programmes, and I do not propose going into further detail now. I explained the point to the noble Lord, Lord Kilbracken, in our debate on Clause 14 stand part in Committee. To deprive a repeat broadcast of all copyright on the grounds that it is not original would substantially undermine broadcasters' copyright, because a repeat is not a copy of the original, it is a repetition, and a person who wrongfully exploited the repeat could say, perfectly correctly, that he was not doing anything, even indirectly, in respect of the original. Therefore, I must resist Amendment No. 2.
Turning to Amendment No. 3, I must resist this amendment as well. The originality of typographical arrangements is adequately catered for by Clause 8(2), and nothing is gained by inserting "original" here. As to whether the singular or the plural should be used, I am sure that we could spend many hours exploring every possible avenue; but I see no point in doing so or in accepting this amendment. The Bill is clear enough as it stands. I hope that in view of the explanation I have given, the noble Lord will feel able to withdraw his amendment.
Lord Kilbracken: My Lords, I am very grateful to the Minister for the length at which he has dealt with the points that I raised. I find it a complicated matter and I find it strange that it should be essential to
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specify originality in one case but wrong to specify it in others. I want to read carefully what the Minister has said, and I am sure I shall then feel happy about having withdrawn the amendment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 3 not moved.]
Clause 3 [Literary, dramatic and musical works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 4:
Page 2, line 14, leave out from second ("work") to ("and") in line 15 and insert (", other than a dramatic or musical work, which is written, spoken or sung,").
The noble Lord said: My Lords, I trust it is for the convenience of the House to move together the two amendments to Clause 3 which are standing in my name. I shall also speak to Amendment No. 6 in the name of the noble Lords, Lord Williams and Lord Morton of Shuna. The first of my amendments removes the repetition of the word "which" in the definition of "literary work", which was criticised in Committee.
The second amendment follows on from a point raised by the noble Lord, Lord Kilbracken, in Committee. He suggested that the word "but" after the semi-colon in Clause 3(2) should be replaced by "and". I promised to consider his suggestion for improving the drafting. Having looked at the matter afresh, we believe it worthwhile to spell out the proposition in Clause 3(2) more fully. The amendment will make it plain that it does not matter whether the record is made with, or without, the permission of the author.
This amendment also clarifies a point which was of concern to the noble and learned Lord, Lord Denning, and perhaps others. There can now be no doubt that the author of an extempore speech, or one given from memory, or an impromptu song, is the speaker or singer concerned, and not the person who records the words or music. The Bill does not expressly deal with any claim to copyright that the person who records it might have.
Amendment No. 6 in the names of the noble Lords, Lord Williams and Lord Morton of Shuna, would add the additional words to the effect that any copyright subsisting as a result of the act of recording the oral work does not affect the position of any copyright which might be vested in the person doing the recording. Where the oral work is fixed by means of a sound recording or film, that is clearly the case. There will be a copyright in the sound recording or film as well as in the literary work. But I do not think that is the point the noble Lords opposite seek to address.
What is the position of the shorthand writer who records an extempore speech? As I understand the amendment in the name of the noble Lords opposite, they accept that the author of the speech is the speaker. Their concern is the position of the shorthand writer who has no sound recording or film copyright to rely on. Has he any copyright in his written record of the speech? The case of Walter v. Lane, which was decided before the 1911 Act was passed, ascribed copyright to a reporter, but it is not clear whether that still represents the law.
There is obviously a difference between a shorthand typist, taking down words from dictation, and a reporter making a note of a speech at a political meeting with no assistance from the speaker. It may be that the courts would give the latter copyright, although it is fairly clear that they would not give it to the former; but the impossibility of drawing a line between the two in general legislative terms has led us to avoid dealing with the point in the Bill at all. The amendment in the names of the noble Lords opposite deals with the matter rather clearly, if I may say so. They do not say that reporters do have copyright, or attempt to draw the line between those who ought to have it and those who do not, but they admit the possibility and leave room for the courts to fill in the details.
We are attracted by that approach. Reporters' copyright has been a difficulty throughout the preparation of this Bill, and it may be that what is now proposed represents the best solution. If the noble Lords, Lord Williams and Lord Morton of Shuna, would be willing not to press their amendment today, I shall see whether something should be done on Third Reading. In the meantime, I beg to move the amendment in my own name.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord for his response to our Amendment No. 6. I am course speaking to Amendment No. 4 and also, in the same grouping, Amendments Nos. 5 and 6. The noble Lord is entirely correct in his interpretation of our amendment. We seek to establish that a separate right from that of the creator of the material might also come into existence in the recording, whether it is a recording by a shorthand typist or a folk song recorder or a ballet notator, or whatever. In the light of what the noble Lord has said, I shall be very glad not to move my amendment and hope that the Minister will bring something forward on behalf of the Government on Third Reading.
Lord Lloyd of Kilgerran: My Lords, as I was the mover of the first amendment accepted by the noble Lord in Committee, perhaps I may be the first to congratulate him on the work that he has done in preparing so many amendments to deal with the matters raised at Committee. I should also like to congratulate the staff and his colleagues in his department for the tremendous amount of help that they have given in preparing this matter.
Lord Kilbracken: My Lords, the Minister was kind enough to say that I was at least partially responsible for his Amendment No. 5. He might have gone on to say that I was almost wholly responsible for Amendment No. 4.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 5:
Page 2, leave out line 25 and insert ("whether the record is made by or with the permission of the author.").
On Question, amendment agreed to.
[Amendment No. 6 not moved.]
3.30 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 7:
Page 2, line 25, at end insert—
("( ) The copyright in a spoken literary work shall not be infringed by the use for broadcasting purposes of a recording made of the author's speaking of such work, if the recording was not made by him or at his direction.").
The noble Lord said: My Lords, the law at present in regard to copyright is that it is a precondition for copyright protection that words should first have been written down by or on behalf of the author. The effect of Clause 3(1) in extending the definition of literary work to include the spoken word—that is, the present position under the Bill—would be to alter the present position where extempore speech was in the public domain.
It is accepted that the mischief which this change in the law is designed to cure is the situation where perhaps a brilliant off-the-cuff lecturer, an interviewee or a public speaker should be able to prevent a third party from making a recording of his speech, or a transcript of it, for commercial or other purposes without further reference to the speaker. The giving of copyright protection, therefore, to the spoken word per se puts broadcasters in a uniquely disavantageous position. Therefore, my amendment is directed to this:
"The copyright in a spoken literary work shall not be infringed by the use for broadcasting purposes of a recording made of the author's speaking of such work, if the recording was not made by him or at his direction".
With the leave of the House, I shall speak also to my Amendment No. 135.
This amendment is important because the unique advantage of broadcasting over the print media is that it can prevent people speaking. Sometimes a speaker may regret what he has said, or for any other number of reasons may try to prevent his speech being broadcast. It seems to be inherently undesirable that, if the Bill is not amended, it will provide the speaker with a means of so doing. That disadvantage seems to be out of all proportion to the general mischief that the Bill is designed to cure.
I have been asked to put forward a series of amendments by ITV and the BBC. I say at once that I have no interest in either of those organisations except as a viewer. Both ITV and the BBC have in mind the type of programme one commonly sees on television and hears on radio, known as an investigative programme, which seeks to explore an alleged wrongdoing to a member or class of members of the public. In those circumstances the alleged miscreant may be interviewed, albeit unwillingly, and then be advised by his lawyer that he could invoke the copyright in his spoken words to prevent the recording of his speech being broadcast.
There are three arguments which may be held against such an amendment. It may be said that the fair dealing provisions are adequate to cover the point. In my view they are not. A current event is not defined and, in common parlance, is unlikely to be wide enough to cover historical or retrospective programmes, or programmes which cover matters of public interest which are not topical or in the current news.
It may also be said that the spoken words may not constitute a work within the meaning of the Bill; that is, they are too insubstantial to amount to a work. It is accepted, of course, that monosyllabic responses to, say, an interviewer in the street may not amount to a work, although the definition of a spoken work is inevitably untested. If one looks at precedent in relation to written works, even the smallest written work can be held to be such in certain circumstances and to be able to maintain copyright.
The third argument which may be raised against this amendment is that there is implied licence. The first airing of the broadcasters' concerns over the spoken word was met with a suggestion that a broadcaster faced with an inhibitory claim by a speaker on the programme to prevent his words being broadcast could rely upon that which lawyers know as implied licence. The argument would run that if a speaker had voluntarily gone into the broadcasting studio and had been interviewed he could be taken to have impliedly consented to his words being broadcast. That may be so in respect of the first broadcast, but it could hardly be said that it has been a precondition for copyright protection that words should first have been written down by or on behalf of the speaker.
To have permission to license the reuse of his contribution later in the programmes or in a news bulletin would be difficult. Nor perhaps could he be said to have licensed the broadcaster to edit his words, which is sometimes necessary because of the time constraints of broadcasting. That last point needs to take account of the other side of the coin, which is to give the speaker protection against unjustified editing of his words. We shall come to that in a later amendment.
I am sorry for having taken so long on this matter, but it is an important amendment for broadcasters. I beg to move.
Lord Beaverbrook: My Lords, I assume that in addition to Amendment No. 7 we are speaking also to Amendment No. 35, in the noble Lord's name, as they both cover essentially the same point.
Amendment No. 7, moved by the noble Lord, Lord Lloyd of Kilgerran, closely parallels the amendment which he moved in Committee to insert a new clause after Clause 30. Its purpose is the same; that is, to prevent those whose spoken utterances are recorded by a broadcaster—for example, in an interview—from being able to invoke copyright to prevent or control the editing of the recording by the broadcaster.
The noble Lord's Amendment No. 135, to Clause 73, is allied to the first but goes a good deal further in that it would suspend the application of the right to object to unjustified modification to all works made for the purposes of broadcasting. There is, however, a saving in this case aimed at curbing the scissors of the overzealous editor. This provision would allow the integrity right to operate in respect of speech recorded for broadcasting which was subject to the proposed new copyright exception in Clause 3.
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I understand the concerns of broadcasters which underline these amendments. We have considered them carefully since they were discussed by your Lordships in Committee and indeed have discussed the issue with the broadcasters themselves. As regards the proposed exception to copyright in the spoken work, I have to say that we remain unconvinced that there is here a potential problem serious enough to warrant the curtailment of rights that this amendment would involve. As I said in Committee, we believe that in most cases the spoken words that are recorded will not be copyright works at all. In the rare case where there is a copyright work the broadcaster will in many instances be able to claim benefit of the fair dealing exception in Clause 30.
Finally, there is the point that if a person willingly goes into a studio to be interviewed, or allows an extempore speech to be recorded by a broadcaster, he will almost certainly be held to have granted that broadcaster an implied licence to use the material in question in the way such material is normally used.
On the other side, we must not forget that copyright is about protecting works. If a spoken item has sufficient substance to it to amount to a work, and it is given material form by being recorded, why should the author not receive the same protection as if he had written it down?
In spite of these reservations we do not want to create unnecessary difficulties for broadcasters, and if we can find a way of reconciling their concerns with the degree of protection which those whose spoken words are recorded for radio or television are entitled to, we are willing to consider it. We cannot accept the amendment as it stands since it would remove protection not only from those who know their spoken words are being recorded but also from those who are recorded unawares, and that seems wrong. However, we shall reflect further on the matter and if necessary discuss it further with the broadcasters.
I now turn to the noble Lord's Amendment No. 135, to Clause 73. I have to say that I see no justification for a general exception to moral rights for all works made for broadcasting. That goes very wide and I cannot believe the broadcasters really need it. The proposed saving to the exception for spoken words excepted from copyright control is, however, an interesting suggestion which we should like to consider further in our general reconsideration of the issues we have just been debating. I cannot say now whether it provides the right answer but we shall look at it.
In conclusion, I shall anticipate our later debates on Chapter IV of the Bill by saying that, among other amendments to the moral right provisions, we are seriously considering an exception for those modifications to a broadcast or cable programme which may be required by a regulatory authority in pursuance of its statutory duties, for example, to prevent obscenity. If that is adopted it will remove one important obstacle which broadcasters have told us they see in the provisions as they stand at present. I hope that that is reasonably clear and that, in the light of the undertaking I have given to the noble Lord that we should like further to consider this without commitment, he may feel able to withdraw the amendment at this stage.
Lord Lloyd of Kilgerran: My Lords, I am very grateful to the Minister. I thought that I had drawn the teeth of his argument against my argument by putting forward the fact that fair dealing would not be of any help to the broadcasters. The definition of "work" would not cause as much trouble as the noble Lord indicated and there was no question of an implied licence.
However, the noble Lord recited those difficulties against my amendment without giving any reasons for them or arguing them. In view of his undertaking given in relation to both these amendments, I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Clause 4 [Artistic works]:
Lord Mottistone Lord Mottistone moved Amendment No. 8:
Page 2, line 27, after ("photograph") insert ("hologram").
The noble Lord said: My Lords, in speaking to Amendment No. 8 I should also like to speak to my Amendment No. 14. I believe that my noble friend would like to include Amendments Nos. 15 and 16 in this little debate.
In Committee the Minister undertook to look again at this problem of holography. He dealt with this at col. 852 of the Official Report on 30th November when we were debating an amendment, which was not dissimilar to his Amendment No. 15, moved by the noble Lord, Lord Brain. At that time I had tabled amendments similar to those that I now have here.
My noble friend has kindly done what he said. He has put down Amendment No. 15. I should like to mention in passing that I am most grateful to my noble friend. I detect some 13 amendments in this Marshalled List which satisfactorily and directly result from undertakings he made in Committee. I detect only 10 which are unsatisfactory. I believe that to be a jolly good record and I thank him very much. I hope to thank him individually as the appropriate amendment comes up, but in case I miss it I am saying so now.
I appreciate what the Minister has done with Amendment No. 15 and at first sight it looked satisfactory. However, I am advised that it is not quite satisfactory because it is felt that there is sufficient difference between photography and holography for a hologram to require a separate definition. Hence my two amendments.
Perhaps I may remind your Lordships that conventional photography records information on the amplitude of the light incident on a photographic plate. A hologram, on the other hand, records both amplitude and phase information. It is therefore possible to reproduce a three-dimension image from a holographic plate. Because a hologram records both phase and amplitude information, the image formed on the photographic plate is not necessarily recognisable by the human eye but can require the use of special optical equipment to reproduce a recognisable image. Holograms can be produced by a variety of processes, including photographic processes. They are in common use for the presentation of artistic works as well as having application to such routine items as credit cards.
The main point I seek to make is that they are sufficiently different from photographs and the photographic process is only one of those with which one can produce a hologram. Therefore one justifies the need for a separate definition as included in my two amendments. I hope that it will be possible for my noble friend to consider those points at a later time, if not now, so that we may make a little progress towards concluding this particular discussion. I beg to move.
3.45 p.m.
Lord Brain: My Lords, I thank the Minister for Amendment No. 15. I shall make a further point about that in a moment if we are going to discuss that amendment, or perhaps after he has replied.
I disagree with the noble Lord, Lord Mottistone, that we need a separate definition of a hologram. It is defined in the dictionary as a photographic plate or film containing a holographic pattern. A holographic pattern is defined elsewhere. As I said at the Committee stage, the process of a hologram was very similar to one used by Lipmann in a colour process very nearly 100 years ago. The amplitude of different coloured waves was then recorded in the thickness of the emulsion. This has always been regarded as a photographic process and I believe that in exactly the same way holograms are a photographic process.
In Amendment No. 14 it may well be self-defeating because it says that a hologram is a product which is not a photograph. I am sure that any lawyer would say "a hologram is a photograph therefore a hologram does not exist". I reject the idea that we need to define a hologram. In due course, after the Minister has spoken, I should like to come back to Amendment No. 15.
Lord Beaverbrook: My Lords, I cannot match the depth of technical knowledge which is demonstrated by my noble friend Lord Mottistone. In speaking to Amendment No. 8, I shall also speak to Amendments Nos. 14, 15 and 16.
The noble Lord, Lord Brain, initiated an interesting debate in Committee as to the definition of a photograph. As he rightly said, the Government are seeking a definition which covers not only the present state of the art but also future developments. The question was also raised as to whether holograms are adequately covered. This is a concern to which my noble friend Lord Mottistone has returned with his amendments. To make explicit mention of holograms as the noble Lord, Lord Mottistone proposes, might seem to meet that specific point.
However, it is technologically limited, which was the point made by the noble Lord, Lord Brain. It assumes a relationship between photography and holography which may not remain the same. It also implies a limit to the meaning of "photograph" which may have the effect of excluding future things from being photographs which ought to be included but which do not fall within narrow concepts of photography and holography. We believe that definitions in this field should be technologically neutral as far as possible. This is why we have taken a further look at the definition of "photograph" itself.

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We believe that the definition of "photograph" offered by Amendment No. 15 in my name is technologically neutral and will embrace all works that your Lordships feel should fall within the ambit of the term "photograph", including holograms. We no longer have to concern ourselves with the question whether a hologram is a product of photography or a process akin to photography. It is unquestionably a recording of light or other radiation from which an image may be produced.
In looking at the definition of "photograph" we realised that there was merit in expressing the definition of "film" in Clause 5 in similar terms and that we have done in Amendment No. 16, which is also in my name. But there is one important difference. There is no reference to light or other radiation in order to ensure that films produced by the manipulation of computer graphics are covered. One result is that the phrase "moving picture", which the noble Lord, Lord Kilbracken—who I see is not in his place at the moment—found archaic, has been replaced by "moving image". I therefore invite my noble friend Lord Mottistone to withdraw his amendment as I believe that my amendments will meet his concern.
Lord Donaldson of Kingsbridge: My Lords, before the noble Lord sits down may I say that I am rather puzzled. I first saw a hologram a few years ago at an exhibition and it was utterly different from anything I had ever seen before. It is a perfectly clear word and if it had a definition I should have thought that one should have it defined entirely separately from a photograph, with which it shares some but not all of the technique of production. I cannot see any objection to having a separate definition.
Lord Mottistone: My Lords, I thank the noble Lord, Lord Donaldson, for his support for the principle of my amendment. He went to the root of the problem. Why not have a separate definition if it is different? In view of the fact that I am advised, and I repeat that holograms can be produced by a variety of processes, including photograph processes, I would question the definition from the dictionary that the noble Lord, Lord Brain, produced. He said that it is defined in the dictionary as a photographic plate. I suspect that the dictionary to which the noble Lord referred is not as up-to-date as it should be.
Lord Brain: My Lords, the dictionary also mentions photochromic methods of producing holograms and other things. "Photochromic" is covered by the Government's definition of photography which might not have been as it was originally described. The Government's definition of photography covers holograms and any other form of three dimensional device-making by lasers and things like that.
Lord Mottistone: My Lords, we could go on indefinitely. We have already taken nine minutes and that is not bad. This is a technical issue. I take the point that my noble friend has made and the point made by the noble Lord, Lord Brain. My advisers may or may not be satisfied with those arguments. I have to reserve the right to attack the problem again,
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perhaps not in your Lordships' House but in another place. It seems to me that we are jolly nearly there and perhaps we are. At this stage, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 9:
Page 2, line 27, leave out ("or sculpture") and insert (", sculpture or collage").
The noble Lord said: My Lords, the noble Lord, Lord Williams of Elvel, moved an amendment at Committee stage which sought to deal with the question of collage. At the time we were puzzled by the intent of his amendment and I promised to take the question away and think about it. The amendment will provide explicitly that a collage is an artistic work in which copyright may subsist. Whether or not the existing wording in the Bill would provide protection for collages is a moot point. This amendment removes any doubt, hopefully to the satisfaction of the noble Lord, Lord Williams. I beg to move.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord. I am wholly satisfied with the amendments that he has brought forward but have two questions. First, are the Government satisfied that collage is the only form of composite work that needs to be covered under this provision? It so happens that in Committee I raised the question of collage because I know somebody who is a great expert in collage. There may be other forms of composite work whose authors I do not know quite so well. I wonder whether it was mere chance that brought collage into the Bill or whether the Government had in fact researched all forms of composite work.
Secondly, so far as I can see, there is no definition of collage in the Bill whereas there is a definition of sculpture in Clause 4(2) and there are various definitions of works and expressions in Clause 162. Do the Government intend to put a definition of collage into the Bill as it is finally drafted?
Lord Strabolgi: My Lords, I agree and accept what the Minister says; but would it not be better if the word "collage" appeared after "graphic work"? "Collage" seems to be much nearer a graphic work. As the noble Lord probably knows, the Douglas Cooper collection at the Tate has a number of collage, several of them by Picasso and other cubists. They are much nearer to graphic work than they are to sculpture. I do not want to be unduly pedantic but perhaps at a later stage or in another place the noble Lord will consider the right place for this word.
Viscount Eccles: My Lords, following on from what the noble Lord has just said, does it really matter? Clause 4(1)(a) says,
"irrespective of artistic quality".
They can be anything. It hardly matters.
Lord Beaverbrook: My Lords, in answering the two points made by the noble Lord, Lord Williams, I would say that in my original answer I believed that a collage was probably covered in any case. We could

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run up a long list of types of work, whether or not composite, but I believe that composite works are covered.
As regards the definition, we believe that no definition of collage appears because it is not needed. The courts ought to be able to recognise one if they have one before them. Regarding the point raised by the noble Lord, Lord Strabolgi, we could argue about the order in which these matters should be set out and whether a collage is nearer a graphic work. We shall of course consider what he said. I am sure that it is not a matter of enormous importance, but we want to make the Bill as correct as possible and we always look at everything that your Lordships have said. In the meantime, I beg to move.
On Question, amendment agreed to.
Lord Rodney Lord Rodney moved Amendment No. 10:
Page 2, line 30, leave out ("or").
The noble Lord said: My Lords, in moving Amendment No. 10, I shall also speak to Amendment No. 11. Perhaps I may explain that all the amendments which I have put down refer specifically to typefaces and have been requested by the major companies in this country which design and produce those typefaces. I have no connection with those companies.
Their particular concern is focused on the apparent lack of protection given in this Bill to typefaces stored on databases. It may be of assistance if I briefly remind the House of how a typeface is produced. In the first place it is designed by an artist and from his original design an industrial drawing is made. This in turn is photographed and a positive film is produced. This photograph is scanned and a grid is superimposed on it which permits the measurements to be recorded in a computer. From those, all the relevant information is recorded on a database; on a floppy disk. From this thumbnail sketch I hope that the importance of protecting such databases and ensuring that they cannot be illegally accessed by an unauthorised party may be apparent to your Lordships.
Perhaps I may now speak to the amendments. I note from Hansard of the Committee stage that both my noble friends Lord Stockton and Lord Mottistone spoke eloquently in arguing that typefaces should be categorised as an artistic work. I am not sure that I have a great deal more to add to their arguments, but I would ask the Minister to consider this once more, particularly as apparently typefaces were so designated in the draft Bill. Your Lordships will I am sure have noted that when I was describing how a typeface is born I mentioned that the first operation is performed by an artist. I must ask why the work of an artist is not designated an artistic work.
Lord Williams of Elvel: My Lords, the noble Lord, Lord Rodney, has come back to the question of typefaces. We had a long discussion on this matter in Committee, and I think we covered the ground very fully. For my part, although I started off with a view which the noble Lord, Lord Rodney, takes, I was more or less persuaded by the Government in the end
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that they were right; and, on further reflection, that conclusion has been strengthened. Therefore we do not support the amendments, and I hope that the Government will not accept them.
4 p.m.
Lord Beaverbrook: My Lords, I feel that I shall disappoint my noble friend and please the noble Lords opposite on that basis, because I must resist my noble friend's amendments. With those amendments we turn again to the issue of typefaces, which, as the noble Lord, Lord Williams of Elvel, has reminded us, was fully discussed in Committee. I can do little more than repeat the points that I made when similar amendments were moved. However, before doing so I should point out that Amendment No. 11 speaks of,
"a design for a typeface"
rather than
"the design of a typeface",
which is the expression used in Clause 55. I am not sure whether any distinction was thereby intended but I have assumed that it was not.
The 1956 White Paper stated that it was the Government's intention to amend copyright law to give the creator of an original typeface the right to control reproduction of the typeface as well as the importation and commercial distribution of copies. The protection was to last 25 years and the UK would then ratify the Vienna agreement on typefaces. However, during preparation of the Bill, it was realised that it is unnecessary to create a separate class of work to achieve the desired result. The design of a typeface is an abstraction which will be recorded in a drawing, engraving or other artistic work. The reproduction of the design would therefore be an infringement of copyright.
Furthermore, it is unnecessary to protect a set of typefaces as such since infringement of the copyright in a set would be an infringement of the copyright in one or more characters of the set. Therefore the Bill allows copyright protection for typeface designs to continue as it is now; that is, on the basis of the protection now afforded to artistic works. If the typeface design is commercially exploited, then Clause 55 ensures that the effective copyright term is limited to 25 years.
Clause 54 ensures that the use of typefaces in the ordinary course of printing does not infringe the copyright. The design of, or for, a typeface is an abstract concept. Once it is fixed in some way—for example, drawn on paper—it become an artistic work which is entitled to copyright protection as such. I do not think that we should add abstract concepts to the list of works which should have copyright protection. It is rather like adding to the list the phrase "an idea for a painting". An idea, whether it be for a painting or typeface design, becomes a work only when it is set down on some medium.
I turn to the point raised by my noble friend that the Bill does not protect typefaces recorded in databases. The typeface starts life as an artistic work and it retains that characteristic for all time. The fact that it may subsequently be stored in a computer database does not affect that position. Anyone who steals the design from the database will infringe

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copyright in the original artistic work. I hope that my noble friend will feel able to withdraw the amendment.
Lord Rodney: My Lords, I am grateful to my noble friend for that explanation, although I must admit that I did not fully understand it. However, if I understood him correctly, he said when the work was recorded on a piece of paper it became an artistic work. But surely it starts off on a piece of paper. That is what the artist does. Therefore, it starts as being an artistic work. It ceases to be an artistic work and then when it is recorded it returns to being an artistic work. I may have misunderstood the point, but in any event I beg leave to withdraw the amendment.
Amendment by leave, withdrawn.
[Amendment No. 11 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 12:
Page 2, line 32, at end insert—
(""building" includes any fixed structure, and a part of a building or fixed structure:").
The noble Lord said: My Lords, while speaking to Amendment No. 12 also, with leave, I shall speak to Amendments Nos. 160 and 183. I promised that we would look again at the definition of "a work of architecture" in Clause 4 in the light of comments made in Committee by the noble Lords, Lord Howie of Troon and Lord Williams of Elvel.
Your Lordships may recall that the noble Lord, Lord Howie of Troon, was concerned that Clause 4, as drafted, could exclude structures such as Waterloo Bridge from protection and that buildings designed principally by engineers, rather than by architects, might not be regarded as works of architecture.
We have, I trust, met his concerns by defining the term "building" broadly so that it includes any fixed structure. This means that the various constructions that the noble Lord cited in Committee would all be protected. It would of course be a question of fact as to whether the author of a particular work of architecture was an architect or engineer, or whether it was a work of joint authorship. But the important point is that a work such as a bridge would be protected.
The second matter addressed by this amendment was that raised by the noble Lord, Lord Williams of Elvel. He asked that it be made clear that architectural plans for part of a building—he cited the extension to the National Gallery—should be protected by copyright. I said at the time that we did not think there was any doubt about this, but this amendment will remove any possible doubt that might exist.
As a result of Amendment No. 12, consequential amendments will be needed in Clauses 89 and 100 to remove references to fixed structures, which are now embraced by the term "building". I beg to move.
Lord Howie of Troon: My Lords, obviously I must begin my remarks by thanking the Minister for responding so well to the amendment which I moved in Committee. I hope that I shall not seem too churlish if I look this gift horse in the mouth for just a moment. I believe that my amendment which
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referred to a work of architectural or engineering construction, was better than the draft which the Minister has adopted.
I say that for the following reasons. I wanted to emphasise that I had engineering structures in mind. I know that there are dictionary definitions of architecture which include structure; and I have to submit to that fact. However, it is worth recollecting that not all engineering structures are fixed. For example, many bridges are supported on rollers so that they can move. It is also true that many engineering structures, including buildings, are supported on raft foundations which move up and down, sometimes in response to the movement of nearby tides. Therefore, such buildings might be thought to be fixed but in fact are not; they can move in at least one direction, if not in all.
Let me look this gift horse further in the mouth. Last week I was in Sydney where I saw displayed side by side three great examples of British engineering and architectural merit. One was the Opera House, which I mentioned in Committee and which is clearly a building. It was described as a "typewriter full of oyster shells" by someone. Nearby is Sydney Harbour Bridge,which is almost a fixed structure. It has a hinge at either end, and it may well have one in the middle (although I cannot remember) so that it can move up and down. We can, I think, admit that it is a fixed structure within the meaning of the Minister's amendment. But between those two examples of engineering and architectural excellence was sitting "Queen Mary II", which is a boat. It is not fixed; it is not a building.
It is likely to be thought of as a work of artistic merit in the sense in which we are using the word in the Bill. But what strikes me—this is a new thought that has come to me since the Committee stage—is that, although we have dealt with structures and buildings, we have not dealt with or attempted to deal with ships; that is, unless ships are dealt with later in the Bill under the general heading "design right". One could perhaps move from a bicycle, where design right presumably applies, through a variety of forms of transport until one eventually reaches ships. I do not think that that is what is intended by the Bill, but I merely draw attention to the fact that the definition which we now seek to include by way of the amendment has some defects. I welcome it. I am grateful for the attention which the Minister has given to the point that I raised. I hope that it will be looked at further, and that at a later stage in the proceedings the formulation will come nearer to my original definition.
Lord Williams of Elvel: My Lords, I am grateful to the Minister for considering sympathetically what my noble friend Lord Howie and I said in Committee. I suppose that my noble friend and I can claim joint copyright for this amendment. Nevertheless, as always, great minds think alike. I too was worried by the fact that ships were not covered by the formulation that the noble Lord and the Government have adopted. No doubt there is some reason why they have put "fixed structure", and I am sure that the noble Lord will be able to explain that. In the hope that an explanation will arrive very

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shortly, perhaps I may say in the meantime that I am happy that the noble Lord and the Government have accepted the points that we made. We hope he can explain and somewhat calm the worries which my noble friend Lord Howie and I have.
Lord Mottistone: My Lords, I suggest that, "a work of artistic craftsmanship" describes a ship admirably.
Lord Beaverbrook: My Lords, in attempting to satisfy the various points raised by the noble Lord, Lord Howie, at Committee stage, we have indeed inserted the words "fixed structure". I am tempted to say to him that perhaps the only things that do not seem to be fixed are the goalposts in this particular debate. I should just like to address the points that noble Lords have made.
First, with regard to the matter of ships, I believe the original designs would be drawn by a naval architect whose drawings would be protected under the Bill. The expression "engineering structure" does, as the noble Lord said, include structures which are not fixed. The concept of moveable structures is recognised in Clauses 89 and 100. We do not want to encompass moveable engineering structures which are in no sense buildings such as chemical processing parts or indeed ships. They must seek their protection elsewhere, including under Part III on the design right in articles. It is for the courts to identify the borderline between fixed and moveable structures; but we do not want to extend works of architecture to cover the latter. I hope that is helpful to noble Lords.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 13:
Page 2, line 36, leave out (", print").
The noble Lord said: My Lords, in moving Amendment No. 13, during the stand part debate on Clause 4 in Committee my noble friend Lord Broxbourne expressed the view that inclusion of "print" in the list of graphic works was almost bound to lead to confusion. He pointed out that the term "print" could cover not only graphics on which the artist has personally worked and which merit copyright protection but also works which are merely the result of mechanical or photographic processes, which should not be protected by copyright. His concerns were echoed by the noble Lords, Lord Kilbracken and Lord Howie.
Having looked at this again, I have to say that I believe the noble Lords were right. In our efforts to restructure the 1956 Act on a more logical basis we brought together the various definitions of what constitutes an artistic work into a single clause. I believe that to be the right approach. But in taking definitions from Section 48 of the 1956 Act and putting them into Clause 4 we overlooked the fact that "print" in the 1956 Act is a sub-species of an engraving and not a category in its own right.
In the context of Section 48, the problem identified by my noble friend Lord Broxbourne does not arise, but the inclusion of "print" as a separate type of graphic work in Clause 4 could lead to difficulties, as
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he suggested. The simple answer is to remove the source of potential confusion. We are confident that this does not remove from the ambit of the definition of artistic work any work that should be covered by copyright. I beg to move.
On Question, amendment agreed to.
[Amendment No. 14 not moved.]
4.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 15:
Page 2, leave out lines 38 to 40 and insert—
(""photograph" means a recording of light or other radiation on any medium from which an image may by any means be produced which is not a graphic work, a part of a film or a reprographic copy;")
The noble Lord said: My Lords, I beg to move.
Lord Brain: My Lords, I said I should like to listen to what the noble Lord, Lord Beaverbrook, had to say about this amendment when it was being discussed earlier. I have a brief point to make. As he well knows, I am concerned with the words "or a reprographic copy". Many photographers would regard an enlarger under the definition of reprographic copying process as a reprographic copying device. This is a genuine concern and will cause confusion in the minds of photographers seeking to protect their works. I wonder whether the noble Lord would like to consider removing those words by the next stage and amending the definition of reprographic copying to the extent that such copying does not result in the creation of a photograph.
On Question, amendment agreed to.
Clause 5 [Sound recordings and films]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 16:
Page 3, line 10, leave out from ("recording") to ("may") in line 11 and insert ("on any medium from which a moving image").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Lloyd of Hampstead: My Lords, before we pass from this amendment, perhaps I may briefly say that I am naturally rather pleased that the proposal that I made in Committee stage—that the phrase "moving picture" should be replaced by the expression "moving image"—has been adopted. I mentioned at the time that this was an accepted modern phrase, and I instanced the case of the Museum of the Moving Image which the British Film Institute is now busily engaged in establishing on the South Bank. I am glad that the Government have recognised that this phrase is a more flexible one than "moving picture" for which some Members of your Lordships' House expressed a continuing affection.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 17:
Page 3, line 13, leave out ("of") and insert ("taken from").
The noble Lord said: My Lords, with leave, in moving Amendment No. 17, I shall also speak to Amendment No. 39.
It is quite clear that a sound recording or film should not be deprived of copyright protection because it happens to be a recording or film of the same subject-matter as an earlier film or recording. For example, if I make a recording of Beethoven's Fifth Symphony, I should be entitled to copyright in that recording.
Clause 17(4) of the Bill as drafted would have ensured the correct result since it provided that copying in relation to a sound recording or film does not include the making of another recording or film of which the subject matter is the same or substantially similar. However, for reasons that I shall now explain, we propose deletion of Clause 7(4) in Amendment No. 39.
Clause 17(4) was included in the Bill in response to comments on the draft clauses we circulated in last summer's consultation exercise. We hoped that Clause 17(4) would make the position clear, but must confess we were not wholly confident it would do so. I think the debate we had in Committee showed that we had not achieved our objective. There is, I believe, general agreement that the tourist taking a photograph of a landscape should not be in danger of infringing the copyright of a previous photograph, even if he had been inspired by the earlier photograph. Your Lordships may recall that this was the example cited by my noble and learned friend Lord Hailsham. Similarly, a sound recording of Beethoven's Fifth Symphony should not be deprived of copyright because it is regarded as a copy of a quite independent earlier recording of the same work.
But the situation is not always that simple. Indeed, as far as copyright is concerned, your Lordships may agree with me that it never seems to be! The noble Lords, Lord Brain, Lord Morton and Lord Kilbracken, all raised examples where the approach adopted in Clause 17(4) breaks down. The noble Lord, Lord Morton, cited the case of Bauman v. Fussell as indicative of the difficulties in this area.
Since we have been unable to devise a way of narrowing Clause 17(4) so that it only covers the cases such as the tourist's photograph, we have concluded that the best course is to delete the subsection and rely on the courts to come to sensible conclusions on the basis of the facts of a particular case. The question whether one photograph is a copy of another of the same subject matter will have to be decided by the usual tests—is it original? Has it involved skill and effort on the part of the photographer? Or has he merely taken the work of another without any creative effort on his own part, as would clearly be the case of a photograph of a photograph?
To give the examples of the learned judge in the Bauman case, it should be legitimate for a painter to use a photograph of a procession on which to base his painting. He is using the photograph merely as a historical record so that in his painting everyone is standing in the right place. He is taking the arrangement of the people concerned. If the arrangement is more than the accident of where people happened to be standing at any given instant, it was organised not by the photographer but by the organiser of the ceremony.
On the other hand, if the photograph makes an original arrangement of animate and inanimate objects to create a particular design, then someone who later reconstitutes that original design and photographs it is copying the essence of his work. Since we cannot find a form of words to distinguish clearly between what is, and what is not copying, in all cases of this kind we have reluctantly concluded it is best to return to the existing law and leave the question open.
Without Clause 17(4) there is a danger that Clause 5(2) could be construed to deny copyright protection to sound recordings and films which repeated the subject matter of earlier recordings and films. The amendment makes clear that it is a copy actually taken from an existing sound recording or film—a direct copy—which is to be denied protection. This amendment seems worthwhile even if your Lordships were to decide to retain Clause 17(4). If, as I hope, the House agrees to leave out Clause 17(4), then the amendment will make the position clear. I beg to move.
Lord Williams of Elvel: My Lords, I congratulate the Government on arriving at what I think is about the only possible compromise in a very difficult situation. A lot of noble Lords from this side of the House criticised the Bill as drafted, and indeed found it very difficult to understand how the position was tenable in the long run. I accept that the Government will be taking out Clause 17(4) with reluctance, but I think that that is the only way for them to proceed and we support this amendment.
On Question, amendment agreed to.
Clause 6 [Broadcasts]:
Lord Beaverbrook:Lord Beaverbrook: moved Amendment No. 18:
Page 3, line 18, leave out from ("(b)") to end of line 19 and insert ("—
(i) which is not encrypted, or
(ii) which is encrypted but for which decoding equipment has been made generally available to members of the public by or with the authority of the person making the transmission,
and which is capable of being lawfully received by members of the public;")
The noble Lord said: My Lords, the purpose of Amendment No. 18—and if I may have leave I shall also speak to Amendment No. 19—is to simplify the definition of a satellite broadcast which a number of your Lordships criticised at Committee stage. There is no change of substance, but we have been able to remove the phrase "accessible by members of the public" which was objected to by the noble Lords, Lord Williams of Elvel, Lord Kilbracken and Lord Kilmarnock. On consideration we felt that we could also remove as superfluous the references to "appropriate equipment", and to "any necessary licence". This is because, if a person is "capable of receiving a transmission", he must of necessity possess the means of doing so. Similarly, if he is without any licence that may be required, he cannot receive the transmission "lawfully".
We did not, however, feel that we could remove the word "lawfully" itself. What are excluded by the phrase,
"capable of being lawfully received by members of the public"

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are transmissions of a kind which no member of the public is licensed to receive. There are of course several such classes of satellite transmission. My Lords, I beg to move.
Lord Williams of Elvel: My Lords, we are grateful to the noble Lord for returning us to proper English in the Bill and for accepting our objections to the original drafting. I am still a little concerned about the expression "lawfully". I do not wish to dwell on it this afternoon, but I think that we shall have to have a another look at it and see whether we wish to come back on that at a later stage.
I am not entirely satisfied with what the Minister said in giving reasons why he felt that "lawfully" had to be retained. Nevertheless, as I say, I shall not pursue the matter today. We shall have to look at it with our advisers and see what happens at the next stage.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 19:
Page 3, line 21, leave out subsection (2).
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 20:
Page 3, line 31, at end insert
("or if he is responsible for the whole of the contents of the broadcast and, while not being the person transmitting it, makes the arrangements with that person necessary for the transmission").
The noble Lord said: My Lords, I beg to move Amendment No. 20 and, with the leave of the House, will speak to Amendment No. 21. We now come to amendments to Clause 6 of the Bill which deals with broadcasts. Subsection (1) of Clause 6 deals with the definition of broadcasts. Subsection (2) deals with what is meant by "accessible by members of the public". Subsection (3), to which my amendment relates, defines the persons who can be called broadcasters.
The reason for this amendment is to clarify the position as regards ITV programme contractors and the IBA, and under subsection (3) both of them should rank as broadcasters. This amendment also covers a point raised by a colleague of mine, Mr. Justice Whitford, when he was presiding over a reference to him concerning the Performing Right Tribunal under Section 25 of the Copyright Act 1956. He came to the same kind of conclusion—that both ITV programme contractors and the IBA should be permitted if they wished to take their cases to that tribunal. I understand that considerable discussion has taken place between members of the staff of ITV, particularly Miss Gillian Davis and Miss Jane Vizard, who have done so much work in these matters, and representatives of the Minister's department, so I am not proposing to give further support to this amendment. It only means, so far as Amendment No. 21 is concerned, that if my Amendment No. 20 is accepted as to the definition of "broadcasters", then paragraph (b) of subsection (3) will not be necessary. My Lords, I beg to move.
Lord Beaverbrook: My Lords, as the noble Lord, Lord Lloyd of Kilgerran, has said, the purpose of these amendments is to ensure that in the case of broadcasting by independent television the relevant programme contractor, as well as the IBA, qualifies under Clause 6(3) as the person making the broadcast, and therefore the first owner of copyright in it. As the Bill stands only the IBA will qualify as the maker since that organisation alone, not the contractor, fulfils the condition in Clause 6(3)(a), and Clause 6(3)(b) will thus not apply.
The question of authorship and ownership in relation to broadcasts is one that we have been discussing in some detail with the IBA and the Independent Television Association since the Committee stage. They have explained to us very fully why they consider that both the authority and the contractor require to be owners of copyright in the broadcasts. I am happy to say that we concur. We have put certain suggestions to them as to how this might best be achieved in the Bill and, indeed, the words of the noble Lord's amendments are not entirely unfamiliar to us.
We therefore accept these amendments in principle. We should, however, like to consider further the form they ought to take, and, indeed, as the words have been inserted, the subsection would be self-contradictory. There are still one or two minor points to sort out, such as whether a complementary amendment is needed to Clause 10, and whether we have adequately covered the position of the Welsh Fourth Channel Authority. If the noble Lord, Lord Lloyd of Kilgerran, feels able to withdraw the amendment, I undertake to come back with some proposal on Third Reading.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the Minister. In view of his undertaking, I shall of course withdraw the amendment. I understand his undertaking to be that the Government will bring forward an amendment to cover the position that has been put to him by members of the ITV legal department. I beg leave to withdraw the amendment.
Amendment, be leave, withdrawn.
[Amendment No. 21 not moved.]
4.30 p.m.
Clause 9 [Authorship of work]:
Baroness Birk Baroness Birk moved Amendment No. 22:
Page 5, line 31, leave out ("or film").
The noble Baroness said: My Lords, in Committee my noble friend moved an amendment to try to bring about a state of affairs similar to that at which Amendment No. 22 aims. However, it was rather more wordy and not as clear and crisp as the present amendment. We still feel that the director's contribution to film should be recognised not only in moral rights but in the copyright. On his responsibility depends how the script is transferred to the screen. It is an essential work of creative extension.
My noble friend Lord Willis, pointing out in Committee the importance of the producer as the man who gathers together all the resources to be able

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to go ahead and make the film, gave the example of Richard Attenborough's "Cry Freedom". I believe I am right in saying that Richard Attenborough also directed the film.
The difference between a good director and a director who is not so good makes the difference between a successful and an unsuccessful film artistically and can result in a great deal of enhancement to the written work of the author or mean that it is treated catastrophically. We feel that this should be given further serious consideration. Some Continental copyright laws accept this by according copyright in a film to the director. In this country we have given the copyright to the entrepreneur, who organises the production. The amendment seeks only to give an adequate recognition by according a joint interest in the copyright initially.
As the work of film-making becomes ever more sophisticated and the art of film increases every day, it seems important that the director should have his work acknowledged in this way at least. We believe that it is not sufficient to accord him moral rights, but the starting position ought to be one that recognises his essential contribution.
Lord Lloyd of Hampstead: My Lords, when I spoke to the earlier form of amendment moved in Committee by the noble Lord, Lord Williams of Elvel, I pointed out that, while I profoundly sympathised with the notion of giving the maximum recognition to the director of the film, who undoubtedly plays a crucial role in the ultimate product that emerges from the screen, nevertheless in practice in the film world it is generally recognised as considerable sense to regard the person who makes the arrangements to put the film together primarily as the author of a film. He is the person who provides the finance for that purpose or arranges for the finance to be obtained by the distributor, or whoever it may be.
When it comes to the practical problem, it is inevitable that an express arrangement will be made as to the financial interests in the film. It is therefore more likely to create problems than to solve them by having a primary situation that the director and producer are to be regarded as joint authors.
In the practical context this would be a totally undefined relationship. It would have to be resolved by express contract in every case. Although I have great sympathy for the idea of recognising the vital role of the director—it has been recognised in the Bill as drafted by way of conferring upon him a moral right, of which I entirely approve—I think that on the whole we might create more problems in attempting to reconstruct the position as defined in the existing law. So far as I am aware, this situation has not hitherto created any particular problem or dispute as between directors and producers. It is therefore with a certain measure of reluctance that I find it difficult to go along with the amendment, which substantially reproduces the earlier amendment in regard to the position of the director and producer of a film.
Lord Graham of Edmonton: My Lords, I hope that the Minister has something useful, positive and
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sympathetic to say about the amendment. I should like the Minister to address himself particularly to the problem in the context of the European nexus. If we are moving inexorably towards harmonisation, observance and compliance with a great many of the practices of the European scene as we in Britain understand it, the Minister has to tell the House how he sees this to be different from what I am advised by the Association of Cinematograph, Television and Allied Technicians is a disturbing feature.
This is contrary to what was said by the noble Lord, Lord Lloyd of Hampstead. He said that the present position has not caused any disturbance or upset, and indeed implied the contrary. He did not say that there had been great dissuasion and argument. The ACTT and many others are grateful for the care that the Minister has taken since Committee to consider their representations. I understand that there have been discussions not only in correspondence with the Minister and his colleagues but also with the Minister's officials.
If the position is as outlined by my noble friend Lady Birk, then on the Continent the director has the same rights that an author has. The concept is that "author" includes film director in Europe but excludes film director in the United Kingdom. We are arguing in terms of what moral rights are worth once they have been given. One might say that they are worth a great deal. Both the ACTT and the film directors who seek to have their views represented to the ACTT tell me that prima facie it does not look as though they will be worth a great deal.
I think that the Minister has also to deal with the direct question of who, in the eyes of the public and indeed of the industry, carries the greatest clout as to the credit that needs to be taken for a great many film works. My noble friend Lady Birk instanced Sir Richard Attenborough. I am certain that many of the films that were directed by Sir Carol Reed, Sir David Lean and many others are looked upon as their films. I know that the original work from which a film was produced clearly in many instances was not written by those people, but they are seen to have enhanced enormously the quality, the worth and the economic value of the work.
I should be very grateful if the Minister could tell me at this stage why a chance, as it appears to me, is being missed of creating a unique opportunity to harmonise with Europe on a relatively simple issue. What we are really asking is, should not the director, who in most instances is worth a share of the economic value in a film which he has directed, be seen on the face of the Bill to be entitled to more than that which appears, good as moral rights are, to be the value of moral rights?
Lord Willis: My Lords, I find myself more in sympathy with the noble Lord, Lord Lloyd of Hampstead, on this amendment. I hope that the Government will resist it. I think that directors on the whole can protect themselves by contract and they do not need special protection in this Bill. No one need weep any tears here about Sir Richard Attenborough. He is thoroughly protected by contract and he does have the credit of "a film by Richard Attenborough". If one goes along this road one gets into a quagmire, because an author of a film

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also happens to be, dare I mention it, the screenplay writer.
Whose film is "A Man for All Seasons"? Is it Robert Bolt's or Fred Zinnemann's? This amendment would give Fred Zinnemann the authorship as director but it would exclude Robert Bolt. We do not need to go down this road. The principle here can be protected by contract. I may say that I have a fierce hostility to the move which has been apparent in the past few years for saying "a film by". No film is by any particular individual. It is a collective piece of work and in most cases it is inspired by an original work. "Great Expectations" could be said to be a film by David Lean, but does one not mention Charles Dickens, on whose marvellous material it was based?
As a screenplay writer I resent the idea that the director is an author. Films are a collective and we should all, director, producer or author, have our whack of any profits that are available. But I do not think that we should enshrine in a Bill a special position for director.
Lord Graham of Edmonton: My Lords, before the noble Lord sits down, will he comment on the European situation where the position appears to be different to the point he is arguing?
Lord Willis: My Lords, the Europeans have always been awkward in this respect.
Lord Kilbracken: My Lords, I agree to a very great extent with what my noble friend Lord Willis has just said. It seems to me that in the case of a motion picture there are a number of authors or there can be considered to be a number of authors. As my noble friend said, there is the original writer, who would be Herman Melville in the case of Moby Dick; then there is the screenplay writer whom he mentioned. There may be another screenplay writer and then finally there is a director. It is a matter for the Bill to decide which of these should be described as the author. But what confuses me about this amendment of my noble friend that we are considering is that it does not make this point clear.
We are told in the Bill that "author" means the person who creates a work. Then we are told that that person shall be taken to be in the case of a film the director of the film as joint author. That is what we are told about the director of a film. But if there is a joint author it means that someone else has to be a joint author with the director. But who that other person is in the case of a film is not revealed. I should be interested to know who my noble friend has in mind as being the other joint author who is not at present specified.
4.45 p.m.
Lord Beaverbrook: My Lords, as the noble Baroness, Lady Birk, explained, these amendments seek to ascribe authorship of a film to the director. As I read the amendments tabled by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, the director is to be regarded as a joint author, although it is far from clear to me who is to be regarded as the other joint author. That is the point that the noble Lord, Lord Kilbracken, has just raised.
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It would appear from the deletion of "film" in lines 21 and 32 that the person making the arrangements for the production of the film is not to be regarded as an author and so he would not be entitled to even a share of first ownership in the copyright in a film.
We believe that to be totally wrong. The Bill as drafted preserves the existing position by vesting copyright in a film in the person who has made the necessary arrangements. It is his investment of money and resources which makes a film possible and it is he who should reap the economic benefit.
In all the representations that we have received from film directors in the build-up to this Bill, their concern has always been the lack of recognition of their creative input in the making of a film. They have not been seeking economic rights: they recognise that these rights should be with the producer.
It is true that in some countries, as pointed out by the noble Lord, Lord Graham of Edmonton, directors are recognised as authors or co-authors of films and the copyright is passed contractually to the producer. I would add that we see no need for there to be absolutely uniform treatment of the legal rights of directors across Europe. We are not aware of any difficulties that have arisen because different European countries treat the ownership of copyright in different ways. We are free to look at the issue of directors' copyright on its own merits and have done so with the conclusion that I have already explained. But we see no merit in changing our long-established practices and imposing on film production companies the additional task of acquiring rights from directors and any other designated co-authors in a film, as yet unmade, for which the company is putting up the money.
We believe the legitimate aspirations of directors to receive recognition of their contribution to the making of a film are met by the provision of moral rights for directors. The directors' concern is their artistic reputations. The provision of moral rights gives them what they need to defend and to enhance these reputations. We believe it is going too far to give them economic rights as well.
I see little point in labelling the director as author, or even co-author, of a film for purely cosmetic purposes. It raises the whole thorny question of which of the many potential authors involved in a film can be said to be the author of the film. The noble Lord, Lord Willis, expressed strong views on this in Committee and has also done so now on Report. If the purpose of the amendments is to ensure that the moral rights of directors are protected, they are unnecessary. On the other hand, if the purpose is to take economic rights from the producer and give them to the director, then I must strongly resist. I certainly cannot support a change for purely cosmetic purposes to satisfy the desire of one particular group of creative people to get a special mention.
Baroness Birk: My Lords, with the exception of the stalwart support from my noble friend Lord Graham of Edmonton, there does not seem to have been all that much joy expressed on this amendment. I must confess that I think that one of the reasons for that is that this is something new which both breaks new

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ground and introduces a new element and new people into the general part so to speak. It is quite likely that perhaps the wording of the amendment, although I think it is very much better than that of the original amendment, is still not quite right. But that is a different point. If the principle were accepted surely that could be worked out.
The Minister, and I think my noble friend Lord Kilbracken, also asked who was the other party to this. Of course it is the writer. I think that the Minister said "co-author" and I consider that that is probably better than "joint author" anyhow. In answer to the question whether there have been, as my noble friend Lord Lloyd of Hampstead asked, any representations from directors, I can say that there have been. I have had such representations myself.
Lord Beaverbrook: My Lords, perhaps the noble Baroness will give way for a moment. She may well have received representations from directors. However, we have not.
Lord Graham of Edmonton: My Lords, I have a letter addressed to the noble Lord, Lord Beaverbrook, from the ACTT, which is speaking on behalf of directors.
Baroness Birk: My Lords, I do not know what the Minister has received. However, I received represent-ations some time ago as a governor of the British Film Institute. We are attempting to introduce directors jointly, rather than suggesting that they take over the kudos, rights or established rewards of authors. So far as concerns the producers, it remains open to them, as I said in moving the amendment, to take an assignment of that interest, and they may do so in advance of the making of the film.
My noble friends and I shall look at the matter again. It is clear that the actual wording is not correct. Even if it is simply a matter of semantics, perhaps we should get it right and then think about whether we shall take the matter further at the next stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 23 and 24 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 25:
Page 6, line 1, leave out subsection (4) and insert—
("(4) For the purposes of this Part a work is of "unknown authorship" if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known.
(5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry: but if his identity is once known it shall not subsequently be regarded as unknown.").
The noble Lord said: My Lords, in moving Amendment No. 25 I shall also speak to Amendments Nos. 30, 100, 165, 166, 233, 249, 261, 270 and 272, with the leave of your Lordships.
The noble Lord, Lord Kilbracken, moved at Committee stage amendments to Clause 12 which were intended to clarify the position as to the duration of copyright in works whose author is unknown. The noble and learned Lord, Lord
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Denning, supported those amendments as simplifying the drafting. I conceded that this was an area where drafting could probably be improved and said I would come back at Report stage. The noble Lord, Lord Kilbracken, kindly withdrew his amendments at Committee stage, saying that if he did not see a simple amendment on the Marshalled List for Report stage he would table his amendment again.
I am sorry to have to say that I am unable to come back with a simple amendment. I hope he will agree that I have come back with an appropriate one. Our reconsideration of the issues raised by the apparently innocuous amendments of the noble Lord, Lord Kilbracken, exposed a basic defect in the way the Bill treats works of unknown authorship. Amendment No. 25 and the others in this grouping are intended to put that right.
A comparison of Clause 12(2) as it stands in the Bill, and as it would have appeared if the amendment of the noble Lord, Lord Kilbracken, had been made revealed that we were attempting in Clause 9(4) to roll up two concepts in one. The two concepts are whether it is possible to ascertain the identity of an author, and whether a work is of unknown authorship. The first is a question of fact to be determined in accordance with the facts available at the time when the question is asked. The second relates to the status of a work for the purpose of calculating the duration of its copyright. Once the identity of an author is known, his work can never again become a work of unknown authorship. The reason for that is that once a work has acquired copyright lasting for life plus 50 years, it does not lose it simply because the world loses sight of its author.
The solution was to make the first concept an element in the second while retaining its own separate existence where appropriate. That is apparent from the new subsections (4) and (5) in Clause 9, introduced by Amendment No. 25. Clauses 12, 143, and 153, as amended by amendments Nos. 30, 233 and 249, should then be expressed in terms of works of unknown authorship. In Clause 143 there is also clarification of the position of joint authors generally.
On the other hand, Clause 95 and the definition of "sufficient acknowledgement" in Clause 161, as amended by Amendments Nos. 165, 166 and 261, should be expressed in terms of ascertaining the identity of the author. A further element of this new structure is that the sentences beginning with "However" in Clause 12(2) and paragraph 11(3) of Schedule 1 are better expressed as an exception in Chapter III of Part I; hence Amendments Nos. 100 and 272. Amendment No. 270 is purely consequential.
Your Lordships will also notice that the redrafting in Clause 12 achieves the result so strongly urged in Committee; namely, removing the special provision about the duration of copyright in photographs and thus leaving them to enjoy the full term of life plus 50 years. Since I think no one spoke against that except possibly myself, I do not think that I need now spend time arguing in favour of it, save to say that the Government are now satisfied that that would be right. I beg to move.
Lord Kilbracken: My Lords, the Minister has said that my amendments were apparently innocuous. After listening to his speech, I must say that they may have been apparently innocuous to him but they were not so to me. He has now had to bring forward the long series of amendments to cope with the points which I made. I believe that that is an example of the way in which a Bill can be improved, not only by my amendments but by all of the 400 or 500 amendments which were put down concerning points which we wished to raise. That is an example of the way in which a Bill can be improved as it passes through this revising Chamber before going to another place.
I shall read carefully what the noble Lord has said concerning his amendments. However, I wish to say how much I welcome his decision to agree with what was said on the previous occasion concerning the duration of photographic copyright and additionally on the basis of the duration of copyright in other works which will go on for 50 years after the death of the photographer. That is very important. It will be greatly welcomed by journalists and photographers. I appreciate what the noble Lord has done.
Lord Williams of Elvel: My Lords, the noble Lord has introduced a large grouping of amendments. It is somewhat difficult for us to speak to all the amendments which he has grouped together. However, we are glad that he has rethought the question of unknown authorship. Before endorsing the amendments unequivocally, we shall have to read them more carefully between now and Third Reading and see whether we find that the present situation is to our satisfaction.
In the meantime, perhaps the noble Lord will clarify a point as regards Amendment No. 30. That amendment inter alia produces a new subsection (2) to Clause 12. The amendment reads:
"If the work is of unknown authorship copyright expires at the end of a period of 50 years from the end of the calendar year in which it was first made available to the public".
That is perfectly clear. The amendment goes on:
"and subsection (l) does not apply if the identity of the author becomes known after the end of that period".
Given what subsection (1) says, does that mean, if copyright has expired in a work of hitherto unknown authorship and the authorship becomes known after the copyright has expired, that the copyright is in some way reinstated? If that is right, it is rather curious. However, I can see the case of a young painter or a young maker of porcelain paying for his meals in a restaurant. We all hear stories of Paris in the 1920s when young, poor artists used to pay for their meals by throwing off a few paintings here and there. The restaurant owner could not remember who they were but it subsequently turned out that they were Picasso, Matisse, or whoever it may have been. If that work were reproduced and shown to the public 50 years later, Picasso might well still have been alive and established it as his work. That is liable to be a relatively rare occurrence. Nevertheless, I should be interested to know whether my interpretation of this amendment is right or wrong. If it is wrong, it seems to me that the amendment is perhaps a little unclear and might be looked at again.
Lord Beaverbrook: My Lords, I am grateful to the noble Lord. I can answer his point by saying that in the circumstances that he described copyright would not be recaptured. Once copyright has expired under the provisions relating to works of unknown authorship, subsequent discovery of authorship does not revive copyright. I hope that that is clear from the Bill, and perhaps the noble Lord will accept that response. I have listened to what the noble Lord has said and I shall double check that point. However, I believe that the drafting is correct.
On Question, amendment agreed to.
5 p.m.
Clause 10 [Works of joint authorship]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 26:
Page 6. line 7, leave out ("separate from the contribution") and insert ("distinct from that").
The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment Nos. 145 and 362. When the noble Lord, Lord Morton of Shuna, proposed replacement of the word "separate" in Clause 10(1) by "separable", I confessed to your Lordships' Committee, that his proposal had caused me to scratch my head. I have continued to do so since then.
At the outset we need to have a clear idea of what we are talking about in this clause, particularly since I believe that there may be some misconception as to what constitutes a work of joint authorship. We are not talking about partnerships like Gilbert and Sullivan, where one wrote the music and the other the libretto. Nor are we talking about anthologies, where a book contains the works of several authors. Nor indeed are we dealing with the case cited by the noble Lord, Lord Morton, of a textbook on the Copyright Act 1988 where different chapters are each written by different authors. In that case, each chapter would constitute a work in its own right and the finished book would not be a work of joint authorship for the purposes of Clause 10, even though it has more than one author.
In all the cases that I have cited, the contribution of one author is clearly separate and distinct from that of the other co-author or co-authors. But that is not always the case. To return to the example of the textbook on the Copyright Act, it may be that the authors, instead of each contributing a number of chapters, work together on the whole text. Perhaps one does a first draft, another makes additions and revisions and a third then makes his contribution before they all go through the text again. The end result will be that it will not be possible to say who wrote any particular part of the work; the various contributions will no longer be separate.
With that explanation, I trust that we all now have a clearer idea of the concept that Clause 10 is addressing. The question to be decided is whether there is one joint work or a number of separate works. The word which best describes this latter concept is "several"—defined in the Oxford English Dictionary as:
"existing apart, separate. Having a position, existence or status apart; separate, distinct".
We were reluctant to replace "separate" by "several" because we did not think that that would convey the

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right impression to the layman. To say that a work of joint authorship is one not having several contributions would be plain to the lawyers but not necessarily to those less learned, who could read the word "several" in the sense of "a few".
Nor did we think that the suggestion of the noble Lord, of replacing "separate" with "separable" is the answer. It opens the possibility for endless debate in court as to whether contributions to a work of joint authorship are capable of separation. To return to the case of the text book on the 1988 Copyright Act, the contributions of the co-authors may not be separate, but that does not mean that they are not separable. It may be difficult, but in many cases it will be possible to isolate passages written by one of the co-authors.
In the end, we have concluded that the best approach is to adopt the formulation used in the 1911 Act. The word "distinct" conveys exactly the right idea. If one author's contribution is distinct from another's, the work is not of joint authorship. The test can be satisfied on the face of the work. It is not a question of whether the contributions are separable or can ultimately be distinguished, but whether the contributions are distinct in the work itself.
I have so far concentrated entirely on copyright works. However, exactly the same considerations apply to joint designs and design right. It is therefore sensible to make equivalent changes to Clause 239. I beg to move.
Lord Williams of Elvel: My Lords, the noble Lord, Lord Beaverbrook, has condensed a rather complicated argument, and I understand why he has done so. I confess that it has been rather difficult to follow. If he has been scratching his head for the past few weeks, we have been scratching our heads for the past few minutes to try to find out what he has been saying. I think that we shall have to read what he has said, and if necessary we shall formulate our position at Third Reading.
On Question, amendment agreed to.
Clause 11 [First ownership of copyright]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 27:
Page 6, line 14, leave out subsection (2) and insert—
("(2) Subject to any agreement to the contrary, where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work for the purpose for which it is created, but for any other purpose the employee is the first owner of any such copyright.").
The noble Lord said: My Lords, it may be convenient for the House if in moving Amendment No. 27, standing in my name and that of my noble friend Lord Morton of Shuna, I speak also to Amendment No. 29, in the name of the noble Lord, Lord Beaverbrook.
Clause 11 as it emerged from the Committee distinguished between the rights of an employee who produces a work in the course of employment by the proprietor of a newspaper, magazine or similar periodical and those of an employee who is employed on other activities. We now understand from the noble Lord's amendment, Amendment No. 29, that the current special rule for journalists dividing the
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copyright between them and their employers is to end, which demonstrates that some copyrights have application beyond the purposes for which the employer requires creation of the work. Our amendment is addressed to that situation. For those other purposes it seems to us that the employee has a legitimate claim to keep the copyright.
I understand that there are in effect two ways to move from the position as it stands in Clause 11 as at present drafted. One is the Government way, which resolves the question in favour of the employer. We do not think that that is appropriate because, as we argued at Committee, we feel that employees have a genuine and legitimate right in the work that they have created, even though they are working for an employer, nevertheless recognising that the employer has first right on that creation if it is for the purposes for which the employer requires that creation.
Our amendment therefore is quite simple. It seeks to make general the existing rule for journalists. There is no evidence that that was unworkable for journalists. The newspaper proprietors' case has been that they should not have to suffer when other employers do not. The general rule, in our view, should be that it should be the other way round. Employers could always alter the situation by express provision in contracts of employment, which is why we start our amendment with:
"Subject to any agreement to the contrary".
We believe that the employee has rights which should be protected by statute. No doubt the noble Lord, Lord Lloyd of Kilgerran, will confirm that this will bring the situation into line with the Patents Act, under which employees do have rights. We believe that employees should have similar rights in copyright. We regard this as a matter for a positive response from the Government, understanding that the Government have taken a line of which we fundamentally disapprove. I beg to move.
Lord Somers: My Lords, one point has occurred to me apropos this amendment and I wonder whether the noble Lord, Lord Beaverbrook can clear it up. Let us take the case of an organist who is professionally engaged, and, I presume, the employee of the church. If he writes some music which is performed in the church for the purpose of a particular service, who is the owner of the copyright?
Lord Willis: My Lords, I hope that the Government will consider this amendment seriously, because there is some force in the arguments. About five years ago there was a classic case in the United States of an employee of a big advertising agency who was asked by his employers to write down the philosophy of the agency—a task which I have to say horrifies me. Nevertheless, this gentleman wrote down the philosophy of the agency and its approach to business and so forth. It was so successful and went down so well that the employers decided that they would publish it. It sold millions of copies. The employee did not receive a penny but the agency did.
There was another case of a doctor who developed a diet specifically for the United States navy. The diet was successful. I am sure that many of your Lordships will have been on it: it is called the drinking

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man's diet. The diet was again so successful that it was published privately and sold millions of copies—again not to the benefit of the doctor.
There is a case here that the Government should consider. This amendment is very carefully drafted. It provides for the sacredness of a contract but it also provides for other purposes. It is a very useful amendment and I hope that the Government will consider it seriously.
Lord Kilbracken: My Lords, in moving this amendment my noble friend said that he spoke at the same time to Amendment No. 29. If we are now discussing Amendment No. 29, it means that we have to do so without having heard from the Minister his reasons for wishing to delete an extremely important subsection that completely changes the emphasis of this Bill for a great many journalists, whether they are writers or photographers.
If subsection (3) is deleted it means that a person who produces work for a newspaper or publication is no longer able to sell it separately because the copyright belongs to the newspaper publishers. That is not normally the case at present. We have only to think of books of newspaper cartoons by such people as Giles or collections of articles. I brought out a selection of 70,000-word or 80,000-word articles that had previously been published and in all such cases the copyright passes completely to the writer. That I feel is the correct position.
If this subsection is dropped it means that anybody who is employed does not have the right to make a collection of that work and publish it. That can be done by his employer, who owns the rights in that material. The employer can publish it and receive the royalties from sales of that book. The Government's decision to delete that subsection is a very major change. I can only hope that the Minister will be able to give a very good reason for his wish to delete it from the statute.
5.15 p.m.
Lord McGregor of Durris: My Lords, we are discussing where the line between creative work and the rights of employees should be drawn. The Whitford Committee considered this point and said as a general principle that employers must be able to expect that if they engage someone to produce copyright work as part of his day-to-day work and pay him to do this, then they and they alone should be entitled to the use of that work.
The exception to that general principle that applied to newspapers was an historical accident, because in 1911 there were no other media than print. If we make, as is suggested, only a partial distinction between creative work and what is done by an employee, we shall create in practice an impossible situation for newspapers.
It is said that newspapers can contract with their employees. It is extremely difficult for them to contract with employees who they are already employing. It is easier for them to make contracts with new employees. But what are the employers to do if the trade union representing employees instructs all its employees not to make separate contracts?
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To adopt the amendments proposed by the noble Lord, Lord Williams of Elvel, would, I am informed, establish a nightmare for newspapers and periodicals. It seems to me that it is going far beyond the realities of life to present staff journalists as creative artists.
The effect of this amendment will be to extend the inherited discrimination, because it will apply to staff photographers as well. I pointed out at Committee stage that the effect of the amendment now being proposed would be to remove £3 million a year from the revenues of local newspapers, which own the copyright currently in photographs taken by their staff photographers. Under this amendment they would lose it and with it the profits of the sales of photographs of local weddings, carnivals and the like.
I welcome very warmly the amendment of the Minister and was very grateful for the way in which he responded to the points that were made at Committee stage. I very much hope that the House will not approve the proposed amendment.
Lord Brain: My Lords, I support these amendments. I do so for exactly the reasons which have been expressed by the last speaker whom I consider was wrong. As I understand it. local photographers very often, indeed normally, on small newspapers photograph the scene outside the church for the paper and are then allowed to take other photographs at the reception entirely for their own use and with their own copyright. This amendment, and in particular the government amendment, will remove something that already exists and will cost the newspapers more, because they will then have to reach an agreement with their employee for all the rights that he is forgoing and matters of that kind. I should not be in the least surprised if the journalists object very strongly to the change in the situation.
I support the one amendment wholeheartedly. The other I reject on the ground that it is removing not an old Spanish custom but one of the ways in which small local newspapers run efficiently and cheaply.
Lord Graham of Edmonton: My Lords, I am puzzled at the remarks of the noble Lord, Lord McGregor. As I read the amendments, the copyright remains firmly in the hands of the newspaper when one is considering the purpose for which the object was commissioned. His employer is the first owner of any copyright in the work for the purpose for which it is created. In using illustrations of fetes, weddings and so on, we are talking about a photographer who is an employee of a newspaper and is sent on an assignment to take those pictures for the purpose of being used in the newspaper.
I am not an expert in this matter, but my understanding is that the copyright lies with the newspaper. It has been said that to alter that will be removing something which already exists. I can understand anyone with a vested interest objecting to losing something which is at present enjoyed. However, as I understand the matter, that is not the purpose or the effect of the amendment. I fail to see how the interests of local newspapers in particular, which have my highest respect and regard, will be disadvantaged.

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The Minister has yet to explain why he believes that the deletion of subsection (3) will be neither punitive nor injurious to employees of newspapers. I do not wish to see that happen but I wish to see the rights of a newspaper as at present enjoyed fully protected.
Lord Howie of Troon: My Lords, as a publisher of magazines, I welcome the Government's Amendment No. 29, about which we are speaking a little prematurely. At the same time I have, up to a point, an underlying current of sympathy with Amendment No. 27, moved by my noble friend Lord Williams. There appears to be an element of natural justice in what he says. If I knew precisely what was meant by the words:
"for any other purpose the employee is the first owner of any such copyright"
I might be strongly influenced in that direction. However, he did not make that matter clear in his remarks. It has since appeared that it is in part connected with the business of photographers and their later sales of photographs taken in the course of their employment.
By coincidence, one of my magazines is engaged in employing a photographer to replace one who has left us to go freelance. In that I see an interesting situation. We employ the gentleman as a photographer and pay him a salary. We also provide his photographic equipment and process it. We provide a motor car for his use in travelling to assignments, which we produce and not he.
Lord Willis: Are there any vacancies?
Lord Howie of Troon: If the noble Lord is a good enough photographer. I should like to see his face about our office in any event, quite apart from his photographic abilities. However, we provide the gentleman with the facilities to carry out the work and it is obviously correct that we rather than he should reap the benefits from that.
The noble Lord, Lord McGregor, mentioned that the possible losses from such revenue to local newspapers amounted to approximately £3 million. The noble Lord, Lord Brain, questioned that figure or put it in a different perspective. As I understand the matter, the figure of £3 million came from a survey of local newspapers carried out by the Newspaper Society. Therefore it is a computation of the expectation of the loss made by the proprietors, who might be expected to know.
I believe that Amendment No. 29, tabled by the Minister, is to be wholly welcomed. I should like to hear how far my noble friend Lord Williams wishes to go in his Amendment No. 27 before making up my mind. In so far as it relates to photographers, I am not impressed at the moment. However, if he will further explain the phrase "any other purposes" I may be more sympathetic than I appear to be at the moment.
Lord Lloyd of Kilgerran: My Lords, I agree with the noble Lord, Lord Willis, and adopt a rather cautious approach to Amendment No. 27, tabled by the noble Lord, Lord Williams of Elvel. He said that
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the amendment was intended to bring the Bill in line with the position under the Patents Act 1977. However, I do not appreciate his justification for that suggestion. I believe that his amendment does not go far enough. Where an employee, subject to contract though he may be, makes a literary, dramatic, musical or artistic work which is of such value to the employer that the employer makes a lot of money as a result, as of right the employee in all those fields should have the opportunity of asking the employer for a slice of the profit which has been made. If the employer tells him that he can have nothing, the employee should be able to go to a tribunal as of right. That would be the position under the Patents Act.
Lord Wyatt of Weeford: My Lords, the position of the photographer, as described a moment or two ago, surely is that when he is working in his employer's time taking photographs at a local wedding the copyright must belong to the employer. However, if he ceases his official work for his employer and takes other photographs in his spare time, as requested by the various guests at the wedding, that is another matter entirely. I do not believe that that situation would be interfered with an any way by Amendment No. 29 proposed by the Government.
If one takes the position of a staff employee of a newspaper, it is not sensible to say that the copyright does not absolutely belong to the employer. In the same way, someone who designs a packet of cornflakes, writes a verse or two upon it and designs a lovely picture does not expect to receive some copyright value from it if it is used for other purposes. Let us suppose that his employer, the cornflake maker, decides to use the design on a hoarding or advertisement. There is no more to be attributed to the original employee than there was in the beginning because he has already been paid to do that job in his employer's time.
We have now arrived at a new situation in which newspapers are to set up databases in order to extend the freedom of information. One will be able to apply to a newspaper—which will no doubt charge a fee—to obtain information about any particular subject by a particular person. After paying the fee, the button will be pressed and out will come all the material. If one then allows the staff employees to share in the copyright royalty each time that is done, the whole process will be impossible, because there will be myriads of pieces of information stored away and one will never be able to trace them. The process will become totally confusing.
I cannot see why one should continue with a situation in which people who happen to be employed on the staff of a newspaper should be treated differently from those who happen to be employed on the staff of a motor car design section or on designing cornflake packets and so forth. A staff employee is entitled to his paid holiday, his pension and to all kinds of benefits which a freelance journalist does not receive. It is part of his general employment. It is absurd to attempt to make a distinction and say that he may have a residual right in a copyright once it has first been used. The more electronic devices and developments there are, the

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more confusing the issue will become. I welcome the approach of the Government in hoping to delete subsection (3).
5.30 p.m.
Lord Lloyd of Hampstead: My Lords, I believe that Amendment No. 27 is likely to lead to considerable difficulties; and, at any rate in its present form, I believe it would pose very great problems for newspapers. For example, let us suppose a journalist is asked by his editor to write an article or series of articles on a particular topic for insertion in one or more issues of his newspaper. Is it then to be said that if that article or series of articles is to be farmed out by the journalist to some other newspaper, whether here or abroad, that is "another purpose"? It seems to me that that might well be the construction of this section and it would mean that a newspaper could not have an exclusive right in the production of its own journalists and that seems to me to lead to a very extraordinary anomaly.
On Amendment No. 29, it seems that the rather special position in which journalists find themselves under the old law is really anomalous. There does not seem to be any compelling reason for that anomalous situation and I should not have thought that they would lose very much by this change in the law. However, I certainly take the view that to try and deal with this situation by distinguishing between something which is produced for the purpose of the particular employment and something outside that employment will lead to immensely difficult questions of interpretation and create a measure of turmoil in many newspaper offices.
Lord Beaverbrook: My Lords, I am grateful to noble Lords who have spoken in this short debate on Amendment No. 27 in the name of the noble Lord, Lord Williams, and also spoken to Amendment No. 29 in my own name. At the outset I should say that I believe there is some small measure of agreement between myself and the noble Lord, Lord Williams, in that we both seek to move away from the position as it stands at the moment, which is somewhat anomalous for newspaper owners and employees. However, that is where the noble Lord and myself part company because he moves in one direction and the Government move in the other.
We return now to the question of ownership of copyright and the amendment tabled in Committee by the noble Lord, Lord McGregor of Durris, which proposed the deletion of Clause 11(3). As I explained to the Committee, the ownership provisions are long-standing and we wanted to consider the views expressed in Committee before reaching a decision.
I should like, if I may, to speak first to my own amendment dealing with newspapers. I shall then go on to the more general question raised by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. We have concluded that making a special case for newspapers and their employees is no longer appropriate. It may have been so in 1956, but the development of new technology has made this special treatment less tenable for two reasons. The growth of other methods of reporting news—by television, radio and cable—means that newspapers are treated unfavourably not just compared with other
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employers generally, but also with other employers of reporters. The second point is that there are many ways in which newspapers can benefit from new technology, but they are hampered by having to seek and pay for appropriate copyright clearance. I should like to give an example which I think highlights the anomaly of the situation. A newspaper can keep an archive of press cuttings without any difficulty. If, however, the editor wanted to transfer these cuttings on to a computer database, as suggested by the noble Lord, Lord Wyatt, to create an electronic archive with all its obvious advantages, special permission would have to be obtained.
We were also concerned about the effect of the change in authorship of photographs on newspapers. Newspapers would have been in a disadvantageous position in relation to staff photographers, and local newspapers particularly stood to lose considerable sums of money which at present they receive from the practice of selling photographs to the public. We have therefore concluded that newspapers should not be treated differently from other employers, and that Clause 11(3) should be deleted. I think that your Lordships' House is broadly in agreement with the proposition that newspaper employees should be treated no differently from any others, and we can now look at the question of whether employees in general should own any copyright in works which they produce in the course of employment.
The Government's position is that employers should own copyright in their employee's work. It seems to us that if an author wants the security of employment and relies on the employer to provide the materials, the guidance, and is paid for doing it, then it is only right that the employer owns any resulting copyright. The noble Lord, Lord Williams of Elvel, is proposing that all employees should have the right currently enjoyed by journalists to exploit their works when used for purposes other than their employer's business. This is not a new suggestion. It was one of the possibilities put forward in the 1981 Green Paper on the ownership question.
The Green Paper noted that:
"there is a clear consensus of opinion that considerable practical difficulties would arise in determining what was within the contemplation of the parties at the time a work was made".
The problem of defining the purpose for which the work is created would introduce uncertainty where at present there is none, and would upset established practices in every sphere of commerce and industry. I should add that the Government received very little support in favour of this suggestion. It was therefore decided that we should continue to vest copyright in the employer.
I should like to answer two specific points raised by noble Lords. First, the noble Lord, Lord Somers, asked me who would own the copyright in the instance of an organist employed by his church. The case of an organist writing something for his church is very simple. If he is employed by his church, copyright will belong to the church. That case is no different from any other case of employment. Of course, it is always possible for the organist and his church to agree to the contrary, in which case copyright will belong to the organist.
Turning to a point raised by the noble Lord, Lord Brain, he said that the Government's amendment will

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remove present practice under which local photographers can take photographs for their own exploitation. The amendment in my name will not alter the present position of photographers because the present law confers ownership of copyright in photographs on the owner of the film, which will almost invariably be the newspaper employer. The Bill as drafted alters that position and my amendment restores the present position, albeit on a different legal basis. The practice described by the noble Lord, Lord Brain, must exist at present by virtue of contract or the gratuitous consent of newspaper employers and there is no reason why it should not continue. I also suggest that if insuperable problems were seen in 1981, this would be even more the case today as advancing technology opens up ever more avenues for the use of works. We believe therefore we should retain the principle that the employer owns the copyright. For that reason, I urge your Lordships to oppose Amendment No. 27 but to support Amendment No. 29.
Lord Williams of Elvel: My Lords, I am grateful to the many noble Lords who have taken part in this short debate. It has demonstrated a certain division of opinion, and, indeed, a certain division in principle. Perhaps I may take one or two points in somewhat random order. The noble Lord, Lord Lloyd of Hampstead, complained about the expression:
"for the purpose for which it is created"
and asked me to explain what it meant. I can only refer to the text of the Bill as at present drafted in Clause 11(3) where it refers to employees of newspapers, magazines or similar periodicals and states:
"applies only so far as relates to publication of the work in a newspaper, magazine or similar periodical".
That is what we had in mind when we were drafting this amendment: to endeavour to ensure that the position relating to journalists at the moment is maintained and indeed extended.
The noble Lord, Lord Lloyd of Kilgerran, chided me for not getting my Patents Act right. The noble Lord is the great expert on the Patents Act and I believe, as he mentioned in Committee, it was the noble Lord who actually got Sections 39 to 43 relating to employee inventions into the Patents Act.
Lord Lloyd of Kilgerran: My Lords, one of them.
Lord Williams of Elvel: My Lords, one of them. Clearly we do not go as far as the noble Lord, Lord Lloyd, would like but that is precisely because we do not want to throw newspapers into the confusion into which, we are told, they would be thrown if we adopted what the noble Lord, Lord Lloyd, suggested.
My noble friend Lord Howie asked me to expand a little on the phrase "for any other purpose". Apart from what I have replied to the noble Lord, Lord Lloyd of Hampstead, I can do no better than refer to the two examples given by my noble friend Lord Willis. They were two excellent examples of exactly what "for any other purpose" means. The examples given of the advertising agency and the diet invented for the US navy are to the point and I am grateful to my noble friend for referring to them.
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I believe that here we have one of the few major issues of principle in this Bill. We on our side believe that employee rights in general should be protected and encouraged and the Government have come down firmly on the side of employers retaining the copyright. That is a clear division of principle. I do not believe that it will be sorted out by argument and discussion and there is not much point in talking further. Therefore, I intend to ask the House to give its opinion.
5.42 p.m.
On Question, Whether the said amendment (No. 27) shall be agreed to?
Their Lordships divided; Contents, 60; Not-Contents, 146.

DIVISION NO. 1

CONTENTS

Airedale, L.

John-Mackie, L.

Ardwick, L.

Kilbracken, L.

Birk, B.

Kirkhill, L.

Blease, L.

Llewelyn-Davies of Hastoe, B.

Brain, L.

Lloyd of Kilgerran, L.

Bruce of Donington, L.

Lovell-Davis, L.

Carmichael of Kelvingrove, L.

Mackie of Benshie, L.

Cledwyn of Penrhos, L.

Mason of Barnsley, L.

Cocks of Hartcliffe, L.

Morton of Shuna, L.

David, B.

Mulley, L.

Davies of Penrhys, L.

Murray of Epping Forest, L.

Dean of Beswick, L.

Nicol, B. [Teller.]

Elwyn-Jones, L.

Northfield, L.

Ennals, L.

Phillips, B.

Ewart-Biggs, B.

Pitt of Hampstead, L.

Fisher of Rednal, B.

Prys-Davies, L.

Fitt, L.

Rea, L.

Foot, L.

Ross of Marnock, L.

Gallacher, L.

Serota, B.

Galpern, L.

Stoddart of Swindon, L.

Glenamara, L.

Strabolgi, L.

Graham of Edmonton, L. [Teller.]

Taylor of Blackburn, L.

Taylor of Mansfield, L.

Hampton, L.

Turner of Camden, B.

Heycock, L.

Underhill, L.

Houghton of Sowerby, L.

Wallace of Coslany, L.

Hughes, L.

Wells-Pestell, L.

Irving of Dartford, L.

Williams of Elvel, L.

Jacques, L.

Willis, L.

Jay, L.

Winchilsea and Nottingham, E.

Jeger, B.

NOT-CONTENTS

Ailesbury, M.

Brougham and Vaux, L.

Allenby of Megiddo, V.

Butterworth, L.

Allerton, L.

Caithness, E.

Alport, L.

Cameron of Lochbroom, L.

Ampthill, L.

Campbell of Croy, L.

Arran, E.

Carlisle of Bucklow, L.

Attlee, E.

Carnegy of Lour, B.

Auckland, L.

Carnock, L.

Aylestone, L.

Cawley, L.

Balfour, E.

Chelwood, L.

Bauer, L.

Clifford of Chudleigh, L.

Beaverbrook, L.

Colnbrook, L.

Belhaven and Stenton, L.

Cottesloe, L.

Belstead, L.

Craigavon, V.

Bessborough, E.

Croft, L.

Blyth, L.

Cullen of Ashbourne, L.

Bonham-Carter, L.

Davidson, V. [Teller.]

Borthwick, L.

Deedes, L.

Boyd-Carpenter, L.

Denham, L. [Teller.]

Brabazon of Tara, L.

Dilhorne, V.

Brentford, V.

Dormer, L.

Broadbridge, L.

Dundee, E.

Brookeborough, V.

Eccles, V.

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Elibank, L.

Marley, L.

Elliott of Morpeth, L.

Marshall of Leeds, L.

Faithfull, B.

Merrivale, L.

Fanshawe of Richmond, L.

Mersey, V.

Fortescue, E.

Monk Bretton, L.

Fraser of Kilmorack, L.

Montgomery of Alamein, V.

Gainford, L.

Morris, L.

Gibson-Watt, L.

Mottistone, L.

Gisborough, L.

Mowbray and Stourton, L.

Goold, L.

Munster, E.

Gray of Contin, L.

Murton of Lindisfarne, L.

Greenway, L.

Nelson, E.

Gridley, L.

Newall, L.

Hailsham of Saint Marylebone, L.

Onslow, E.

Orkney, E.

Halsbury, E.

Pender, L.

Harris of Greenwich, L.

Perry of Walton, L.

Harrowby, E.

Plummer of St Marylebone, L.

Harvington, L.

Pym, L.

Havers, L.

Quinton, L.

Hesketh, L.

Rankeillour, L.

Hives, L.

Rees, L.

Holderness, L.

Reilly, L.

Home of the Hirsel, L.

Renton, L.

Hooper, B.

Rippon of Hexham, L.

Howie of Troon, L.

Rochdale, V.

Hunter of Newington, L.

Rodney, L.

Hylton-Foster, B.

Rugby, L.

Ilchester. E.

Savile, L.

Ironside, L.

Seebohm, L.

Jenkin of Roding, L.

Selborne, E.

Johnston of Rockport, L.

Skelmersdale, L.

Joseph, L.

Somers, L.

Kennet, L.

Stedman, B.

Killearn, L.

Stockton, E.

Kilmarnock, L.

Strange, B.

Kinloss, Ly.

Sudeley, L.

Lauderdale, E.

Swinfen, L.

Lawrence, L.

Swinton, E.

Layton, L.

Terrington, L.

Lloyd of Hampstead, L.

Teynham, L.

Long, V.

Thomas of Gwydir, L.

Lucas of Chilworth, L.

Trumpington, B.

Luke, L.

Ullswater, V.

Lurgan, L.

Vaux of Harrowden, L.

Lyell, L.

Walston, L.

McGregor of Durris, L.

Ward of Witley, V.

Mackay of Clashfern, L.

Windlesham, L.

Macleod of Borve, B.

Wyatt of Weeford, L.

Malmesbury, E.

Young, B.

Margadale, L.

Resolved in the negative, and amendment disagreed to accordingly.
5.51 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 28:
Page 6, line 16, at end insert—
("( ) Subject to any agreement to the contrary, and subject to subsection (2) above, where a person commissions the painting or drawing of a portrait, or commissions the making of a photograph or film whose subject is a person or an event of a private character, and pays or agrees to pay for it in money or money's worth, the person commissioning the work is the first owner of any copyright in it.").
The noble Lord said: My Lords, in the light of the views expressed by the House on the previous amendment it may be that this one will meet with some favour. It is intended to put the commissioner of a work in the same position as the employer of the author of the work. That was the position under Section 4(3) of the Copyright Act 1956. It was recommended by the Whitford Report. For some reason so far unexplained the Government have decided that if someone commissions a photographer to take a photograph or an artist to paint or draw a portrait it is the artist or photographer who is to retain the copyright.
In the normal way—to take the photographic scene—somebody whose daughter is getting married may arrange or commission a photographer to take photographs. One would have thought that there was a certain element of privacy attached to those photographs. The recent case of Williams v. Settle shows that photographers can be induced by journalists to sell the photographs in such a situation. In the case I have quoted it was a murder victim. The photographer may be induced to sell the photographs to the press and the subject may receive a considerable amount of publicity about what is in essence a private photograph. Therefore the amendment in my name and that of my noble friend Lord Williams would appear to cover the problem. I hope the House will agree that in this regard, subject to any agreement to the contrary, it is the person who commissions the work who should have the copyright. I beg to move.
Lord Brain: My Lords, on this occasion I do not totally follow the line of reasoning of the noble Lord, Lord Morton. If purely a private individual is commissioning a private photograph, I quite accept that that should be the property of the person who makes the commission. I am less happy about a situation where an up-and-coming portrait photographer or, as I believe happens, a portrait artist is commissioned by a gallery or an archive organisation—a photographic library—to take photographs for the library or for future sales from that gallery. I am unhappy about any subsequent lack of control over the use of those photographs.
I also have a degree of sympathy where, as in the case mentioned by the noble Lord, Lord Morton, people invite elegant young ladies to sit for a photograph. The young ladies may think (and also their parents) that they have commissioned the photograph. The photograph has been offered by the photographer and in that case he ought to retain the commission. I believe that there is some merit in the purely personal nature of the individual's commissioning the event. In view of the very broad context I cannot support the amendment.
Lord Howie of Troon: My Lords, I must come to the support of my noble friend on the Front Bench on this occasion. I believe that he is entirely right. I remember that we discussed this at Committee stage on an amendment that I put down. I forget the details of the amendment but I can remember discussing it very briefly and very late one night. At that time I made only one point and I shall repeat it again today.
It seems to me that the person who commissions the portrait, photograph, film or whatever it is referred to in the amendment, is in exactly the same position as the person who was quite often mentioned in the course of these debates by the Minister. The person who makes the arrangements, as he has said many times, should keep the copyright. In this situation the person who places the commission makes the arrangements and he, too, should keep the copyright. I believe that my noble friend is quite correct on this occasion and his amendment should be acceptable to the Government and to the House.
Lord Somers: My Lords, I believe it is quite wrong that an artist who paints a portrait or a landscape should lose his copyright simply because his picture has been commissioned. Naturally, it has been commissioned. When somebody wants to buy a work of art he pays for it, which is not unnatural. That applies to most things in this world today. It is entirely wrong that the artist should lose his copyright.
Lord Beaverbrook: My Lords, in Committee we discussed the question of who should own the copyright in commissioned works in connection with the amendment tabled by the noble Lord, Lord Howie of Troon. This amendment places a different emphasis on the matter. I explained at Committee stage that the current law is anomalous. It is our view that the author should be the first owner of the copyright in a commissioned work. It is always possible for the commissioner to acquire copyright contractually. This amendment would reintroduce most of the substance of Section 4(3) of the 1956 Act, under which the commissioner owns copyright in respect of certain commissioned works, with the addition of films. A further proviso is that in the case of photographs and films this is to apply only where the subject is a person or an event of private character.
The underlying sentiment of this amendment is a laudable one. It seeks to protect the individual by ensuring that photographs, video films and other works of a personal nature, are not exploited without the commissioner's consent. However, I am not inclined to accept the amendment as it stands for a number of reasons. Firstly, the amendment would reintroduce the anomalies that we are trying so hard to get rid of. Not only are different categories of work treated in different ways, but for a given type of work—say, a photograph—first, ownership of copyright will depend on the subject matter. That will lead to further anomalies and borderline cases. For instance, why should the commissioner get the copyright when the subject is an artist's model or some other person only remotely connected with the commissioner? Should it be the commissioner or the subject who decides how the work should be exploited?
I am also concerned about the criterion that the subject is a person or an event of private character. Perhaps the case that causes greatest concern is wedding photographs, but I doubt whether this amendment would cover weddings. Photographs taken outside a church or on the steps of a registry office would not fall within the exception since they would usually be a public ceremony in a public place.
There is a general problem here in the extent to which copyright law can be used to protect the privacy of the individual. We can clearly provide a measure of protection—and this was the intention behind Section 4(3) of the 1956 Act—but the most serious intrusions arise where copyright law could not conceivably provide a remedy. Witness the activities of the paparazzi with their telephoto lenses. It remains our view that the author should be first owner of copyright although we recognise the genuine concerns about privacy and would like to look further into this.
1098
I do not think that there is a serious problem with paintings since the commissioner is usually in possession of the physical object. It is photographs and films where the real problem lies. The answer may be that the copyright in commissioned works should belong to the author of the work, but in the case of photographs and films commissioned for private purposes the author will not be able to exploit the work without the commissioner's permission. Taking the wedding photograph example again, the photographer would own the copyright and so would be able to charge for extra prints and so on, but he would not be able to put the photograph in a local newspaper without the commissioner's permission. That seems to be the right balance.
I hope that this will meet the concerns of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. If they are prepared to withdraw the amendment today I shall undertake to come back at the next stage with a government amendment.
6 p.m.
Lord Morton of Shuna: My Lords, in principle it seems rather curious that if you employ somebody—using the word "employ" in a technologically neutral sense, whatever that may mean but it was a phrase that came from the other side—to take one photograph, the photographer keeps the copyright. If you employ a photographer to take photographs for weeks on end, you have the copyright of the photograph. Be that as it may, the Minister is prepared to consider the issue and I would not wish to do other than encourage his consideration. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 29:
Page 6, line 17. leave out subsection (3).
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 27. I beg to move.
On Question, amendment agreed to.
Clause 12 [Duration of copyright in literary, dramatic, musical or artistic works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 30:
Page 6, line 32, leave out subsections (2) to (5) and insert—
("(2) If the work is of unknown authorship copyright expires at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public; and subsection (1) does not apply if the identity of the author becomes known after the end of that period.
For this purpose making available to the public includes—
(a) in the case of a literary, dramatic or musical work—

(i) performance in public, or

(ii) being broadcast or included in a cable programme service;

(b) in the case of an artistic work—

(i) exhibition in public,

(ii) a film including the work being shown in public, or

(iii) being included in a broadcast or cable programme service;

and in determining generally for the purposes of this subsection whether a work has been made available to the public no account shall he taken of any unauthorised act.

1099
(3) If the work is computer-generated copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made.
(4) In relation to a work of joint authorship—
(a) the reference in subsection (1) to the death of the author shall be construed—

(i) if the identity of all the authors is known, as a reference to the death of the last of them to die, and

(ii) if the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last of the authors whose identity is known; and

(b) the reference in subsection (2) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known.")
The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 25. I beg to move.
On Question, amendment agreed to.
Clause 13 [Duration of copyright in sound recordings and films]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 31:
Page 7, line 37, leave out ("(a)")
The noble Lord said: My Lords, when I moved Amendment No. 1 this afternoon I did not declare an interest. I did not do so because I had declared several interests at Second Reading and again at the Committee stage. I do not feel that it is necessary to declare an interest at every stage of the Bill. However, I raise this point because your Lordships may have noticed an article in The Times at the time of the Committee stage which severely criticised noble Lords for not declaring their interests sufficiently when taking part in debates in this House. I meant to raise this point earlier but forgot about it. That is why I am bringing it up now. It will be for your Lordships to decide. The Times still wields a certain power, I suppose. If it thinks that we should declare an interest every time the same subject is debated, I suppose that some thought has to be given to it. All I state now is that I have an interest as a journalist, a writer and a photographer, and I shall leave it at that.
In moving Amendment No. 31 I shall speak at the same time to Amendment No. 32. This is partly a matter of drafting but it also raises a matter of some substance. I shall deal with the drafting matter first. Clause 13 deals with the time at which the copyright in a sound recording or film expires. Under Clause 13, it expires:
"(a) at the end of the period of 50 years from the end of the calendar year in which it is made, or (b) if it is released before the end of that period, 50 years from the end of the calendar year in which it is first released.".
It practically never happens, or seldom happens, that a sound recording or film is made and is not released. It is the norm that it will be released. Therefore it seems to me that the order in which paragraphs (a) and (b) are presented should be reversed. One should say:
"at the end of the period of 50 years from the end of the calendar year in which

(a) it is first released, or

(b) if it is not released before the end of that period"

as may happen in a few cases—
"its making is completed".
That is the drafting point.
The point of substance is that at present if a film or sound recording is released, the copyright expires at the end of the period of 50 years from the end of the calendar year in which it is made. I raised the point in Committee that the making of a motion picture takes a long time. Production may start in one year and finish in the next. It is not clear from the Bill whether the copyright expires 50 years after the end of the year in which the production starts or 50 years from the end of the year in which it finishes. That can be a matter of some importance.
I have been in correspondence with the Minister about this and it turns out that the position is not at all as I thought it to be. The position is that copyright in a film is seen by the Government as continuing for 50 years after the end of the calendar year in which that little part of the film was shot. If a certain sequence is shot in 1987, another sequence is shot in 1988 and another sequence is shot in 1989, the copyright expires 50 years after the end of 1987 for the parts that were shot in 1987, and so on. This is an absolute nonsense.
A film may start on location in November of year one. In about the summer of year two certain parts are shot in the studio. In year three the makers finally have to go back on location and do some more shots. All these pieces of film are then taken to the cutting room to be intercut and rearranged. There is a final product at the end of year three. However, it is impossible to tell which footage was shot in which calendar year. A minute or two may come from the first year and 10 minutes from another year. The copyright of that film will expire 50 years after the year in which each part of the film was made. That cannot be right, because no one will know when the copyright in that film will expire. There will be different expiry points all the way through the film.
My amendment seeks to make it all simple and to state that copyright expires 50 years after the end of the calendar year in which the film was completed. Surely that is perfectly simple. Is that not what we are trying to do: to decide a date or a year? I suggest that that is the only way in which we can ensure that it is done. I beg to move.
Lord Willis: My Lords, there is a tremendous logic in what the noble Lord, Lord Kilbracken, has said. Imagine the situation of a novelist. That is not as complicated as that of film making. The novelist may start a book this year which may take him two years to complete.
The Earl of Stockton: My Lords, it does not apply to books.
Lord Willis: My Lords, I know. However, what I am saying is that if it does not apply to books, why apply it to films? Why is it not possible for the same logic to be used? That is my point.
Lord Morton of Shuna: My Lords, there seems to be a certain difficulty here. What happens if a film is never finished? Does the copyright just sit in the open, never to be complete?
Lord Beaverbrook: My Lords, I listened with interest to the argument put forward by the noble Lord Lord, Kilbracken. He possibly went wrong when he described his suggestion as being "perfectly simple". I am sure that all of your Lordhips will agree with me that nothing in copyright is perfectly simple; it is a complicated matter.
The noble Lord, Lord Kilbracken, returns in these amendments to a point raised in Committee. I shall shortly be proposing an amendment to this clause which meets one of those points; namely, the incorrect use of the expression "first release".
I have already explained to the noble Lord that in looking at that point we have realised that the way in which the Bill, and the 1956 Act, approached the question of making a film was not correct. There was an underlying assumption that a film was not made until it was edited into its final form. I say "final", but of course it is well known that further editing of films can take place even after they have been released; for instance, to make them more popular with the public or more palatable to the censor.
That is a false assumption. The definition of "film" is a recording and, on that definition, each "take" made in the course of shooting a film is a film in itself. That must be right since those takes must have copyright protection. Once that is realised, I suggest that the drafting of Clause 13, as I shall shortly propose that it be amended, is right because it ascribes a definite period of copyright in all cases. In the amendments of the noble Lord, Lord Kilbracken, no clear meaning can be attached to the phrase "the end of that period" nor can there be any certainty about whether a film that has not been released has been completed.
In answer to the point made by the noble Lord, Lord Willis, I say that the same logic does not apply to books and films because copyright in books (literary works) lasts for the lifetime of the author plus 50 years. Copyright in films is calculated differently. I think that I have again demonstrated to your Lordships that this is not a simple matter. Therefore, on that basis, I must resist the amendment.
Baroness Phillips: My Lords, before the noble Lord replies to the amendment. I should like to raise a slightly different point. The noble Lord commenced his remarks by saying that he had declared an interest and he asked whether he had to do so on every occasion. As I understand our Standing Orders, in the House one does not have to declare an interest; I thought that requirement merely applied to the other place. The issue is slightly confused—I do not expect the Minister to answer—as obviously practising barristers, who are also peers, practise in the morning and come here in the afternoon to discuss laws; but they do not declare an interest. Perhaps, at some stage, we could learn what is meant by "declaring an interest". Is it directly related to a particular financial interest? The noble Lord described himself as an author. It seems to me that we do not need to do that.
Lord Hailsham of Saint Marylebone: My Lords, it is clear that the noble Lord, Lord Kilbracken, had no interest whatever to declare. Furthermore, he would have been entitled, for the reasons given by the noble
1102
Baroness, Lady Phillips, to remain absolutely silent on the point. The fact that one has a practice or a business of a certain kind is not the type of interest that is declarable. However, if one has a particular interest in a film or employer then of course, it would be a different matter.
6.15 p.m.
Lord Kilbracken: My Lords, I am grateful for what the noble and learned Lord said. I am sure that it was a completely authoritative statement. I thought that that was the position; but in view of what has appeared in the press, I wanted to raise the issue.
I am disappointed by what the Minister has said. He found it difficult to understand what I meant by
"the end of that period"
in Amendment No. 32. Surely he can see that I have left in the words at the beginning of the clause:
"Copyright in a sound recording or film expires—
(a) at the end of the period of 50 years from the end of the calendar year"
which is the period to which I refer in Amendment No. 32.
Whatever the Government's intentions may be, surely we are merely trying to set a date when a film was made and when the copyright in that film will expire. We can make it anything we like. As I have said, the only sensible way to achieve that is to say that a film was made over a certain period of time when the cameras were turning. It then went into the cutting room and a great deal of it was left on the cutting room floor. Finally, the film was put together, and it was complete.
We should make the date when the copyright in the film expires 50 years after the end of the calendar year in which the film is completed. Otherwise, there is no date when the copyright in a film expires. One has a property. One has a film that has been made at enormous cost—perhaps millions of pounds or dollars. At present, we cannot say that the copyright expires on the 31st December this year because bits of it expired on the 31st December last year. Other parts of the film, in no particular order, will expire on 31st December next year. It creates absolute nonsense. Those facts will never be relevant. They will never be of any use or need to be considered because what matters is when the copyright of the whole damned thing expires. It seems nonsensical that it should be anything else. However, having said that, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 32 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 33:
Page 7, line 40, leave out ("first").
The noble Lord said: My Lords, in speaking to Amendment No. 33, I shall, with leave, speak also to Amendments Nos. 34, 35 and 234. We have already discussed the matter in connection with Amendments Nos. 31 and 32. During discussions on the clause in Committee the noble Lord, Lord Kilbracken, made the point that a film can be released only once. However, a film may be withdrawn from circulation and subsequently re-released; but it is not released a second or third time. These amendments seek to meet

1103
the noble Lord's points and to render the terminology in the Bill more consistent with that used in the industry. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 34 and 35:
Page 8, line 2, after ("is") insert ("first").
Page 8, line 4, after ("is") insert ("first").
The noble Lord said: My Lords, I beg to move these amendments together.
Lord Kilbracken: My Lords, I am grateful to the noble Lord for finding out that what I said at the Committee stage was right.
On Question, amendments agreed to.
Clause 16 [The acts restricted by copyright in a work]:
The Earl of Stockton The Earl of Stockton moved Amendment No. 36:
Page 8, line 36, at end insert—
("(f) to cause by means of an electronic processing device the transmission of any signal which represents or may be used to represent the work.").
The noble Earl said: My Lords, for the convenience of your Lordships' House I shall also speak to Amendments Nos. 38 and 43 in my name and that of my noble friend Lord Mottistone, and to Amendment No. 44 in the name of my noble friend Lord Rodney.
The aim of these amendments is to make transmission of a computerised work an act restricted by copyright, with a back-up clause which extends the concept of copying to both storage and display.
Changing technology makes it imperative to extend the range of the acts restricted by copyright in order to encompass the uses likely to be made possible by technology. Only in that way will copyright owners be able to negotiate reward, however modest, for such uses. Thus the storing of a work in any computer storage device is widely accepted as being an act of copying and as such an act restricted by copyright. This status is implied by the present draft of Clause 17(7), but not categorically set out. It should be. Also, the display of a work on a VDU might or might not be protected as a performance of that work under Clause 19(2)(b). It is important, again, that presentation is explicitly secured so that coyright owners can then negotiate reward for use with copyright users.
I draw your Lordships' attention to a report of the Australian Copyright Council which said:
"Computer storage and retrieval systems use an author's work periodically and ephemerally and fragment his work into information in the process. Present bases of infringement apply irrationally so that the type of use is crucial rather than the nature or effect of that use. It is, for example, illogical that hard copy computer print-outs have the potential for infringing copyright as acts of reproduction whereas visual displays, which perform precisely the same function and convey the same information, do not".
My noble friend Lord Rodney will be happy not to move Amendment No. 44 if Amendment No. 43 in my name and that of my noble friend Lord Mottistone is adopted. If not, of course he reserves the right to speak to his amendment. Also, depending on what the Minister says, my noble friend Lord
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Mottistone may wish to speak to Amendment No. 43. I beg to move.
Lord Brain: My Lords, I support this amendment because it is already practical for a photographer using magnetic media, which is now defined as a photograph, to take a photograph in Japan, say, for it to be transmitted by fax arrangements to London, for it to be put up on a VDU for editing, and it is seen for the first time in hard copy in print in a newspaper or something similar. This deserves to be the sort of copying which is protected. I like the method of protecting it proposed by the noble Earl.
Lord Beaverbrook: My Lords, these amendments all address the very important question of the relationship of copyright to the electronic storage, transmission and display of copyright works. This relationship was extensively debated by your Lordships in Committee but it was clear that, in certain respects, there would be a need to return to the question.
Amendment No. 36, in the name of my noble friend Lord Stockton, would create a completely new right, allowing copyright owners to control the transmission of works by means of electronic processing devices. I am not sure of the breadth of this right. It would, for example, seem to cover the transmission of works over the ordinary telephone system, which in these days of digital telephone exchanges includes large numbers of sophisticated electronic processing devices for sending messages on their way. If so, then the right is clearly much too wide.
But in any event we believe that a right of this kind is not needed. Transmission of works by broadcasting them or by including them in a cable programme service is already a primary restricted act. Downloading or recording works included in a broadcast or cable programme constitutes copying, which is another restricted act. The only potential exemption from copyright control in this area might be where the only copy made by the person receiving the transmitted work is incidental to his use of the work; in other words the situation where the user simply runs a computer program or views a work stored at a remote location and transient copying is done in the internal workings of the terminal he uses. As the Bill is currently drafted, subsection (7) of Clause 17 would ensure that no infringement has been committed in these circumstances. But we have been persuaded, for reasons I shall explain in a moment in speaking to Amendment No. 43, that subsection (7) should not be retained. This removes any residual need for a new right and I must therefore resist Amendment No. 36.
It is convenient to turn next to Amendment No. 43. In responding to corresponding amendments in your Lordships' Committee I pointed out that removing subsection (7) of this clause would have the effect of granting to owners of copyright in computer programs and in works stored in electronic databases the right to control the use of their works, since they cannot be used without the kind of copying referred to in subsection (7) taking place. This would be a new departure in copyright law. We were also concerned that the right could be used oppressively in certain circumstances.

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The Government have, however, carried out extensive consultation on the matter and are now satisfied that the special nature of computers and of electronic data-processing justifies giving additional protection in these fields. The most persuasive consideration is the possibility of multiple, simultaneous use of a stored program or work. Given this possibility, rights owners need to be able to specify and enforce conditions about the numbers of permitted users. The most effective legal basis for this is copyright. We can therefore accept Amendment No. 43. However, I must make clear that this is on the understanding that we shall be coming forward with an amendment to the effect that when a person acquires a legitimate copy in electronic form from a previous user who had been given a free licence to use it the acquirer may use it freely to the same extent. I hope that we can debate this properly on Third Reading.
Finally, I turn to Amendments Nos. 38 and 44. The former amendment is similar to an amendment proposed by the noble Lord, Lord Mottistone, in Committee, but now refers to "electronic processing devices" rather than "computers" and explicitly includes display of a work as an act of copying. In responding to the earlier amendment I said that subsection (2) of Clause 17 was already broad enough to encompass copying within computers. However, I accept that the case for explicit reference to electronic storage and display is strengthened if subsection (7) of this clause is deleted. We shall therefore give further consideration the definition in subsection (2), and may come back to the matter on Third Reading. In doing so, we shall also consider Amendment No. 44 which, although presented as a separate subsection, is really only another aspect of the definition of copying which should be dealt with in subsection (2).
I hope that with those undertakings the noble Lords will be able to withdraw their amendments.
Lord Mottistone: My Lords, I am indeed grateful to my noble friend for accepting Amendment No. 43 and for his very full explanation of his understanding of the problem, which has gone a long way forward on our discussions in Committee. I am also most grateful to him for considering something on the lines of Amendment No. 38 which, as he said, is similar to one that I moved in Committee, encompassing Amendment No. 44 which was my original effort in these series of amendments. Altogether, I think that we have made great progress, and I am extremely grateful to my noble friend and his advisers.
The Earl of Stockton The Earl of Stockton: My Lords, I thank my noble friend for his assurances on Amendment No. 43. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 37:
Page 9, line 6, leave out (", in the latter case,").
The noble Lord said: My Lords, the noble Lord, Lord Kilbracken, put it to me privately that the expression "in the latter case" in Clause 16(3) was
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wrong. He said that the phrase could be construed to apply to the whole of paragraph (b) when it should only apply to indirect copying.
It is clearly the case that intervening acts can only take place when copying is indirect. But the phrase "in the latter case" has the effect of applying the tail piece of subsection (3) to both direct and indirect copying. The best answer is simply to omit the words in question. I beg to move.
On Question, amendment agreed to.
Clause 17 [Infringement of copyright by copying]:
[Amendment No. 38 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 39:
Page 9, line 21, leave out subsection (4).
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 40:
Page 9, line 26, leave out ("taking") and insert ("making").
The noble Lord said: My Lords, in speaking to Amendment No. 40, I shall also, with leave, speak to Amendment No. 41. The amendment standing in my name was tabled in response to a point raised by the noble Lord, Lord Kilbracken, in Committee. The noble Lord has offered his own, very similar amendment for your Lordships' consideration, which is Amendment No. 41.
As the Bill is drafted, it could be held that the photographic copying of a single image in a film or television broadcast is permissible provided a camera is not used to take the photograph. For example, a photograph could be derived from a film by contact printing, but it could then be said that no one had taken a photograph. The amendment standing in my name seeks to remove any doubt by providing that a photograph of an image in a film, television broadcast or cable programme is a copy, regardless of how it is made.
The amendment in the name of the noble Lord, Lord Kilbracken, would, however, go too far. It would certainly pick up the contact print, but it would probably leave out the photograph taken in the ordinary way by camera. My amendment would cover both, which is what we want. I beg to move.
Lord Kilbracken: My Lords, I apologise for my absence. Your Lordships reached this amendment rather more quickly than I had anticipated. I understand that we are dealing with Amendment No. 40.
Lord Beaverbrook: My Lords, if the noble Lord will give way, and with the leave of your Lordships, I should like to point out to the noble Lord that we are on Amendment No. 40 and I have spoken to Amendments Nos. 40 and 41.
Lord Kilbracken: My Lords, I am so sorry that I missed much of what the noble Lord said in speaking to this amendment. The point that I make in Amendment No. 41 is that it is surely not correct to talk about "making a photograph of—when we are

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making a photograph from something. This is a matter of some importance.
As your Lordships will have seen in this morning's papers, many of them carry the last photograph of the miserable hypocrite Jimmy Swaggart, the American evangelist, whose weeping face was seen as he announced his indiscretions on the television yesterday. That was a still taken from a television sequence in which he made his confession. That picture has appeared all over the world and has probably earned tens of thousands of pounds. It was not a photograph taken in the ordinary way with a still camera, but was obtained in some way—I am not sure of the technique used—from the video tape concerned. It is therefore obvious that it is possible to make a still photograph of great value from a video tape or film that has been shot. I do not know whether the noble Lord went on to discuss my Amendment No. 42—
Lord Beaverbrook: No.
Lord Kilbracken: Then, my Lords, I should like to make a point on that separately. Reverting to my earlier remarks, that is precisely the way in which a still photograph of great value can be made from a film or a video tape and it therefore has to be seriously considered. I am glad that the noble Lord has made a proposal as a result of the point that I raised at Committee stage, but I think that my own language is surely preferable.
On Question, amendment agreed to.
[Amendment No. 41 not moved.]
Lord Kilbracken Lord Kilbracken moved Amendment No. 42:
Page 9, line 26, leave out ("substantial").
The noble Lord said: My Lords, here I want to leave out the word "substantial". My reason is that if a photograph of this kind is made from a single frame of a film or from a videotape, the still photograph that is made may be of the whole frame, but much more probably it will be from a part of the frame, perhaps a very small part. For instance, if Jimmy Swaggart, when he was making his confession on television yesterday, had been occupying only a very small part of the frame at that time and it was considered desirable or saleable to show a portrait of the gentleman which was occupying less than 25 per cent. of the frame, that should not affect the fact that the copyright belongs to the person who shot the film.
However, as the Bill is at present worded, it is only if a substantial part of that frame issued that copyright belongs to the person who shot it, and that seems wrong. It is for that reason that I move that the word "substantial" be deleted. My Lords, I beg to move.
Lord Beaverbrook: My Lords, Clause 17(5), as we have just amended it, provides that the making of a photograph of the image on a television screen or of a single image of a film amounts to copying the television broadcast, cable programme or film in question. The reason for this is that Clause 16(3)(a) provides that, for there to be infringement, a substantial part of a work must be copied. It is strongly arguable that a single frame from a two
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hour film is not a substantial part. Under the present law, a copy of a single image from a film is a reproduction of the film, but a copy of a single image from a television broadcast or cable programme is not. This anomaly arises from the difference between Section 13(10) of the 1956 Act and Sections 14(6) and 14A(7).
There can be no doubt that a single image taken from a film or television programme can have a significant value. That is why we feel that it is right to put it beyond doubt that photographing such an image requires the consent of the copyright owner. Furthermore, the value of the image may subsist in only a part of it and so we have provided that photographing a substantial part of the image may infringe copyright.
To go further than this by making the reproduction of insubstantial parts of the image a restricted act, as the amendment seeks to do, would be wrong. It would give films and television programmes greater protection than any other works. For example, copyright in a photograph as an artistic work in its own right would not be infringed by reproducing an insubstantial part of it, but, if this amendment were successful, reproducing the same proportion of a still from a film would infringe the copyright in the film.
I should point out that it would not be possible, were the word "substantial" to be left out, to rely on Clause 16(3)(a). That relates to substantial parts of works, but here we are concerned with a single image which itself is not a work or even a substantial part of a work. To achieve the right result, therefore, Clause 17(5) needs to carry its own reference to substantial part.
"Substantial" does not necessarily mean in a dimensional way. "Substantial part", for instance, in the example quoted by the noble Lord, could well mean the picture of the discredited evangelist himself. His image in that picture may well be dimensionally a very small part of the image but it is of substance as regards the importance of the image. It is very important that we do not regard "substantial" in this context as in any way constituting a major part dimensionally of the image itself. I hope that the noble Lord, Lord Kilbracken, will feel able to withdraw the amendment in the light of my explanation.
Lord Cawley: My Lords, there is judicial authority for what a "substantial part" is. One judge said that if one copied one page from a London telephone directory that was taking a "substantial part".
Lord Kilbracken: My Lords, I was reassured by what the Minister said about the definition of "substantial", although of course his reassurance will not be available as evidence in a court of law at any future date. I assume that he is right that that is the legal understanding of the word.
As a photographer one tends to think of it as being the percentage of the frame that is used in making the still. I remember shooting an attack by dive bombers on a bridge in northern Iraq in which the Hunter aircraft carrying out the attack was a very small part of the frame but could still be blown up into a very saleable picture of the attack.

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In view of what the Minister has said about the meaning of "substantial", I am prepared to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Stockton The Earl of Stockton moved Amendment No. 43:
Page 9, line 31, leave out subsection (7)
On Question, amendment agreed to.
[Amendment No. 44 not moved.]
Clause 18 [Infringement by issue of copies to the public]:
Lord Lloyd of Hampstead Lord Lloyd of Hampstead moved Amendment No. 45:
Page 9, line 36, leave out subsection (2) and insert
("(2) References in this Part to the issue to the public of copies of a work are—
(a) to the act of first putting those copies into circulation for sale:
(b) to the act of distributing those copies for commercial purposes by way of rental, loan, hire, exchange or similar arrangement;
and not to their importation into the United Kingdom.")
The noble Lord said: My Lords, in the grouping document with which I have been supplied I find that Amendment No. 45 has been grouped with no fewer than 19 other amendments. The House will be relieved to know that I propose to make remarks to cover Amendments Nos. 46, 49 and 51 only, although I note that Amendment No. 47 is in terms somewhat similar to those of Amendment No. 45.
I moved an amendment in Committee in the same terms as those of Amendment No. 45. There followed a quite considerable debate. I mentioned that this pointed to a serious lacuna in the original Bill, which did not cover the so-called rental right, and the problem that had arisen in relation to the spread of rental shops whereby people opened shops and rented out tapes for the purpose of copying, which was obviously a most undesirable practice. It has spread widely in other countries, particularly in Japan and America, where legal steps have been taken to restrain it. The object of my amendment in Committee was to create a rental right that would enable the practice to be curtailed or at any rate to be linked with a royalty scheme under the general provisions of the Bill. Although I omitted to say that I would refer to it, it is Amendment No. 219, as included in the grouping list, which covers that aspect of the case. That amendment is to be moved by the Government.
The House will be relieved that as we approach the adjournment I can dispose of the matter quite shortly. In Committee considerable pressure was placed on the Government by myself and by other noble Lords—including the noble Earl, Lord Ferrers, who can no longer participate in the proceedings as a Back-Bencher—to give an undertaking in due course to put in an amendment, the Government having indicated considerable sympathy for the underlying intention. The Minister felt unable to give a firm undertaking on behalf of the Government. On the basis of a qualified undertaking given by him, I agreed to withdraw the amendment.
I am happy to say that the Minister, doubtless having taken full counsel, has felt able to put in an amendment. Although it is expressed in a somewhat different form and is not quite as comprehensive as the terms of my amendment, it has gone far to meet the case that I and others put in Committee that there should be some provision in the nature of a rental right linked with a royalty scheme that could be dealt with in the event of failure to agree by the Copyright Tribunal. The Minister in Amendments Nos. 46, 49 and 51 has put forward a proposal along those lines, although apparently he prefers "hiring" to "rental right".
I tabled the amendment again for this stage of the Bill because I did not know whether the Government would accede to our request that they should put in their own amendment. I felt it right to put in my amendment so that the matter could have a further opportunity of being ventilated.
Although there are some differences of detail between the two proposals, I feel that the Minister has gone a considerable way to introduce the notion of rental or hiring as deserving of restraint and to link it in a subsequent part of the Bill with a possible application in regard to royalties to the Copyright Tribunal. It seems to me right that I should not press my original amendment but I express my gratitude to the Minister for the care that he has taken on this matter and for his willingness to accede to the principle to which my argument and that of other noble Lords who took part in the earlier debate was directed.
In those circumstances I indicate, but without wishing to preclude anyone else from contributing to the matter at this stage, that it is my intention not to press the amendment when the appropriate moment arrives. I shall move my amendment at this stage and then withdraw it. Otherwise it seems to me that I shall deprive any other noble Lord of the opportunity of speaking to it. Is that not correct? I beg to move.
The Deputy Speaker (Lord Alport): My Lords, I must inform your Lordships that if this amendment is agreed to I cannot call Amendments Nos. 46, 47, 49 or 50.
Lord Jenkin of Roding: My Lords, I was brought up as a young member of the Bar to believe that the main difference between solicitors and barristers was that barristers were expected to read to the end of a clause. I am not quite sure whether the noble Lord, Lord Lloyd of Hampstead, has appreciated the full purport of the group of amendments which my noble friend has tabled following the undertaking he gave in Committee.
The noble Lord was quite right that government Amendments Nos. 46, 49 and 51 are welcome because they recognise for the first time the case that he made that there should be a rental right. He mentioned Amendment No. 219, which of course sets out the procedure for determining the royalty that should be paid. But in between and grouped with this is government Amendment No. 106, which is a new clause and is clearly an integral part of the Government's proposal. I must say to my noble friend that, while I welcome Amendments Nos. 46, 49

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and 51, which give this valuable new right, I cannot extend the same welcome to the new clause because it almost entirely takes it away again.
I am not sure whether the noble Lord, Lord Lloyd of Hampstead, recognises that his rental right, which he has welcomed with some gratitude, will last for only one year. I do not think that that goes any way at all to meet the needs of the case and to meet the case that was put with great strength from all parts of the Chamber in Committee.
Perhaps I should explain, as this is the first time that I have intervened in this highly complex piece of legislation, that my concern arises because I am the chairman of a music trust called the Taverner Concerts Trust, the function of which is to sponsor the Taverner Group under its able director Andrew Parrott. The group makes records, tapes and compact discs of a wide range of classical music from the very earliest European music. It places very special emphasis on baroque and late baroque music. The music is of the highest quality and it appeals to an enthusiastic but small audience. It is almost universally true of the records that the group makes that it takes a good many years for the record producer to recoup his costs.
The records made by this and many other comparable groups who make such recordings can be on sale for upwards of 20 or even 25 years and can still command an audience. But of course it is a long time before the money comes in. Indeed the record producers in these cases frequently require sponsorship to cover what one might call the front end costs. It is part of my function and that of my fellow trustees to try to find sponsors for such operations.
But even with sponsorship the record company may take seven, 10 or 12 years to recover its outlay before it begins to make a profit. It is against that kind of figure that one has to judge the one year, or it may be one year plus, which my noble friend has written into his Amendment No. 106.
The mischief of that amendment, or new clause as it is on the Marshalled List, is that by conferring what is in effect a statutory licence of right to rent after one year the Government are putting at grave risk the revenues from sales after that period because once a compact disc is put into circulation it is wide open for copying, particularly in the form of illegal home copying.
I supported the Government against the levy on a blank tape because I was persuaded by the bureaucratic argument that that would not meet the case. The fact remains that a compact disc is the answer to the rental shops' prayer. It is a perfect reproduction of the artist. It lasts indefinitely and can be played more or less indefinitely without any loss of its reproduction. It is therefore an ideal master for copying.
Of course home taping is a breach of copyright and is illegal but, as I think the entire House recognises, the law is quite unenforceable. Therefore the owner of the copyright has no protection unless he is given some rental right; that is to say a control over the rights of the renting of his work. The correct remedy is to ensure that hiring for rent can only be done with the express consent of the owner of the copyright.
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There was some argument in Committee about the analogy with films. But I must tell noble Lords that films are quite different. Films are made primarily with the express purpose of being exhibited in public in cinemas. Film producers are extremely careful not to release their films in the form of videos which are rented until they have made the most that they can from their market in cinemas. Indeed before they release the films as videos they enter into comprehensive rental rights so as to protect their right in the copyright of the film. We have been discussing some of the problems connected with that in the amendments which we have just been debating.
The compact disc is freely available for sale to the public from the moment that it is issued. Indeed a great deal of revenue for the producers comes because the discs are sold in record shops. We are fortunate in this country in having a wide spread of shops which sell records, tapes and discs of all kinds. That is the primary market for the compact disc. Therefore the compact disc is freely available for someone opening a rental shop to buy and then hire it out at however small a cost per time, knowing or strongly suspecting that the whole purpose of the transaction is that the man renting the compact disc may take it home, copy it and get a very faithful reproduction on his tape because he is copying from a compact disc. Having bought and rented, which he can do over and over again, he opens the door to a widespread breach of the owner's copyright.
That was the case which the noble Lord, Lord Lloyd of Hampstead, made very powerfully with others in Committee. Had the Government's amendments stopped with the amendments to Clause 18 we should have been very happy. But Amendment No. 106 confines the protection to 12 months or the end of the calendar year following the year in which the compact disc is first published.
What will happen if the proposal made by the Government is unchanged? At that point the proposed renter can go out with his record and start renting it in turn. It is then up to the owner of the copyright to catch him, find out the extent to which his copyright is being breached and then either secure an agreement on royalites or go through the Copyright Tribunal to obtain his licence fee. That proposal does not advert in any way to the question of how comprehensive the royalty would be and to what extent it would provide recompense for the cost of the record.
The copyright holder of a record must catch up with the person breaching the copyright ex post facto, in total contrast with the position as regards films, where the copyright holder can negotiate the licence before the film is released in the form of a video, for rental or while it is being shown in cinemas. By that time, the damage may well have been done. There may have been a number of copies rented out through rental shops and a large number of copies made illegally by home tapers.
The damage occurs because the home tapers are people who might well have gone out and bought a record, tape or CD. Instead, they have obtained a copy at the cost of renting a compact disc from a renter. I therefore welcome the fact that the Government have recognised that they will provide

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protection. However, I have to tell them that the protection that they have proposed has been largely nullified by the one-year limit.
Perhaps I may anticipate my noble friends' case. He wishes to see a market for the rental of recorded works in sound. I understand that. The consumer should have the choice of buying or renting. The question is therefore how to reconcile the desire of the consumer to rent—CDs are still quite expensive articles and renting may be one of the ways of exploiting them—with the protection of an owners copyright against illegal copying.
I believe that we need a balance. Perhaps I may say to the Minister that I am persuaded that a time limit of one year tilts the balance too far in favour of the renter and the illegal home copier. It has been suggested, by contrast, that a rental right should last for the entire 50-year life of a copyright. From the point of view of the Government—I have some sympathy with their view—I am sure that, if that proposal were accepted, the balance would be tilted too far in favour of the copyright owner and against the consumer who wishes to rent. I therefore suggest that some point in between is the right answer.
At the outset, I gave some figures as regards the likely period before a return is received on records made by a typical high quality group of music makers. I mentioned a period of seven, 10 or 12 years. The pop record will earn its keep in a year. A real top of the pops record will earn its keep much more quickly. Where is the balance to be drawn? I suggest that seven years is the right compromise. With great respect to my noble friend. I believe that he would do well to consider that suggestion between now and Third Reading. I believe that the right answer for the protection of the rental right is to give an exclusive right for seven years and thereafter to allow the provisions of Clause 106 to operate.
Much will depend on schemes drawn up for royalty agreements between copyright owners and renters. But seven years of exclusive right would go a long way to meet the case of those who feel that their copyright is being pirated by home copiers. I commend that course to my noble friend as the best way out of what we must regard as a very unsatisfactory position.
Lord Mottistone: My Lords, I should like to thank my noble friend for Amendments Nos. 46, 49 and 51, stemming directly from our discussion of the matter at Committee stage. Like my noble friend Lord Jenkin, I have slight reservations about Amendments Nos. 106 and 189, to which I have put down further amendments. Perhaps I may speak briefly to those amendments and explain them to my noble friend and your Lordships.
Before I do so, I should explain that the software industry can be identified as an entertainment sector which represents a turnover of approximately £100 million and a personal computer business software sector representing a turnover of approximately £400 million. The software industry as a whole, most of whose products are licensed, has a turnover of about £2 billion per annum. That part of the industry is of great concern to us.
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In general terms, we do not object to Amendments Nos. 106 and 189. The right to control rentals would be limited to the end of the year in which copies are first issued to the public. After that time, rentals would be allowable subject to the payment of a reasonable royalty which may be determined by the Copyright Tribunal. In other words, there is a remunerative right after one year, rather than a prohibitive right. Furthermore, all licensing schemes are subject to review by the Copyright Tribunal.
Generally, the entertainment sector of the software industry is pleased with the amendments. The additional changes are probably a necessary compromise. However, the question is whether the extra provisions cover only the entertainment sector or software licensing as a whole. If the former is true, that is probably acceptable for entertainment software; if the latter is true, that would cause great concern to the industry, in that all types of software licensing arrangements would be subject to what are effectively compulsory licensing arrangements with review by the Copyright Tribunal. That would be cumbersome, bureaucratic and unnecessary.
It is the view of industry experts that the extra clauses as drafted cover the whole of the industry. It is likely that the Government, however, do not intend that. To put the matter right would not be straightforward and it has not been attempted. Bearing on that matter is what my noble friend intends to do in further amending Clause 17 following the statement in which he happily accepted the removal of subsection (7). That intention will affect that side of the industry.
In the meantime, I propose with my Amendments Nos 106A and 189A specifically to remove computers from subsection (1) of Amendment No. 106 and paragraph (c) of Amendment No. 189. Those amendments would remove all aspects of review by the Copyright Tribunal for all computer programs and make the rental right prohibitative rather than remunerative. However, one would leave computers in the rest of the amendments because that is the reasonable course. I hope that my noble friend will be able to take account of what I have said in any further amendments which he puts forward at a later stage.
Lord Willis: My Lords, I should like to thank the Government for bringing forward as promised an amendment concerning rental right. They will not be surprised if I say that I feel that there are certain defects, some of which have been pointed out by the noble Lord, Lord Jenkin. I am in 100 per cent. agreement with his criticism of the one-year period. I follow his instinct that the time limit should be for the entire copyright period. If you own a copyright, you own a copyright; the law says that a copyright is in existence until 50 years after your death. However, if the Government do not go along with that idea, the suggestion of seven years is reasonable.
My other criticism is that Amendment No. 106 in particular will bring considerable profit in terms of rentals to the person who actually makes the cassette or record but not to the composer, or perhaps to the publisher and not to the author. That worries me.
It may be argued that what is hired out is an artefact—a cassette, a record, a disc or whatever—

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that that is the item for which one can charge and that the people who composed the record or made the video can guarantee their position by contract. But that is not always the case, as we discussed in Committee.
It is suggested that to have too many people controlling rights would be difficult. Of course there are difficulties in this Bill all the way through. However, there would be no problem if one included the composers, authors and other creative elements in the right outlined in Amendment No. 106. There are collecting societies in existence that can reach an agreement.
The point that I want to press on the Government is that if the owners of a musical copyright—the people who compose and create it—are given the right, they can negotiate with the people who rent out the products, the makers of the recordings. But if the Act does not grant that right they cannot demand their royalties or share by contract. If they are very powerful and influential people and have achieved the status of the Beatles they can; but if they are ordinary people who are just beginning or in the middle of their career they cannot. They would have to rely on ex gratia payment.
Therefore, I hope that the Government will look again at Amendment No. 106 at Third Reading and widen it so that it is made quite clear that the owners and creators, and not just the people who make the artefacts, are included in the rental right. Given that right, there is no problem in negotiating through the various organisations and societies how it should be split up. I hope that the Government will accept that point.
Viscount Brentford: My Lords, following the noble Lord, Lord Willis, perhaps I may speak to the amendment in my name, Amendment No. 52, which forms part of this group. I ought to remind your Lordships that I am a solicitor and that my firm acts for the Music Copyright Reform Group among others.
I hope that my proposed amendment, Amendment No. 52, meets the point which the noble Lord, Lord Willis, has just been making. He has said much of what I was proposing to say. The difference between my amendment and that of the Minister, Amendment No. 51, is very small. Just a few words are added at the outset:
"musical works and any literary works associated with them".
I should like to express my gratitude to my noble friend for the steps that have been taken towards a rental right following the debate in Committee. Like the noble Lord, Lord Willis, I am very concerned at the exclusion of composers and owners of musical works from participating in this right.
In Amendment No. 51 there is a proposal which goes quite a long way but it will deny composers the right by law to benefit from rental. As the noble Lord, Lord Willis, said, if they do not have a right in law they are unlikely to be able to obtain one by contract. There are two reasons for that. The first is that if they have no right in law there is nothing on which to base a contract. Everyone else is granted his right under the law but not the composer and the publisher.
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I have been advised by various sources that unless that right is incorporated in this Bill, if the publisher tries to insist on it, the producer may be able to take him to the Copyright Tribunal and have the publisher's request struck out. This is a serious point that I put to the Minister. It is only a small extension to his amendment.
To back up what I am saying, I should like to read out two letters written to me, one of which is from Lady Bliss, the widow of Sir Arthur Bliss. Referring to the rental right she writes:
"I am troubled to learn that there is no intention to extend these provisions to cover the musical works and any associated words which will be included in the records and films. Not only will composers and their publishers be deprived of this source of income but if the trend of hiring out records and films continues to grow—as I would expect it to with the encouragement of the Bill—this is almost certainly bound to reduce the sale of records and films which will, in turn, result in a reduction of income for composers".
The second letter is from Mrs. Vaughan Williams, the widow also of a very illustrious composer whose name I am sure will be very well known to your Lordships. She writes:
"This seems to me entirely unfair. If one of my husband's symphonies is recorded by one of the record companies, it seems to me obvious that the music is more important, being the reason for the existence of the record—and I cannot, therefore, understand why it is 'fair' or logical that only the record company and not the composer, and the publisher representing the composer, should be entitled to rental rights".
In conclusion, I should just like to reiterate my remarks that in order to get the benefit of contract the composer and publisher need to have the right incorporated in the Bill. I therefore very much hope that my noble friend will agree to extend his amendment to include my additional words.
7.15 p.m.
The Earl of Winchilsea and Nottingham: My Lords, as prime mover of Amendment No. 47 with the noble Lord, Lord Jenkin of Roding, I should like to say how eloquently he has put the case for this rental right which the Government, I am pleased to say, have recognised as being a potential danger to the record industry. I should also like to thank the noble Lord, Lord Willis, for what he said when he last rose to his feet.
I recognise that the Government have acknowledged that a potential problem exists which is likely to get worse as time goes by. However, perhaps I may say how utterly astonished I am, and somewhat dismayed, that the Government have based their proposals, including the period of one year, on the existing Japanese situation, which is perhaps the very worst situation that exists anywhere in the world.
I should like to refer the Government to my speech on this very subject on 12th November 1987 at Second Reading as reported in Hansard at col. 1508. On that occasion I did not exaggerate the situation in Japan; if anything I understated it. Perhaps I may urge the Minister to rethink this so-called concession and come back with proposals at Third Reading.
It might be a timely reminder to the Minister that in line 29 of that same column in Hansard I mentioned that the Japanese Government were busy working on their own White Paper which would give full copyright protection to all foreign musical works

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in both retail and rental shops. It is also fair to say that the situation in Japan is that 95 per cent. of those who rent, copy the rented music at home. Retail outlets in areas with rental shops have seen sales decline by up to 60 per cent. That represents a real threat to the British music industry, which, as many noble Lords will appreciate, is second to none in the world.
If the Japanese are introducing legislation—which I understand is their serious intent—would it not be prudent for the UK to do likewise in view of the Japanese experience and their government's determination to try to solve the problem? Perhaps I may ask the Minister for correction on this point, of which I am not altogether certain. If he grants only one year, or one year-plus, exclusive protection, would that not be in direct breach of the Berne Convention of which the UK is a signatory?
Lord Beaverbrook: My Lords, we are returning now to a matter that we discussed at length during Committee and I am pleased to tell your Lordships that the Government have reached some firm conclusions on the question of rental.
The Government are of course aware of the attraction of renting out copyright material in various forms. Rental is undoubtedly already a large-scale method of exploiting films, through video rental, and is showing signs of also becoming significant in relation to sound-recordings, particularly compact discs. We accept that exploitation of this kind should benefit copyright owners as well as retailers and consumers, and if we have hesitated to introduce a rental right it has been on two main grounds. First, can copyright owners ensure proper remuneration through contract without the need for a new right? Secondly, how can we ensure that the consumer is able to exercise a choice between renting and buying relatively expensive products such as videos and compact discs?
We are now persuaded that contractual arrangements are not sufficient to assure copyright owners of proper levels of remuneration in all circumstances. A rental right is therefore needed. However, in the Government's view it cannot be a full-blown exclusive right giving rights' owners the power to prevent any rental at all. Otherwise consumers might not be able to exercise the choice to which I referred earlier.
The Government are therefore proposing a right tailored to the needs of the situation. We propose that copyright owners should have an exclusive right to control rental in the first year after first issue to the public of films, sound recordings and computer programs. After that first year, rental will be permitted, but copyright owners will have the statutory right to receive reasonable royalties in respect of rental. The right will last for fifty years and the Copyright Tribunal will arbitrate in cases of dispute. This system is very similar to the rental right operated in Japan.
Noble Lords should note that under the Government's proposal the right belongs to the owners of rights in the sound recording or film and not to those whose works are embodied in the recording or film. This is to avoid putting on retailers
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the burden of having to obtain authorisations from, and make payments to, more than one category of rights' owners. The amendment of my noble friend Lord Brentford would impose such a burden in respect of musical works and lyrics and I must resist that. Composers and others whose contributions are used will be able to negotiate a share of the new revenue when the arrangements for making the sound recording or film are made.
There is no doubt that copyright owners feel that the Government proposals do not go far enough. The record industry in particular seek a wholly exclusive right mainly because they see the right as a weapon to prevent private copying of rented compact discs. In other works they would, in general, be reluctant to authorise rental at all. I am aware of the private copying concerns that underlie part of the case for this new right but the proposal that we have put forward seems a sensible way of dealing with that matter. Copying of records is most damaging in the first year after release of a record when the demand for sales is highest. Thereafter it may be expected that consumers wishing to rent a compact disc are much more likely to be doing so in order to widen their range of listening rather than to add to their permanent stock of recordings. The bureaucracy and policing necessary to operate the statutory licence has also been the subject of some concern. The copyright owners claim that it will be very difficult to keep track of the small one man and his dog rental shops. They would prefer to license only the larger retail chains. This would, I am afraid, go completely against the policy of this Government to encourage the entrepreneur and to give consumers choice right across the country—not just when there happens to be a large branch of a well-known record shop nearby. Certainly many video outlets keep detailed records for security reasons and there is no reason why computer software and compact discs should not be handled in the same way.
My noble friend Lord Jenkin of Roding has pointed to the need for record companies to identify and negotiate with retailers who rent out sound recordings. If rental is to take place at all then this is inevitable, even if the basis for the negotiations is an exclusive right. The problems of identification are the same under his solution as under ours.
Lord Jenkin of Roding: My Lords, I am extremely grateful to my noble friend; I apologise for interrupting. However, perhaps I did not make my point as clear as I ought.
The problem is that if one still has a great deal of valuable copyright left in a record and one has to give a compulsory licence after one year, then the obligation to catch absolutely everybody imposes a very great burden. If my suggestion of seven years were agreed to, I suspect that my noble friend's argument would be entirely valid. However, I must press him again to consider between now and Third Reading the arguments for a somewhat longer period.
Lord Beaverbrook: My Lords, the Government do not believe that a longer period would be appropriate. At the moment no rental right whatever exists and therefore copyright owners are without

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protection. The Government are tryng to find the right formula here. We believe that the formula of one year is the right one, followed by a period of licensing for the rest of the copyright period with recourse to the Copyright Tribunal.
At the end of the day, the Government, while concerned to help copyright owners, do not wish rental to be stopped altogether. We believe that consumers should have the option to rent and that shops should be able to satisfy market demand. Our proposals ensure that copyright owners can be assured of a proportion of the money generated by rental. We believe our amendments provide a fair and sensible way to protect the interests of copyright owners and consumers alike. I would add that I have not specifically addressed the substance of the manuscript amendments of my noble friend Lord Mottistone, since it is regrettable that we have been given so little time to consider them.
Lord Mottistone: My Lords, did my noble friend mention my amendments?
Lord Beaverbrook: My Lords, they may now have appeared in printed form but my noble friend had two very late amendments that we had to consider in manuscript form earlier on. It is clear that they seek to put computer programs in a more favourable position than films or sound recordings and I can see no reason for that.
I emphasise to my noble friend Lord Jenkin of Roding that he is incorrect in saying that the new clause introduced by Amendment No. 106 limits rental right to one year. It limits the exclusive right—the right to prevent others from renting—to one year but the right to receive rental is the full length of copyright in a film or sound recording. That is 50 years from the making, or first release.
My noble friend Lord Mottistone has suggested that the wording of my amendment has the result that all types of software licensing would be caught by these provisions and be subject to review by the Copyright Tribunal. We do not believe that this is the case. Software licensing as between the supplier and user of the software is not caught. It is only the licensing of dealers in order that they may hire out software to their customers that will be subject to tribunal jurisdiction. The Government believe that the balance that we are striking with our proposals for a rental right is the correct one. I hope that noble Lords will feel able to withdraw their amendments.
For the sake of clarity, I should like to repeat the amendment numbers that I have been addressing because, although they cover the same point, the grouping is considerable. In addition to Amendment No. 45, tabled by the noble Lord, Lord Lloyd of Hampstead, I have also been speaking to Amendments Nos. 46, 47, 49, 51, 52, 106, 106A, 188, 189, 189A, 190, 219, 221, 222, 225, 230, 231 and 238.
Lord Lloyd of Hampstead: My Lords, I agree with the view expressed by several noble Lords that when we deal with Amendment No. 106 serious consideration must be given to the restriction of one year contained in the amendment. However, it seems to me that at this stage of the debate the only
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appropriate action is for me to withdraw my Amendment No. 45. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 46:
Page 9, line 37, after ("are") insert (", except as mentioned in subsection (3).")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 47 not moved.]
[Amendment No. 48 had been withdrawn from the Marshalled List.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 49:
Page 9, line 38, after ("sale") insert (", hiring")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
[Amendment No. 50 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 51:
Page 9. line 39, at end insert—
("(3) In relation to sound recordings, films and computer programs, the restricted act of issuing copies to the public includes any hiring of copies to the public.
(4) In subsection (3) "hiring" includes any arrangement under which a copy is made available for a consideration in money or money's worth on terms that it will or may be returned.").
The noble Lord said: My Lords. I beg to move.
On Question amendment agreed to.
[Amendment No. 52 not moved.]
Lord Denham: My Lords, in moving that further consideration on Report be adjourned, it will be useful for your Lordships to know that we shall not return to the Bill before 8.30 p.m. I beg to move.
Moved accordingly, and, on Question, Motion agreed to.

Land Registration Bill [H.L.]
7.23 p.m.
Lord Denham: My Lords, I have it in command from Her Majesty the Queen and his Royal Highness the Prince of Wales to acquaint the House that they, having been informed of the purport of the Land Registration Bill, have consented to place their prerogative and interests, so far as they are affected by the Bill, at the disposal of Parliament for the purposes of the Bill.
Lord Templeman: My Lords, I beg to move that the Bill be now read a third time.
Moved, That the Bill be now read a third time.—(Lord Templeman.)
Lord Mishcon: My Lords, as no amendments have been tabled, I think that this is an appropriate time to make a few remarks before we reach the stage of

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asking the House to say that the Bill be now passed. I should, first, like to congratulate the noble and learned Lord, Lord Templeman, for the way in which he has piloted the Bill through your Lordships' House with his usual courtesy and eloquence. Although it may already have been done, I believe that the time is also opportune to express the appreciation of the House, which is so often felt, to the Law Commission for the work that it did in order that the Bill might see the light of day.
The Bill was received with a little anxiety by some members of the legal profession. They were of the opinion that the secrecy and privacy that appertained to the registration of title, and to the issue of ownership and so forth, was rather precious. It was felt that the Land Registration Bill now before us was an invasion of that private right by giving the public the means to obtain certain information from the registrar. I do not believe that that was a majority view within the profession but the view was expressed. I believe that nobody could have put the answer to that question better than the noble and learned Lord, Lord Templeman, when at Second Reading he said;
"The ownership of land can no longer be confidential. Ownership of land brings obligations as well as rights. Many people apart from the owner are interested in land. The state is interested. The Forestry Commission is interested. Everyone concerned with town planning is interested. Neighbours are interested. Tenants are interested. Even a trespasser might he interested. One cannot isolate a piece of land in the middle of England and, for no good reason, simply cloak its ownership and say that no one should be entitled to know the name of the man who owns it."—[Official Report, 25/11/87; col. 683.]
I quote that statement with some amount of pleasure only because I believe that when reading the paragraph even the minority in the legal profession who felt otherwise will be convinced that this Bill deserves your Lordships' support.
I have only one other comment to make. It will be remembered that at the Committee stage a provision was inserted stating that the date of operation of the Bill should be such as may be fixed by the noble and learned Lord the Lord Chancellor. At Second Reading, he expressed views as to the delay which for understandable reasons might occur in the operation of the Bill in regard to the administration of the Land Registry. I noticed that there appears to be omitted by accident a word from the additional clause. I do not say that that will be the most profound and useful remark that I shall ever make in your Lordships' Chamber. Clause 3, as amended in Committee, states that:
"the Act shall come into force",
and I believe that then the word "on" has been omitted. The clause goes on to read:
"such day as the Lord Chancellor may by order made by statutory instrument appoint".
I should like your Lordships to know that I read the Bill as amended in Commiteee and that seems to be the sole point of my making that remark.
Will the noble and learned Lord the Lord Chancellor give an indication about that matter? In addition to the legal professions other professions are interested as to when the Act may come into operation, if the Bill becomes an Act after leaving your Lordships' House today
The Lord Chancellor: My Lords, I should like to join with the noble Lord, Lord Mishcon, in congratulating my noble and learned friend Lord Templeman on bringing the Bill to this stage. I should like to thank him for bringing the Bill forward and for the skilful and eloquent way in which he has piloted it through the House. There is also the added bonus that his words may have had the effect of soothing the anxieties felt among a minority of the legal profession, as the noble Lord, Lord Mishcon, has said.
I should also like to join with the noble Lord, Lord Mishcon, in thanking the Law Commission for its work. We owe it a continual debt in this and other areas of the law. It is right that we should acknowledge that and I do so with pleasure.
It would be my wish to bring the Bill, if it becomes an Act, into operation as soon as possible, consistent with not imposing the burden of bringing it into operation at a time when the Land Registry was under heavy commitment to its ordinary business.
As your Lordships know, the Land Registry has had difficulty in the recent past with the growth in conveyancing activity. We must warmly welcome that growth but it has imposed a fairly heavy burden on the registry and on the loyal staff who run it. I would not wish to introduce such a provision in a way that would impede progress in that connection. I hope that the arrangements which have been made, and which were outlined at Second Reading, will have the effect of enabling the business of the Land Registry to continue to run smoothly. I also would not wish anything to be done to impede the extension of the registration of title which I believe your Lordships will welcome. I hope that these constraints may still allow us to bring this Bill, if it becomes an Act, into force at a fairly early stage.
Lord Templeman: My Lords, in commending the Bill in its present form to your Lordships, I should like to echo the tribute paid by the noble Lord, Lord Mishcon, and my noble and learned friend the Lord Chancellor to the Law Commission and, in particular, Mr. Trevor Aldridge. Mr. Aldridge was a member of the Law Commission in 1985 when the Law Commission first set its hand to its report and has been of great assistance in marshalling the amendments and consulting the Land Registry to make sure that the Bill is in a form which is acceptable to all those interested in it.
I should also like to thank my noble and learned friend the Lord Chancellor and the noble Lord, Lord Mishcon, for their support for this Bill. I also thank the noble Lord, Lord Mishcon, for his wise words about the minority. I can understand the feelings which have been expressed. I do not believe that there are any secrets or confidences which will be exposed as a result of the passing of this Bill. I have been heartened by the number of people who have spoken to me and who have had real experience of difficulty when, with innocuous proposals or information that they really needed, they have been frustrated by the fact that their solicitors have had to throw up their hands and say, "We cannot find out who owns the land". I am sure this Bill will be a useful measure for that purpose.

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I also thank the noble Lord, Lord Coleraine, who has supported the Bill and has given it a prod in various interesting directions from time to time and who has warned the Treasury—and one always supports him in this—to keep its hands off the Land Registry money and let the Land Registry do what it wishes to; namely, to computerise and bring the whole of the Land Registry into the 21st century. I am grateful for the kind remarks which have been made about me. I commend the Bill to the House.
On Question, Bill read a third time, and passed, and sent to the Commons.

Multilateral Investment Guarantee Agency Bill
7.42 p.m.
The Parliamentary Under-Secretary of State, Department of Education and Science (Baroness Hooper): My Lords, I beg to move that the Multilateral Investment Guarantee Agency Bill be now read a second time.
On 2nd February, the Bill was read a first time in your Lordships' House, having previously received its Third Reading without any amendments in another place. It was warmly welcomed on all sides as an important and valuable addition to the UK's already substantial armory in the struggle against worldwide under-development. The Government propose to ratify the convention establishing, and thereby become a member of, the Multilateral Investment Guarantee Agency, MIGA for short, which the Chancellor of the Exchequer signed on behalf of the UK on 9th April 1986. Before we can ratify, and become a member of MIGA, however, legislative provision is needed to give effect in domestic law to some of our obligations under the convention. The Bill is designed to provide that legislative provision.
I should like to begin by giving your Lordships an idea of what MIGA will do once it has come into existence, and what its aims and objectives are. MIGA will be an international organisation, operating as part of the World Bank group, with the aim of encouraging foreign direct investment in developing countries. It will offer the developed nations an opportunity to encourage private sector development by stimulating the flow of investment capital which that sector needs.
Private investors are sometimes wary of making long-term investments in developing countries. MIGA will offer protection against non-commercial risks, and thus make investment in these economies a more attractive prospect. To date 63 countries have signed the convention, 12 developed and 51 developing; twenty-five have ratified, of which 17 are from the developing world. In order for the convention to enter into force, five developed and 15 developing countries (representing between them at least one third of the allocated shareholding set out in Schedule A to the convention) must ratify. The 25 countries which have so far ratified have about 27 per cent. of the allocated capital. As we wish the UK to be a founder member of the agency, I hope the Bill will pass speedily through your Lordships' House so that ratification can proceed. The UK was one of the
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first developed countries to sign the convention and we have already contributed a great deal to the launch of MIGA. We now want to play a significant part in its crucial formative stages.
Since MIGA's objective is to encourage the flow of foreign direct investment to developing countries by offsetting non-commercial risks, its major tool in pursuing this end will be the issue of contracts of guarantee, which are in effect insurance policies. Four types of risk will be covered: the risk of loss due to restrictions imposed by the host government on the transfer and conversion of currency; the possibility of expropriation of assets by the host government; loss due to breach of contract in defined circumstances by the host government and loss caused by war, military action or civil disturbance. Only new investments will qualify for cover with MIGA. They will have to be economically sound, and consistent with the host country's development objectives and priorities; and the enterprise concerned will have to be run on commercial lines. It should, for preference, be in the private sector.
However, MIGA's role as a catalyst for investment in developing countries will not begin and end with insurance. MIGA will also seek to encourage investors to look to developing countries through a range of promotional activities, including the dissemination of information on investment opportunities, research on investment issues, and the provision of advice and technical assistance to member countries as requested by them. MIGA is also expected to provide an important forum for policy co-operation between capital-importing and capital-exporting countries.
The principle of co-operation will be central to the operations of MIGA. As well as fostering co-operation between donor and recipient nations, it will also co-operate with other related international development organisations, helping to foster a coherent approach to assistance to the private sector throughout the donor community. For example, we envisage close co-operation betwen MIGA and our own ECGD.
Britain will hold about 5 per cent. of MIGA's total shareholding. This share will determine the number of votes we have in the Council of Governors. The convention has balances incorporated in it to ensure that both developed and developing countries are fairly represented on the board of directors.
The agency is intended to be financially self-sufficient. Initial contributions from member states will cover the costs of starting up; subsequently, it is expected all administrative costs and insurance claims will be met from premium income and other revenues, such as return on invested funds. Our financial obligations will be the cost of our allocated shares—probably just over $52.5 million. Of this, 10 per cent. will be payable in cash and 10 per cent. in promissory notes, to be drawn down only if needed. The remaining 80 per cent. will be callable.
If enacted, the Bill before your Lordships will deal with three main matters: first, the payment of our initial subscription to MIGA and the possibility of certain additional payments; secondly, certain privileges and immunities for MIGA, its property and personnel; and thirdly, it will provide for the

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registration and enforcement of awards from arbitration proceedings held under the convention, and the powers of the courts in connection with such arbitration.
MIGA will therefore promote the flow of investment capital and technology to developing countries in a number of ways. It will help to direct much-needed capital to the private sector, a target it is not always easy to attain through more conventional aid channels. Its assistance will be consistent with our belief that private flows to developing countries should, in the long term, be mainly in the form of project or equity investment, rather than of bank lending for general balance of payments support. It is my belief that MIGA represents a significant step forward in the field of aid to the private sector in developing countries and that this Bill will allow the UK to play a full part in the new agency. I commend it to your Lordships.
7.50 p.m.
Baroness Ewart-Biggs: My Lords, I thank the Minister for her very good and clear presentation of what is obviously not a controversial Bill. I give it the support of this side of the House. As the noble Baroness said, it is a Bill which will give ratification to the convention establishing the Multilateral Investment Guarantee Agency and we wish it a safe and speedy passage on to the statute book. We also congratulate the Government on being a founder member of the convention.
We give our support to this Bill because we recognise the importance of co-operation between official aid, private charities and commercial companies. We believe in the validity of public and private partnership to promote growth and development in third world countries. We very much hope that MIGA will help to persuade the private sector more readily to invest in those countries and restore the loss of finance that has occurred in so many of them in recent years.
Nevertheless, it is important to recognise that foreign investments cannot replace the crucial role of official development assistance, for it is the poorest countries which, after all, are the least likely to attract private investment and which will therefore remain largely dependent on aid. For example, Africa does not, and might never, loom very large on boardroom agendas. An example is that between 1980 and 1983 Africa obtained only 3 per cent. of world overseas investment and in 1985 only 1 per cent. of the United Kingdom's foreign investment went to Africa.
I say that only because, while welcoming this measure to encourage private investors to the third world, it is to be recollected and also regretted that Britain has fallen so low in the league of international generosity. In 1979 our level of aid stood at 0.52 per cent. of GNP and it has subsequently dropped to the lower figure of 0.32 per cent. of GNP. I believe that it would be right for the Government to give a better example to the companies that we hope will take advantage of MIGA.
From my own point of view, formed from my occasional travels to the Sudan on behalf of UNICEF and SOS Sahel—an NGO concerned with social forestry projects which are of great importance
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in the sahelian belt at the moment—I recognise a desperate need to focus development on human needs. Surely it is true that investment in people must be seen not only from a humanitarian viewpoint but also as a prerequisite for sustained economic growth. The recent UNICEF publication called Adjustment with a Human Face puts this very well. One of its authors, Richard Jolly, states:
"Much evidence already exists of the economic returns to investment in human resources. To fail to protect young children at the critical stages of their growth and development is to wreak lasting damage on a whole generation, the results of which may well have effects on economic and welfare for decades ahead".
This analysis must present an economic case which is vital to the promotion of foreign investment in the third world; for in the end the strongest guarantee of security for foreign investors in any country is a secure, well-nourished and healthy population. MIGA can certainly play its part, but without sustained effort by the international community to promote human welfare, the present decline in overseas investment is unlikely to be reversed.
I make one final point. We hope that MIGA will ensure that the investment it supports is of the highest quality. In recent years the World Bank has suffered justifiable criticism for the environmental shortcomings of some of its larger development projects. The new World Bank president has addressed these worries and seems willing to improve project appraisal to take account of the impact on the environment. MIGA must follow the bank's example and refuse to guarantee any investment that fails to meet stringent development and environmental criteria. We hope it will encourage investment in the best projects in the most difficult countries where entrepreneurs fear to enter. We shall watch its progress under the guidance of the World Bank with very much interest and we welcome this Bill which makes it possible.
7.55 p.m.
Lord Walston: My Lords, I too am grateful to the noble Baroness for her clear exposition of this Bill. She has in a very brief space of time gone through the Bill and explained it extremely clearly. She has answered many of the questions that I should otherwise have asked. I am grateful also to the Government for their part in this agreement and I am delighted that it has taken place. I hope it will take only a very short time for this Bill to become law.
I agree, of course, with the noble Baroness, Lady Ewart-Biggs, in her emphasis on other forms of aid, particularly aid from governments, especially on a non-interest bearing basis. In the poorer countries of the world—and, my goodness, there are many of them—there are hundreds of thousands, in fact billions of people who are just scratching a living and barely leading a reasonable life as a result solely of poverty and the malnutrition which is caused by poverty.
Having said that, the fact that I do not spend any time in elaborating on it does not mean to say that I am not a wholehearted supporter of all efforts to bring more investment into the third world over and above the basic investments which must come from governmental sources. This agency is clearly a good one and a simple one, but we must not have too great

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hopes about it. It will not achieve a revolution in development. However, for all that it is a worthwhile operation.
I have only two minor questions which I should be grateful if the noble Baroness could answer. The agency, of course, will itself be deciding whether a particular form of investment is to be covered by the type of insurance offered by the agency, but, in arriving at that decision, will the recipient country, if I may so describe it—the country in which the investment is to be made—have any say in what the form of investment is; or will it be, as it were, imposed by the agency?
It is conceivable that there are certain types of investment which, from the business point of view, the agency would consider reasonable but which the country in which the investment is planned does not rate highly or, for one reason or another, would prefer not to have within its borders. Will such a country have any say or power of veto over such decisions when they are made?
Secondly, quite understandably, many developing countries are very short of foreign currency and they already have regulations which tax the repatriation of dividends and capital. They do not prohibit it but they tax it at rates of 2½per cent. 5 per cent. and even 25 per cent. Will that type of tax be subject to any cover which is offered by the agency? What is the situation if, perhaps because of a change of government in the recipient country or because of different financial stringencies arising, existing taxes on this type of repatriation are increased? I should be grateful if the noble Baroness could elucidate.
Finally, I hope that this agency, its operations and the Bill itself when it becomes law (as I hope it will) receive wide publicity because there are many would-be investors in this country particularly among small businesses. They would be interested in expanding overseas, particularly in the third world, but they are deterred by their ignorance of the political and economic situation. The support given to them by this form of insurance could well enable them to take renewed interest and to make an investment. I urge the noble Baroness and the Government to give wide publicity to this new initiative as soon as it becomes law.
8 p.m.
Baroness Hooper: My Lords, although few in number this evening, the quality of the observations made demonstrates once again the interest and knowledge of Members of your Lordships' House on a wide variety of topics. I am very grateful for the support shown for the Bill by both speakers and I shall attempt to deal briefly with the questions that were raised.
The noble Baroness, Lady Ewart-Biggs, happily welcomed the idea of a combination of private and public endeavour. She suggested that we had fallen low in the league of international generosity. She quoted the 1979 British aid figure at 0.52 per cent. of GNP and the fact that it is now only 0.32 per cent. The internationally-defined figure for 1975 was perhaps not a very sound base because it was exaggerated by large deposits of promissory notes to multilateral agencies. In fact, on an encashment
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basis, the figure would have been 0.42 per cent. Aid was in fact brought up to the 1982–83 level by 15 per cent. from the 1978–79 figures when the priority then was to control public expenditure. Since then aid has more than maintained its real value and it is now planned to increase it in real terms. I should like to reassure both the noble Baroness and the noble Lord, Lord Walston, that this step forward in international overseas aid support is intended to be complementary and not to replace existing aid.
The noble Baroness also asked us to ensure that investment should be of the highest quality. I believe that this ties in with the point raised by the noble Lord in relation to advice on the investments to be made and his fear that it might be imposed. I should like to reassure both the noble Baroness and the noble Lord on this point. The arrangements to be made by the various committees and bodies within the agency will, we hope, ensure the highest quality of investments and that the highest priorities are followed in making them.
MIGA will not impose contracts of guarantee without the agreement of the host country. In fact Article 15 of the convention refers to this. The noble Lord also asked a question as regards the repatriation of dividends and the tax to be imposed. It is my understanding that the object of the agency is to cover this kind of risk. It is to help to encourage the private sector to invest in countries where formerly, because of such risks, they have hesitated to do so.
As regards the noble Lord's final point about adequate publicity, it is intended as soon as the trigger figures come into operation to get the agency established. It will be widely publicised through a variety of organisations as well as to the private-sector industries that will be involved.
I should like to add a general note with reference to the question of the boundary between the public and the private sectors and overseas aid, which has long been the subject of debate in a mixed economy. In recent years the boundary in many Western industrialised countries has been shifting. To a much greater extent than seemed possible only a decade ago, there is agreement today on the need for a greater role for private initiative. I believe that this feeling is spreading in developing countries too. The president of the African Development Bank recently said:
"We in Africa are facing a great challenge. We believe that the creation of a conducive environment for the private sector as an important agent of economic growth is essential".
There are many constraints on the development of the private sector in developing countries, and it would not be appropriate for me to go into all of them here and now. But one clear obstacle has been the shortage of equity funding. MIGA is designed to tackle just that problem by fostering direct foreign investment. This investment can provide valuable resources—technical skills and technology, as well as capital—for private sector development. No one would pretend that MIGA is going to solve all the problems of the private sector in developing countries. But let us acknowledge that it is a valuable step in the right direction and work together with our colleagues in other countries for continued good progress in other areas.

1129
MIGA is important for another reason. The volume of private capital flows to developing countries has declined sharply in recent years. The main reason for this is that bank lending has fallen, because the banks have been reluctant to commit new money to countries which have serious difficulties in servicing their existing debt. In addition to this, many developing countries themselves are understandably anxious to avoid, if they possibly can, accepting new sovereign debts. This makes the need for other private flows—particularly to the private sector, and above all of a productive and wealth-creating kind—all the more acute. We believe that private direct foreign investment, although it cannot presently be expected to assume the volume of bank lending, is a useful alternative. MIGA will give it an added impetus. It is difficult for governments and other official agencies to do more than create the conditions in which private flows can take place. But in acknowledgement of the crucial role that private finances can play in the development process we must do all we can to foster these conditions.
This is why we are anxious that the Bill should proceed as rapidly as possible. I again thank the noble Baroness and the noble Lord for their words of welcome for the Bill.
On Question, Bill read a second time, and committed to a Committee of the Whole House.
Viscount Long: I beg to move that the House do now adjourn during pleasure until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.8 to 8.30 p.m.]

Copyright, Designs and Patents Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 22 [Secondary infringement: importing infringing copy]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 53:
Page I I, line I I,—leave out ("has reason to believe") and insert ("which is obvious to a reasonable person in the circumstances").
The noble Lord said: My Lords, this amendment is linked with Amendments Nos. 62, 68, 150, 178, 282, 285, 286, 288, 300 and 301. It may be for the convenience of the House if I refer to Clauses 22, 24, 26(2), 87(1), 99(1), 166, 167(1) and (3), 169(2) and 178(1) and (2). I hope I have that right.
The purpose of the amendment and the linked amendments in the group is to take out the subjective statement that something has to be proved,
"which he knows or has reason to believe",
and to substitute for that the phrase,
"which is obvious to a reasonable person in the circumstances".
Those of your Lordships who are well acquainted with the Patents Act 1977 will appreciate that this phrase is adopted from Section 60 of that Act. As this Bill deals with copyright, designs and patents, I should have thought that there would be something to be said for having the same standard throughout.
There is a more convincing reason for doing so, however, as I hope the House will agree. If I am on one side and the person who has reason to believe is
1130
on the other side, it is almost impossible to prove what the other side subjectively may have reason to believe. At one stage in the history of the world some people believed that the world was flat. Perhaps they had reason for believing that, in which case they were wrong. However, it is more convenient in conducting litigation to have an objective standard so that one can lead evidence of what reasonable people may believe to be the fact rather than try to lead evidence of what is in the mind of the other side as represented by an individual. That is an impossible thing to do, especially as in a criminal case one cannot lead the individual to ask him what he may or may not believe. It is on the fairly simple ground of having something that is workable and is also consistent throughout the legislation on copyright, designs and patents that I beg to move the amendment.
Lord Beaverbrook: My Lords, with the leave of the House, I shall speak to the same group of amendments as was spoken to by the noble Lord, Lord Morton.
The test for guilty knowledge is something that we discussed in Committee, and the Government have considered carefully all the points that were made then. I must say we remain of the view that the alternative wording put forward by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, would serve to weaken rather than strengthen this test.
I think we need to look at why we are changing existing law. We are trying to relax the requirement for guilty knowledge to be proved in respect of secondary copyright and performers' rights infringements and copyright and performers' rights offences. We are trying to make things easier for the plaintiff and the prosecutor. He will now only have to prove that the defendant had reason to believe he was dealing in infringing copies; he does not have to go so far as to prove that the defendant understood the implications of such dealings. This is important because it catches the neglectful as well as those who deliberately turn a blind eye.
Now the "obvious to a reasonable person in the circumstances" wording introduces a further test—that of obviousness. This is implicit in "reason to believe" but it would make the job of the prosecution much more difficult if he had to prove that the evidence available to the defendant was sufficiently clear to meet the test of "obviousness". Further I am not satisfied that "obvious to a reasonable person" adequately covers the instance where someone turns a blind eye to the facts. After all, a person has reason to believe if he turns a blind eye to the facts, whether or not they would be obvious to a reasonable person.
I must reiterate what I said in Committee: the changes that we are making to the mental element in secondary infringements and offences are to discourage piracy. We must not give the pirates the loophole of being able to turn a blind eye to the facts.
The noble Lord, Lord Morton, brought up the subject of the equivalent provision in the Patents Act, but the use of the expression,
"obvious to a reasonable person in the circumstances",
in the Patents Act 1977 occurs in Section 60 on infringement but relates to entirely different matters.

1131
I expounded this point at greater length in a letter to the noble Lord, a copy of which I placed in the Library. The test in patent law is not appropriate in copyright law and the fact that in this Bill we also deal with patents is something of a red herring.
For those reasons, I cannot accept that the wording of the noble Lord, Lord Morton, is better than the wording we believe should be in the Bill.
Lord Morton of Shuna: My Lords, the Minister is always helpful. In my view, with such experience as I have of conducting cases in court, where I think I have a slight advantage over him, he is entirely wrong. Possibly I have that advantage over those who are advising him, but I would not claim that.
It is much easier to lead evidence from people who can say, "It is obvious to me, and I am a reasonable person", than it is to try to prove that somebody had reason to believe when you cannot put that somebody into the witness box and you cannot work out the workings of his mind. We cannot go into this at any length, but as a matter of practicality it is quite impossible to prove a subjective standard against a defendant, whereas it is possible to prove an objective standard.
Therefore, with all respect to the Minister, I think that he is entirely wrong in his view that the standard he has set in this clause and in the other amendments makes it more difficult for pirates. In fact, it makes it much easier for pirates. There is nothing—
Lord Beaverbrook: My Lords, with the leave of the House, I undertook in Committee to look at everything he had said and we have indeed done that. We looked at this carefully with the fullest possible consultation. Of course the noble Lord has far greater experience than I have in dealing with these matters in the courts. I can only say to him that we took that into account and we came to the conclusion that we have, in the full knowledge of the noble Lord's considerable experience, stuck at the point that we reached originally.
Lord Morton of Shuna: My Lords, I am grateful to the Minister for exaggerating my legal experience. However, we have reached an impasse. We have different views and I think that it is appropriate to test the opinion of the House. I must therefore press the amendment.
8.40 p.m.
On Question, Whether the said amendment (No. 53) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 64.

DIVISION NO. 2

CONTENTS

Airedale, L.

Dean of Beswick, L.

Birk, B.

Ewart-Biggs, B.

Blackstone, B.

Ezra, L.

Blease, L.

Falkender, B.

Brain, L.

Gallacher, L. [Teller.]

Brooks of Tremorfa, L.

Grey, E.

Craigavon, V.

Hatch of Lusby, L.

David, B.

Houghton of Sowerby, L.

On Question, amendment agreed to.

Howie of Troon, L.

Raglan, L.

Jay, L.

Simon, V.

Kilbracken, L.

Strabolgi, L.

Kinloss, Ly.

Taylor of Blackburn, L.

Lloyd of Hampstead, L.

Taylor of Gryfe, L.

Lloyd of Kilgerran, L.

Underhill, L.

Masham of Ilton, B.

Walston, L.

Mason of Barnsley, L.

White, B.

Morton of Shuna, L.

Williams of Elvel, L.

Mulley, L.

Willis, L.

Nicol, B. [Teller.]

Winchilsea and Nottingham,

Phillips, B.

E.

Pitt of Hampstead, L.

NOT-CONTENTS

Airey of Abingdon, B.

Harvington, L.

Allenby of Megiddo, V.

Hesketh, L.

Arran, E.

Hives, L.

Auckland, L.

Hooper, B.

Balfour, E.

Jenkin of Roding, L.

Beaverbrook, L.

Kaberry of Adel, L.

Beloff, L.

Long, V.

Belstead, L.

Lyell, L.

Birdwood, L.

Margadale, L.

Boardman, L.

Monk Bretton, L.

Borthwick, L.

Nelson, E.

Brabazon of Tara, L.

Norrie, L.

Brougham and Vaux, L.

Oxfuird, V.

Butterworth, L.

Rankeillour, L.

Caithness, E.

Rees, L.

Cameron of Lochbroom, L.

Renton, L.

Campbell of Alloway, L.

Rochdale, V.

Carlisle of Bucklow, L.

Rodney, L.

Carnegy of Lour, B.

Selborne, E.

Cork and Orrery, E.

Shannon, E.

Crathorne, L.

Skelmersdale, L.

Croft, L.

Stockton, E.

Cullen of Ashbourne, L.

Strange, B.

Davidson, V. [Teller.]

Swinton, E.

Denham. L. [Teller.]

Thomas of Gwydir, L.

Dormer, L.

Trefgarne, L.

Dundee, E.

Trumpington, B.

Faithfull, B.

Ullswater, V.

Ferrers, E.

Vaux of Harrowden. L.

Gisborough, L.

Vinson, L.

Greenway, L.

Windlesham, L.

Halsbury, E.

Young, B.

8.48 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 54:
Page II. line 14, leave out ("trade or").
The noble Lord said: My Lords, with the leave of the House, in speaking to the amendment I shall also speak to Amendments Nos. 55, 56, 138, 139, 140, 141, 142, 152, 167, 168, 169, 171, 177, 258, 337, 366 and 367.
When we discussed Clause 23 in Committee the noble Lord, Lord Morton of Shuna, sought to ensure that the professions would be liable for secondary infringement. I made it clear then that it was not our intention that the professions should be treated more favourably when it comes to questions of copyright infringement. I promised to look again at the wording to ensure that there was no discrimination between the professional and those engaged in trade or business.
The first amendment to Clause 23 will provide for secondary infringement by possession of infringing copies in the course of business. We have tabled similar amendments in this and other clauses relating to secondary infringement and offences replacing

1133
"trade or business" by the expression "business" wherever it occurs. "Business" is to be defined in Clause 161 as "including a trade or profession" thereby removing any doubt that the professions are caught by the provisions of the Bill. Corresponding amendments on designs are proposed in Part III.
I hope that these amendments will remove the concerns expressed by the noble Lord, Lord Morton of Shuna. I beg to move.
Lord Williams of Elvel: My Lords, we are glad to see that the Government have accepted this argument, even if in a slightly roundabout way. We might have preferred that the profession had been spelt out in the various places where the noble Lord has moved his amendments. Nevertheless, I take the burden of his argument that by eliminating "trade or" and simply saying "a business" it is in fact anybody who conducts a business. The Government are probably moving slightly wider than we were when we were worried about whether the professions were included. Anybody in any capacity, whether a profession, a business or a job, who conducts a business will be caught by this Act. That is probably a better formulation than the one we had in mind at the time of the Committee, so we welcome the Government's amendments and are grateful for them.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 55 and 56:
Page II. line 16, leave out ("trade or").
Page II, line 18, leave out ("trade or").
The noble Lord said: I beg leave to move Amendments Nos. 55 and 56 together.
Clause 24 [Secondary infringement: making, importing or dealing with article for making infringing copies]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 57:
Page 11, line 23, after ("work") insert ("or works of a particular description").
The noble Lord said: My Lords, I beg to move Amendment No. 57. With the leave of the House, I should like to speak to Amendments Nos. 61 and 170. Clause 24 is an attempt to reduce the illegal copying which goes on. It comes under the section of secondary infringement. I am proposing to make a straightforward presentation of this to your Lordships, which I hope will simplify matters and show what common sense additions I am proposing to this clause in order to deal better with the piracy that goes on.
The first line of Clause 24 reads:
"Copyright in a work".
My first amendment takes in a phrase which is to be found throughout this Bill and adds after the word "work" the words,
"or works of a particular description".
That merely amplifies what is meant by "work". It is a phrase that is used elsewhere in the
1134
Bill, and therefore there should be no difficulty about that. Then we come to the rest of the clause. It reads:
"Copyright in a work"
—plus my amendment—
"is infringed by a person who, without the license of the copyright owner—(a) makes".
I add to that:
"has in his custody or under his control".
That means that if a man is making something he may be guilty of infringement, but he is also guilty if he has it in his custody and under his control. That seems another common sense approach to the position.
Later the clause says:
"an article specifically designed or adapted for making copies of that work"
that is what he is not allowed to have or make or having in his custody—
"knowing or having reason to believe that it is to be used to make infringing copies".
Instead of that, I put after the word "work" my first amendment, that is,
"or works of a particular description".
It reads:
"knowing or having reason to believe that the article would be used".
These are the crunch words:
"to make infringing copies of that work or works of that description".
That makes the clause a little stronger for dealing with pirates.
With the leave of the House, I should like to speak to two other amendments: one in the name of the noble Lord, Lord Beaverbrook, Amendment No. 59; and the other in the name of the noble Lord, Lord Rodney, Amendment No. 60. The amendment by the noble Lord, Lord Beaverbrook, suggests the addition of,
"possesses in the course of a business",
the offending article. With great respect, I would agree with that.
The noble Lord, Lord Rodney, adds another parameter which is important: that the potentional infringer not only makes but "supplies or deals with". That makes the matter more specific, and I would agree with that amendment. I beg to move.
Lord Beaverbrook: My Lords, with the leave of your Lordships, I shall speak to Amendment No. 57 in the name of the noble Lord, Lord Lloyd of Kilgerran, and to Amendments Nos. 61 and 170. I shall refrain at this point from speaking to the other two amendments that he mentioned. I shall deal with those later.
These amendments would make it a secondary infringement of copyright and a criminal offence to make and do certain other things with an article such as a taperecorder which is designed to copy whole classes of work, as opposed to particular works.
The amendments do not say who would be able to take action for infringement or who would be able to license the making of taperecorders, for example, in order to avoid infringement, or the offence. If the amendments were accepted, these are matters which would have to be addressed; and I have to say that I would expect them to present great difficulties. In particular, countless copyright owners would in

1135
theory have rights under the amendments, and I do not see how they could be distinguished from one another.
Even assuming that these difficulties could be overcome, I do not think it would be right to give copyright owners the power which this amendment would provide to prevent the manufacture, import, sale, hire or possession of machines such as tape-recorders and photocopiers. It would be possible in each of these cases to say that the manufacturer or seller has reason to believe that the machine will be used to make infringing copies at some time since that is a statistical probability. All machines of this type would therefore need the license of copyright owners before they could be imported or sold and this is clearly unacceptable. For that reason, I would have to resist the amendment in the name of the noble Lord.
Lord Lloyd of Kilgerran: My Lords, I am much obliged to the Minister. It is too late for me to go into detail about how I disagree with what he has said. It seems that the approach of the Government on this matter is totally unrealistic, and I am surprised the attempt to improve the powers of copyright owners to prevent piracy have been dismissed in this way. With that after-dinner statement, perhaps the House will allow me to withdraw the amendment on the understanding that I shall get my advisers to consider the reply of the Minister. We may come back to this matter at Third Reading.
Amendment by leave withdrawn.
[Amendment No. 58 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 59:
Page I I, line 26, after ("Kingdom,") insert—
("(bb) possesses in the course of a business.").
The noble Lord said: My Lords, Amendment No. 59, standing in my name, was to have been grouped with that of the noble Lord, Lord Lloyd of Kilgerran. I think the arguments for the two amendments are very similar, so perhaps I can quickly run through them. The amendments standing in my name would add possession in the course of a business to the list of secondary infringements in Clause 24.
Possession of infringing copies is an infringement under Clause 23(a) and in most cases this will catch articles for making infringing copies, since such articles are usually themselves infringing copies. However, there will be cases where the article for making a copy is not itself a copy—for example, a computer program for directing an ink-jet to produce an infringing copy. It would be anomalous if this type of article were to slip through the net. We therefore believe there is a good case for adding "possession" as proposed in my amendment.
This point became apparent in discussion of the amendment moved in Committee by the noble Lord, Lord Morton, to add custody and control to the list of infringements in Clause 24. That of course was the substance of the amendment which is not now before us in the name of the noble Lord, Lord Lloyd. However, as I explained in Committee, we believed that possession was the right concept, and I promised to return, as I have done, with an appropriate amendment. Possession would in the example I have
1136
cited, make the person who happens to be storing the infringing item not liable, whereas the person who had asked his friend, or whoever, to store it would be the person in possession. But as I said in Committee, we believe that infringement should be limited to possession in the course of business. On that basis, I beg to move.
9 p.m.
Lord Lloyd of Kilgerran: My Lords, I have already said that I will accept this amendment. I almost wish now that I could have done something about my amendment in order to help the noble Lord, because he found some little difficulty in moving his amendment as I had withdrawn mine. But his argument makes me still more confused because I cannot understand why he could not have accepted,
"has in his custody or under his control'',
or the final amendment, No. 61.
Lord Williams of Elvel: My Lords, we are getting a bit confused about groupings, which very frequently happens at this stage of a Bill. I am, with the noble Lord, Lord Lloyd of Kilgerran, somewhat surprised that the Government are not prepared to accept the expression,
"has in his custody or under his control",
because this seems to me to encapsulate exactly what we are talking about. This strengthens the copyright owner. I am also doubtful, as I said when we were in Committee, about the nature of the expression:
"possesses in the course of a business".
I know that all the lawyers and my legal advisers tell me this is a perfectly valid expression which is understood in the law. But in simple English "to possess" is a static term. I possess something. It is not active. I cannot do something when it is not in the course of a business. I can walk in the course of a business. I can trade in the course of a business. To possess is simply to have something in my hand. I am simply repeating something that I said in Committee. The noble Lord said that this is a perfectly well understood expression in the law and I shall not pursue the point, but I should like the Bill to be written in proper English.
It seems to me that the noble Lord, Lord Lloyd of Kilgerran, who, if I may say so, is confusing the groupings, has deprived himself of the much more important point of getting into the Bill,
"has in his custody or under his control".
That is the fundamental point. That seems to be much stronger than the Government's amendment,
"possesses in the course of a business".
If we could retrace our steps and get back to that amendment, we should give it our support.
Lord Rodney Lord Rodney moved Amendment No. 60:
Page I I, line 27, at end insert (";or (d) supplies or deals with,")
The noble Lord said: My Lords, I shall speak to Amendment No. 60 only, although it has been grouped with Amendments Nos. 63 and 257A, because I do not think they are on quite the same subject. I have already mentioned that the industry is extremely concerned about the possibility of a

1137
database containing typefaces that may be accessed illegally. On first appearance, Clause 24 seems to be quite all-embracing but we feel in the case of typefaces that the wording about commercial dealing is too narrow, because databases with typefaces can be slightly different from ordinary databases, as they can be supplied in package deals with other printing equipment. Therefore we feel that these added words are necessary to take care of the situation where a database is sold as a package deal with other printing equipment. I beg to move.
Lord Williams of Elvel: My Lords, I do not necessarily agree with the noble Lord in his amendment, but I come back to where I stopped before the last amendment was accepted. I believe that the formulation of the noble Lord, Lord Lloyd of Kilgerran, would cover this point as well. The words,
"has in his custody or under his control",
would involve "supplies or deals with", because you cannot supply or deal with things you do not have in your custody or under your control. So I would again urge the Minister to look at this wording again, in spite of the fact that the noble Lord, Lord Lloyd, because of Report procedure, is not able to move his amendment, and see whether his amendment is not a better one.
Lord Beaverbrook: My Lords, I always take note of what the noble Lord, Lord Lloyd of Kilgerran, says or in this case to a certain extent what he has not said. We shall look at what he said. I cannot give any commitment whatsoever and I am sure that he would not expect me to do so. I would say to my noble friend Lord Rodney that his Amendment No. 60 seems entirely unnecessary on its own. The expression "supplies or deals with" covers no more than is already covered by the expression "sells or lets for hire". I do not understand what extra is involved in the kind of package to which the noble Lord referred. I had expected to be speaking to a grouping of amendments which seem to make rather more sense taken as a group, but I have to say that on its own in Amendment No. 60 I see no merit whatsoever.
Lord Rodney: My Lords, I must say that I am rather disappointed by the attitude of my noble friend. I tried to explain why I think that the database with a typeface is in a particular situation because it is included in other equipment. I still feel that the added words "supplies or deals with" cover certain situations in a broader sense. This is certainly not being sold as a database on its own and it is certainly not being hired. Nonetheless, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 61 to 63 not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 64:
After Clause 24, insert the following new clause:
("Secondary infringement: making, importing or dealing with apparatus or device for making infringing copies.
Copyright in works of a particular description is infringed by a person who, without the licence of the copyright owner—

(a) makes,

(b) has in his custody or under his control,

(c) imports into the United Kingdom, or

(d) sells or lets for hire, or offers or exposes for sale or hire,

any apparatus or device which is specifically designed or adapted, or the publication of any information which is calculated, to enable or assist persons to circumvent any technical devices incorporated in apparatus for playing or showing and designed to prevent or impede the making of infringing copies of works of that description.").
The noble Lord said: My Lords, with the leave of the House, I should like to speak also to my Amendment No. 172. In recent years there has been a great deal of research into making technical devices to be incorporated in apparatus for playing or showing which are designed to prevent or impede the making of infringing copies of works of that description. This is another attempt to make it more difficult for pirates to do the copying. The aim is to make it an act of secondary infringement and/or an offence for people to manufacture or distribute devices aimed at circumventing technical devices incorporated in recording machines designed to limit copying, and copyright protection signals embedded in pre-recording material for the same purpose.
With the leave of the House I should like to mention Amendment No. 65, which will be moved by the noble Lord, Lord Willis. It is in similar terms, with which I agree.
Lord Williams of Elvel: My Lords, is the noble Lord speaking to Amendments Nos. 64, 65, 172, 176 and 180?
Lord Lloyd of Kilgerran: My Lords, I was going to do that. That is the grouping. I want first to deal with my amendment and with Lord Willis's amendment. Amendment No. 65 is not as wide as Amendment No. 64, which deals with software and hardware. As I understand it. Amendment No. 65 is limited to software. I entirely agree with everything in the amendment although I go one stage further. Amendment No. 172 adds to Clause 98 that:
"A person commits an offence who—

"(a) makes any apparatus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to circumvent technical devices designed to prevent or impede the making of infringing copies of a particular description of copyright work, or

"(b) has such an article in his custody or under his control".

The amendments are grouped with Amendment No. 176, with which I also agree. On Amendment No. 180 I have no comments to make. It introduces a further right of seizure in respect of an anti-spoiler. I beg to move.
Lord Willis: My Lords, the noble Lord, Lord Lloyd of Kilgerran, has adequately put the arguments. The matter is very simple. In the face of continued piracy over the last few years the industry has developed spoiler devices to be inserted into recordings. Anti-spoiler devices are appearing on the market in Germany and Japan and are beginning to come here. One action promotes a reaction. Amendments Nos. 172, 176 and 180 are designed to put a stop to that.
I do not oppose Amendment No. 64. I shall be happy if it is passed and I should then withdraw my amendment.
The Earl of Stockton: My Lords, I support the noble Lords, Lord Lloyd of Kilgerran and Lord Willis, in this group of amendments.
As the chairman of one of the largest film and television development companies, I have to say that the amendments have the support of those industries whose researchers are waging constant war to prevent, by technical means, the illegal copying of audio and video tapes.
Lord Beaverbrook: My Lords, with the leave of the House, I shall also speak to Amendments Nos. 64, 65, 172, 176 and 180. The amendments in the grouping are concerned with what I, like other noble Lords, shall refer to as anti-spoiler devices. These devices in some way circumvent security systems that are included in recording videograms or in recording and play back equipment intended to prevent or limit copying. In last year's consultation exercise we received representations that the Bill should contain provision to render illegal the manufacture, importation or sale of equipment intended to remove or otherwise avoid the effect of spoiler signals included in commercially produced copies of copyright material.
This proposal was submitted in the context of a system known as macrovision, which prevents copying of video cassettes and discs. I do not claim fully to understand the technology, but I am advised that the cassette or disc is encoded with a signal that confuses what is called the automatic gain control of a video recorder. The way in which this is achieved is not important; the net result is that any copy made is either very poor or totally unviewable. Within a short time of the launch of the macrovision system in the USA, black boxes to remove the spoiler signal were being advertised. It is such devices that the copyright interests wish to prohibit.
Although the case was advanced initially only by those with an interest in the macrovision system of video protection, there is indeed a general point here. As the noble Lord, Lord Lloyd of Kilgerran, has indicated, this is a question of concern to the record industry as well as to the video industry and is no doubt also relevant to computer software.
With the amendments we are returning to the vexed question of private copying, on which we have had much debate already. For the reasons outlined in Committee by my noble friend the Secretary of State, we do not believe that a levy is the answer. I do not want to go over that ground again. But suffice it to say now that we rejected the levy because we did not believe that it was the Government's business to establish a cumbersome bureaucracy to enforce private rights. Copyright is a private right and must be enforced by the rights' owners. They should not rely on government to do that job for them. But where the rights' owners do take action to protect their intellectual property by the technical means which are now available and are likely to become increasingly more available, then I must concede that there is a better case for the Government to step in.
I do not think that we can ignore a situation in which people could set up in the business of picking the lock that the copyright owners have put on their property. The Government did of course largely
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accept this principle in the 1981 Green Paper on copyright reform. We said then:
"If a technically successful anti-copying spoiler system were found the Government would seriously consider introducing legislation to make illegal any anti-spoiler devices which might subsequently be developed".
I am also aware that there is a precedent in Section 54(2) of the Cable and Broadcasting Act 1984, which legislates against devices for circumventing the inscription of broadcasts or cable programmes so as to avoid payment to the broadcaster or cable operator.
The Government are generally in sympathy with the principle underlying these amendments but we should like to reflect further on some of the details: for example, we need to consider whether there should be both civil and criminal provisions as proposed by the noble Lords, Lord Willis and Lord Lloyd of Kilgerran. If the noble Lords, Lord Willis and Lord Lloyd of Kilgerran, feel able to withdraw their amendments, we will certainly give this question very serious consideration, with a view to returning with our own proposals to deal with anti-spoiler devices.
Lord Lloyd of Kilgerran: My Lords, I am very much obliged to the Minister. I shall not prolong the matter any further except to thank him. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 65 not moved.]
Clause 25 [Secondary infringement: permitting use of premises for infringing performance]:
9.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 66:
Page 11, line 34, leave out from ("unless") to end of line 39 and insert ("he believes on reasonable grounds that the performance will not infringe copyright in the work.").
The noble Lord said: My Lords, with the leave of your Lordships, I shall speak to Amendments Nos. 66 and 67 at the same time, Amendment No. 67 being in the name of the noble Lord, Lord Kilbracken.
Clause 25 is concerned with the liability of those operating places of public entertainment used for infringing performances. The clause restates the existing law in Section 5 of the 1956 Act and broadly reflects the law as it has stood since 1911.
We were not aware of any problems with these long-standing provisions but nevertheless Clause 25 came in for considerable criticism in Committee from a number of Members, including the noble Lords, Lord Williams and Lord Kilbracken, and I have to say that, having examined the position carefully, I believe that those criticisms have great validity.
We accept the point made by the noble Lord, Lord Kilbracken, as far back as the Second Reading debate that the defence in paragraph (1)(b) should not remain. Leaving aside questions of what constitutes "reasonable estimates" and the other rather vague expressions to be found in this paragraph, we think it is wrong for someone to escape liability in circumstances where he knowingly allows his premises to be used for infringing purposes merely because he has not personally profited from it.

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We therefore propose deletion of the defence in paragraph (b).
Our reconsideration of this clause and of Clause 26 has caused us to reconsider the appropriate "guilty knowledge test" to be applied. Those operating places of public entertainment have a certain responsibility to copyright owners—there would be little entertainment to provide were it not for the works of authors, playwrights and composers. That being so, we think it right to provide an incentive for operators of places of public entertainment to ensure that performances given on their premises do not infringe copyright. The defence set out in paragraph (a) of the present draft of Clause 25 would allow the operator to escape liability if he has no reason to believe the performance will infringe. Something more positive is required. It should not be a question of whether he has no reason to believe that there will be infringement but that he positively believes the performance will not infringe. Such a test should encourage the operator to take positive steps to check that those using his premises have whatever licences are necessary, rather than just sit back assuming everything is in order.
That noble Lord, Lord Kilbracken, suggests that the word "does" should replace the word "will" in my amendment. I have to say that I believe my version to be the correct one. When the operator of the place of public entertainment gives permission for his premises to be used, the performance is invariably in the future. What we need to consider is the state of his knowledge at the time he gives permission; that is, what does he know about a performance that will take place? To adopt the formula of the noble Lord, Lord Kilbracken. would mean that if permission were given in all innocence and an infringing performance then took place of which the operator of the hall was aware but too late to do anything about it, he would be liable. That would not seem to be right.
For that reason. I beg to move Amendment No. 66 standing in my name and I shall resist Amendment No. 67 standing in the name of the noble Lord, Lord Kilbracken.
Lord Kilbracken Lord Kilbracken moved, as an amendment to Amendment No. 66, Amendment No. 67:
Leave out ("will") and insert ("does").
The noble Lord said: My Lords, I am grateful to the Minister for Amendment No. 66, which deals very well with the point which I raised at the Committee stage. Perhaps it seems a bit ungracious of me to put down an amendment to his amendment on what I see as a drafting matter which would change the tense of the verb in line 36. However, I draw the attention of your Lordships to the choice of tenses in the sentence as it appears in the Bill. I also draw attention to how that sentence would appear if amended as the noble Lord suggests.
Bills are always written in rather extraordinary language. Technical lawyers' jingo is not what we look for in normal English prose. I suggest that if the sentence were written in ordinary English prose it would read:
"used for a performance which infringes the copyright in the work, unless—

(a) he did not know and had no reason to believe that the performance would infringe the copyright in the work, or

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(b) that he had given permission gratuitously or for a nominal consideration".

I suggest that that is the normal English that would be used. However, on this occasion the draftsman has preferred to write the sentence in the running present tense which reads:
"infringes the copyright … unless—

(a) he does not know and has no reason to believe".

In the amendment put forward by the Minister the running present tense is used in that the amendment says:
"he believes on reasonable grounds"—
and then, quite suddenly, he switches into the future tense—
"that the performance will not infringe copyright in the work".
When there was talk of infringing a copyright in a work in line 33, the present tense was used. Now it is proposed, only three lines later, that line 36 should read:
"the performance will not infringe copyright in the work."
Yet we have been told a few lines previously that the present tense is used.
That is not a matter of profound importance. But we must use either one tense or the other. Either we use tenses in the right way or else we use the running present tense all the way through. There is no reason to suddenly switch to the future tense. If my amendment to the amendment of the noble Lord is accepted, that will happen. Therefore I beg to move my amendment.
Lord Williams of Elvel: My Lords, perhaps I may speak to Amendment No. 67 as well as to Amendment No. 66 in the grouping proposed by the noble Lord. I welcome the change of view of the Government on Clause 25. In Committee we believed that it did not make any sense and that the more one went into detail the more one could unravel the clause. I do not wish to diminish my gratitude, but I am reasonably satisfied with the Government's formulation in Amendment No. 66.
I cannot help feeling that my noble friend Lord Kilbracken has a point about the number of tenses which are used in this clause. Without pressing the point, I wonder whether it is right to use the future tense after the word "performance" because it is possible to conceive of retrospective permission. It is possible to conceive of all kinds of rather doubtful areas where permission might be given whatever the meaning of the words "believes on reasonable grounds". The performance might, will or could—I think that there is doubt about the tenses. That is a point at which the Government might want to look. In general I am glad that they have decided to change Clause 25 and I support the amendment.
Lord Campbell of Alloway: My Lords, I should like to thank the Government for the amendment. It vastly improves the drafting of Clause 25, which was criticised by various sides of the House during the previous stages of the Bill.
Unlike the noble Lord, Lord Williams of Elvel, I am—and I think that he is too—basically content with what has been provided. But I cannot see what difference it makes for the purpose of enforcement in

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the courts (which is the way in which I look at the matter from the practical, sharp end of the problem) whether one has "will" or "does". For my part I shall not press the Government too hard on that point. As a matter of grammar, on which the noble Lord, Lord Kilbracken, is an expert, I think that deference should be paid to his expertise.
Lord Howie of Troon: My Lords, I do not want to say very much about this matter except to remind the Minister that during the Committee stage we enjoyed a number of interventions from my noble friend Lord Kilbracken of a somewhat dry grammarian-like kind. As I recall, to begin with the Government resisted my noble friend on all of them. I think I am right on that point. However, on reflection, noble Lords will have noticed this afternoon that a substantial number of the Government's amendments have been based on the views of the noble Lord, Lord Kilbracken, which were rejected at the Committee stage. I suggest that when he brings his grammarian's weight to bear on this Bill we accept what he says because he usually turns out to be right. On this occasion perhaps the Government should accept his advice now rather than, as they undoubtedly will, at a later date.
Lord Beaverbrook: My Lords, I have listened carefully to what your Lordships have had to say. I say briefly to the noble Lord, Lord Howie, that at Committee stage there were a number of occasions on which I took away for consideration suggestions made by the noble Lord. Lord Kilbracken. There were other occasions when I was unable to concede the point and take away points for consideration. I believe that this is the kind of Bill in which your Lordships have a very important role to play in making sure that we send it away in the best possible form.
I welcome the fact that many noble Lords are happy with the substantive change made to this clause by Amendment No. 66. You may feel able to accept Amendment No. 66 this evening if I give an undertaking that we shall indeed consider whether there is any difficulty in accepting the amendment to my amendment put down by the noble Lord, Lord Kilbracken. If there is no difficulty, I undertake that at Third Reading we shall go ahead on the lines suggested by him.
The Deputy Speaker (Lord Strabolgi): My Lords, is the noble Lord withdrawing his Amendment No. 67?
9.30 p.m.
Lord Kilbracken: My Lords, I believe that I am entitled to speak. I should like to thank the noble Lord, Lord Campbell of Alloway, for his remarks. I had to disagree last week with his drafting of an amendment to the Local Government Bill. Therefore it is all the more appreciated that he was able to say a few words in support of my efforts on this occasion.
I should like to say to the noble Lord, Lord Howie of Troon, that the Minister undertook to consider some of the points I raised at Committee stage. Today there are 14 or 15 amendments that deal with the different points that I raised.
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On the question of the tense to be used in the amendment that he is now proposing. I am most grateful to him for the undertaking that he has given to consider the point that I have raised. In line 34 there is reference to a performance "which infringes"—in the present tense. At present the subsection refers to a performance which at this moment is infringing. If it is to be in the future tense in paragraph (a), it should be in the future tense in line 33. The tense used in line 33 must be the same as the tense used in line 36.
In view of the undertaking that the noble Lord has given I am only too happy to beg leave to withdraw the amendment.
Amendment to Amendment No. 66, by leave, withdrawn.
Clause 26 [Secondary infringement: provision of apparatus for infringing performance, &c.]:
[Amendment No. 68 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 69:
Page 12, line 14, at end insert ("and he did not believe on reasonable grounds that it would not be used in such a way as to infringe copyright").
The noble Lord said: My Lords, as the Bill is drafted Clause 26(2)(b) imposes strict liability on those who supply apparatus which is normally used for public performance, such as juke-boxes and disco systems, when the apparatus is used to give an infringing performance. Infringing performances given using other apparatus—for example domestic record players or television sets—will constitute secondary infringement by the supplier only if he knew, or had reason to believe that the performance would be likely to infringe.
The reason for the distinction is that those who are in the business of supplying equipment for public entertainment rely on a supply of copyright works for use on the equipment they supply. Indeed, their business ultimately depends on copyright material. In these circumstances, it seems right that they should have some responsibility towards copyright owners.
We still think it right to make the distinction between the supply of apparatus for public performance and other apparatus, but on reflection we believe that the burden of liability is too onerous. The purpose of the heavy liability imposed by Clause 26(2)(b) was to provide an incentive for the suppliers of juke-boxes and the like to ensure that their customers obtain the necessary licences.
We believe that this will still be achieved even if, as we now propose, the supplier is given the defence that he had reasonable grounds for believing the performance would not infringe. It is unjust to make him liable for the actions of his customers for which he cannot be responsible (for example, if his customer shows him a licence which proves later to be invalid) and this does nothing to reduce the chance of infringement, because the supplier will not be aware that there is to be infringement. This amendment will mean that the supplier still has ample incentive to ensure that his customers obtain licences without placing him in the position of liability for matters over which he has no control. I beg to move.
Lord Williams of Elvel: My Lords, we are grateful to the noble Lord for taking into account the debate that we had in Committee. I believe that on balance the Government have reached a reasonable conclusion. It is always necessary to strike a balance and we shall object to the formulation put forward by the Government in Amendment No. 69.
I still believe that there are a number of vague expressions which will no doubt be tested by the courts in the course of time. In the Bill we are destined to have a number of vague expressions tested in the courts. Therefore we must be content to leave the matter to the courts to decide the meaning of the words "belief on reasonable grounds" under these circumstances. We shall not oppose the amendment.
Clause 27 [Meaning of "infringing copy']:
The Earl of Stockton The Earl of Stockton moved Amendment No. 70:
Page 13, line 1. leave out subsection (5).
The noble Earl said: My Lords, the aim of this amendment is to remove the proviso in Clause 27(5) to the reversal in Clause 27(3) of the Charmdale decision.
The book trade has endured the threat of the Charmdale decision comforted by ministerial assurance that in the new Bill the decision would be reversed. The proposed proviso makes the reversal useless. It could hardly be more unhelpful to British publishers, booksellers and authors alike for the Government to incorporate into their major new Bill a proviso which may cut the ground from any attempt to persuade the EC that (Charmdale having been, as a necessary preliminary to such persuasion, at last reversed) the British book trade needs special treatment. It is the only world language book trade in the EC which is faced with an alternative and rival manufacturing and publishing trade outside the member states of the EC. The American book trade was fully capable of flooding the UK with editions which compete with UK editions, imported from, for example, Holland, in accordance with EC free trade within member states' dogma and in flat defiance of UK publishers territorial rights under copyright licences.
This Copyright Bill will, like many other UK Acts, be construed within the ambit of the European Communities Act 1972. That Act will not take effect, however, as part of any domestic, regional or international copyright law, and the Publishers' Association sees no justification whatever for incorporating into Clause 27 the free trade area provisions which are not framed in copyright at all. If there are conflicts which UK trade interests, such as book publishing, need to have resolved, the arena must be the institutions of the EC itself. I beg to move.
Lord Mottistone: My Lords, having moved an identical amendment at Committee, and having had a long debate on the subject, I shall not add to what I said at that stage. However, I should like to support my noble friend in what he has advanced to your Lordships.
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At the Committee stage the Minister said that he would take a good look at the matter. It is clear from the fact that he has tabled no amendments on these lines that he has not followed that through. However, I hope that the points that have been made will have a stronger explanation if the Government are not to support them.
Lord Beaverbrook: My Lords, I must tell my noble friends that the Government have not changed their views on this matter since I responded to the corresponding amendment debated at Committee stage in your Lordships' House. The effect of Clause 27(5) is that copyright cannot prevent importation of an article into the UK if the importer has the right to import the article under Community law. That is an inevitable consequence of Community law and the subsection is there simply to ensure that the public are aware of the true legal situation.
It has been said that the presence of the subsection affects the way in which Community law will be interpreted or might prejudice the case that publishers are making to the European Commission for exemptions under the treaty. However, this is simply not the case. If copyright licensees cannot prevent imports from Community states, this is because of the treaty, not this subsection. If publishers do obtain exemptions from Community law, then subsection (5) will not come into play, and the other provisions of Clause 27 will apply.
I repeat therefore that subsection (5) cannot in itself have consequences adverse to publishers' interests. It is, however, needed so that everyone may know the actual legal position; and if it were not included, the EC Commission might accuse us of legislating contrary to the treaty. I am unable to be more helpful to my noble friends and I must therefore resist the amendment.
The Earl of Stockton: My Lords, while not being altogether happy, as the Minister can imagine, with his reply, I take some heart that the Government would support us in any move we make in the European Commission in this area. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 28 [Introductory provisions]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 71:
Page 13, line 16, leave out ("copyright").
The noble Lord said: My Lords, the aim of this amendment is to delete the word "copyright" from line 16 of Clause 28. At the same time I should like to speak to my Amendments Nos. 114 and 115 which seek to include the word "copyright" in two lines of Clause 69. Where there is any reference to a work throughout this Bill it in fact refers to a "copyright work". The principle used by the draftsman in drafting this legislation is to refer to the work as a "copyright work" unless it is implicit in the context that it is a copyright work. In that case it is referred to simply as a "work". I have been through the whole Bill and that is the principle followed.
In line 16 of Clause 28 the draftsman departs from that principle because it is necessarily implicit in the

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phrase "copyright works" that the works referred to are copyright works by the use of the phrase:
"notwithstanding the subsistence of copyright".
In all such cases on other occasions the word "copyright" is excluded. Similarly, in the two passages in Clause 69 to which I have referred, it is necessary to describe the works in question as being "copyright works" because there is no implication in the language of the clause that the reference is confined to copyright works.
I also mention that if the validity of what I am saying is accepted, the word "copyright" should also be included on page 27 in line 1 twice, line 12, line 19 and line 27. However, I did not table those amendments because I did not wish to clutter up the list.
I hope that the noble Lord and his advisers will look at this and see that one has to be consistent about whether or not a work is described as a "copyright work". He will find that if he is going to be consistent, he has to follow what I have just said. I beg to move.
9.45 p.m.
Lord Beaverbrook: My Lords, with the leave of the House, I shall speak to Amendments Nos. 71, 114 and 115.
Amendment No. 71 relates to another drafting point. I accept that, strictly speaking, it is not absolutely necessary to qualify the word "works" by the word "copyright". Nevertheless the meaning of subsection (1) is more readily apparent with that word than without it, and I therefore resist the amendment.
Amendments Nos. 114 and 115 seek to limit the right conferred by Clause 69(2) to the author of copyright literary and dramatic works. Were we to go down this route, corresponding amendments would be needed in subsections (3) to (6). However, I am pleased to say that that is not necessary. Subsection (1) limits the application of Clause 69 to the authors of copyright works and the directors of copyright film. Thus, the word "copyright" is not needed in the subsequent subsection.
I hope that, with this explanation, the noble Lord can withdraw these amendments.
Lord Kilbracken: My Lords, although I intend to withdraw the amendment I am not satisfied with what the Minister said. Clause 69 begins by stating:
"The author of a copyright literary …work",
has certain rights. Subsection (2) then refers to:
"The author of a literary work"
but without the qualifying word "copyright". That must mean that there is a difference between an author of a copyright literary work referred to in subsection (1) and the author of a literary work in subsection (2). As to the amendments needed to subsections (3) to (6), I said in my opening remarks that they would be necessary.
I do not believe that the noble Lord is right. I shall not press the amendment because I am sure that the noble Lord will look at it. He is very good at looking
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at suggestions made from all sides of the House. If he does so in this case he will find the amendment necessary for the sake of consistency. A sub-editor always looks for consistency. It does not matter whether you use "ize" or "ise" at the end of a verb provided you use only one of them. Neither is right or wrong but you must be consistent. Consistency requires that my amendment should be considered. In the hope that that will happen, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 72:
Page 13, line 17, at end insert ("provided that no act may be done in relation to a copyright work which conflicts with a normal exploitation of the work or unreasonably prejudices the legitimate interests of the author.").
The noble Lord said: My Lords, in moving this amendment I shall speak also to the subsequent amendment in the names of the noble Lords, Lord Williams of Elvel, and Lord Morton of Shuna.
We are dealing now with Clause 28 under the heading "Introductory" and the Chapter III heading of:
"Acts Permitted in relation to Copyright Works".
As an introductory clause one would expect to see in it important generalisations. The object of my amendment is to make clear that the acts permitted must conform with the Berne Convention. The first subsection of the clause reads:
"The provisions of this Chapter specify acts which may be done in relation to copyright works notwithstanding the subsistence of copyright."
I submit that it would be helpful for the Government to add the words from the Berne Convention:
"provided that no act may be done in relation to a copyright work which conflicts with a normal exploitation of the work or unreasonably prejudices the legitimate interests of the author."
I presume to say that the Government may find this addition to the subsection of some help; and it would be helpful in international discussions for this reason. The Government have already said that home taping and illegitimate acts of that kind must be allowed. They say that restriction would be unenforceable. According to the Government, owners of the rights cannot enforce those rights in the homes of individuals who are acting illegally against the works of the copyright owners. That may be so.
In view of the discussions that are going on in the EC about the levy on blank tapes—and I am not going into the argument about that—it would seem that the Government are out on a limb. They are not conforming with certain countries in the EC. Only last Friday when the Secretary of State for Trade and Industry introduced his brochures and his campaign for dealing with enterprise, he emphasised that 1992 would be a very important date. He said that industry should therefore aim at that date to have that unity and conformity which is so necessary.
From a general point of view it would be helpful if, in the introductory part of this chapter dealing with introductory provisions, specific mention of the general terms of the Berne Convention could be expressed there.
With the leave of the House, I speak to Amendment No. 73. The wording of this amendment is practically identical to my amendment. The only point is that the introduction to the main part of the quotation I made from the Berne Convention is introduced in the amendment tabled by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, by the words "fair dealing". If this is to be translated into other languages, "fair dealing" may be difficult to translate. I believe that it would be very much simpler to have my amendment, which does not mention "fair dealing", although obviously we are concerned with that general question. My introduction to the generality of the Berne Convention is in the words of the Berne Convention itself and without any introduction. I beg to move.
The Deputy Speaker (Viscount Simon): My Lords, I expect your Lordships will have observed that the amendment as printed in the Marshalled List carries a misprint in the third line. The first use of the word "of" should be "or".
Lord Lloyd of Kilgerran: My Lords, I read it as "or".
Lord Williams of Elvel: My Lords, I, too, wish to speak to Amendment No. 72 in the name of the noble Lord, Lord Lloyd of Kilgerran, and also to Amendment No. 73 in my name and that of my noble friend Lord Morton of Shuna.
The noble Lord, Lord Lloyd of Kilgerran, made the general introduction to these two amendments and pointed to the differences in formulation between his amendment and ours. I support him on the general introduction. Our belief is that the Berne Convention ought so far as possible to be translated into United Kingdom law. Either of our two formulations would succeed in doing that. This seems to us to be the first and rather fundamental point. As the noble Lord, Lord Lloyd has said, he has put in his amendment the wording in Article 9(2) of the convention.
He has also touched upon the question of home taping, which I believe to be a problem which remains with this Bill. As he rightly pointed out, the Committee of the House decided when considering the matter that a levy on home taping, with the consequential legalisation of home taping, was not something that the Committee wished to see introduced into the Bill. That left an illogicality in the Bill. We do not have any means at all of preventing what is an illegality. The noble Lord, the Secretary of State, was quite frank during the discussion. He said "It is illegal and there is nothing we can do about it. People will continue to break the law and we are not really prepared to do very much."
It is our view—and here I come to the specific difference between our amendment and that of the noble Lord, Lord Lloyd—that a general provision on fair dealing which would constitute a defence might help the Government out of this rather difficult hole into which they have dug themselves. Judges in the
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courts ought to have a general power—leaving aside the cases dealt with specifically in Clauses 30 and 31 and those which follow—to treat fair dealing as no infringement; and by treating fair dealing as no infringement I follow the criteria which are spelt out in Article 9(2) of the Berne Convention.
Home taping is one illustration. Provided that a defendant could show it was fair dealing there would be a defence if our amendment were adopted. Another illustration is the art auctioneer's problem which the Government are seeking to accommodate in a new clause to follow Clause 57. It is all right so far as it goes but as drafted it is wide enough to create problems over the trade in exhibition posters. There is an after market in posters of exhibitions. We shall comment on that and we shall oppose the Government's formulation of that clause at the appropriate time.
If the exception were limited to fair dealing, or left to be dealt with under a general provision as is envisaged in our amendment, it would become acceptable. We therefore feel, although the noble Lord, Lord Lloyd, and I may disagree slightly on the formulation, that fair dealing should be incorporated in spite of difficulties of translation. If the lesser course, if I may put it like that without disrespect to the noble Lord, is to incorporate it into the introductory clause, we should be happy with that. Nevertheless we believe that it would be sensible to incorporate into the Bill a general fair dealing provision which would allow the courts to have a general power to respect Article 9(2) of the Berne Convention; and it would get the Government partially out of the hole into which they have dug themselves.
Lord Willis: My Lords, of the two amendments which are before us I much prefer that of the noble Lord, Lord Lloyd of Kilgerran. My noble friend Lord Williams of Elvel seems anxious to dig the Government out of a hole, particularly in terms of the levy on blank tapes. I have no desire to do that. The law as it stands is that the taping at home of a television programme and the copying of tapes are illegal. That is the law and that was spelt out. The Government have not come to terms with that by the imposition of a blank tape levy, which as we know exists in several other countries. We shall have to come back to it and the Government will have to come back to it. We should not make provisions in this Bill to make that illegal act legal.
Therefore I am opposed to the line that has been taken by my noble friend Lord Williams and I very much accept the amendment of the noble Lord, Lord Lloyd, which is probably one of the most important amendments that has been put forward this evening. I warmly support it.
10 p.m.
Lord Beaverbrook: My Lords, with these amendments we return to the question debated in Committee as to whether there should be a general fair dealing exception. I resisted the amendment tabled on that occasion by noble Lords opposite because it opened the concept of fair dealing from within the confines of well defined purposes and set it at large.

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First, perhaps I may address my remarks to the amendment tabled in the name of the noble Lord, Lord Lloyd. The amendment has been grouped with that in the name of the noble Lords, Lord Williams and Lord Morton, because of the obvious similarities. But whereas Amendment No. 73 seeks to widen the fair dealing exceptions out, the amendment in the name of the noble Lord, Lord Lloyd, approaches the question from the other end and introduces an overriding test of whether a particular act should be permitted.
I have to say that I find this approach unsatisfactory. In drawing up the various exceptions to copyright in Chapter III we have of course been cognisant of our obligations under the Berne Convention. We believe that the exceptions in Clauses 29 to 68 are all consistent with those obligations. To take the wording of Article 9(2) of the convention, which only applies to the reproduction right in respect of literary, dramatic, musical and artistic works and films, and seek to make it of general applicability is, I believe, mistaken. It would place both copyright owners and users of copyright material in a difficult position.
As the Bill stands, both know with reasonable certainty whether a particular act requires the consent of the copyright owner. To take one perhaps trivial example: under the terms of Clause 63, and of the 1956 Act, the making of a recording of a television broadcast for private purposes does not infringe the copyright in the broadcast. I can record a live broadcast of, say, a sporting event secure in the knowledge that I do not infringe. If the noble Lord's amendment were accepted, I could do so only up to the point where the test of Article 9(2) of the Berne Convention is no longer satisfied. I think that both I and the broadcaster would find it difficult to assess when the point had been reached. And why should a Berne test be applied to non-Berne works such as sound recordings and broadcasts?
Perhaps I may now turn to the amendment in the name of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. The drafting of the amendment raises questions. First, I note that this is proposed as a defence rather than an exception to copyright, which is the formulation for all other clauses in Chapter III and as indicated by the introductory Clause 28. I am not sure whether any significance is to be attached to this. Secondly, the drafting raises the possibility that there may be fair dealing which conflicts with normal exploitation and prejudices legitimate interests. I assume that is not the intention, but that what is attempted here is a definition of fair trading.
Whitford recommended replacement of the fair dealing provisions with a general provision along the lines proposed in the amendment. The Whitford formula is of course borrowed from Article 9(2) of
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the Berne Convention. It should be noted that this article only allows member states to make exceptions in respect of the right of reproduction. Thus, we have scope to apply the Berne formula only in respect of copying, not in respect of the other restricted acts set out in Clauses 18 to 21.
In the 1981 Green Paper, the Government rejected the Whitford proposals for a number of reasons. The Berne formula is no more precise than "fair dealing", which at least has the merit of being generally understood by those involved, as my noble friend Lord Stockton reminded us in Committee. There seems little point in changing one imprecise expression for another, particularly when the latter is an animal completely unknown to the law of the United Kingdom. The general applicability of the exception, rather than exceptions allowing fair dealing for particular purposes, was a further cause for concern in the 1981 Green Paper, being seen as potentially eroding the scope of copyright. This of course is much the point I made when resisting the earlier amendment in Committee.
Fair dealing is a flexible concept. To adopt the approach in the amendment at least gives the courts criteria by which to judge the limits of its flexibility. But these are factors already taken into account when assessing whether dealing is fair, and so I am not persuaded that anything is gained by writing them into the statute, particularly if that results in the courts restricting themselves to those two criteria. I do not think that a general extension of fair dealing exceptions to cover purposes other than those specified in the Bill is justified, whether we approach it in the manner suggested by the noble Lord, Lord Lloyd of Kilgerran, or that proposed by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the noble Lord for what he said. However, I should like to study it before commenting in detail. I am surprised at certain of his references to the Berne Convention. I have no doubt that he has read the guide to that convention which was published in 1978 by the World Intellectual Property Organisation. It referred to the right of production as being the very essence of copyright. My clause was intended to deal with that. Nevertheless, at this late hour we do not want to get into great argument as to the scope of the Berne Convention.
Perhaps I was being presumptuous, but by putting forward this amendment I was seriously putting forward a helping hand to the ministry in regard to the difficulties it is facing in emphasising that it is permitting illegal home taping without being able to do anything about it. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 73 not moved.]
Clause 29 [Private study and non-commercial research]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 74:
Page 13, leave out lines 32 and 33 and insert ("research or private study").
The noble Lord said: My Lords, in speaking to Amendment No. 74 I shall also speak to Amendments Nos. 76, 92, 93 and 259. I return to these amendments that were moved in Committee by my noble friend Lord Mottistone about the treatment of commercial research in the fair dealing and library exceptions to copyright.
This question has been one of several controversial issues of the Bill. The arguments arc finely balanced. On the one hand, copyright owners feel aggrieved that their intellectual property is being used by industry without payment. On the other hand, it is clearly vital for our economic well-being that the research effort is not hindered and that the flow of information that business needs is not unduly obstructed. We have received strong representations from both sides, the suppliers and the users of information.
One of the main concerns about the Bill as drafted is that the necessary consent of copyright owners for commercial research might not be forthcoming. They might not grant licences in certain areas and this would restrict the very supply of information on which research-based industries are dependent. In many cases, especially where the copyright owner is not British, consent could be difficult to obtain, not because of unwillingness to license but because the user could not track the copyright owner down. There have also been fears about the implications of licensing schemes in terms of staff costs. Detailed records would have to be kept which would prove expensive in terms of time and training. These fears are compounded by the fact that these photocopying records might reveal the direction of a firm's research efforts. Obviously this is something companies want to keep strictly confidential.
Representations have also been made to the Government, and indeed it is something we discussed in Committee, about the distinction between commercial and non-commercial research. We realise that there is a considerable overlap, and again the development of collaborative research between the academic and industrial communities is something this Government wish to encourage.
We gave careful consideration to the proposals put forward by my noble friend Lord Mottistone in Committee that copying for commercial research should be permitted unless or until a certified licence scheme was introduced. That had the merit of ensuring that industry would not be denied access to copyright material and the idea was a most useful contribution to our considerations.
However, this still left the other problems that I have mentioned. I have to say that some of the concerns were overstated, but at the end of the day it would mean we would be introducing licensing schemes in respect of copying that is legal under the present law. We would be asking industry and industry-sponsored research in universities to take on
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a new burden—first to pay for something to which they are now entitled and secondly to bear the cost of administering the schemes.
Not long ago we heard my noble friend the Secretary of State tell us about the new direction of the Department of Trade and Industry and the launch of the enterprise initiative. One of the aims of the department is to reduce the burden on industry and this question of fair dealing for commercial research is one of the areas where we can take steps not to increase the burden. It is essential that small and large businesses alike have every opportunity to develop their research potential. That is not to say that licensing schemes cannot work efficiently in many areas, as they are presently doing in the educational sector in respect of multiple copying.
We have therefore concluded that we should not require industry to pay for "fair dealing". Of course, copying which is not fair dealing will continue to require the copyright owner's consent, and licence schemes to cover this type of copying may well be made available as they have been for schools. Research in the United Kingdom should not be unduly obstructed. That would not assist the climate of enterprise that we seek to encourage. My Lords, I beg to move.
The Earl of Stockton: My Lords—
Lord Mottistone: My Lords, my amendment was referred to—
The Earl of Stockton: My Lords, as my noble friend the Minister said, we discussed this question at some length in the Committee stage and the problem remains a very difficult one for the hook, periodical, magazine and learned journal publishing industries. I have listened to the arguments put forward by the Minister in support of his amendment and I regret to say that I remain unconvinced.
However, as a compromise may I suggest to my noble friend that there is a case for the introduction of a voluntary licensing scheme for a trial period similar to the scheme already in operation with 30,000 schools. This scheme is the result of a trial period of 18 months and, as a direct result of its success, a similar experiment to last 12 months or more has been under way since 1st January this year, with a representative group of 15 universities and seven institutes of higher education. This could be administered by the copyright licensing agency.
I feel that such a scheme operated by the publishing industry on behalf of the original authors and itself would mean that research would be rewarded if it was being exploited by commerce. This seems only fair. It would also mean no cumbersome government bureaucracy, and being collective licensing would be convenient to industry; and at least 80 per cent. of the income would be passed on to the originators or copyright owners. In the words of my noble friend at

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an earlier stage of this Bill, why should research-based industries, many of which rely heavily on the exploitation of their intellectual property, be free to use the intellectual property of others without payment?
The publishing industry will submit suitable proposals to my noble friend the Minister before Third Reading, and I hope that he will be able at least to look at such a compromise and withdraw his amendment, for if it stands our efforts to get industry to the negotiating table will meet with as little success in the next two years as they have done over the past two.
Lord Lloyd of Kilgerran: My Lords, before the noble Earl sits down, may I ask for the privilege of seeing what he is going to produce by way of these new arrangements that he has in mind?
The Earl of Stockton: My Lords, I shall be happy to send the noble Lord a copy.
Lord Mottistone: My Lords, perhaps I may be allowed now to follow on from where my noble friend finished. I should like very much to thank my noble friend the Minister for responding to the amendments which we put down in Committee and to say that industry as a whole is indeed grateful for this. I think that it is an excellent first step towards something that may follow.
10.15 p.m.
Lord Williams of Elvel: My Lords, our objection to the formulation in the Bill in Clause 29 was not that industry should not pay properly for copyright material that it uses in its research. It was on the grounds of difficulty of enforceability: that we could not tell what was commercial research and what was not commercial research, and whether people in academic institutions were working half for one company and half for themselves; that is, half commercial and half non-commercial.
There was no intention on our side, although we supported the wording of the amendment of the noble Lord, Lord Mottistone, to relieve the burden on industry of paying properly for research which uses copyright material. As the Secretary of State said on Second Reading, as the noble Lord, Lord Beaverbrook, said in Committee and as the noble Earl, Lord Stockton, has reminded us, there is no intention on the part of the Government, as I understood it at that time, to enable those who live off intellectual property themselves to feed off other people's intellectual property without proper reward.
Therefore, if the noble Earl, Lord Stockton, can produce some sort of scheme that is generally acceptable and is in some way enforceable and works, then I assure him that we shall consider it very sympathetically, because it seems to us that it would meet the worries we have about removing commercial research completely from the fair dealing provision. Nevertheless, it would provide a proper return for those who hold copyright. If the noble Earl would be kind enough to include me on his mailing list as well as the noble Lord, Lord Lloyd of Kilgerran, I should be very grateful.
Lord Howie of Troon: My Lords, it is important to remind ourselves that the Bill is supposed to be about the protection of intellectual property. The amendment is the exact reverse: it permits the piracy of intellectual property by business. That is not what the Bill is supposed to be about. I know that the Government justify this U-turn or somersault by saying that they wish to reduce the burdens on industry and the cost of research. That is true. The amendment will reduce the burdens of industry by transferring them to the publishing industry. That is not what the Bill is intended to do, nor is it what the Government supported in Committee.
I shall not embarrass the Minister by reminding him of the speeches that he and his right honourable friend Lord Young of Graffham made in Committee, but he knows what they said, and they have changed.
I want to remind the Government of the burdens on the publishing industry, which I enumerated in Committee. The publishers publish not merely magazines, periodicals, newspapers, journals and suchlike; they publish back numbers of journals, magazines and other periodicals. These are required and used in research by industry and in the economic world and elsewhere and they are part of the life blood of publishing. In addition the industry publishes reprints of articles and charges for them. If articles are photocopied ad lib., that strikes a great blow at the substantial part of the revenues of the publishing industry. Noble Lords will remember that in Committee we had an unabashed confession from the noble Lord, Lord Quinton, the chairman of the British Library, who remarked that he made a substantial business of photocopying other people's intellectual property and marketing it at £2.40 a copy, if I remember the comment of the noble Earl, Lord Stockton. That is not proper treatment of intellectual property. If that is relieving industry of a burden, it most certainly puts it on the back of the publishing industry.
I think that this change on the part of the Government is wholly wrong. They have yielded to pressure from the CBI through the amiable and persuasive voice of the noble Lord, Lord Mottistone, who is smiling happily at present, as well he may, having engaged in, or opened the gates to, an act of piracy that should be stopped.
The noble Earl, Lord Stockton, has suggested a compromise which I think should be accepted. But behind that compromise there should be a thought which I might elevate by describing as a philosophical thought. If intellectual property of this kind is worth having by industry it must be worth paying for. If it is worth paying for industry should be willing to pay for it instead of stealing it.
Lord Beaverbrook: My Lords, I have listened with interest to what noble Lords have said tonight about licensing schemes for commercial research. I have to say that our concerns about the burdens that would be placed on industry have not been allayed by what has been said or by anything said to us by the publishers before this debate.
However I am prepared to consider any further evidence that the noble Earl, Lord Stockton, or any other noble Lord can bring to bear on this question.

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It may be that it is possible to persuade us that our fears are ill-founded and if the noble Earl, Lord Stockton, or any other noble Lord can do so, we may have to think again. However, my offer to study any other information put to the Government has to be without any commitment at this stage. Meanwhile I beg to move Amendment No. 74.
Lord Mottistone Lord Mottistone moved Amendment No. 75:
Page 13, line 35, at end insert ("provided any copying is not done by means of a reprographic process").
The noble Lord said: My Lords, I said that industry at large was very happy about the now amended Clause 29. However the information technology industry is concerned generally with the scope of this clause and the way in which over the years it has been used to justify more and more unauthorised copying. The IT industry publishes a great many literary works as instruction manuals, operating guides, etc., and computer programs.
There appears to be a misconception abroad that "fair dealing" gives all and sundry the right to use photocopiers to make copies of copyright works and that it is justified on the grounds that it is for private study or research. In many cases it means that the copyist is merely taking a copy of the best articles in a journal and building up a private library at the expense of authors and publishers.
We felt or at least I felt from what we discussed in Committee that some of us do not regard the taking of photocopies as theft from the copyright owner because either he does not know about it or he would not make an extra sale anyway. This seems very like a young boy's justification for scrumping apples from an orchard. There might seem to be plenty of apples when he first goes to the apple tree but if everyone else acts in the same way when he goes back there are no apples left.
In this respect there is the very real example of the perils of unlimited, unjustified and unthinking copying. The provision of commercial software for the educational world has just about dried up because all the software companies have found that the supply of software to academic institutions of all grades and levels of achievement is not commercially viable. If one copy is supplied to an education authority very soon all possible users in that authority will have their own private study copy and so no further sales are made.
In fact copying does not achieve consumer choice; the reverse occurs. The creators find that it is not worthwhile creating and soon the consumer has nothing from which to choose. So this is another point. I suppose that the truth of the matter is that the real nigger in the woodpile is the photocopier. Hence my amendment seeks to make it illegal to use it in this respect. I beg to move.
Lord Lucas of Chilworth: My Lords, I rise only to be perhaps a little frivolous because I have read Clause 161, headed "Minor definitions" and it really is rather amusing. It states:
" 'reprographic copy' and 'reprographic copying' refer to copying by means of a reprographic process",
and so on. I gather from what my noble friend Lord
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Mottistone has said that he is objecting only to what is popularly called a photocopier. Those were his words. That seems to me to be an extraordinarily narrow view to take. As we advance in technology, other forms of copying may evolve. The most popular form is via software in computers. In fact that is included in the definition.
What will come later? My noble friend must accept the situation as it presently is and is likely to advance. I cannot see from his description that the exclusion that he seeks in the amendment is going to advance anything at all; neither is it going to retard anything. It will only confuse the issue to a degree that will make what is in the Bill almost impossible. I hope that the Minister will resist the amendment.
Lord Morton of Shuna: My Lords, I thought that perhaps the CBI was trying to deal with the unemployment problem by cutting out photocopiers and setting everyone to copying by hand. Perhaps that is not—
Lord Mottistone: My Lords, perhaps I may intervene to say that I was talking strictly of the information technology part of the industry and not what the CBI is in charge of.
Lord Morton of Shuna: My Lords, I am obliged to the noble Lord. To be serious, it does not appear that the amendment would add anything. It seems ludicrous to say that you cannot copy by the method that is the most efficient and convenient but you can copy by any other method. That seems totally wrong in principle. I oppose the amendment.
Lord Brain: My Lords, I feel that the noble Lord has shot himself in the foot. He has just gained the opportunity of copying right across the board and he then says that we cannot copy efficiently.
Lord Beaverbrook: My Lords, the effect of this amendment would be that those who make photocopies could not avail themselves of the fair dealing exception. It is true that Whitford made such a proposal. But that was in the context of a statutory blanket licensing scheme. Thus all photocopying would be permitted under licence. The amendment takes part of the Whitford proposal without the other more essential ingredient, with the result that all photocopying of copyright material for study or research would require the consent of the copyright owner unless done under one of the library exceptions in Clauses 38 and 39.
I have to say that I read the amendment tabled in the name of my noble friend Lord Mottistone with some surprise, since in Committee he argued eloquently and forcefully for the inclusion of commercial research within the fair dealing provisions, so that industry could make use of photocopying. In speaking to this amendment I feel that I can do no better than draw on his words in Committee when he said:
"As long as the dealing is fair, photocopying ought to be permitted without payment, as the copyright owner thereof suffers no harm and commercial research and innovation is not hampered".—[Official Report, 8/12/87; col. 92.]
I venture to suggest that the same argument holds in respect of photocopying for private study.

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Even were the amendment to be tempered by an amendment introducing compulsory blanket licensing—that is, if Whitford were adopted in full—I could not go along with my noble friend. As I explained earlier, the Government now share the view put by my noble friend in Committee that it is not in the interests of the country to have more unnecessary cost burdens placed on industry. If that be true of industry, it is true for those engaged in non-commercial research.
My noble friend mentioned computer software. If he wishes to put that point, I think that he should consider returning with more specific amendments which can be considered on their merits. However, I have to say that I find it somewhat anomalous that commercial sectors that press hard for fair dealing exceptions in respect of printed material do not seem keen to see their intellectual property rights diminished in a similar way. I find some contradictions in my noble friend's argument, and hope that he will withdraw his amendment.
10.30 p.m.
Lord Mottistone: My Lords, I am most grateful to all noble Lords who took part in this debate and note with interest that from all sides—the Opposition, our own side and the Cross-Benches—everyone is against this amendment. Of course it is entirely contradictory, but that is what comes of trying desperately to serve two masters. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 76:
Page 13, line 40, leave out ("student or researcher") and insert ("researcher or student").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Lord Lucas of Chilworth Lord Lucas of Chilworth moved Amendment No. 77:
After Clause 29, insert the following new clause:
("Abstracts of articles in periodicals.
.—(1) If an abstract of an article in a periodical is published in the periodical, dealing with the abstract for the purpose of disseminating scientific or technical information does not infringe any copyright in the abstract or in the article or in the periodical provided that such dealing is accompanied by a sufficient acknowledgement.
(2) This section does not apply to any abstract in respect of which a licence is available under a licensing scheme certified for the purposes of this section under section 131 licensing dealing with the abstract for the purpose of disseminating scientific or technical information.")
The noble Lord said: My Lords, in moving the amendment standing in my name and that of the noble Viscount, Lord Caldecote, I should like to speak at the same time to Amendments Nos. 208, 220 and 223. Those three amendments are consequential upon the main amendment, which in essence is the same as that put before your Lordships in Committee by my noble friend Lord Caldecote, with one exception. The exception is the second part of the amendment.
I do not want to take too long over this subject, but acceptance of Amendment No. 74 in the name of my
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noble friend Lord Beaverbrook means that the abstracting services are back where they were under the 1956 Act. The criminal sanction imposed in this Bill prior to the acceptance by the House of my noble friend's amendment, Amendment No. 74, now leaves a small gap in relation to civil proceedings.
My noble friend Lord Beaverbrook said in his reply during Committee stage before Christmas that he accepted that for 30 years there had been a tacit acceptance of the practice by primary publishers. That had been demonstrated by the absence of any action before the courts over time. At that time he was concerned that commercial practices might change in the future, and it is precisely with my noble friend's fear in mind that I have included the concept of specific licensing only for abstracts in these amendments. Should publishers wish to receive a royalty in the future, it would be up to the secondary publisher to pay the royalty or to revert to the previous practice of writing his own abstracts.
It would be right to stress again what my noble friend Lord Caldecote said during Committee: namely, that it is the wish of the scientific and technical community that abstracts be author-written, and it would not welcome reversion to the earlier practices. Therefore, the possiblity remains that the Bill as it stands will allow for a civil action in support of a royalty payment.
The amendments which I and my noble friend have set down attempt to provide an alternative to court proceedings. I am not sure whether they will succeed. They lay down a regime whereby a licensing system for abstracts will obtain, royalties will be accepted; and it would be for the tribunal, in the absence of any other agreement, to determine what those royalties should be.
This amendment regularises a situation which currently is a little wild. The learned institutions, not only in this country but in other countries, believe that a long court procedure could be very expensive and might be abortive with regard to the service that the abstract services provide to the scientific community. I beg to move.
Lord Beaverbrook: My Lords, with leave, I too shall speak to Amendments Nos. 77, 208, 220 and 223.
These amendments start from and considerably amplify an amendment moved by my noble friend Lord Caldecote in your Lordships' Committee. They would allow the republication, with suitable acknowledgement, of abstracts which appear along with articles in primary publications. This was the original proposition. Now, however, this exception from copyright control would be tempered by a further provision allowing copyright owners to take such republication back under their control by establishing appropriate licensing schemes.
When my noble friend put forward the basic proposition in Committee I believe he said it was necessary in view of the Government's decision to exclude from the fair dealing exception in Clause 29 copying for commercial research purposes. It is fresh in our minds that the Government have changed their view on that issue and that the Bill now merely preserves the existing law. The logic of my noble

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friend's original position would seem to be that his amendments are not now necessary. The logic of my position is that they are necessary to achieve his purpose since I said in your Lordships' Committee, and still hold the view, that republication of this kind almost certainly falls outside the existing fair dealing exceptions.
I resisted the basic amendment in your Lordships' Committee. We have, however, been giving further thought to the matter in the light of the representations and information that we have received. As a result of that we have undertaken a consultation exercise with publishers who are potentially adversely affected by the amendments. That exercise is not fully completed and, so far, has provoked a mixed response that we shall need to explore further. We do, however, recognise the effort which noble Lords have already made to meet publishers' concerns on the matter and we shall ensure that this is taken into account in our consultations.
In speaking to these amendments, I have concentrated on their general thrust rather than their substance. However, I ask my noble friend Lord Lucas to consider whether Amendment No. 208 is a wholly workable provision in so far as it requires the tribunal to take account of the benefit to the licensor of the dealing in an individual abstract or the length of that abstract in relation to the length of the article as a whole. The tribunal will be considering a licensing scheme, not an individual case of infringement, and such schemes in their nature will have a blanket coverage. It must be the totality of the licence that is looked at. While I can see that a benefit to the licensor might be put on the dealing carried out under the scheme, I find it difficult to see how the tribunal can take account of proportion when the abstracts falling within the scheme, and their associated articles, will be of greatly differing lengths.
I hope that, in the light of my remarks, my noble friend will feel able to reconsider his amendment to allow our consultation to proceed. If I am able to come forward with amendments, I hope that it may be before this Bill leaves your Lordships' House, but I can give no undertaking on that point. As I have previously said, I do not like to have to respond in such a way. I believe that we should try to do all our revising on our own ground. However, in this case the timescale may make it impossible.
Lord Lucas of Chilworth: My Lords, I am most grateful to the Minister for his response. I welcome his decision to give further thought and energies to consultations.
He invited me to reconsider my Amendment No. 208 with regard to the proportion of abstract to principal not furnishing a good basis for a decision by the tribunal. As he is to reconsider the matter, I shall respond by agreeing to reconsider that which I have tabled.
Perhaps I may strike a note of disappointment and point out that we have been dealing with the Bill for what seems to be an inordinate length of time. The Bill seems to have been going on for ever and it seems to stretch interminably before us until the Easter eggs crack open and the chicks come out. I hope that my
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noble friend may have reached a conclusion by the time the Bill leaves your Lordships' House. It is not a great issue. I am grateful to him for the consideration he has given to the representations already made.
I urge the Minister to try to conclude the matter so that this small element may leave your Lordships' House a little better than it entered it. I accept his offer. If the best that he can do is at Third Reading to promise me further consideration in another place, so be it. We must meet that issue if and when it arises. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 31 [Incidental inclusion of copyright material]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 78:
Page 14, line 18, at end insert?—
("( ) Copyright in a work is not infringed by publication which is in the public interest.")
The noble Lord said: My Lords, this amendment is grouped with Amendment No. 113, tabled in the name of the noble Lord, Lord Lloyd of Kilgerran, which is intended to add a new clause after Clause 68 providing that:
"Copyright is not infringed by anything done in the public interest."
Perhaps my amendment carries the same meaning through expressing it as a subsection to Clause 31.
Clause 156 states that:
"This Part restates and amends the law of copyright".
If we are restating the law of copyright we should be stating the matter of public interest in the law of copyright. There is no mention of the exception created by public interest in the law of copyright. The noble Lord, Lord Lloyd, and I take the view that the public interest aspect should be mentioned in this part of the Bill. There may otherwise be difficulty in interpreting Clause 156 and the public interest aspect—whether it is called a defence, an exception, or whatever—may be held not to exist.
The fact that there is a right to publish in the public interest has been held in numerous cases and perhaps depends partly on the attitude to Article 10 of the Convention on Human Rights as regards the freedom of speech and information. Certainly, the law appears to have developed in that area. In Committee Members discussed a case in 1973 of Beloff v. Pressdram Limited, which is another name for Private Eye. Since then the law has certainly developed in cases such as that in respect of the Crossman Diaries and that which goes under the names of various newspapers but is sometimes referred to as Spycatcher. No doubt noble Lords opposite are fully aware of that case. If the Minister has not heard of it he is most unfortunate.
Lord Justice Bingham, in dealing with the public interest aspect in that case mentioned that freedom of the press was not an optional extra. Freedom of information and speech is not an optional extra. The public interest is an exception to the rights of copyright and should be mentioned in the Bill. It is for those reasons that I beg to move this amendment.
10.45 p.m.
Lord Lloyd of Kilgerran: My Lords, I should like to support the observations of the noble Lord, Lord Morton of Shuna, in moving this amendment, which is in almost identical terms to my Amendment No. 113, to which I ask leave to refer.
Those of us in practice in intellectual property are accustomed to having to deal with the public interest in relation to trademarks. I edited a book of 700 pages on the law of trademarks over 20 years ago and it included works in relation to the public interest. I cannot cite that as an authority because no book is an authority unless the author is dead. However, I looked back at the earliest edition of Kerly on Trademarks which was prior to 1938—the author is dead—and I saw that I had copied in certain pages of my book exact words from that book; in subsequent editions of Kerlv on Trademarks reference is made to public interest.
Perhaps I may refer to another book which is edited by two noble Lords of this House. There is a book on restrictive practices which was edited by the noble and learned Lord, Lord Wilberforce, and by Mr. Alan Campbell, Q.C., who is now the noble Lord, Lord Campbell of Alloway. In the index one can find one and a half columns of references to the public interest. I merely mention those matters in case it will be said against me that I am trying to draw the teeth of the Minister e're he bite me, that public interest is such a vague matter and we cannot be concerned with it. It is a very positive and important matter to have regard to when dealing with copyright.
Lord Beaverbrook: My Lords, with the leave of the House, I shall also speak to Amendment No. 117. These amendments return to a question raised by the noble Lord, Lord Morton, in Committee. On that occasion he proposed a new clause which would have provided a public interest defence in cases of copyright infringement. Whatever the merits of the case, I have to say I think that was a more appropriate way of dealing with the point than in a subsection of a clause principally concerned with incidental inclusion. A new clause is, of course, what the noble Lord, Lord Lloyd, proposes in Amendment No. 113.
The amendment to Clause 31 now before us is of considerably narrower scope than that moved by the noble Lord, Lord Morton, in Committee and that of the noble Lord, Lord Lloyd. Now the public interest is to apply only in respect of publication, rather than generally. The insertion of a statutory defence in respect of publication may cause doubt as to whether the common law defence is removed in other areas. What, for example, is the position of an infringing broadcast of a work? Is the broadcaster to have a public interest defence, or not? If so, why should he have to rely on the common law whereas the newspaper publisher has a statutory defence?
As I said when we discussed this in Committee, there are formidable difficulties—
Lord Morton of Shuna: My Lords, is the Minister saying that broadcasting is not publication? If so, I have misunderstood seven days in Committee and one day of this Report stage.
Lord Beaverbrook: My Lords, perhaps I may continue and come back to that point in a moment. As I said when we discussed this in Committee, there are formidable difficulties in defining the public interest and this amendment, like its predecessor, offers no help in that direction. Therefore, the matter would be left to the courts, as now.
I think that I can do little more than reiterate the arguments that I deployed in Committee. There is little point in codifying in statute what is achieved by case law unless one wants to refine, alter, or in some way limit the results achieved in the courts. That is not the case here. The courts have apparently come to the right conclusions. Neither this amendment, nor that in the name of the noble Lord, Lord Lloyd, will assist the courts in any way or guide them in a different direction.
The noble Lord, Lord Morton of Shuna, asked whether broadcasting is publication. Broadcasting in a sense is not publication. This is clear from Clause 159(2)(a)(ii), if the noble Lord could refer to that part of the Bill. I hope that if he finds my argument convincing he will feel able to withdraw the amendment.
Lord Morton of Shuna: My Lords, the Minister's argument is no more convincing than it was in Committee. The difficulty in Clause 156 is that this part restates and amends the law of copyright. Public interest is a part of the law of copyright at the moment. If it is not mentioned in the Bill at all, it might be held to be amended out. That is one of the possible difficulties.
I do not wish to test the opinion of the House at this stage, but with the possibility that I might return to the matter on Third Reading I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 32 [Things done for purposes of instruction or examination]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 79:
Page 14, line 24, at end insert?—
(" (LA) Copyright in a sound recording, film, broadcast or cable programme is not infringed by its being copied by making a film or film sound-track in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying is done by a person giving or receiving instruction.")
The noble Lord said: My Lords, with the leave of the House, I speak also to Amendments Nos. 80 and 84 standing in the name of the noble Lord, Lord Lloyd of Hampstead. I notice that he is not in his place at the moment but perhaps I may put on record what I have to say.
Lord Lloyd of Kilgerran: My Lords, the noble Lord, Lord Lloyd of Hampstead, asked me to speak for him. With the leave of the House and of the Minister I shall do so.
Lord Beaverbrook: My Lords, I am grateful to the noble Lord. That assists me in speaking to my own amendment.
Amendment No. 79, standing in my name, fulfils an undertaking given by my noble friend Lord Dundee when we discussed Clause 32 in Committee

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on 8th December. It provides for a further exception to copyright to enable those teaching or receiving instruction in the art of film-making to copy sound recordings, films, broadcasts or cable programmes for purposes connected with that instruction without infringement. The exception is intended to meet the needs of organisations providing instruction in film-making and places them in a similar position to other educational establishments which can avail themselves of exceptions in Clause 32.
In moving this amendment I should like briefly to address the related amendments standing in the name of the noble Lord, Lord Lloyd of Hampstead, but which will be spoken to by the noble Lord, Lord Lloyd of Kilgerran. Amendment No. 80 is identical to that which we discussed in Committee on 8th December. This amendment is more limited in extent than my own amendment. It would only permit copying of a sound recording for inclusion in the sound track of a film made for purposes of teaching film-making. Thus under the amendment of the noble Lord, Lord Lloyd of Hampstead, it would not, for instance, be possible to copy clips from films and nor would it be possible for a student to incorporate clips in a film he is making. Indeed, since the exception is for the purpose of teaching film-making it is available only to teachers of the art of film-making and cannot be used by students.
Since my amendment provides for all that his amendment does and more, I would hope the noble Lord, Lord Lloyd of Hampstead, in his alter ego of the noble Lord, Lord Lloyd of Kilgerran, will feel able to support me.
Finally, I should like to speak to Amendment No. 84. This too is a matter which we have already discussed in Committee and I have to say that we remain unsympathetic.
As my noble friend Lord Dundee explained to the Committee, the amendment would put film schools in a better position than other educational establishments by permitting the public showing of films to a non-paying audience. At present Clause 34 allows films to be shown without infringement at an educational establishment for the purpose of instruction. However, under the 1956 Act and Clause 34, as drafted, a performance to an outside audience does not benefit from the exception. It would not be appropriate for films to be made a special case so that a film school can give a public showing of a film whereas a music school could not give a free concert.
We shall shortly be discussing what should be the criteria for non-infringing performances in educational establishments when we come to Amendment No. 82. I hope however that the noble Lord will accept that film schools should not be treated differently from other educational establishments.
It is to ensure that film schools are treated on the same footing as other educational establishments in respect of copying exceptions, that I beg to move Amendment No. 79.
Lord Lloyd of Kilgerran: My Lords, I am very grateful to the Minister for explaining his amendment. The noble Lord, Lord Lloyd of Hampstead, has had to leave the House in order to
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catch a train; but before doing so, he mentioned to me that he was not completely satisfied with the Minister's amendment on this matter. Perhaps I may ask him about it later, and at Third Reading he will deal with any objections that he has.
[Amendment No. 80 not moved.]
Clause 33 [Anthologies for educational use]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 81:
Page 15, line 3, at end insert—
("(4) References in this section to the use of a work in an educational establishment are to any use for the educational purposes of such an establishment.")
The noble Lord said: My Lords, in our debate on Clause 33 on 8th December, my noble friend the Lord Dundee made clear that the definition of an educational establishment used in Clauses 32 to 36 and elsewhere will include the Open University. This amendment makes clear that the exception in Clause 33 which permits free inclusion of short passages from copyright words in anthologies intended for use in educational establishments can be made use of by the Open University and similar organisations. The amendment is required because the actual use of Open University publications will mostly take place in the home of the student rather than on the premises of the institution itself.
The amendment takes the rather cumbersome form of adding a subsection, rather than amending the phrase "in educational establishments" itself in subsection (1). We want it to be possible for publishers to be able to describe their works as being for use "in educational establishments" even with the broader meaning to be given by the new subsection, because that is such a simple phrase. The words,
"For the educational purposes of educational establishments"
do not have quite the same ring to them.
On that basis, I beg to move Amendment No. 81.
Clause 34 [Performing, playing or showing work in course of activities of educational establishment]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 82:
Page 15, line 4, leave out from beginning to ("a") in line 16 and insert—
(".—(1) The performance of a literary, dramatic or musical work before an audience consisting of teachers and pupils at an educational establishment and other persons directly connected with the activities of the establishment—

(a) by a teacher or pupil in the course of the activities of the establishment, or

(b) at the establishment by any person for the purposes of instruction,

is not a public performance for the purposes of infringement of copyright.
(2) The playing or showing of a sound recording, film, broadcast or cable programme before such an audience at an educational establishment for the purposes of instruction is not a playing or showing of the work in public for the purposes of infringement of copyright.
(3)")
The noble Lord said: My Lords, in moving Amendment No. 82, I shall also speak, with leave, to Amendment No. 83.
When Clause 34 was debated in Committee, my noble friend Lord Dundee promised, without commitment, to have a further look at it with two considerations in mind. The first was to see whether the exception could be made a little more generous with regard to audiences for performances at educational establishments which intentionally comprise parents as well as teachers and pupils. The second was to ensure that the exception from copyright liability would not suddenly cease to apply if a parent, who was present in a school for some unconnected purpose, happened to attend a performance intended solely for an audience of teachers and pupils themselves.
As my noble friend said at the time our freedom of manoeuvre regarding the first of these considerations is greatly circumscribed by the requirements of the Berne Convention. This does not permit us to grant an exception from copyright liability for any performance which takes place "in public". It might well be helpful to schools to enshrine in law that a school performance of a work which is thrown open to parents as well as staff, pupils and others directly connected with the establishment does not infringe copyright, but this could well be held to be in breach of the Berne Convention. We therefore feel that the provision stating that a person is not be be considered directly connected with the activities of the establishment simply because he is a parent must be preserved.
We have, however, recast the clause so that instead of providing that the performances in question do not infringe copyright even though they may be "in public", it now provides that performances fulfilling the conditions stated are not public performances at all. I hope that the noble Baroness, Lady Birk, and others who criticised the original drafting will agree that this is an improvement. Presented in this way it will be clearer that the exception does not imply that a performance at which parents are present is necessarily to be regarded as in public. Whether or not it is will depend on the circumstances and a court might decide that it was not. All it does is to declare, for the avoidance of doubt, that in the circumstances described a performance to teachers, pupils and others directly connected with the activities of the establishment is not a public performance.
We have also considered the suggestion made by the noble Lord, Lord Morton of Shuna, for a de minimis provision to ensure that the incidental presence of just one or two parents at a performance not intended for them does not invalidate the exception. The changes we have made should, we think, deal adequately with this point. For a court to hold that the unforeseen presence of one or two parents at a performance to which parents had not been invited rendered that performance a public one seems most unlikely, and we do not think that any further safeguard is needed.
In any event, a provision relating to the effect of additional members of the audience only at schools would be very odd. That is a question which can arise at any performance which is on the borderline between public and private—for example, a performance on stage during a rehearsal attended by members of the production staff which happens also
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to be seen by someone with business in the theatre not connected with the production. There is no case for a special provision about schools.
Finally, we propose to remove subsection (3), which on consideration seems heavyhanded and superfluous. If a parent is deemed to have no direct connection with a school by virtue solely of his being a parent, clearly the same must also go for a guardian or person having custody. I beg to move.
11 p.m.
Lord Williams of Elvel: My Lords, we are grateful to the Government for giving consideration to the doubts about Clause 34 which we expressed in Committee. The new draft which is presented by the noble Lord in Amendments Nos. 82 and 83 is an improvement on what went before.
I am still not entirely happy—and I recognise the constraints under which the draftsman has operated—that it meets the point that we were making in Committee that stray people, who may or may not be connected directly or indirectly with the activities of the establishment, could come into an audience by virtue of which the performance could become an infringement. It is a difficult line to draw and so perhaps I may give an example.
Let us suppose that the caretaker of the school, who, one would argue, was directly connected with the activities of the establishment and was not part of the audience consisting of teachers, pupils and other persons—in other words, he was not invited—walked in to clean up the floor. Under the Government's formulation would he turn that performance immediately into an infringing performance; or would in the Government's view the courts say "This is de minimis and it does not offend the Act"?
I still have doubts. I recognise the noble Lord's problems that in order to keep within the Berne Convention there are great difficulties in formulating a proper clause. Nevertheless, I do not think that what the Government have produced even now, although it is better than what they produced before, meets fully the points that we were making.
Lord Beaverbrook: My Lords, as the noble Lord, Lord Williams of Elvel, has acknowledged, this is a difficult area. He asked me whether the presence of someone who was cleaning the floor in the location in which the performance was being given would constitute an infringement. I do not believe that that would turn the performance into a public one. However, were there to be someone present who was there for a completely different purpose not related to the school, that could be a marginal case. As I have said, it is difficult to define that borderline precisely. However, the way in which we have now phrased the Bill if the amendment is accepted should solve the problems that were foreseen in Committee.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 83:
Page 15, line 19. leave out subsection (3).
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
[Amendment No. 84 not moved.]
The Deputy Speaker: My Lords, the next three amendments appear to be in a rather curious order, but I am assured that it is correct. Amendments Nos. 86 and 87 relate in fact to Clause 36 and not to Clause 34, as shown on the Marshalled List.
Clause 36 [Reprographic copying by educational establishments]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 86:
Page 15. line 35, leave out from ("than") to end of line 38 and insert ("four per cent. of any work may be copied by or on behalf of an institution in any period of one year from 1st April to 31st March following.")
The noble Lord said: My Lords, for the convenience of the House I shall speak also to Amendments Nos. 85 and 87.
Amendment No. 86 deals with a relatively small point. In the Bill as drafted Clause 36(2) provides that:
"not more than one per cent. of any work may be copied by or on behalf of an establishment in any quarter".
As your Lordships will know, educational establishments have a dead period between the end of the summer term and the beginning of what one might call the autumn term. Therefore the quarter ending on quarter day in September is a dead period for this type of activity. We seek to amend the Bill so as not to increase the overall ability of establishments which copy works but to ensure that they have an entitlement to spread that copying ability over the year, especially during the months when they are most active. It would be absurd if they were to shut off at the end of June and on opening up at the beginning of October find that they had lost the 1 per cent. right that they had in the third quarter.
Amendment No. 87 refers to the charge that may be made for such copying. As I understand it, that issue has been a matter of considerable concern in Australia, and is now to some establishments. In some cases the royalty per page is 2.5p. If one is trying to copy a work consisting of 100 pages that becomes an expensive operation. Therefore, we should like to see a provision in the licence to fix a royalty at a reasonable sum so that educational establishments do not have to pay over the odds for the copying of such material.
As regards Amendment No. 85, tabled in the name of the noble Lord, Lord Beaverbrook, I think that I have covered some of the ground. However, without hearing the noble Lord's presentation in regard to the amendment, it is difficult for me to comment thereon. Therefore, if I may—I recognise that I am to some extent violating Report procedures—I should like to listen to what he has to say about Amendment No. 85 before I reply.
Lord Kilbracken: My Lords, these amendments seem to have been printed out of order. The fact that we are taking Amendment No. 86 before Amendment No. 85 means that if Amendment No. 85 is approved, as we must assume it will be, even if we were to agree to Amendment No. 86, it would immediately fall because it is an amendment to a passage that will be deleted by Amendment No. 85.
I drew attention to that point at Committee stage, and I should like strongly to support my noble friend
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in what he has said. The fact is that if only 1 per cent. of any work may be copied in a quarter it means that in a full-length book of 100,000 or maybe 80,000 words only 800 words may be copied in that quarter. It may very often happen that one wishes to copy more than that at any given time, and it is far easier administratively and in every other way if it is made 4 per cent. for the calendar year rather than 1 per cent. in each quarter.
It seems to me that this amendment should be made to subsection (2) of the new clause that the noble Lord is proposing in Amendment No. 85. If Amendment No. 85 is agreed, as I am sure it will be, I hope that the noble Lord will consider amending subsection (2) along those lines at the next stage.
Lord Beaverbrook: My Lords, with your Lordships' permission I should also like to speak to Amendments Nos. 86 and 87, and to Amendment No. 85 in my name. As my noble friend Lord Dundee explained in Committee, the purpose of Clause 36 is purely to ensure that very small-scale copying can always be carried out in educational establishments. It is intended to cover situations where teachers need to copy small extracts of material from books and musical works—for example, in making compilations—for teaching purposes and would, but for this clause, be prevented from doing so because copyright owners have failed for whatever reason to offer appropriate licences.
First, perhaps I may be allowed to take Amendment No. 86. As I have just indicated, the purpose of Clause 36 is to enable the copying of small extracts of works by educational establishments where the copyright owners concerned do not offer appropriate licences. This is why the clause as drafted provides for an educational establishment to copy up to 1 per cent. of a work per quarter, since that is all that is necessary to enable occasional copying of small extracts throughouth the year.
I am well aware that the quarterly periods do not coincide with terms in the academic calendar and that an educational establishment may not exhaust the 1 per cent. allowance in certain quarters. In consultations on an earlier draft of this clause we related this exception to terms rather than quarters. It was pointed out to us then that there are educational establishments which do not work to terms, and that in any event much preparatory work takes place outside terms. I should also like to point out that it does not follow that, just because there is an allowance, it has to be exploited to the fullest possible extent, which is clearly the intention of this amendment as it aggregates the four quarterly 1 per cent. allowances into a single 4 per cent. and permits this amount to be acquired on a single occasion. Four per cent. of a work can hardly be said to be a small extract, particularly when compared with the 5 per cent. of a work that may be copied under the terms of the agreement reached between the local education authorities and the Copyright Licensing Agency. The amendment is contrary to both the purpose and spirit of the exception and for that reason I would have to resist it.
Turning to Amendment No. 87, this seeks to impose a maximum royalty rate in respect of copies taken by educational establishments under licensing

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schemes. I have to say that such an arrangement is in our view wholly undesirable. The determination of the price that educational establishments pay for copies under a licensed copying scheme is a matter for negotiation between the licensing body and the educational establishments or their representative bodies. It is not for the legislature to pick a royalty rate out of the air.
We recognise of course that licensing bodies can have an effective monopoly and that educational establishments may consider charges under a licensing scheme to be excessive. This, however, is the very reason for the provisions in Chapter VII, under which educational establishments, as well as others, can refer disputes over licensing schemes for reprographic copying to the Copyright Tribunal. The amendment would remove much of the role of the Copyright Tribunal in settling disputes over licence terms for reprographic copying by educational establishments, and therefore I would have to resist Amendment No. 87.
Turning to Amendment No. 85 standing in my name, it was clear from the discussion in your Lordships' Committee that some drafting improvements should be made to Clause 36 to remove any doubt as to what educational establishments are permitted to do by the exception and to make it clear that copyright owners cannot negate the benefit of the exception by offering licences, whether on payment or free of charge, of a narrower scope than the limits in subsection (2). We have taken the opportunity to redraft the clause to make these matters clearer.
11.15 p.m.
Lord Williams of Elvel: My Lords, I hear what the Minister says. I am afraid that I cannot understand why he resists Amendment No. 86, but he does. I can understand why he resists Amendment No. 87 on the grounds that there is a Copyright Tribunal to which these matters can properly be referred. I suppose that if every educational establishment is overcharged by some library or other and the matter goes to the Copyright Tribunal, with all the problems of red tape and so on, one could resolve it, but it seems to be rather doubtful. Nevertheless, having said all that, I am not prepared at this stage to press Amendment No. 86 and I beg leave to withdraw it, with the reservation that we may well come back to it at a later stage.
Amendment, by leave, withdrawn.
[Amendment No. 87 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 85:
Leave out clause 36 and insert the following new clause:
Reprographic copying by educational establishments of passages from published works
.—(1) Reprographic copies of passages from published literary, dramatic or musical works may, to the extent permitted by this section, be made by or on behalf of an educational establishment for the purposes of instruction without infringing any copyright in the work, or in the typographical arrangement.
(2) Not more than one per cent. of any work may be copied by or on behalf of an establishment by virtue of this section in any quarter, that is, in any period 1st January to 31st March, 1st April to 30th June, 1st July to 30th September or 1st October to 31st December.
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(3) Copying is not authorised by this section if, or to the extent that, licences are available authorising the copying in question and the person making the copies knew or ought to have been aware of that fact.
(4) The terms of a licence granted to an educational establishment authorising the reprographic copying for the purposes of instruction of passages from published literary, dramatic or musical works are of no effect so far as they purport to restrict the proportion of a work which may be copied (whether on payment or free of charge) to less than that which would be permitted under this section.")
Clause 37 [Libraries and archives: introductory]:
Lord Beaverbrook:Lord Beaverbrook: moved Amendment No. 88:
Page 16, line 6, at end insert ("and")
The noble Lord said: My Lords, with the leave of your Lordships I shall also speak to Amendments Nos. 89 and 90. When we discussed Clause 38 in Committee the noble Lord, Lord Williams of Elvel, sought to move amendments intended to relieve the librarian of the obligation to satisfy himself that those requesting copies needed them for prescribed purposes. I made it clear then that we could not accept that librarians should be entirely absolved of responsibility but that we recognised that they faced practical difficulties in substantiating the veracity of declarations and could not normally be expected to inquire closely into the honesty of declarations delivered to them. I therefore promised that we should give further thought to the matter.
These amendments are intended to reduce the burden of inquiry on librarians by enabling them to take declarations at face value unless they are actually aware that a declaration is false in a material particular. Accordingly, this amendment makes the person who obtains a copy on the basis of a false declaration liable for infringement of copyright as if he had made the copy himself. It follows as a necessary corollary that any copy obtained by means of a false declaration shall be treated as an infringing copy and the amendment so provides. Since liability for obtaining infringing copies on the basis of a declaration can arise only if the declaration is completed in the first place, the amendment also provides that librarians may make and supply copies only against such a declaration. The final amendment in the grouping is to put back the provisions of Clause 37(1)(c) of the Bill, which would otherwise be lost in the general restructuring of this clause.
I very much hope that the amendments will remove the concerns that the noble Lord, Lord Williams of Elvel, expressed in Committee. I beg to move.
Lord Morton of Shuna: My Lords, the general purpose of the amendment is perfectly acceptable. However, I fail to see why it is easier to go three quarters round a square instead of going on the straightforward line suggested by the amendment in Committee, which amounts to taking out the reference to satisfying and inserting "certifying to the librarian". However, far be it from me to criticise drafting.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 89:
Page 16, line 8, leave out from ("prescribed") to end of line 10 and insert
("(1A) The regulations may provide that, where a librarian or archivist is required to be satisfied as to any matter before making or supplying a copy of a work—

(a) he may rely on a signed declaration as to that matter by the person requesting the copy, unless he is aware that it is false in a material particular, and

(b) in such cases as may be prescribed, he shall not make or supply a copy in the absence of a signed declaration in such form as may be prescribed.

(1B) Where a person requesting a copy makes a declaration which is false in a material particular and is supplied with a copy which would have been an infringing copy if made by him—

(a) he is liable for infringement of copyright as if he had made the copy himself, and

(b) the copy shall be treated as an infringing copy.")

Lord Beaverbrook Lord Beaverbrook moved Amendment No. 90:
Page 16, line 15, at end insert—
("(3A) References in this section, and in sections 38 to 43, to the librarian or archivist include a person acting on his behalf.")
Clause 38 [Copying by librarians: articles in periodicals]:
[Amendment No. 91 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 92:
Page 16, line 22, leave out from ("of") to ("and") in line 23 and insert ("research or private study")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Clause 39 [Copying by librarian: parts of published works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 93:
Page 16, line 40, leave out from ("of") to ("and") in line 41 and insert ("research or private study")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
Clause 45 [Parliamentary and judicial proceedings]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 94:
Page 18, line 33, leave out from ("proceedings") to end of line 36 and insert—
("(2) Copyright is not infringed by anything done for the purpose of reporting such proceedings; but this shall not be construed as authorising the copying of a work which is itself a published report of the proceedings.")
The noble Lord said: My Lords, with the leave of the House, I shall speak to Amendments Nos. 94, 95, 96 and 126.
Amendment No. 94 will improve the drafting of Clause 45. It will allow judicial and parliamentary proceedings to take place and reports to be made of the proceedings without constraint. At the same time it will ensure that those who invest in reporting such proceedings have proper protection.
Before speaking to Amendment No. 94, I should like to address Amendment No. 95, in the name of the noble Lord, Lord Lloyd of Hampstead, and
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Amendment No. 96, standing in the names of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. Both seek to place the judgments of the courts, Acts of Parliament and secondary legislation in the public domain, quite free from copyright.
I have to say at the outset that, were I to accept the principle, I could not accept an amendment in the form of a new Clause 45 as proposed by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. In their enthusiasm to remove copyright protection from material arising from judicial and parliamentary proceedings, judgments and Acts of Parliament, they have dropped an important element of Clause 45, that anything done for judicial and parliamentary proceedings does not infringe copyright. Whatever the merits of the case regarding the status of judgments and Acts of Parliament, I believe that this vital element must be retained. It therefore follows that I regard Amendment No. 95 standing in the name of the noble Lord, Lord Lloyd of Hampstead, as the better approach.
The question of copyright in judgments and Acts of Parliament was raised in Committee by the noble Earl, Lord Stockton. It was said that Whitford had recommended there should be public domain works. I believe that that overstates the position. What Whitford said was:
"If our recommendations on … exceptions are adopted, newspapers and other commentators will be free to quote from judgments, speeches and evidence when reporting judicial proceedings and statutory inquiries".
I interject at this stage to say that Clauses 45 and 46 provide exceptions of the kind Whitford recommended. To continue, Whitford said:
"We do not think any case has been made out for declaring material of this kind, or indeed political speeches, outside the protection of copyright, save possibly in the case of judgments. So far as judgments, written or extempore, are concerned, it is arguable (may I emphasise that word) that any new Act should declare that they are not entitled to copyright. The same might be said of Acts of Parliament and other forms of legislation. The Statutes and judgments, embodying as they do the law, should, on the face of it, be free of any possible copyright restriction. However, in so far as judgments and Acts of Parliament are to be entitled to copyright, it is our view that the exceptions which we suggest in Chapter 14 should be retained in relation to reports of judicial proceedings and that they should be sufficient to deal with any questions arising concerning reproductions of judgments".
As regards the judgments of the court, I believe that Clause 45 provides what is needed, or at least it will do if my Amendments Nos. 94 and 126 are accepted by your Lordships. The clause as amended will allow the reporting of judgments without copyright constraint but will not permit the copying of published reports. This means that the judgments can be readily disseminated while ensuring that those who invest in that dissemination and without whom it would not take place are properly protected.
As to Acts of Parliament and other forms of legislation, these are published by Her Majesty's Stationery Office and are Crown copyright. We believe that HMSO provides a satisfactory service in publishing the various legislative instruments and I cannot see advantage in exposing HMSO to selective competition from commercial publishers.
When reconstituted as a Trading Fund in 1980 HMSO retained the obligation to publish the complete text of the full range of statutory material, whether or not it is commercially attractive to do so.
This often involves meeting production timetables determined by parliamentary requirements rather than by commercial considerations, even though HMSO has a statutory duty to recover full costs. Widespread reproduction by other publishers of the more commercially attractive items must inevitably damage sales of HMSO's official version. Lower sales for HMSO mean higher unit costs and either higher prices or the necessity of subsidisation from public funds.
HMSO recognises the importance of statutory material being widely available, especially through commercial editions with annotations and commentary, and its operating practice in this area of Crown copyright allows significant concessions. It is nevertheless important that a degree of Crown copyright protection be retained to enable the generally satisfactory situation to continue whereby all statutory material is officially published and widely available at reasonable prices through HMSO without the need for central subsidy.
I beg to move Amendment No. 94 standing in my name. I have to say that I find it necessary to resist Amendment No. 95 standing in the name of the noble Lord, Lord Lloyd of Hampstead, and Amendment No. 96 standing in the names of the noble Lords, Lord Williams and Lord Morton of Shuna.
Lord Lloyd of Kilgerran: My Lords, all that it behoves me to say on behalf of the noble Lord, Lord Lloyd of Hampstead, is to thank the Minister for preferring his amendment to that of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna.
Lord Morton of Shuna: My Lords, the Minister may not be surprised to learn that I do not share in those thanks. I suggest that it is totally illogical that Acts of Parliament and subordinate legislation should have any form of copyright attaching to them and also that the judgments of courts which are public should be freely available without any question of copyright attaching to them.
Of course if somebody wants to take a statute or a judgment and write some form of comment on it the comments will be subject to copyright. Accordingly it does not appear to me that Amendment No. 94 meets the problem. I prefer Amendment No. 96. If the Government consider that that amendment does not go far enough and needs something added to it, they have adequate resources to bring forward an amendment either at a later stage in this House or in another place.
Lord Kilbracken: My Lords, I strongly support Amendment No. 96. I cannot understand why a similar provision is not already in the Bill. Clause 45 is full of gobbledegook and I think it will contain even more gobbledegook after it is amended. Subsection (2) will begin:
"Copyright is not infringed by anything done for the purposes of parliamentary or judicial proceedings".
What does that mean? How can one do anything for the purposes of parliamentary or judicial proceedings
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except report them? The subsection will go on at line 33:
"Copyright is not infringed by anything done for the purpose of reporting such proceedings".
How can copyright be involved except through the reporting of proceedings? Also, I cannot imagine anything that can be done for the purposes of parliamentary or judicial proceedings. It does not seem to make sense. I think that the amendment put forward by my noble friend should be preferred.
[Amendment No 95 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 96:
Leave out clause 45 and insert the following new clause:
("Judicial and parliamentary proceedings
45. The judgments of any court, written or extempore, and Acts of Parliament and other forms of legislation, are not entitled to copyright.")
The noble Lord said: My Lords, I regret to say that I intend to move the amendment, to which I have already spoken. I therefore ask leave to test the opinion of the House.
11.32 p.m.
On Question, Whether the said amendment (No. 96) shall be agreed to?
Their Lordships divided: Contents, 9; Not-Contents, 27.

DIVISION NO. 3

CONTENTS

Brain, L.

Lloyd of Kilgerran, L.

Falkender. B.

Morton of Shuna, L.

Gallacher, L. [Teller.]

Simon, V.

Hacking, L.

Williams of Elvel, L.

Kilbracken. L. [Teller.]

NOT-CONTENTS

Arran. E.

Gisborough, L.

Balfour, E.

Harmar-Nicholls, L.

Beaverbrook, L.

Harvington, L.

Belstead, L.

Hesketh, L.

Borthwick, L.

Hives, L.

Brougham and Vaux, L.

Hooper, B.

Caithness, E.

Jenkin of Roding, L.

Cameron of Lochbroom, L.

Long, V.

Craigmyle, L.

Lucas of Chilworth, L.

Davidson, V. [Teller.]

Mottistone, L.

Denham, L. [Teller.]

Rodney. L.

Dormer, L.

Skelmersdale, L.

Dundee, E.

Trumpington, B.

Ferrers, E.

Resolved in the negative, and amendment disagreed to accordingly.
11.40 p.m.
Clause 46 [Royal Commissions and statutory inquiries]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 97:
Page 19, line 9, after ("duty") insert ("Imposed")
The noble Lord said: My Lords, Clause 46 provides that anything done for the purposes of the proceedings of a Royal Commission or statutory inquiry is not an infringement of copyright. This amendment seeks to improve the drafting in

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subsection (4), where the expression "statutory inquiry" is defined.
The insertion of the word "imposed" after "duty" will improve the drafting. A duty is not conferred by an enactment—it is imposed. I beg to move.
On Question, amendment agreed to.
Clause 48 [Material communicated to the Crown in the course of public business]:
Lord Mottistone Lord Mottistone moved Amendment No. 98:
Page 20, line 10, leave out ("or any related purpose").
The noble Lord said: My Lords, as drafted in this clause, if an unpublished work is communicated to the Crown by a copyright owner in the course of public business—which is defined to be any activity of the Crown—the Crown has the right to issue copies to the public not only for the purpose for which it was communicated but also for "any related purpose". If the purpose for which the work was communicated requires the issue of copies to the public that must be taken to be contemplated by the copyright owner. But the scope of related purpose is quite unclear. It could well be detrimental to the interests of the copyright owner, for example, by being intended to favour a competitor. Therefore in this amendment I seek to delete "or any related purpose". I beg to move.
Lord Williams of Elvel: My Lords, as will have been clear from our attitude on the Crown copyright, we would certainly support the noble Lord, Lord Mottistone, in any diminution of Crown copyright. It seems to us that "any related purpose" is a phrase without any restriction whatsoever; and the Crown should be restricted in what it can do in relation to copyright. We would very strongly support the noble Lord in pressing this amendment.
Lord Beaverbrook: My Lords, I am sure that my noble friend Lord Mottistone will agree when I say that the provisions of the Bill, including Clause 48, represent a distinct improvement on the present law. I take it that he welcomes the repeal of the "first publication" rule and accepts that copyright considerations cannot unduly obstruct Crown business. His concern, as I understand it, is that we have not gone far enough in cutting back the Crown's position. It is acceptable for the Crown to be able to publish works which have been communicated to it for that purpose, but that is where the line should be drawn.
I believe that we need to go further. Perhaps I should give an example to illustrate the case. A departmental committee is set up to study the law of copyright. Many people would doubtless write to that committee. If my mail bag during the passage of this Bill is anything to go by, I can say that that is certain. The purpose of writing to the committee would be to persuade it of the merits of a particular case. When the committee comes to write its report, it may well wish to include some of the evidence submitted to it. But that material was not submitted for the purpose of inclusion in the report. Therefore, if my noble friend's amendment were to succeed, the committee would have to go back to all the relevant people to get clearance. I do not believe that my noble
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friend would wish to generate that kind of unnecessary bureaucracy.
On the other hand, there will be cases where the purpose is not related. For example, an author may need to establish to the authorities he is a bona fide author and is engaged in useful employment. To do so he may submit the manuscript of the book he is writing. Clause 48 clearly does not authorise the Crown to publish the book.
I accept that "related purpose" is not a precise term but I do not think we can limit the Crown's freedom by accepting the amendment in the name of my noble friend. I am however prepared to consider, without commitment, whether any further rider could be added to ease the concerns of my noble friend. It may be that only related purposes which the person communicating the work could reasonably have anticipated should come within the ambit of subsection (2). If my noble friend is prepared to withdraw the amendment, I shall come back at Third Reading with an amendment if I am persuaded that something needs to be done.
11.45 p.m.
Lord Mottistone: My Lords, I understand the case put by my noble friend, and he clearly had a point. There are certain circumstances in which this kind of phraseology may be necessary and I am delighted that he is prepared to look again at the mattter. I think that the wording is much too wide and there must be some way of narrowing it so as not to be unfair to the copyright owner. The Crown is so extremely powerful and we shall deal with its rights in other parts of the Bill. However, it does not seem necessary that it should have quite the powers it has, and I hope that the Minister will be able to find the refinement of wording for which he has undertaken to look by the next stage of the Bill. With that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 51 [Design documents and models]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 98A:
Page 20, line 33, after ("which") insert ("article")
The noble Lord said: My Lords, I beg to move Amendment No. 98A and, with the leave of the House, speak also to Amendments Nos. 98B and 98C. As regards the three amendments, I have been invited by the Chartered Institute of Patent Agents to suggest to your Lordships that the present wording does not make the intention of the clause sufficiently clear. As regards Amendment No. 98A, it would be preferable to make it clear that the reference to the words in Clause 51(1):
"is not an artistic work"
relates solely to the article. It is suggested that the word "article" should be inserted after the word "which".
Amendment No. 98B inserts at the end of line 35 the words:
"to make a design document or model from an article so copied. or".
It appears that if those words are not inserted it is impossible to make sense of Clause 51(1) (c). If the suggested amendment in Amendment No. 98B is

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not made, Clause 51(1) (c) is ambiguous in referring to the making of documents which are not an infringement by virtue of paragraph (b). It is suggested that the wording in Amendment No. 98C is more consistent with the wording of the clause if the word "model" was inserted after the word "document".
These amendments are aimed at clarifying the wording and making the clause a little more understandable. I beg to move.
Lord Beaverbrook: My Lords, I should also like to speak to Amendments Nos. 98B and 98C. I can say straightaway that I have a good deal of sympathy with Amendments Nos. 98A, 98B and 98C tabled in the name of the noble Lord, Lord Lloyd of Kilgerran. These amendments seek to clarify Clause 51 in three respects. First, Amendment No. 98A is intended to make it quite clear that the question of whether or not we are dealing with an artistic work applies to the article, as distinct from the design or the artistic work embodying the design. Secondly, Amendment No. 98B is intended to make it quite clear that the copying of an article referred to in Clause 51(1)(b) includes the making of design documents and models.
Finally, Amendment No. 98C is intended to make it quite clear that copying from a model whose making was not an infringement of copyright, is also not an infringement of copyright. In all respects these amendments correctly reflect the intended meaning of Clause 51. Indeed, I am bound to say that in our view, Clause 51 as drafted could have no other meaning. However this being the case, it would be appropriate for me to reconsider the drafting of the clause to see whether some clarification is desirable. I am sure that the noble Lord will appreciate that we have not been able to give this the attention it deserves in the short time which has been available to us since he tabled his amendments, and I hope he will agree to withdraw to give us time to look at the drafting and if appropriate to bring something forward at Third Reading.
Lord Lloyd of Kilgerran: My Lords, I thank the Minister. On behalf of the Chartered Institute of Patent Agents I should like to apologise at once that these amendments were not tabled as soon as they should have been. Therefore, I am very grateful to the Minister for having dealt with the matter at such short notice. In view of the statement of the Minister, I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos 98B and 98C not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 99:
Page 20, line 45, after ("article") insert (", other than decoration applied to the surface of the article").
The noble Lord said: My Lords, in the debates in Committee on Part III of the Bill, I indicated that surface decoration was being taken out of design right because it was properly a matter for copyright. That was, and is, our intention and this amendment is intended to ensure that we do not end up with surface decoration being covered by neither. The only area in which there could be any doubt is that of relief decoration applied to a surface. This kind of
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decoration is an aspect of shape or configuration which is not given design right. However, because it is an aspect of shape or configuration, it falls within the definition of design in subsection (3) of Clause 51. As a result it would be taken out of copyright unless we ensured that this did not happen. The amendment therefore removes surface decoration from the definition of "design" in subsection (3). The result is that surface decoration is not taken out of copyright by Clause 51. Thus relief decoration will, like two-dimensional surface decoration, remain within copyright. It would also, of course, be registrable under the Registered Designs Act.
This is a case where we are taking something out of an exclusion from copyright. In such cases the double negative can cause confusion, but I hope that I have been able to explain clearly that the effect will be to leave surface decoration within copyright. I beg to move.
On Question, amendment agreed to.
Clause 54 [Use of typeface in ordinary course of printing.]:
Lord Rodney Lord Rodney moved Amendment No. 99A:
Page 22, line 3, leave out ("or import")
The noble Lord said: My Lords, I understand that under Clause 54, a company importing databases for distribution to the end user without a licence is infringing copyright. However, I am advised that where the end user—and in this case it is the printer—imports databases direct from a country which does not comply with copyright conventions, that would not constitute an infringement. That is the reasoning behind this amendment. Perhaps the Minister would be kind enough to advise me whether this deduction is correct and, if so, whether the removal of those two words would satisfy that aim.
Lord Williams of Elvel: My Lords, is the noble Lord also speaking to Amendments Nos. 99B, 99C and 99D?
Lord Rodney: My Lords, I am speaking only to Amendment No. 99A.
Lord Beaverbrook: My Lords, Amendment No. 99A would have the result that importation of an infringing typeface for use in the ordinary course of typing, composing text, typesetting or printing could constitute infringement of the copyright in the artistic work, if the importation fell within the terms of Clause 22. Possession of the typeface, or its use, would however remain non-infringing. I have to say we have not had much time to consider this point since this amendment was tabled only yesterday. It may be that my noble friend Lord Rodney has overlooked the provisions of subsection (2) which ensure that importation of articles for producing material in a particular typeface—such as a font of characters—infringes the copyright if the purpose of importation is not use but dealing. Thus the printer who imports a font for use in his printing works does not infringe, any more than he does when he uses the typeface. However, those who import infringing copies to sell to printers in the United Kingdom knowing or having reason to believe they are infringing do not escape the provisions of Clause 24.

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We do not think that the owner of copyright in a typeface should be given the exclusion right to control its use in normal printing processes and this is the philosophy underlying subsection (1). The Bill ensures that the owner of copyright in a typeface has the right to control its reproduction and dealings in infringing copies but not the use of his typeface in normal printing. If the printer intending to use a typeface acquires it overseas he must be able to import it. The amendment would mean that he could acquire it in the United Kingdom but not overseas. This would be a breach of our Community obligations as well as imposing an unreasonable constraint on printers. I cannot therefore accept this amendment.
Lord Rodney: My Lords, I apologise for the fact that the amendment was tabled only yesterday. In fact it was only then brought to my attention. I should be grateful if my noble friend would study the point I made. If a typeface is imported from a country not complying with copyright conventions and sold direct to the end user I am advised that that could be an infringement. Perhaps my noble friend will be kind enough to consider that. In the meantime I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 55 [Articles for producing material in particular typeface.]:
Lord Rodney Lord Rodney moved Amendment No. 99B:
Page 22, line 25, leave out ("25") and insert ("50")
The noble Lord said: My Lords, I shall speak also to Amendments Nos. 99C and 99D.
I understand that at present copyright on a typeface expires after 50 years. Here again if I am incorrect perhaps my noble friend will advise me. However, if the period is to be reduced to only 25 years we feel that this is a very short period bearing in mind that new typefaces take a long time to develop and be fully taken care of.
I believe that there is also an anomaly here, in as much as it is proposed that a typeface should be subject to copyright for only 25 years, whereas I understand that a computer program, which could incorporate a typeface database, is protected for 50 years. Perhaps my noble friend can explain the logic of that situation if I am correct in my supposition. I beg to move.
Lord Beaverbrook: My Lords, Clause 55 provides that articles for producing material in a particular typeface may be copied 25 years after such articles are first marketed. Amendment No. 99B would increase that period to the normal copyright term of life of author plus 50 years. The effect would be as if Clause 55 were left out.
I do not believe that that would be right. The term of protection in the artistic work is not affected by Clause 55 but the market for making typefaces is open to competition after 25 years. This is consistent with the term of 25 years for registered designs and consistent with the policy contained in Clause 52 of providing competition in the market for industrially applied copyright works after a similar period of protection of 25 years.
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Typefaces, like other industrially applied works, should not be kept sheltered from competition for an overlong period. A period of protection of life plus 50 years is as inappropriate for a typeface as it is for any other item of industrial application. But the shorter period of protection for marketing of the typeface is without prejudice to the copyright in the artistic work on which it is based, just as the short period of protection for marketing other industrially applied works does not affect the duration of copyright in the design document.
I should also mention that the Vienna Agreement on Typefaces, which we hope to ratify, sets the minimum term of protection at only 15 years. Full copyright protection seems out of proportion in the international context as well.
My noble friend asked me a question on the consistency of what we are proposing with the provisions for computer programs. I will have to study what he has said and let him know in writing our views on that matter. I have not had notice of that question and I do not have an answer readily available. For the reasons that I have given, I have to resist my noble friend's amendments.
Lord Rodney: My Lords, I thank my noble friend for that reply and for his offer to study the last part of my statement. I should like to reserve the possibility of coming back to this at a later stage having consulted with my advisers. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 99C not moved.]
[Amendment No. 99D not moved.]
12 midnight
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 100:
Before Clause 56, insert the following clause:
("Anonymous or pseudonymous works of which author reasonably presumed to have been dead for 50 years.
.—(1) Copyright in a literary, dramatic, musical or artistic work is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when—

(a) it is not possible by reasonable inquiry to ascertain the identity of the author, and

(b) it is reasonable to assume that he died 50 years or more before the beginning of the calendar year in which the act is done or the arrangements are made.

(2) In relation to a work of joint authorship—

(a) the reference in subsection (1)(a) to its being possible to ascertain the identity of the author shall be construed as a reference to its being possible to ascertain the identity of any of the authors, and

(b) the reference in subsection (1)(b) to the author having died shall be construed as a reference to all the authors having died.").

The noble Lord said: My Lords, I have already spoken to this amendment and I beg to move.
On Question, amendment agreed to.
Clause 57 [Representation of certain artistic works on public display]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 101:
Page 23, line 3, leave out second ("or").
The noble Lord said: My Lords, in moving Amendment No. 101, I should like at the same time to speak to Amendments Nos. 102 and 103. The

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House will learn—no doubt with relief—that these are the last amendments that I shall move to this Bill. It seems to be my lot to move amendments just after midnight. I last did so on Thursday on the Local Government Bill when I introduced my remarks by saying, "It is already tomorrow" which was not a very accurate statement of affairs. Here I am again moving the first amendment of a new day.
In Clause 57(3) your Lordships will notice that the subsection begins,
"Nor is the copyright infringed by the issue to the public of copies,".
We used to be taught that it was incorrect to start a sentence with a conjunction although there are many, many examples. For instance, in The Bible many verses begin,
"And it came to pass on the seventh day."
I believe that to have a sentence beginning with the conjunction "nor" completely separated by a full stop and a paragraph from anything that has gone before, is not the kind of English that we should welcome in statutes. The matter can be remedied very easily along the lines that I proposed, which means putting the "or" which is at the end of paragraph (b) at the end of paragraph (c); and instead of saying in subsection (3),
"Nor is the copyright infringed by"
simply make that paragraph (d). It will then read,

"(c) broadcasting or including in a cable programme service a visual image of it or

(d) the issue to the public of copies,".

It has the further advantage of saving six words, and where six words can be saved they should be. Therefore in what is purely a drafting amendment to try to put it into more acceptable English, I beg leave to move Amendment No. 101.
Lord Beaverbrook: My Lords, with the leave of the House, I too shall speak to Amendments Nos. 101, 102 and 103, in the name of the noble Lord. Lord Kilbracken.
The noble Lord has told us that these amendments are the end of the chain of amendments which he has tabled for Report stage. I have enjoyed immensely dealing with a number of his amendments. I have been happy to be able to accept some of them and, equally, I regret that I have had to say to him that some of his proposals are not acceptable to the Government.
I am sorry to have to end on a negative note. The present arrangement of Clause 57 is perfectly clear. It is a useful technique, having listed all the principal acts which are not infringements, to devote a fresh subsection to those things which are consequently not infringements. The same approach can be seen in Clauses 31 and 51. I suggest that considerations of this kind outweigh the possible inelegance of beginning a subsection with the word "nor". The way in which subsection (3) is drafted makes it perfectly clear what we are getting at and I believe that in this case, at the risk of perhaps a little inelegance, we probably are making ourselves rather clearer than would otherwise be the case.
Lord Kilbracken: My Lords, I accept what the noble Lord has said. I am slightly disappointed
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because, in correspondence with me, the Minister indicated that there was a possibility that he would accept the amendment. I appreciate that he has now changed his mind. I should like to say that I appreciate what he has said and the attitude he has taken towards the amendments, and to close by saying that I have found him much easier to get on with than his grandfather. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 102 and 103 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 104:
After Clause 57, insert the following new clause:
("Advertisement of sale or exhibition of artistic work.
. It is not an infringement of copyright in an artistic work to copy it, or to issue copies to the public, for the purpose of advertising a sale or exhibition of or including that work.").
The noble Lord said: My Lords, this amendment is concerned with a potential difficulty facing auctioneers and other dealers in works of art. When an artistic work is first sold, the artist will usually retain the copyright. If the artistic work is subsequently sold at auction, it is normal practice for the auctioneer to include a picture of it in the catalogue he produces for the sale. That will involve copying the work and thus, unless the copyright owner has given his consent, will constitute an infringement of copyright.
We do not believe that copyright should be an obstacle to sale of an artistic work. I understand that lawyers representing the auctioneers believe that the exercise of copyright to hinder further sale could be a derogation of grant in the original sale by the artist and so would not be upheld by the courts. But we doubt whether this would be so and we believe that specific provision should be made.
We propose a new exception, to be inserted after Clause 57, to deal with this problem. By providing a new exception to allow copying of an artistic work to promote the sale of the work, auctioneers can reproduce the works in question in their catalogues without fear of infringement. We must, however, recognise that some catalogues become desirable in their own right as "art books" and there may be a commercial market for them. The artist should be able to negotiate a share of that commercial exploitation of his work. The exception we propose would allow the auctioneer to produce catalogues and issue them to the public to promote the sale, but issue of copies for commercial purposes would need the artist's permission. This would mean that the artist could obtain remuneration, for example, in respect of copies sold after the sale, where the purchaser is effectively acquiring an art book rather than a catalogue.
Although we have not had representations on the point, similar considerations apply to the exhibition of artistic works, since someone buying an artistic work is entitled to exhibit it without any copyright clearance and should therefore be able to promote that exhibition without hindrance by the copyright owner. Again this should not allow exploitation of copies for their own sake; for example, the sale of posters advertising the exhibition after the exhibition has finished. Such posters, which include copyright

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works, should not be sold without the artist's consent.
I believe that our proposed new clause strikes the right balance between allowing auctioneers and others to reproduce artistic works to the extent necessary to carry on their legitimate businesses and ensuring that artists are not deprived of a share of any spin-off market in catalogues. I beg to move.
Lord Williams of Elvel: My Lords, Amendment No. 104 gives rise to considerable complexity, as I think the noble Lord adumbrated in his introduction. If it is possible for auctioneers or anyone else to copy artistic works in a catalogue, to sell that catalogue and to produce posters to sell, and thereafter for people to sell those posters to others, I do not understand how this clause can possibly be enforced. If it is not an infringement of copyright for the auctioneer merely to produce a catalogue, is it an infringement for the person who buys such a catalogue or receives it gratis to pass it on to a friend or to sell it?
Is it an infringement of copyright if an auctioneer or a salesman produces a poster which copies a picture for the purpose of selling the picture? Is it an infringement of copyright for the person who then has that poster—it may be reproduced in hundreds—to say to his friends, "Well, I have a very interesting poster, a Van Gogh, a Gauguin", or whatever it may be, "and if you like I will sell it to you for £2", or whatever?
I happen to have a collection of theatre posters from the Leningrad Theatre of the 1920s, which is an interesting period of theatre development in the Soviet Union. That collection is out of copyright now. But let us suppose that it were in copyright and I, having paid whatever it was—I shall not reveal the price that I paid—were to sell the posters for their current supposed value, would I by selling them infringe copyright?
As it stands, I do not see that the clause has been properly thought through. I accept that there is a problem and that the Government are trying to deal with it, but I believe, as do my advisers, that this new clause will give rise to enormous problems such as I have already mentioned.
I mentioned to the Government Chief Whip earlier that there were certain issues about which we felt strongly. This is such an issue. This is not a clause that we would voluntarily allow to be included in the Bill. The noble Lord is aware of who my advisers are and how we work. There are serious concerns. I hope that he will take them seriously.
Lord Brain: My Lords, I warned the Minister that I too do not like the clause, not so much from the point of view of the auctioneers and such people but from the point of view of organisers of exhibitions. For example, the Royal Photographic Society organises an annual exhibition where people exhibit voluntarily, without any reservations of copyright, and if the society were to use the best pictures out of the exhibition without any consent, either all our future entries would dry up or there would be a tremendous stir.
There are other photographic exhibitions. Ansell Adams was a great photographer who died recently.
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His death led to a very good exhibition. His photographs often command five figures at sales. A poster of Ansell Adams, even if it was not made for sale, just because it was an Ansell Adams poster would become a collector's item right away and possibly fetch £200 or £300.
The revised clause coming at this late stage in the Bill is one which needs much further consideration. I accept the point about auctioneers, but I do not think that the broad word "exhibitions" is one that is acceptable.
12.15 a.m.
Lord Beaverbrook: My Lords, I should like to answer the noble Lord, Lord Williams, and say to him that once a copy has been lawfully made and issued under this new clause, that copy may be subsequently dealt with without infringement, because subsequent dealings could only be secondary infringement, and that would depend on a primary infringement, which of course is not committed under this clause.
I have listened to the views of the noble Lord, Lord Williams, and the noble Lord, Lord Brain, on the clause. I appreciate that this is the first time that we have had the opportunity of debating the new clause at the Report stage in your Lordships' House. I think the thrust and intention of this amendment is generally welcomed. However, the debate this evening or this morning—however we should describe this time of day—has thrown up a few points which should be considered. If it were possible to agree that this clause be included in the Bill, I shall undertake that we shall look at what your Lordships have said today in the debate and see whether the clause may need to be tightened up in some way.
Lord Williams of Elvel: My Lords, before the noble Minister decides what to do with the amendment, would it not be better in all honesty that he should withdraw it and come back on Third Reading with a better formulation?
Lord Beaverbrook: My Lords, I think we shall probably end up with the same result; but I should prefer today to get the clause into the Bill. Then we can look at it at Third Reading. There is not very much difference between the two. However, on the basis that the thrust of the amendment is accepted, and on the undertaking that I have given to consider whether it needs narrowing down or refining somewhat, I think the course I have suggested might be acceptable.
On Question, amendment agreed to.
Clause 58 [Making of subsequent works by same artist]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 105.
Leave out clause 58 and insert the following new clause:
("Making of subsequent works by same artist.
Where the author of an artistic work is not the copyright owner, he does not infringe the copyright by copying the work in making another artistic work, provided he does not repeat or imitate the main design of the earlier work.")
The noble Lord said: My Lords, when we debated Clause 58 in Committee, a number of your Lordships

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complained that its meaning and purpose were unclear. I hope I showed then that it has an important, if limited, use in permitting, for example, an artist, a sculptor or an architect who has assigned or disposed of the copyright in one of his works, or who produced the work in the course of employment, to reuse ornamental patterns or motifs from the original design in a later work. The exception would also allow the painter of a group portrait to reuse sketches to produce individual portraits.
The question was raised in that debate as to whether the clause might prevent, say, the artists Cezanne or Monet (if they were still alive) from painting more than one picture of Mont Sainte Victoire or Rouen Cathedral. It is perhaps worth stressing again that Clause 58 cannot do that. It is not a restricted act but an exception to a restricted act, and cannot therefore prevent anything. If an artist repeats the main features of a painting or design of which he has sold the copyright there may or may not be infringement depending on the circumstances. If the subject is the same but the treatment is new, infringement seems unlikely; if the painting or sculpture is totally identical, copyright might well be infringed. The clause does not deal with that situation at all. We have, however, looked at the drafting of the clause and I hope that this amendment will make its purpose clearer. It brings out the key point that the exception is needed only where the artist is not the owner of copyright in the original design. I beg to move.
Lord Williams of Elvel: My Lords, we are very grateful to the Government for recognising that the original formulation of this clause made no sense whatever; I think that we pointed that out in Committee. The new formulation seems to us to be an enormous improvement. We now understand that where an artist has sold the copyright, he has sold the copyright. Therefore the copyright is no longer his and if he infringes that, he is infringing copyright. So we are content with this amendment and again are glad that the Government have recognised that the Opposition have made some cogent arguments in Committee and have changed the Government's mind.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 106:
Before Clause 60, insert the following new Clause:
"Hiring of sound recordings, films and computer programs".
.—(1) After the end of the calendar year following that in which copies of a sound recording, film or computer program are first issued to the public in the United Kingdom, the hiring of copies to the public shall be treated as licensed by the copyright owner subject only to the payment of such reasonable royalty as may be agreed or determined in default of agreement by the Copyright Tribunal.
(2) Subsection (1) does not apply if, or to the extent that, there is a licensing scheme certified for the purposes of this section under section 131 providing for the grant of licences.
(3) Copyright in a computer program is not infringed by the hiring of copies to the public after the end of the period of 50 years from the end of the calendar year in whch copies of it were first issued to the public.
In this section—

(a) in relation to a computer program, references to the issue of copies to the public are to the issue of copies in electronic form; and

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(b) references to hiring include any arrangement under which a copy is made available for a consideration in money or money's worth on terms that it will or may be returned.").

The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
[Amendment No. 106A not moved.]
On Question, amendment agreed to.
Clause 60 [Playing of sound recordings for purposes of club, society, &c].:
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 107:
Page 23, line 26, at end insert—
("( ) that no payment is made by, or on behalf of, the organisation for the provision of the sound recording or the apparatus required to play it, and")
The noble Lord said: My Lords, Clause 60, embodies the well-known exemption from copyright where works are performed at what might broadly be called social occasions run by charities or, as the clause has it, a number of other bodies engaged in religious or social purposes. The problem arises because a lot of these functions are serviced by what are really commercial operators who go around with elaborate discotheque machines, who charge quite considerable fees and who pay no royalties to the record producers. Of course, they pay royalties for the benefit of the composers and the musicians under the performing rights provisions, but the owner of the copyright in the records gets nothing out of it.
This is increasingly seen to be an abuse, particularly when these are really commercial operations which can be dressed up as being for the benefit of charitable, religious or social organisations. The real mischief is that there is not a condition which states that the music should be provided as part of the charitable or social exercise. If you are paying a large fee, it is difficult to see why the fee should all go to the owner of the discotheque who would then perhaps pass on nothing to the people who made the music he was playing.
So the amendment proposes to add a further condition for the operation of the exemption, which would bring the rights of the copyright owner of the record into line with the rights of the copyright owner of the music. I beg to move.
Lord Beaverbrook: My Lords, the exception to Clause 60 is of long-standing and, so far as I am aware, has operated to the benefit of clubs and societies without seriously damaging the interests of the record industry. It is a fairly limited exception. It can only be taken advantage of in respect of social or similar functions which are non-profit-making and organised for charitable or other closely defined purposes related to the public good, and does not even extend to the broadcasting of a charity event.
The amendment in the name of my noble friend would limit the scope of the exception so severely that if we adopt it, it must be questionable whether the exception is worth retaining at all. Clubs and societies would benefit from it only if they used their own records and equipment, or that of their members, and would cease to do so if they hired the services of, say, a professional discotheque company to run an event

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for them. It seems to me that if we accept the objectives of the exception, which is to remove copyright liability in respect of sound recordings when the purposes of the organisation and the social events it promotes are of a particular kind, then it is immaterial how that organisation chooses to run those events. lf, for example, it considers it can raise more money for some charitable purpose from a professionally-run discotheque than one where the music is played on a cassette-recorder belonging to one of the organisers, that is surely a matter for the organisation concerned. Either we accept that the purpose of the event justifies an exception of this kind or we do not. On balance, I feel that the interests of the copyright owners are not in any way damaged by this exception. I have to resist the amendment.
Lord Jenkin of Roding: My Lords, I beg leave to withdraw the amendment. I have heard what my noble friend has said. He seems to me to have some fairly strong arguments.
Amendment, by leave, withdrawn.
Clause 61 [Works included in film or sound-track in which copyright has expired]:
Lord Hacking Lord Hacking moved Amendment No. 108:
Leave out Clause 61
The noble Lord said: My Lords, it is somewhat of a surprise to me that I am speaking to this amendment. It was originally tabled in Committee by a group of noble Lords led by the noble Lord, Lord Lloyd of Hampstead, and supported by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, and it had as the rearguard the noble Lord, Lord Hacking. In the retabling of the amendment for Report, the noble Lord, Lord Lloyd of Hampstead, has taken the position of the noble Lord, Lord Hacking, as the rearguard, and the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, have disappeared entirely from the ranks; so it is that I speak to the amendment.
The amendment seeks to reproduce Section 13(7) of the Copyright Act 1956. As your Lordships will be aware, the whole of that Act will be repealed by the Bill when it becomes law. So out will go Section 13(7). That section of the 1956 Act has not really come into effect because the 50-year copyright for films under that Act in the main does not expire until 50 years after the passing of the Act, that is, until 2007.
The case against the clause in this Bill is that injustices will arise. Let me briefly explain why. The effect of Clause 61 divides into two parts. Under Clause 61(1), if enacted, it will be possible to show films after the expiration of their copyright even though the copyright has not expired in the creative work contained in those films. For example, if such a film includes material from a book that is still protected by copyright, the film can still be shown, notwithstanding the copyright in the book. Under Clause 61(2), if enacted, it will be possible to show a film sound-track even if the copyright in the music of the sound-track has not expired.
The difficulty arises in this way. There are two periods of protection of copyright. For a film or film sound-track it is 50 years from the end of the year when it is made or first released. I refer to Clause 13 of the Bill. On the other hand, for creative work such
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as a literary, dramatic or musical work, it is 50 years from the end of the year when the author dies. I refer noble Lords to Clause 12(1) of the Bill.
It sometimes happens that there is greater value in the material in the film sound-track, for example, than in the film itself. May I take noble Lords back to your youths and mention "The Big Country", with Gregory Peck, Burl Ives and Jean Simmons, with its lilting theme tune, which I shall not attempt to reproduce for the House, "The Magnificent Seven" and "High Noon" with their lilting theme tunes which I will also not attempt to render to your Lordships? The music itself has a value over and above the material in the film. The effect therefore of this clause would be to deprive the owner of the royalties in the music in the film from retaining those royalties even though the copyright for them still existed. For those reasons I beg to move.
12.30 a.m
Lord Morton of Shuna: My Lords, I hope that what may happen shortly may show that there is a tactical advantage in having the noble Lord, Lord Hacking, propose an amendment rather than come number four on the list of those who support it.
Lord Beaverbrook: My Lords, I have listened with interest to the arguments of the noble Lord, Lord Hacking. In the interests of brevity I should say to him that I think that the argument he puts forward is quite right. But what we should also be looking at is the position of what are known as pop promos in pop videos where the visual effects are perhaps secondary to the musical score. Indeed the visual effects are a way of promoting the musical score.
I do not intend to re-run through the argument this evening except to say that the Government have some sympathy with the arguments of the noble Lord and we are prepared to look seriously at whether retention of the clause is justified.
Abolition would, however, have implications, if only minor ones, for cinema owners and we shall need to consider this aspect further before giving a firm commitment. But in the light of the undertaking I have given I hope the noble Lord will be willing to withdraw the amendment at this stage.
Lord Hacking: My Lords, I am willing at this hour of the evening to withdraw the amendment but I should be grateful if the noble Lord could look at it very carefully. I give notice that I shall be tabling it again at Third Reading if he is unable to help me in the interim. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 62 [Incidental recording for purposes of broadcast or cable programme]:
[Amendment No. 109 not moved.]
Clause 64 [Free public showing or playing broadcast or cable programmes]:
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 111:
Page 24, line 34, at end insert—
("not being a sound recording or film made with a view to copies thereof being sold or let for hire, or played or shown in public)").
The noble Lord said: My Lords, I beg to move the amendment standing in my name and that of my noble friends. Clause 64 provides an exemption from copyright for the free showing or playing of a broadcast or cable programme—that is to say, when no charge is made for admission to the premises in question. Of course, in these circumstances as in the previous amendment which I moved a few moments ago, the owner of the copyright in the music or in the words themselves gets the royalties via the Performing Rights Society. But the owner of the copyright in a record does not. In my view, this goes too far. While it is right that the showing of the programme itself should not attract copyright, it is not fair if it includes sound or film material which was produced with the express intention that it should be sold or rented or played or shown in public.
The fact that the public have not paid to get into this particular premises to see or hear it is, from the point of view of the man who made the record or the film, really irrelevant. He made it with the intention that it should be sold for profit. It is being shown or played. It is his copyright material and he should be recompensed by way of royalty. That is what my amendment provides. I beg to move.
Lord Beaverbrook: My Lords, the effect of the amendment tabled by my noble friend would be to disapply the exception in Clause 64 in relation to commercial sound recordings and films, leaving it to apply principally only in respect of recorded broadcasts not involving commercial films or recordings. If the amendment were to be agreed to, anyone playing a radio or TV set in a shop or pub would require licences from Phonographic Performance Ltd. (PPL) and from any film copyright owners involved, as well as from (as now) the Performing Rights Society. The Berne Convention requires us to give composers a right in respect of public performance of broadcasts of recordings containing their work but convention requirements do not oblige us to extend this to makers of sound recordings, provided they receive "equitable remuneration" in respect of the broadcast itself. Nor, in our view, does the convention require a right to be given to film-makers in respect of public showings of broadcasts containing their works. That can be justified as a minor reservation recognised by the parties to the Berne Convention as a legitimate departure from its literal wording.
We have always taken the view, unwelcome though it may be to the record industry, that it is not reasonable to impose a requirement for multiple copyright licences on shops, pubs, restaurants, cafes and the like, where a radio or TV set is played or shown. The public exposure of films and sound recordings in that way is a relatively minor form of exploitation.
The owners of the rights concerned are not going unremunerated since they have a right to control whether or not their works are broadcast in the first place. The burden on the retail sector, both administrative and financial, of having to obtain additional copyright licences would be considerable, linked as it would be to something that was only secondary to their main activity.
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As with Clause 60, we would need to see evidence of significant damage to the industries concerned or evidence that the exception was being misused in some way before we could consider modifying Clause 64 in the way suggested. I am not persuaded that the amendment should be adopted and I shall have to resist it.
Lord Jenkin of Roding: My Lords, I have listened to my noble friend. I think that it is right that I should take further advice and perhaps return to the matter on another occasion or in another place. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 110:
Page 24, line 40. leave out from ("part)") to end of line 42 and insert—
("—

(i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast or programme, or

(ii) at prices exceeding those usually charged there and which are partly attributable to those facilities.").

The noble Lord said: My Lords, this amendment is an attempt to meet the criticisms that were made of the drafting of subsection (2) of this clause when we debated it in Committee. Two points arose. The main one was that if an establishment at which broadcasts or cable programmes are played or shown in public does not charge for admission, but consistently charges for the goods and services it supplies to its customers at prices which are in the main attributable to the facilities for watching the broadcast, then that establishment might escape being deemed to have charged for admission in terms of the clause as drafted. We agree that such an establishment ought to be treated as one which charges for admission and so ought to be liable for obtaining any relevant copyright licence. The amendment adds a further test to ensure that that will be the case.
The second point concerned the clarity of what will now be subparagraph (ii). The noble Lord, Lord Kilbracken, suggested that it was not the prices which were attributable to the facilities for seeing or hearing the broadcast but the fact that they are high which is attributable. We have reflected on that but are not convinced that there is a defect. Subparagraph (ii) of the amendment simply says that where prices are charged for goods or services which exceed those usually charged and are partly attributable to the facilities provided, the audience shall be treated as having paid for admission. All that matters is whether or not the prices are partly attributable to the facilities, not whether they are high or low. Subparagraph (ii) of the amendment therefore retains the wording of subsection (2) as printed. I beg to move.
On Question, amendment agreed to.
The Earl of Dundee: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.
Government Statement, Commons, 23/2/88: BP/Britoil.
House adjourned at twenty-two minutes before one o'clock.