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

HL Deb 23 February 1988 vol 493 cc1129-93

Consideration of amendments on Report resumed.

Clause 22 [Secondary infringement: importing infringing copy]:

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 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.

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 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 "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 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 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 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 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 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 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 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 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 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—

1. (a) makes,
2. (b) has in his custody or under his control,
3. (c) imports into the United Kingdom, or
4. (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—

1. "(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
2. "(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 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 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. 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 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—

1. (a) he did not know and had no reason to believe that the performance would infringe the copyright in the work, or
1142
2. (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—

1. (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 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.

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 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 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.

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 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 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 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 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 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.

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 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 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 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 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. 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 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 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.

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 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 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 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 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 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 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 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 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 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 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 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—

1. (a) by a teacher or pupil in the course of the activities of the establishment, or
2. (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 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 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 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 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 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 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. (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: 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 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—

1. (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
2. (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—

1. (a) he is liable for infringement of copyright as if he had made the copy himself, and
2. (b) the copy shall be treated as an infringing copy.")

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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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.

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 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.

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 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—

1. (a) it is not possible by reasonable inquiry to ascertain the identity of the author, and
2. (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—

1. (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
2. (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 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 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,

1. "(c) broadcasting or including in a cable programme service a visual image of it or
2. (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 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 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 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. 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 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 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 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—

1. (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
1188
2. (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 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 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 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 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 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.

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 moved Amendment No. 110: Page 24, line 40. leave out from ("part)") to end of line 42 and insert—

("—

1. (i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast or programme, or
2. (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.