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

HL Deb 29 March 1988 vol 495 cc607-96

3.30 p.m.

Lord Denham

My Lords, I have it in command from Her Majesty the Queen to acquaint the House that Her Majesty, having been informed of the purport of the Copyright, Designs and Patents Bill, is content to place her prerogative and interests so far as they are affected by the Bill at the disposal of Parliament for the purposes of the Bill.

Bill read a third time.

Clause 2 [Rights subsisting in copyright works]:

Lord Beaverbrook moved Amendment No. 1:

Page 2, line 7, leave out subsection (2) and insert— ("(2) In relating to certain descriptions of copyright work the following rights conferred by Chapter IV (moral rights) subsist in favour of the author, director or commissioner of the work, whether or not he is the owner of the copyright—

1. (a) section 72 (right to be identified as author or director),
2. (b) section 75 (right to object to derogatory treatment of work), and
3. (c) section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films.").

The noble Lord said: My Lords, in moving Amendment No. 1, I shall also speak to Amendments Nos. 86, 87, 93, 94, 95, 98, 101, 105 and 206. The noble Lord, Lord Morton of Shuna, tabled an amendment to Clause 11 at Report stage which would have given the commissioner of a photograph or film taken or made for private purposes first ownership of copyright. As I explained then, the Government felt that the underlying sentiment of the amendment to protect the privacy of individuals was laudable but we remained of the view that the author should in general be first owner of copyright.

To avoid introducing new anomalies into the Bill we decided that the best way of providing a privacy measure was in the form of a moral right. As the amendment to Clause 2 shows, the right will be enjoyed by the commissioner of certain works. This amendment also foreshadows the changes that we are proposing to the integrity right, but this will be discussed later. This right, as the new clause after Clause 78 specifies, will be enjoyed by anyone commissioning the taking of a photograph or the making of a film for private and domestic purposes, and it means that the work may not subsequently be made public without the permission of the commissioner.

If we take the example of wedding photographs, the commissioned photographer will own the copyright. He will be able to make the required number of copies of the photographs but he will not be able to do certain acts or authorise anyone else to do them. Thus he may not issue copies to the public, exhibit them in the shop window or include them in a broadcast or cable programme without the commissioner's permission.

Subsection (3) of the new clause provides the exception to the privacy right, and like the other moral rights it will continue to subsist as long as copyright subsists in the work. Where the work is made in pursuance of a joint commission, each commissioner will enjoy the right independently of the others. The right will apply to the whole or any substantial part of a work and, like the other moral rights, the privacy right is not assignable but may pass on death in the same way. Amendment No. 206 to Schedule 1 provides that the right does not apply to photographs taken or films made before commencement.

As I explained to your Lordships' House at Report stage, there is a limit to the extent to which the law of copyright may be used to protect privacy. However, by providing this new form of moral right for those commissioning photographs and films for private events I believe that we have found an answer to the question of privacy. Those who commission photographs and films, especially those in the public eye, can be reassured that they will now have a remedy against those who would splash those very personal and private pictures across the tabloid press. I hope that these amendments meet the concerns expressed by your Lordships and especially by the noble Lord, Lord Morton of Shuna, at Report stage. I beg to move.

Lord Williams of Elvel

My Lords, we are grateful to the Government for their response to the amendment moved by my noble friend. I shall speak to the same group of amendments as did the noble Lord, Lord Beaverbrook. If I may say so, it seems to us that the response goes only half way. We were looking for a protection under the main copyright part of the Bill. In his amendment the noble Lord has offered us a protection under the moral rights section of the Bill.

There are disadvantages in the moral rights concept that we have pointed out on a number of occasions in Committee and at the Report stage of the Bill. The greatest disadvantage seems to be the necessity for the holder of moral right having to assert that right as opposed to having it automatically without any assertion. In the case which was referred to by the noble Lord and which we are discussing under Amendment No 1, it seems to us weaker to put this assurance—the new clause suggested by Amendment No. 86—into the moral rights section of the Bill than into the copyright section of the Bill, as we first wished.

I should like to make two small points on the government amendments. In Amendment No. 1 one comes across the expression "derogatory treatment", which seems to replace the expression "unjustified modification" which appears in Clause 75. I am not and do not pretend to be a lawyer. I do not understand quite why the Government have sought to change the words "unjustified modification", which seem to us to be perfectly comprehensible, to the expression "derogatory treatment", which has a slightly different connotation. "Treatment" presumably covers modification but the word "unjustified" does not necessarily mean derogatory. I should be grateful if the noble Lord when he comes to reply would explain the Government's reasoning and tell us why they have used that new expression which at least one of my noble and learned friends on the Front Bench was unable to explain to me when I showed it to him a few minutes ago.

My second small point concerns Amendment No. 86, which covers the new clause to which the noble Lord referred. In the new subsection (2)(a), which refers to: section 31 (incidental inclusion of work in an artistic work, film, broadcast or cable programme)", I do not see any reference to inclusion incidentally of such a work in a work of compilation.

The Government responded to points that I raised in Committee about collage. There are other works of compilation which may well be included in artistic works—and the noble Lord may be able to assure me of that—but they may well be outside the definitions that he has used in Amendment No. 86 for subsection (2)(a) of the proposed new clause.

I do not wish to carp about government concessions. I believe that the Government have moved in the right direction. However, despite the fact that some of my noble friends do not agree with me on this matter, I still feel that the director of a film and the commissioner of a work have rights which should properly he expressed in an economic interest rather than in moral rights. Nevertheless, for the moment, pending the passage of the Bill in another place and subject to the clarifications which I requested from the noble Lord, we are happy not to challenge these amendments.

Lord Brain

My Lords, I should like to thank the Government for what is probably a very good compromise on this question of copyright ownership by the commissioner of a photograph. It gives the photographer the right to receive a financial benefit from owning the copyright but allows the person who commissioned the photograph the control over its other reproduction. I think that the balance is right and thank the Government for this series of amendments.

Lord Lloyd of Kilgerran

My Lords, perhaps I may express briefly my gratitude to the noble Lord for his explanation of Clause 1 together with Amendment No. 1 and for speaking to the other nine amendments. At this late stage of the Bill I shall confine myself to remarking that some progress has been made and considerable concessions have been made by the Government. I shall leave the matter there. It shows once again that a great deal of work has been done by the officials behind the Front Bench. We are very grateful for the work that they have done at very short notice in order to bring forward so many amendments for our consideration.

Lord Beaverbrook

My Lords, I am grateful to the noble Lord, Lord Lloyd of Kilgerran, for his observations. I should also like to draw to your Lordships' attention the very considerable amount of work that has been done by my officials since the last stage of the Bill and indeed throughout all its stages as it has gone through your Lordships' House. Perhaps I may say to the noble Lord, Lord Williams, that there is no need for the person enjoying the new moral right to assert it. The assertion relates only to the paternity right in Clause 72.

On the question raised by the noble Lord, Lord Williams, about the expression "derogatory treatment", this indeed replaces the expression "unjustified modification", and does so in order to accord more closely with the wording of the Berne Convention. I shall be in a position to explain this more fully in a later debate in our discussion today. Perhaps at that stage the noble Lord will be able to hear what I have to say.

Finally, the noble Lord, Lord Williams, asked me whether a work of compilation such as a collage would be included. So far as it is an artistic work, it already falls within subsection (2)(a) of the new clause. This will certainly include a collage. We are not aware of any relevant types of thing which are not artistic works that ought to fall within the exception in subsection (2). I hope that those answers are helpful to the noble Lord.

On Question, amendment agreed to.

Clause 3 [Literary, dramatic and musical works]:

Lord Beaverbrook moved Amendment No. 2:

Page 2, line 22, leave out from ("otherwise") to end of line 23 and insert— ("(3) It is immaterial for the purposes of subsection (2) whether the work is recorded by or with the permission of the author; and where it is not recorded by the author, nothing in that subsection affects the question whether copyright subsists in the record as distinct from the work recorded.").

The noble Lord said: My Lords, as I indicated at Report stage the question of copyright in oral works and reporters' copyright has given us some difficulty. The noble Lords, Lord Williams and Lord Morton, tabled an amendment at Report which, as I acknowledged at the time, seemed to provide an answer. They were kind enough not to press their amendment at that stage to give us time to draft our own amendment. This is the result.

It is, I believe, common ground that the author of a speech is the speaker and not the person who writes it down or records it in some other way. The Bill as now drafted makes that plain. What we are now concerned with is the position of the person recording the speech, in particular a person who writes it down and so has no sound recording or film copyright which he can claim.

The only authority on the matter antedates the 1911 Act and ascribed copyright to a reporter. Whether the courts would still follow the precedent of Walter v. Lane is uncertain. There is a difference between a secretary taking dictation and a reporter making notes at a political meeting. The courts would almost certainly not confer copyright on the secretary, but might confer copyright on the reporter. It is impossible to draw a clear boundary in legislation.

The present wording in the Bill might be construed as closing the door on the possibility of a reporter's copyright. The noble Lords, Lord Williams and Lord Morton, made the sensible suggestion—now embodied in this amendment—that the answer is to leave the door ajar. The clause as amended would allow the possibility that the recorder may have a separate copyright, leaving it to the courts to decide in any given case whether he has expended sufficient skill and sufficient effort to merit copyright.

I believe that this is the best solution. I beg to move.

Lord Williams of Elvel

My Lords, I am grateful to the Minister. His recollection of events is absolutely accurate. We tabled an amendment to this effect and the noble Lord was kind enough to say that the Government found some merit in it. I am sure that the drafting of the government amendment is sharper than our own. We are very happy not to oppose this amendment.

On Question, amendment agreed to.

3.45 p.m.

Clause 4 [Artistic works]:

Lord Beaverbrook moved Amendment No. 3:

Page 2, leave out lines 38 to 41 and insert— (""photograph" means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film;").

The noble Lord said: My Lords, of all the definitions appearing in this Bill it is perhaps the definition of "photograph" that has given rise to the most difficulties. The new definition we introduced at Report stage was, by general consent, a distinct improvement on its predecessor but there were some who felt that it was still not quite right. The noble Lord, Lord Brain, who is so expert in these matters, was among those who still had misgivings and has written to me with this comments, for which I am most grateful.

We have looked at this again and offer this revised definition which I hope will satisfy the noble Lord, Lord Brain, and others in your Lordships' House. There is a grammatical weakness in the present definition in that the concluding words, which is not a graphic work, a part of a film or a reprographic copy could be read as qualifying the word "image" and not the words "recording on any medium", so as to appear to be a proposition about photographs of graphic works. This drafting problem, taken with the observations of the noble Lord, Lord Brain, about whether the use of an ordinary photographic enlarger was a reprographic process set us thinking about the wisdom of excluding graphic works and reprographic copies from the concept of photograph.

The duration of copyright in a photograph is now the same as for all other artistic works, and with the removal of the distinction that previously existed we can find no case in which it is necessary to decide whether a particular work is a photograph or a graphic work. Either they are treated in exactly the same way, for example, in Clause 58(2) or it is immaterial if the photograph is also a graphic work, for example, in Clause 17(4).

A similar analysis in respect of reprographic copying gives a similar result. In none of the contexts where there is a reference to reprographic copying does it make any difference whether or not the reprographic copy involves photography or the making of photographs.

On the other hand, the exclusion of reprographic copies from the definition can prove significant, and the noble Lord, Lord Brain, has provided examples where what is clearly a photograph could be taken out of the definition because it is a reprographic copy. It is rather odd to try to distinguish photography and reprography since the reprographic process is almost invariably a photographic one. The reason we attempted it was to ensure that a photocopy did not constitute a photograph and so have a copyright.

We now think that was misguided. It results in too much being excluded from the scope of the term "photograph". What should be excluded from copyright protection is unoriginal photographs, but that is already plain on the face of the Bill. Only original artistic works are given copyright protection under the terms of Clause 1(1)(a). A photocopy may be a photograph but does not constitute an original photograph. It does not need express provision to exclude it from the scope of the protection afforded by this Bill.

All this leaves us with a much simpler, technologically neutral definition. I believe that it meets the concerns that have been expressed at various stages in your Lordships' House. I beg to move.

Lord Brain

My Lords, I thank the Government for the very hard work that I know they have done. I believe that this definition is now right and I hope that it will be agreeable to your Lordships. I have left in an amendment about reprographic copying and photographs, but in view of what the Minister has said it is obvious that I shall not need to move it. I thank the noble Lord and other Members of the House who have co-operated in putting forward my arguments on this amendment that have not been as concise as they might.

Lord Kilbracken

My Lords, at an earlier stage I put down an amendment which sought to define a photographer. I did not take part in the debate on the amendment of the noble Lord which put in the new definition of photograph. However, I considered carefully his revised version today and again read the debate that took place on that occasion. I regret to say that I do not share the enthusiasm of the noble Lord, Lord Brain. In my opinion the version in the Bill at present is not acceptable, although, if anything, it is slightly more so than the new version proposed by the Minister.

I have four short points to make. First, on our understanding of "photograph", the definition seems quite suitable with regard to positive colour photography. Negative colour is almost never used commercially. However, when black and white photography is used, a negative is made and that presumably is the "recording of light … on any medium". From the negative a black and white print is produced and in the new version that is the image that is made from the recording of light. However, the definition of photograph refers to the recording of light and not to the image that is produced from it. Therefore it seems to me that an ordinary black and white photograph is not covered by the definition.

Secondly, if I take a drawing, a diagram or a map and transmit it by fax (facsimile) to a recipient, that drawing is reproduced by a recording of light. I do not know the technicalities, but it is a recording of light and therefore would seem to be under the definition of "photograph", which I do not believe it is meant to be.

Thirdly, if a photograph is transmitted by radio—which is the way photographs are normally sent from foreign countries or other parts of this country to a newspaper editor's desk in Fleet Street—a different technique is used and no light is involved in such a transmission. It would therefore seem to me that the print which appears on the picture editor's desk and which has arrived by radio—which is what he is buying; not the photograph which is still in Calcutta or wherever it may be—has not been produced in the way defined.

Finally, I want to make this point once again, because more and more, as I mentioned at an earlier stage, photographs are obtained from a video tape. That is becoming increasingly commonly done, as with all the photographs of the Belfast riots lately where a still is taken from a video tape. As I read it, that is specifically included by the words "not a part of the film", and therefore such pictures are not technically photographs although they are certainly treated as such in the newspaper business.

My proposal to include a definition of "photographer" in the Bill was thought to be unnecessary because we all know what a photographer is, though it can be argued about. In the case of a photograph it seems to me that we all know what is meant by "photograph" in the ordinary way and there is no need for a definition. It is only when unusual techniques involving something close to photographs are used that we have to define it. That is how it should be done in this case.

Lord McGregor of Durris

My Lords, it would be helpful if the Minister could explain why the points that the noble Lord has just raised are not covered by the phrase "or other radiation"?

Lord Williams of Elvel

My Lords, we have had a great deal of difficulty with the definition of "photograph", as the noble Lord said in his introduction. Many of us are guided in this rather technical area by the noble Lord, Lord Brain, who has been kind enough to send me copies of correspondence he has had with the Government. I am also guided by my noble friend Lord Kilbracken. Therefore I have no particular points of substance.

I have one or two what I would call nit-picking points about the amendment. Do I understand that the amendment could cover a photograph which is not developed but is transmitted by computer? I think my noble friend raised the matter of transmittal of photographs and more and more photographs are transmitted by computer. Does the definition as proposed cover transparencies? Does the amendment as proposed cover stills from a film? Probably it does because it is part of a film, or possibly it does not because it is part of a video. I wonder whether the noble Lord can help us on that.

Lord Somers

My Lords, I am a little disturbed by one matter which my noble friend beside me has just told me. I asked him whether this provision would make it in order for a music teacher in a school to make photocopies of copyright music for teaching purposes. He tells me no, because it merely means that he is not making a photograph. But will the noble Lord make that clear?

Lord Beaverbrook

My Lords, I think it is probably as well that we do not have a fourth reading in your Lordships' House because no doubt we could extend matters so that it was as long as some earlier stages of the Bill. The short answer to the noble Lord, Lord Kilbracken, is that transmission of a drawing by the fax process may well be a photograph, but does that matter? As I have already said, it would not be original and would not enjoy copyright On the other hand, if a photograph is transmitted by radio the item received may not be a photograph, but that does not alter the character of what was sent, which will remain a photograph and will continue to be protected by copyright.

A black and white photograph is a copy made from a negative in which copyright subsists. Any copy of the black and white print will be an indirect copy of the copyright negative and so could be an infringement. Clause 16(3)(b) ensures that both direct copying from the negative and indirect copying from a print could constitute infringement.

The noble Lord, Lord Williams, made a point about photographs being taken from a video recording. The relevant point is that a photograph taken in this way is not an original work. It does not therefore merit its own copyright as a photograph. The act of taking the photograph may however infringe the copyright in the film if taken without authorisation. Continuing on with the noble Lord's point, the transmission of photographs of part of films will not alter the character of what is sent, which will thus continue to enjoy whatever copyright it is entitled to.

I did not quite understand the point that the noble Lord, Lord Somers, made, but I shall read what he has said in the Official Report to see whether there is anything to which I should like to respond in writing. I commend the amendment to the House.

Lord Kilbracken

My Lords, before the noble Lord sits down will he explain—

Lord Beaverbrook

Order, this is Third Reading.

Lord Kilbracken

Could the noble Lord explain, how a print—

Noble Lords

Order!

Lord Kilbracken

My Lords, before the noble Lord sits down, I am asking him how it is possible for a negative to be a copy of a print when by definition what is black in a negative is white in a print and vice versa?

A noble Lord

A reverse copy.

Lord Hailsham of Saint Marylebone

The shape is the same!

Lord Beaverbrook

My Lords, we cannot go on backwards and forward on these matters at this stage. We have thrashed out the definition of a "photograph" pretty thoroughly over the last three months. I think we have arrived at the best solution. I commend the amendment to the House.

On Question, amendment agreed to.

Clause 6 [Broadcasts]:

Lord Beaverbrook moved Amendment No. 4: Page 3, leave out lines 29 to 33 and insert—

1. ("(a) the person responsible for the contents of the broadcast who makes the arrangements necessary for its transmission, and
2. (b) the person who transmits the broadcast, if he has responsibility to any extent for its contents.")

The noble Lord said: My Lords, with the leave of your Lordships I shall speak also to Amendments Nos. 6 and 128. At Report stage we promised to come back with amendments of our own to provide that in the case of a broadcast on independent television both the relevant programme contractor and the IBA would qualify as persons "making the broadcast" and therefore as first owners of copyright in it.

Amendment No. 4 fulfils that undertaking. Amendment No. 6 provides that both shall be joint authors of the broadcast. This is because there will be no separate parts of a broadcast attributable to only one of them. The distinctness of the roles of making the programme and of transmitting it are not relevant here. Amendment No. 128 is consequential.

The Independent Television Association and the IBA have told us that they are satisfied with this solution. I beg to move.

On Question, amendment agreed to.

Clause 7 [Cable programmes]:

Lord Mottistone moved Amendment No. 5: Page 4, leave out lines 13 to 19.

The noble Lord said: My Lords, at the Committee stage in reply to Amendment No. 37 in the name of the noble Lord, Lord Lloyd of Kilgerran, my noble friend said that if he withdrew his amendment the Government would have a further look at the question and come back with a government amendment if that proved necessary. Obviously he has not thought it necessary, but I suggest to him that it is.

Subsection (2)(a) is currently drafted so as to include not only electronic mail but the creation of on-line databases. These are such as are created, for example, by many doctors not only interrogating an expert system from their own surgeries but also entering their own diagnostic information into the database for others to use or for the system to alter its own responses to questions. It is clear that in that case—and there are many others—the owners of the database have a valuable work which they would not wish to be copied by or distributed to unauthorised users. I therefore ask my noble friend to consider whether Clause 7(2)(a) is necessary. If it is necessary, will he consider amending it at a later stage of the Bill in order to take care of the kind of situation that I have raised? I beg to move.

4 p.m.

Lord Lloyd of Kilgerran

My Lords, I should like to thank the noble Lord, Lord Mottistone, for reminding me of an amendment that I had withdrawn. During my work over the past few days I had not noticed that the Government had decided to raise the matter and that I had withdrawn my amendment on that basis. I shall be interested to hear what the Minister has to say.

Lord Beaverbrook

My Lords, I believe that my noble friend Lord Mottistone does not really intend the complete omission of Clause 7(2)(a) from the Bill without any replacement. That would cause an ordinary telephone conference service to be a cable programme service, which is obviously not right. What my noble friend seeks is an indication of why the Government have done nothing about the matters which he mentions and what perhaps they intend to do about them in another place.

The noble Lord, Lord Lloyd of Kilgerran, moved an amendment as long ago as 30th November, on the very first day in Committee, to deal with what appeared to be a problem with electronic mailboxes. He withdrew that amendment upon my undertaking that we would have a further look at the question and come back with an amendment of our own if that proved to be necessary. We looked at the question and came to the conclusion that nothing was necessary, which is why there has been no amendment on the point in my name.

The reason for that conclusion is this. As most of your Lordships will know, an electronic mailbox system consists of a central collection of secure electronic data stores and peripheral terminals. A message can be sent to any of the central stores from any of the terminals, but the message can be sent from the store only to the terminal dedicated to that store. We accept that whether this falls within Clause 7(2)(a) or not is not entirely clear, but in our view this does not matter, because such a system does not seem to fall within the definition of cable programme service in Clause 7(1) at all.

The messages are not sent from the central store for reception at two or more places or for presentation to the public. This is so even when the same message is sent simultaneously to several stores for reception by a number of terminals. Each message sent from each store is distinct from, although identical to, the others, and is capable of reception at only one place.

I think that my noble friend also mentioned what are known as expert systems—electronic databases which both transmit information and receive it for adding to the database for future transmission. Here the question is much more difficult. It is related to the point made by the noble Lord, Lord Williams of Elvel, in our stand part debate on 30th November, about the reference in Clause 7(2)(a) to "an essential feature". His comment, reported in Hansard at col. 869, was: It is rare that you would have at the moment a cable service which is either entirely one, interactive, or entirely the other". My response was that I thought that it was better that we considered that further as it is a complicated field.

I must say that nothing has happened in the past four months to suggest that I was wrong in that last remark. We have considered it further, not only internally but also in consultation with industrial and commercial interests, and we think that we now know the answer. Unfortunately, we were not ready with an answer in time for Report, and because no one else raised the matter at that stage it was pushed to the back of the queue. I am afraid that this is something which must now be dealt with in another place.

We think that the position is this. An expert system may be used actively or passively. As long as it is used passively, it ought to be a cable programme service, because it is then indistinguishable from an orthodox cable service carrying feature films, or a dial-a-disc service on the telephone. However, when used actively, or interactively as it is usually called, it ought not to be a cable programme service, because the passage of information back and forth between two terminals is indistinguishable from a telephone conversation or a video link.

We think that Clause 7(1)(a) as it stands has the result that the whole of a service which can be used both actively and passively will be excluded from being a cable programme service, because it is an essential feature that there may be sent, from each place of reception, material for reception by the person providing the service or others. That is not right. We need to say, I think, that the exception is of the whole service if the interactive element is an essential feature of the whole service, but that where the interactive element is an essential feature of only part of the service the exception is of only that part. As I say, this a very complicated field, and although we think that we have now found our way to the gate we were not able to do so in time to put down an amendment in your Lordships' House.

I hope that in the light of that explanation my noble friend will feel able to withdraw his amendment.

Lord Mottistone

My Lords, I am grateful to my noble friend for going into such tremendous detail in respect of this complicated problem. I apologise for the fact that we did not notice the need to table an amendment at Report in order to take the matter a step further. To that extent it is our fault rather than his.

I am grateful to him for realising that something must be done and for undertaking to take the issue through to the passage of the Bill in another place. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 10 [Works of joint authorship]:

Lord Beaverbrook moved Amendment No. 6:

Page 6, line 4, at end insert— ("(1A) A broadcast shall be treated as a work of joint authorship in any case where more than one person is to be taken as making the broadcast (see section 6(2)).").

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

On Question, amendment agreed to.

Clause 12 [Duration of copyright in literary, dramatic, musical or artistic works]:

Lord Beaverbrook moved Amendment No. 7: Page 6, line 36, leave out ("and") and insert ("but").

The noble Lord said: My Lords, this is a purely drafting amendment. It is desirable to render the drafting of Clauses 12 and 13 consistent. I beg to move.

On Question, amendment agreed to.

Clause 17 [Infringement of copyright by copying]:

Lord Beaverbrook moved Amendment No. 8: Page 8, line 24, leave out ("in that context") and insert ("and copies").

The noble Lord said: My Lords, with the leave of the House I shall speak to Amendments Nos. 8, 34, 35 and 146. These amendments are purely drafting amendments and follow up an undertaking I gave to the noble Lord, Lord Lloyd of Kilgerran, that we would look at the drafting of Clause 51. It will be apparent from Amendment No. 34 that we have been able to express the substance of the clause in a much simpler and more concise way. This clause is the very important clause which serves to take most industrial designs out of copyright.

As the amendment says, it is not to be an infringement of any copyright in a design document or model to make an article to the design or to copy such an article, except where the article itself is an artistic work or a typeface. I think that the effect of this will be perfectly plain, so I shall say only a few words about the references to a typeface and to the copying of articles.

Typefaces are included because they are the only things which are not artistic works under Clause 4 but which are still to be protected by copyright. Although typefaces are themselves not artistic works, the design of a typeface will almost invariably be an artistic work because it will start life as a drawing. We have already been through this on more than one occasion. Typefaces, however, were not included in the clause as originally drafted because in our view a typeface could never be an article made to the design of a typeface.

The reason for this apparently perverse view is that the design of a typeface is not a design of an article—that is a three-dimensional object—but rather of a two-dimensional impression made by an article. Thus, in our view Clause 51 would not take typefaces out of copyright in any event. However, in anticipation of the question, "If this is the case why do you not say so?" and in order to make Clause 51 as clear as possible, we have said so.

The copying of articles referred to in Amendment No. 34 clearly needs to be a reference to any copying, whether this is done by making further articles, or by making a design drawing or other document, or a design model. Amendment No. 8 is intended to make absolutely sure that this is the case, and as a result the effect is that once the copyright link has been broken by the making of an article no further copies in any form which are taken from that article, or indeed from a copy of the article or a copy of a copy of the article, and so on indefinitely, will infringe copyright. It is because of this that we no longer need anything equivalent to paragraph (c) of the existing Clause 51(1).

Finally, I should perhaps just add that Amendments Nos. 35 and 146 merely take advantage of the simpler drafting to simplify the references to surface decoration. I should emphasise that the meaning and substance of Clause 51 have not changed. I hope your Lordships will agree that the drafting is much improved and clearer. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the noble Lord for taking up an amendment which I tabled earlier in these proceedings. From Clause 17 onwards we enter into the rights of a copyright owner and acts which are restricted by copyright. That is a very technical field. I am grateful to the Minister. The drafting by his officials is a great improvement on the original drafting with which I was involved.

On Question, amendment agreed to.

Clause 18 [Infringement by issue of copies to the public]:

Lord Lloyd of Kilgerran moved Amendment No. 9: Page 8, line 43, at end insert ("or (c) any holding or loan by a prescribed library or archive or information service of any work which has already been put into circulation by or on behalf of the copyright owner.")

The noble Lord said: My Lords, as I mentioned, we are now in an area of considerable difficulty. In Clause 18 we are dealing with infringement by issues of copies to the public. What is meant by issues of copies to the public is of great importance to the library system. I have been asked to put forward this amendment on behalf of the Library Association and many others associated with libraries.

I am advised that unless there is an amendment to Clause 18 on the lines I have put forward, serious damage to the work of libraries may arise. Therefore, I make no apology for spending a little time in explaining what this amendment is about. I understand that it has been discussed with officials and it may be that we shall have some helpful observations from the Minister.

Clause 18 deals with the references in this part of the Bill to the issue of public copies of a work. The issue relates to the act of first putting these copies into circulation. There follow two exceptions and I have proposed as a third, any holding of loan by a prescribed library or archive or information service of any work which has already been put into circulation by or on behalf of the copyright owner". That must be an exception.

The purposes of the amendment are, first, to give positive protection from publisher control of library content with the withholding of licensing since the present Clause 18 gives only tacit protection; and, secondly, to provide a basis for any approach to the Copyright Tribunal about licence. It is the inception of the concept of licensing in conjunction with the rental right which makes this proposal essential.

I am advised that material could be kept out of libraries or away from certain research applications. That could seriously damage information services, education and research. I am sure that the amendment could be drafted more adequately. It is however, an attempt to give what is needed in the new situation which has arisen; namely, a positive statement to protect the basic functions of libraries. I am advised that without such a provision, sale to libraries and even the reference of some materials could be refused, and donations could not be accepted. Over a period, that would seriously damage the work of libraries. I beg to move.

Lord Donaldson of Kingsbridge

My Lords, the Marshalled List should read, any holding or loan". not, any holding of loan", should it not?

Lord Lloyd of Kilgerran

My Lords, I was reading from my original document. The noble Lord is quite right. The amendment should state, any holding or loan".

Lord Morton of Shuna

My Lords, I support the intention behind the amendment. It is obviously necessary that libraries should be able to have these documents. However, I question whether the amendment is wholly necessary and also whether paragraphs (a) and (b) are strictly necessary when the clause states: References in this Part to the issue to the public of copies of a work are … to the act of first putting those copies into circulation". This amendment deals with the situation after that act. Therefore, I should have thought, reading it very strictly, it is unnecessary. However, I support the intention behind it.

4.15 p.m.

Lord Beaverbrook

My Lords, the amendment standing in the name of the noble Lord, Lord Lloyd, is I believe, based on a misunderstanding of the provisions of Clause 18. The intent of the amendment, as I see it, is to ensure that the copyright owner may not use copyright to control the normal activities of a library in holding or lending books, periodicals and other copyright material which have been put into public circulation.

Clause 18 does not give the copyright owner the power to control library activities in such a way. Only the copyright owner, or those acting with his consent, may first put copies into circulation but thereafter those copies may be circulated without the constraints of copyright, as paragraph (a) of subsection (2) makes clear. The only exception to this is those works covered by the new rental right set out in subsection (3). But the introduction of a rental right does not change the position with regard to free lending. I believe that that covers the noble Lord's point on licensing. Libraries, and indeed anyone else, are quite at liberty to hold copies of copyright material which have been issued to the public and lend them freely to others without any risk of copyright infringement.

Of course, it is possible for copyright owners, when putting copies into circulation, to impose contractual obligations on those to whom they sell the copies. For example, it has long been a standard condition attaching to the sale of a book that it is not re-sold, hired or lent except in its original binding. But that has nothing to do with copyright. If a copyright owner will only sell a copy to a library on the condition it is not lent out, the library must of course abide by that condition or purchase a copy already in circulation where there is no contractual obligation. An amendment along the lines proposed by the noble Lord, Lord Lloyd, would not alter the position. Contractual obligations placed on purchasers of copies of copyright works, whether they be libraries or not, are not questions of copyright law.

I hope the noble Lord can withdraw his amendment given my assurance that the Bill as drafted gives copyright owners no powers over the subsequent holding or lending of copies once they have been put into circulation.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the noble Lord for that very full answer. I shall consult my advisers in relation to the matter to see if it should be pursued in another place.

Having regard to the observations of the noble Lord, Lord Morton of Shuna, about what is unnecessary, I should like to say this in relation to the Bill as a whole. Copyright is a very simple matter; in essence the theme is quite simple. The great difficulty is the application of it. There are so many and varied applications. In a Bill on copyright, one attempts to deal with every possible solution. I was brought up—and I was only reminded of it today—on a report by a committee over which the noble Lord, Lord Renton, sat in which he advised that Bills should be in more general terms and should not try to deal with every application as we have been attempting in this Bill. After that peroration, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Viscount Brentford moved Amendment No. 10:

Page 9, line 3, at end insert— ("(5) It is an act restricted by copyright for the owner of a sound recording or film which includes a musical work and any literary work associated with it to permit its hiring under subsection (3) without the licence of the owners of the copyright in those works.

The noble Viscount said: My Lords, in moving this amendment perhaps I may speak also to Amendment No. 33. At Report the Minister said that under the Government's proposal the rental right was to belong to the owners of rights in the sound recording or film and not to those whose works were embodied in the recording or film, and that that was to avoid putting on the retailer a burden of having to obtain authorisation from and make payments to more than one category of rights owners. These two amendments are intended to introduce a rental right exercisable by composers and their publishers in a way that does not impose any additional burden on the retailer.

My noble friend also indicated at Report his view that composers and others whose contributions were used should be able to negotiate a share of the new revenue when the arrangements for making the sound recording or film were made. I have already passed on to him a copy of the formal advice which had been given to my firm of solicitors; namely, that contract does not offer a solution because copyright owners of the recorded works cannot, by contract, demand to exercise a right which the statute does not give them. Therefore, I hope that the noble Lord will consider my amendments favourably as they offer a solution to the two problems which he posed and at the same time remove an injustice inherent in the present wording of the clause. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I have some difficulty in following the submission of the noble Viscount. It seems to me that the proposed amendment, far from removing an injustice, creates injustices. Certainly it is not necessary.

The amendment makes record company activity an infringement of copyright as against the publisher. Again it is in my view unnecessary because the rights of the publishers to remuneration follow the existing mechanical royalties agreement and any others which might replace it.

Record companies and publishers of course have very different interests in this matter. Record companies are keen to protect their business in order to ensure that rental does not undermine the retail sale. On the other hand, publishers seek to gain commercial advantages from rental. What appears to be ignored by the amendment is that the sale by a record company to a rental business is no different from the sale to a retailer and will entitle the music publishers to a mechanical royalty in any event. Music publishers will also receive a royalty based upon the prices charged for the rental business. Therefore, it seems to me that it is unnecessary to provide a rental royalty for the publishers, as that would make the collection and negotiation system for rental unduly complicated. The publishers' interests will be adequately catered for within the forum of internal industry agreements.

Lord Beaverbrook

My Lords, I find myself in agreement with the noble Lord, Lord Lloyd of Kilgerran, and therefore I am sorry to have to disappoint my noble friend. As my noble friend explained, these amendments are concerned with the rental right which your Lordships will recall was introduced into the Bill on Report. This new right is only conferred by the Bill on the owners of copyright in sound recordings, films and computer programs and not other copyright owners. The intent of the amendments in the name of my noble friend is to extend some of the benefits of the new right to other copyright owners, specifically the owners of copyright in musical works and associated lyrics incorporated in sound recordings and films.

As I explained when moving the amendments to introduce the rental right, we deliberately restricted the class of copyright owners who would be entitled to the right. If someone wants to hire out a record or film he should not have to obtain the permission of, and make separate payments to, more than a single category of rights owners. We believe it would be cumbersome and bureaucratic for the person hiring out a video to need a licence from all the owners of the many copyright works included in the video, as well as from the owner of the copyright of the film.

It is true that composers and lyricists provide an essential ingredient to a sound recording or film and on that basis should be entitled to a share of the profit made from its exploitation. At present if a record company wants to record a particular piece of music it must negotiate with the composer for a licence. In negotiations over what is a reasonable fee for such a licence, both sides will take account of the value that the recording to be made will have in the market-place. If the only outlet is sale, only the potential sales market need be considered. But if under the provisions of the Bill exploitation through rental becomes significant, there seems no reason why the composer cannot negotiate for a slice of that cake as well.

My noble friend is concerned that without a specific right composers and other authors will have no power to extract contractual payment from the record and film producers. To that end he proposes a right which the composers and authors may exercise against them. At least I believe that is the intent. The amendment to Clause 18 speaks of a restricted act for the owner of a sound recording or film to hire it out, when I suspect that it is the owner of copyright in the sound recording or film that is intended.

I do not believe that we need these additional rights to safeguard the position of composers and authors. I am, however, prepared to consider whether we should introduce a provision requiring the tribunal when assessing the rental royalty to take account of payment made to the copyright owners of musical and literary works.

There is of course an analogous provision in Clause 124. The copyright owner in the musical or literary work in giving permission for his work to be recorded can reasonably expect a payment related to the benefit to the recording company through sale. If there is also a benefit through rental he can withhold his permission until he obtains a reasonable share of rental proceeds. The fact that he has no rental right is immaterial—he has no "sale right", if I can use that expression, but that causes no difficulties. An amendment along the lines I have indicated will remove any doubt that it is reasonable for music copyright owners to look for a share of the rental market in negotiations over licensing in the same way as they now do in respect of sales.

I hope with that explanation that my noble friend feels able to withdraw his amendments.

Viscount Brentford

My Lords, I am grateful to my noble friend for his agreement to look at one point.

I appreciate that he has not had long to consider the letter I wrote to him with formal advice but I am glad that further consideration will be given, and in the light of that I am happy to beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 [Secondary infringement: making, importing, possessing or dealing with article for making infringing copies]:

[Amendment No. 11 not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 12: 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, on Report I drew attention to the fact that a great deal of research had taken place into making, technical devices [to be] incorporated in apparatus for playing or showing and designed to prevent or impede the making of infringing copies of works of that description". They are called anti-spoiler devices. This amendment is similar to the amendment I introduced on Report which intended to make it an offence and a breach of copyright to have in your possession, custody or control, to import into the United Kingdom or in any way deal with such devices.

The Minister said on 23rd February (reported in Hansard at col. 1140) after a long speech on the matter: 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". It may be entirely my fault but so far I have not been able to discover in the 150 or so amendments that have been tabled by the Government that they have returned to this important matter of dealing with anti-spoiler devices.

I fully realise, as I said earlier, how busy the noble Lord and his officials have been. I make no complaint but just draw this matter to the Minister's attention once again. I beg to move.

Lord Beaverbrook

My Lords, the noble Lord is correct that he has not found a government amendment similar to his own among those tabled in my name. As he said, he tabled an identical amendment on Report and at that time I indicated that we would give serious consideration to the question of a provision to deal with anti-spoiler devices. We are not yet in a position to bring forward our own proposals but I hope that we shall be able to produce something in another place.

We have looked at this proposal. It has not been left or put on the back-burner but, as with all these helpful ideas that have been suggested by your Lordships over the past few months, there are often some broader implications that need to be considered in depth. That can often take rather longer than expected.

I hope that, with my assurances that the matter has not been forgotten and that the Government are favourably inclined to the principle underlying the amendment, the noble Lord will feel able to withdraw his amendment.

Lord Lloyd of Kilgerran

My Lords, I thank the Minister and at this late stage in the Bill I do not propose to raise any constitutional questions about matters put forward in this House being dealt with here and not left to the other place. However, in the circumstances and with the assurances given I agree that the matter should be left to the other place, and I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

4.30 p.m.

Clause 25 [Secondary infringement: permitting use of premises for infringing performance]:

Lord Beaverbrook moved Amendment No. 13: Page 10, line 30, leave out subsection (1) and insert— ("(1) Where the copyright in a literary, dramatic or musical work is infringed by a performance at a place of public entertainment, any person who gave permission for that place to be used for the performance is also liable for the infringement unless when he gave permission he believed on reasonable grounds that the performance would not infringe copyright.")

The noble Lord said: My Lords, we greatly simplified the provisions of Clause 25 at Report stage. I believe that there was general agreement that we had it about right. However, there was some criticism of the drafting. In particular, the noble Lord, Lord Kilbracken, drew attention to what he felt was an incorrect use of tenses in the clause. I undertook to take the matter away and reconsider. In doing so, I also looked at Clause 26 and I have taken the opportunity of rendering it consistent with Clause 25. With that explanation, I beg to move Amendment No. 13.

On Question, amendment agreed to.

Clause 26 [Secondary infringement: provision of apparatus for infringing performance, &c.]:

Lord Beaverbrook moved Amendment No. 14: Page 10, line 44, leave out ("also infringe the copyright") and insert ("are also liable for the infringement").

The noble Lord said: My Lords, in moving Amendment No. 13, I omitted to say that I would also be speaking to Amendments Nos. 14 and 15. I beg to move Amendment No. 14.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 15:

Page 11, line 1, leave out subsections (2) to (4) and insert— ("(2) A person who supplied the apparatus, or any substantial part of it, is liable for the infringement if when he supplied the apparatus or part—

1. (a) he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright, or
2. (b) in the case of apparatus whose normal use involves a public performance, playing or showing, he did not believe on reasonable grounds that it would not be so used as to infringe copyright.

(3) An occupier of premises who gave permission for the apparatus to be brought onto the premises is liable for the infringement if when he gave permission he knew or had reason to believe that the apparatus was likely to be so used as to infringe copyright. (4) A person who supplied a copy of a sound recording or film used to infringe copyright is liable for the infringement if when he supplied it he knew or had reason to believe that what he supplied, or a copy made directly or indirectly from it, was likely to be so used as to infringe copyright.").

On Question, amendment agreed to.

Clause 27 [Meaning of "infringing copy"]:

Lord Beaverbrook moved Amendment No. 16:

Page 11, line 40, leave out subsection (6) and insert— ("(6) Where copies which would otherwise be infringing copies are made in accordance with—

1. (a) section 32,35 or 36, or an order under section 132, (permitted copying for certain educational purposes), or
2. (b) section 59 (copying of artistic work for purpose of advertising it for sale),

and are dealt with for purposes other than those for which they were made, section 23(b), (c) and (d) (secondary infringement) and section 100(1)(d) and (e) (offences) apply as in relation to infringing copies.").

The noble Lord said: My Lords, in moving Amendment No. 16 with leave I shall also speak to Amendment No. 41. The two amendments in this grouping are intended to meet the criticisms made by your Lordships when we introduced what is now Clause 59 into the Bill at Report stage. Your Lordships will recall that this clause was introduced to meet a potential difficulty facing auctioneers and art dealers who need to include a reproduction of a picture in their sales catalogues.

I think there was a general consensus that a problem existed and that that needed to be addressed. Concern was expressed that the exception was too widely drawn. In particular the noble Lords, Lord Williams and Lord Brain, made clear their misgivings and I promised to look into the points that they raised. Although the second amendment in the grouping, I should first like to refer to the amendment to Clause 59. That amendment has the effect of removing exhibitions from the ambit of the exception. As I told your Lordships' at Report stage on 23rd February—or more accurately in the early hours of 24th February—we had not received any request to provide an exception in respect of exhibitions but we felt that similar principles applied. However, the points raised by the noble Lord, Lord Brain, in particular, clearly showed that we had allowed our enthusiasm to get the better of us. The exception should be limited to sale, which is the only area where we have been informed of a difficulty. The removal of exhibitions from Clause 59 will mean that the exception will seldom, if ever, apply to posters, which were of particular concern to the noble Lord, Lord Williams.

The noble Lord, Lord Williams, also raised more fundamental questions about secondary dealings in catalogues which include reproductions of copyright artistic works. As I understood his argument, the exception as drafted was too wide because it allowed an art dealer to make copies of a work on the basis that they were to advertise a sale. In some circumstances copies made quite legitimately in this way could be circulated to the detriment of the artist or to the copyright owner without there being any redress.

We accept that the noble Lord, Lord Williams, has a point here. Leigitimate copies made under this exception should be treated in the same way as copies legitimately made under the various educational exceptions. Clause 27 already recognises that the sale of, or other dealing in, copies made for educational purposes under various exceptions in the Bill constitutes an abuse of the exceptions and provides that such legitimately made copies are to be regarded as infringing copies for the purposes of some of the secondary infringements and offences. To minimise abuse of the exception in Clause 59, similar provision is needed and that is what this amendment provides. I beg to move Amendment No. 16.

On Question, amendment agreed to.

Clause 29 [Research and private study]:

The Earl of Stockton moved Amendment No. 17: Page 12, line 20, leave out ("research or")

The noble Earl said: My Lords, I am aware that your Lordships agreed to the government's Amendment No. 74 at Report stage, and I am therefore probably out of order in moving Amendment No. 17. Perhaps I may also have leave to speak to Amendment No. 18. I can think of no other strategy for finding out the views of the Government on the voluntary licensing scheme that I submitted in fulfilling the undertaking that I gave my noble friend the Minister at Report stage.

Lord Lloyd of Kilgerran

My Lords, may I presume to congratulate the noble Earl on the strategy that he has employed? The substance of Amendment No. 18 appeals to me and I would have supported it if it were possible to do so in any way in accordance with our procedures.

Lord Williams of Elvel

My Lords, we have had a good deal of debate on this matter, as the noble Earl quite rightly pointed out. On our side we have looked at the suggestion that the noble Earl made at Report stage about a possible general licensing scheme. Our advisers find considerable difficulty with this kind of scheme. If the Government are minded to consider further what the noble Earl has to say I believe that we on our side would find difficulty in going along with it.

Lord Beaverbrook

My Lords, my noble friend Lord Stockton and the noble Lord, Lord Williams, have reminded us of the debate we had at Report stage on the question of copying for commercial research. I explained the reasons for the Government's change of view on the question but did offer to consider, without commitment, any further evidence that my noble friend could bring to bear on the question.

Following our debate, my noble friend sent a draft licence for photocopying in industry to my noble friend, the Secretary of State. Copies were also sent to others of your Lordships and other interested parties in industry and the library community. We are currently looking at these proposals and look forward to hearing the comments of others. As I indicated at Report stage, nothing said to date has convinced us that industry would not be unduly burdened by the introduction of licensing in respect of copying that is presently allowed. It is too soon to come to a final view as to whether these new proposals will remove our concerns. Our early view is that they represent a step in the right direction, but I would not wish to give my noble friend great cause for optimism. The early signs from the user side are far from favourable.

I do not propose to deal with the amendments in the name of my noble friend in any greater depth since he indicated to me privately that they were probing amendments to discover how far we have got with our consideration. I could not accept these particular amendments, for drafting reasons if not for any other. I trust that what I have said will satisfy my noble friend as to the state of play. Even if he finds the news discouraging perhaps he can withdraw these two amendments.

The Earl of Stockton

My Lords, I thank the noble Lord the Minister for his discouraging remarks; and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 18 not moved.]

Viscount Caldecote moved Amendment No. 19: After Clause 29, insert the following new clause:

("Abstracts of articles.

.—(1) If an abstract of an article is published, 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 any publication in which the abstract or the article appeared, provided that such dealing is done by or on behalf of an authorised person and is accompanied by a sufficient acknowledgement.

(2) For the purpose of this section "an authorised person" means such scientific or technical persons or bodies as may be designated by order made by statutory instrument by the Secretary of State upon application made to him.

(3) Applications made pursuant to subsection (2) of this section shall be made in such manner as the Secretary of State shall direct and shall be accompanied by such information as he may reasonably require.").

The noble Viscount said: My Lords, the purpose of Amendment No. 19 is to remove uncertainty remaining in the Bill about fair dealing in relation to the publishing of abstracts—the so-called secondary publishing. These are very short resumés of the contents of articles.

I remind your Lordships that the principal abstracting service in the United Kingdom is the Institution of Electrical Engineers which is a nonprofit making charity. It deals with abstracts in the fields of physics, electrical and electronic engineering and related subjects. There is a smaller service operated in the field of materials by the Institute of Metals. The service provided by the Institution of Electrical Engineers has been going on since the end of the last century. Now about 240,000 abstracts are made each year and they are produced by an expert team of approximately 150 people.

These abstracts are of great value to scientists and engineers. There have been no complaints from publishers or authors. Nowadays the authors normally write the abstracts themselves to ensure that the principal points are brought out. Both the publishers and the authors like the publicity coming from the abstracts. As the Bill now stands, the problem arises in that there is serious doubt whether this abstracting service can continue without the threat of civil legal proceedings. This can be avoided only by seeking myriads of licences internationally as well as in this country, which is clearly impracticable. In passing, I thank the Minister for moving an amendment on Report that removed any risk of criminal proceedings against those who publish abstracts.

There remains the problem of civil proceedings. In the debate in Committee I moved amendments to try to remove the problem. The noble and learned Lord, Lord Denning, agreed that there was a need to remove this uncertainty. The Government resisted further amendments moved on Report by my noble friend Lord Lucas of Chilworth on the grounds that publishers and authors must be further consulted about protecting their commercial rights and because of the difficulty of implementing the amendments proposed.

I fully recognise and accept the need to protect publishers' and authors' rights, but there is also a need to enable this very valuable service to continue in the public interest without the threat of legal proceedings. I believe that the amendment achieves both those objectives simply and effectively. I think that the Government are sympathetic to the problem and I hope that they will accept the amendment to tidy up the Bill in this respect. I beg to move.

Lord Williams of Elvel

My Lords, I think that we understand the purpose of the amendment, and we are sympathetic to that purpose. However, I wonder whether it may not be better covered and perhaps improved by inserting an expression such as "part of the work" in Clause 29. Clause 29 appears to allow fair dealing for the purposes of research or private study. I assume that the noble Viscount has in mind research or private study, not abstracts produced for purposes other than research or private study?

Viscount Caldecote

My Lords, there is a problem here. Abstracts are used by scientists and engineers working for employers to find out what has been done in the field in which they are working so as not to have to repeat the work in order to know where they can start. It may not be private study in that sense but for use in their work.

Lord Williams of Elvel

My Lords, I imagined that to be research or private study. Perhaps there is a definition with which I am unfamiliar that is not covered by the expression "research or private study". It is not that I am unsympathetic to this, but I am endeavouring to define the terms of the discussion. If what I say is true, the amendment may be unnecessary. On the other hand, if what I say is not true and the noble Viscount has purposes other than research or private study in mind that need to be included in the fair dealing exemption, then one must be sympathetic because that would be a genuine point.

Lord Lloyd of Kilgerran

My Lords, I support the amendment. Having had to deal with abstracts over more decades than I care to remember, I think that clarification is necessary.

I am not sure whether I understand the submission of the noble Lord, Lord Williams of Elvel. The amendment deals with a practical matter involved with abstracts disseminated for scientific or technical information other than mere research or mere private study. The purpose of a great many of these abstracts is to help people in industry at all stages to get on and develop and do their work. The amendment has my support.

Viscount Caldecote

My Lords, with the leave of the House—

4.45 p.m.

Lord Beaverbrook

My Lords, I remind my noble friend that he has spoken twice already. Perhaps he can cover any other point when he winds up the debate.

This is a further variation of amendments tabled by my noble friend Lord Caldecote both in Committee and on Report. It would allow authorised persons to republish scientific and technical abstracts first published in periodicals along with the articles they summarise. Authorisation would be carried out by the Secretary of State, and the intention would be that he would only designate responsible persons such as the Institute of Electrical Engineers, which presently operates an abstracting service of this kind. With due respect to the learned societies that provide such services, I am not attracted by the amendment. It would put authorised societies in the position of being able to republish, and charge for the use of, someone else's work without payment.

I think that a much more acceptable approach was taken in my noble friend's amendment on Report. On that approach, republication of abstracts would be allowed without payment only if licences were not available from the copyright owner under a licensing scheme. This has the merit of freeing abstracting services from the need to get individual consents from owners of rights in the large number of source periodicals which they cover. But it also allows the rights owners to get appropriate royalties by setting up licensing schemes if they wish. This seems to achieve the right balance, and the Government intend to bring an amendment forward to this effect in another place. I hope that my noble friend can withdraw his amendment in the light of my remarks.

Viscount Caldecote

My Lords, I am grateful to the Minister for what he has said. We thought that we were helping him by simplifying the problem as he was unable to accept the amendments that were moved at an earlier stage. With the Minister's assurance than an amendment will be moved in another place, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lloyd of Kilgerran moved Amendment No. 20: After Clause 30, insert the following new clause:

("Public Interest

. Copyright is not infringed by anything done in the public interest to disclose a matter of grave public concern or the existence of crime, fraud, abuse of authority, neglect in the performance of official duty or other misconduct.")

The noble Lord said: My Lords, I have been asked to move the amendment by the BBC. It raises the question of how far the public interest can be used as a defence in copyright. With the leave of the House, with this amendment I shall speak also to Amendment No. 124.

There is always a problem as to what constitutes public interest. In order to try to clarify the position, the amendment refers to: the existence of crime, fraud, abuse of authority, neglect in the performance of official duty of other misconduct". It makes clear in this way that copyright is not involved in such actions.

Amendment No. 124, which is to be moved by the Government, deals with the question of public interest as a defence in copyright matters in a somewhat different way. The Government said on Report that there was no need for a statutory provision because defence exists at common law. The Government have at least moved forward with the intention to introduce a clause into the Bill. Amendment No. 124 says, Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise". To include the words "or otherwise" in any Bill always causes trouble and to include merely the words "public interest" is inclined to give trouble. I have heard judges say in open court why Parliament should have left it to them to decide what is in the public interest in broad terms dealing with ordinary commercial matters.

With great humility, I presume to suggest that both amendments are intended to deal with the same mischief and that this amendment is in more practical terms than Amendment No. 124.

Lord Williams of Elvel

My Lords, the House will be aware that we on these Benches at many stages of the Bill have insisted that a public interest defence should be included. Indeed, we were reproved by the noble and learned Lord, Lord Denning, for our insistence in Committee. The noble and learned Lord pointed out that the courts were perfectly able to deal with the situation and that therefore we as amateurs should stop intervening in such matters.

Lord Lloyd of Kilgerran

My Lords, as I recall he did not refer to me as an amateur.

Lord Williams of Elvel

My Lords, I am sure that no one would refer to the noble Lord as an amateur. However, we feel, with considerable strength, that there should be some general public interest defence enshrined in the statute. If I had known that the noble Lord, Lord Lloyd of Kilgerran, was to table the amendment—I think he did so only recently, this morning—I should perhaps have considered adding our names to it, because, as I have already said, we feel strongly about it. I support the noble Lord's argument about the Government's Amendment No. 124.

We should like to see Amendment No. 124 with the words "or otherwise" left out. In our view that omission would be tantamount to accepting the amendment which we put forward in Committee, making public interest a full defence against infringement of copyright. However, having said that, if the Government insist upon including those words, we shall support a reasoned definition of "public interest" as a second-best measure, if I may put it that way, and accordingly support the noble Lord, Lord Lloyd of Kilgerran. It is a matter about which we felt strongly during the earlier stages of the Bill's proceedings and we still do. Indeed, my colleagues in another place will continue to feel strongly about the matter. I hope very much that the Government, having moved perhaps half an inch, or even several inches, may decide to move just a couple of inches further to meet what I think are legitimate concerns on these Benches.

Lord Beaverbrook

My Lords, with leave I shall also speak to Amendment No. 124, which is tabled in my name. There has been much pressure on us, both in this Chamber and outside, to include in the Bill an express exception from copyright on public interest grounds. I have already explained both in Committee and on Report why we think that it would not be right to attempt to codify the existing case law on the point, and I do not propose to repeat that now, save to say that the amendment in the name of the noble Lord, Lord Lloyd of Kilgerran, shows exactly why codification would be unwise. Who is to say whether the circumstances listed in his amendment will remain the only matters in respect of which the courts, were they to retain a free hand, would be willing to accept that a defence of public interest should be available? I think that the new clause proposed by the noble Lord would be a great mistake.

However, we are persuaded that something should be said, and this I now propose to do by way of Amendment No. 124. It acknowledges the continuing effect of case law without attempting to codify it, thus leaving the law on this matter where it always has been, in the hands of the courts. It is not limited to public interest, although that is singled out for special mention, because other reasons sometimes emerge for denying the enforcement of copyright. The decision of this House in its judicial capacity in BL v. Armstrong is a case in point. My amendment may not go as far as some noble Lords would wish, but it is as far as we think that we should go. I hope that it will in due course satisfy your Lordships.

Lord Harris of Greenwich

My Lords, I should like to ask the noble Lord before he concludes his remarks whether he will agree that, as has been put to him both by the Opposition Front Bench and by my noble friend, Amendment No. 20 covers very nearly all the major issues of disquiet which have been expressed in the House. Will he further agree—perhaps he will not—that the amendment which he has tabled still gives cause for serious disquiet as far as many of us in the House are concerned as to whether it really addresses the issues which have previously been put to him?

Lord Lloyd of Hampstead

My Lords, I should like to express some sympathy for the Minister on that point. I think that there is a danger—

Lord Mottistone

My Lords, is it in order for anyone to speak after the Minister at this stage of the proceedings? I think not under the new rules.

Lord Beaverbrook

My Lords, normally it is customary on Third Reading and also at Report stage for the Minister to have the last word. However, with the leave of the House, I think I can deal quickly with the point raised by the noble Lord, Lord Harris of Greenwich. I believe that the key words in what he said are "very nearly". Throughout the Bill's proceedings it has been a matter of coming to a compromise position, which is very often a fine line between two sets of different interests. I cannot recall whether the noble Lord, Lord Harris of Greenwich, was present during our deliberations in Committee when the noble and learned Lord, Lord Denning, told us that he felt that any mention of "public interest" was unnecessary because the courts were quite able to resolve the matter. On the other hand, the noble Lord, Lord Williams of Elvel, among others, felt that it was indeed necessary to insert such a clause.

The Government have moved to try to find a balance between conflicting interests not only in this matter but in many other parts of the Bill. I believe that we have reached the right point in this matter; inevitably it will not suit everyone and there will be differences of opinion even among Peers on the same side of the House. However, at this stage I feel that we have the balance right. I hope that what I have said goes some way towards satisfying the noble Lord, Lord Harris of Greenwich.

Lord Lloyd of Kilgerran

My Lords, not only should the Minister be satisfying the noble Lord, Lord Harris of Greenwich, but as regards Amendment No. 20 I also have to be satisfied as to what procedures I should take having regard to what he said.

During the Bill's proceedings I have paid great attention to this important matter. When I presented the amendment to the House I was very brief. I did not go into the law involved, which I am sure would have satisfied the noble and learned Lord, Lord Denning; namely, that unless there was a clear statutory provision included in the Bill there would be a difficulty here. My amendment is directed to try to elaborate what the term "public interest" means in the context of today. The Minister's answer was, "Well, this might all alter in years to come; it may be different things. There may be no abuse of authority in the future and no neglect in the performance of official duty or other misconduct". He was in fact saying that there were other matters of public concern which I had not included and that those which I had mentioned would not be satisfactory.

Therefore, unless I can obtain from the Minister some suggestion that the amendment which he has tabled, Amendment No. 124, might be modified so as not to be worded in quite such broad terms, especially in regard to the words "public interest" and also "or otherwise", I cannot withdraw my amendment. However, if he can give some assurance in that connection and in effect withdraw his amendment, with an undertaking that he will represent it in a somewhat different form, I shall be clearer about the view which I ought to take. At present I am not satisfied with what he has said. Therefore, in those circumstances, I think I ought to take the opinion of the House.

4.59 p.m.

On Question, Whether the said amendment (No. 20) shall be agreed to?

Their Lordships divided: Contents, 88; Not-Contents, 132.

DIVISION NO. 1
CONTENTS
Airedale, L.	Listowel, E.
Ardwick, L.	Llewelyn-Davies of Hastoe, B
Attlee, E.	Lloyd of Kilgerran, L.
Aylestone, L.	Longford, E.
Banks, L.	McGregor of Durris, L.
Basnett, L.	Mackie of Benshie, L.
Blease, L.	McNair, L.
Bonham-Carter, L.	Mais, L.
Brain, L.	Morton of Shuna, L.
Broadbridge, L.	Mulley, L.
Carmichael of Kelvingrove, L.	Murray of Epping Forest, L.
Carter, L.	Nicol, B. [Teller.]
Cledwyn of Penrhos, L.	Northfield, L.
Cocks of Hartcliffe, L.	Parry, L.
David, B.	Phillips, B.
Davies of Penrhys, L.	Pitt of Hampstead, L.
Dean of Beswick, L.	Ponsonby of Shulbrede, L.
Donaldson of Kingsbridge, L.	Prys-Davies, L.
Dormand of Easington, L.	Rathcreedan, L.
Elwyn-Jones, L.	Ritchie of Dundee, L.
Ewart-Biggs, B.	Rugby, L.
Ezra, L.	Russell, E.
Fitt, L.	Saltoun of Abernethy, Ly.
Foot, L.	Seear, B.
Galpern, L.	Shackleton, L.
Glenamara, L.	Shepherd, L.
Graham of Edmonton, L.	Stallard, L.
Grey, E.	Stedman, B.
Halsbury, E.	Stewart of Fulham, L.
Hampton, L.	Strabolgi, L.
Hanworth, V.	Taylor of Blackburn, L.
Harris of Greenwich, L. [Teller.]	Taylor of Gryfe, L.
	Taylor of Mansfield, L.
Hatch of Lusby, L.	Tordoff, L.
Hooson, L.	Turner of Camden, B.
Hughes, L.	Underhill, L.
Hunt, L.	Wallace of Coslany, L.
Irving of Dartford, L.	Walston, L.
Jay, L.	Wells-Pestell, L.
Jeger, B.	Whaddon, L.
Jenkins of Hillhead, L.	Williams of Elvel, L.
Kilbracken, L.	Willis, L.
Kings Norton, L.	Winchilsea and Nottingham, E.
Kirkhill, L.
Leatherland, L.	Winstanley, L.

NOT-CONTENTS
Airey of Abingdon, B.	Cameron of Lochbroom, L
Alexander of Tunis, E.	Campbell of Alloway, L.
Arran, E.	Campbell of Croy, L.
Auckland, L.	Carnegy of Lour, B.
Bauer, L.	Carnock, L.
Beaverbrook, L.	Carr of Hadley, L.
Belhaven and Stenton, L.	Coleraine, L.
Beloff, L.	Colnbrook, L.
Belstead, L.	Colwyn, L.
Bessborough, E,	Cork and Orrery, E.
Birdwood, L.	Cottesloe, L.
Blake, L.	Cox, B.
Blatch, B.	Craigavon, V.
Blyth, L.	Cranbrook, E.
Boyd-Carpenter, L.	Crickhowell, L.
Brabazon of Tara, L.	Cullen of Ashbourne, L.
Brentford, V.	Davidson, V. [Teller.]
Brougham and Vaux, L.	Denham, L. [Teller.]
Broxbourne, L.	Dilhorne, V.
Bruce-Gardyne, L.	Dundee, E.
Butterworth, L.	Eccles, V.
Caithness, E.	Ellenborough, L.
Caldecote, V.	Elles, B.

Faithfull, B.	Nelson, E.
Ferrers, E.	Newall, L.
Fortescue, E.	Norfolk, D.
Fraser of Kilmorack, L.	Orkney, E.
Gainford, L.	Orr-Ewing, L.
Gardner of Parkes, B.	Oxfuird, V.
Gisborough, L.	Pender, L.
Grantchester, L.	Pennock, L.
Hailsham of Saint Marylebone, L.	Penrhyn, L.
	Peyton of Yeovil, L.
Hardinge of Penshurst, L.	Platt of Writtle, B.
Harrowby, E.	Porritt, L.
Harvington, L.	Renton, L.
Havers, L.	Renwick, L.
Hayter, L.	Rodney, L.
Hesketh, L.	Romney, E.
Hives, L.	St. Aldwyn, E.
Holderness, L.	Sempill, Ly.
Hooper, B.	Sharples, B.
Hylton-Foster, B.	Skelmersdale, L.
Joseph, L.	Somerset, D.
Kaberry of Adel, L.	Stockton, E.
Kimberley, E.	Stodart of Leaston, L.
Kinloss, Ly.	Strathcarron, L.
Kitchener, E.	Strathspey, L.
Lane-Fox, B.	Sudeley, L.
Lauderdale, E.	Swansea, L.
Lawrence, L.	Terrington, L.
Layton, L.	Teviot, L.
Lloyd of Hampstead, L.	Thomas of Gwydir, L.
Long, V.	Thorneycroft, L.
Lucas of Chilworth, L.	Thurlow, L.
McFadzean, L.	Trafford, L.
Mackay of Clashfern, L.	Trefgarne, L.
Macleod of Borve, B.	Trumpington, B.
Malmesbury, E.	Ullswater, V.
Margadale, L.	Vaux of Harrowden, L.
Merrivale, L.	Ward of Witley, V.
Mersey, V.	Westbury, L.
Milverton, L.	Whitelaw, V.
Monk Bretton, L.	Wise, L.
Montgomery of Alamein, V.	Young, B.
Mottistone, L.	Zouche of Haryngworth, L
Munster, E.

Resolved in the negative, and amendment disagreed to accordingly.

5.8 p.m.

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

Lord Beaverbrook moved Amendment No. 21: Page 15, line 19, leave out ("thereby").

The noble Lord said: My Lords, for the convenience of the House I shall speak also to Amendments Nos. 24, 27 and 28. These are purely drafting amendments which have the merit of reducing the overall length of the Bill by four words. I am sure that the removal of unnecessary words is always to be welcomed. I beg to move.

On Question, amendment agreed to.

Lord Lloyd of Kilgerran moved Amendment No. 22:

Page 15, line 31, at end insert— ("(3) Prescribed libraries may also copy as follows—

1. (a) in order to build special information files including extracts or abstracts of works")
2. (b) libraries of educational establishments may make one copy of an article in a periodical for loan.").

The noble Lord said: My Lords, I have been advised in this matter by the Library Association. Clause 38 deals with copying by librarians of articles in periodicals. The purpose of my amendment is to give further powers to prescribed libraries so that, Prescribed libraries may also copy as follows—

1. (a) in order to build special information files including extracts or abstracts of works")
2. (b) libraries of educational establishments may make one copy of an article in a periodical for loan".

The Bill at present contains no provision for a prescribed library—and I emphasise that I am dealing with prescribed libraries—to copy for its own purposes except in Clause 42, covering archival preservation. The kind of copying in the first part of my amendment, that is to say copying: to build special information files including extracts or abstracts of works", is essential for all libraries as part of the information service. Indeed, in some contexts it can itself have archival intent, such as photocopies instead of clippings as part of a local history collection. In respect of making copies for information file purposes—assuming of course no publication without permission in advance—a library's authority has long needed clarification.

In respect of the second part of my amendment which deals with libraries of educational establishments being able to make one copy of an article in a periodical for loan, I am advised that this is an essential corollary to Clause 42 of the Bill. The purpose is to preserve originals of selected articles against damage and loss during peak demand by students requiring loan access. I am advised, that it is not customary for academic libraries to lend originals of periodicals. The amendment is confined to academic libraries, confined to single copies for loan and confined to periodicals. I beg to move.

The Earl of Stockton

My Lords, I am concerned about the second part of the amendment of the noble Lord, Lord Lloyd of Kilgerran. If a library is to make one copy which then goes out into circulation and is subsequently destroyed, is the library then permitted to make one more copy which goes out into circulation, disappears or is destroyed and one more copy after that? I feel that this is the thin end of what could be quite a large wedge. Perhaps I may ask my noble friend whether he has had any further thoughts on that.

Lord Beaverbrook

My Lords, if I may say so, this amendment was tabled very late and relates, at least in part, to matters which have not previously been debated during the long and arduous passage of this Bill through your Lordships' House. In these circumstances it may not greatly surprise the noble Lord, Lord Lloyd of Kilgerran, to learn that I do not approach these amendments with great sympathy.

Clauses 38 to 43 provide a regime for copying in libraries which meets the needs of students and the operational requirements of libraries and archives, while safeguarding the interests of copyright owners. Clauses 38 and 39 will enable the student to obtain copies. Clause 41 allows libraries to make copies for supply to other libraries. The new exception in Clause 42 goes most, if not all the way to meeting the perceived need expressed in paragraph (b) of the amendment. It will allow libraries to preserve material they hold so that copies, rather than originals, may be made for general day-to-day use in the library. Clause 43 provides for copying of unpublished works.

As for educational establishments, the various provisions in Clauses 32 to 36 provide further exceptions to copyright, all aimed at assisting the education process; and there are the provisions about licence schemes in Clauses 128 to 132. Photocopying is done under licence in schools in England and Wales and I understand that a pilot scheme has been set up for universities. It seems to me that there is very little copying which students and educationists might reasonably wish to do which cannot be done, either under licence or under the terms of the various exceptions that I have mentioned.

What we have to guard against is the notion that the operation of libraries or education is a cause which justifies overriding copyright owners' legitimate interests in all cases and at all times. I believe the package in the Bill has shifted the balance from the position in the 1956 Act towards educational interests and has made some small but useful improvements for libraries. I do not think we should go further. I hope that the noble Lord will be able to withdraw his amendment.

Lord Lloyd of Kilgerran

My Lords, I am very grateful to the noble Lord for what he said about the context of the amendment. I was sorry that he should have prefaced his remarks by mentioning the lateness of the tabling of the amendment. I apologise for being late in setting it down and causing his officials some difficulty. However I am tempted to refer to the Government's technological difficulties in getting copies of the Bill filed and their difficulties in finding out what amendments they had to put down, having regard to the undertakings which they had given in previous debates. In addition, when they had put forward all these amendments they found that there were at least 15 to 20 which had to be substituted for them. My advisers—and I shall refer to this later, if so tempted—have found it very difficult to get the necessary papers and people together to give advice.

However, having listened to the advice and comments of the noble Lord on this amendment I shall ask my advisers whether they will be proceeding with it at a later stage. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

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

5.15 p.m.

Lord Beaverbrook moved Amendment No. 23: Page 15, line 33, leave out ("a copy of part of a published edition") and insert ("from a published edition a copy of part").

The noble Lord said: My Lords, Clause 39 as presently drafted could be construed as allowing the copying of a whole work provided it only formed part of a published edition containing other works as well. The amendment will remove this possible interpretation and ensure that only parts of works can be copied under the exception contained in Clause 39. That is the position under the 1956 Act. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 24: Page 15, line 35, leave out ("thereby").

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 25: Page 16, line I, leave out subsection (3).

The noble Lord said: My Lords, the noble Lord, Lord Williams of Elvel, moved an identical amendment in Committee on 8th December. In doing so he described it as a probing amendment, but said that he felt subsection (3) put too heavy an onus on the librarian. I undertook to consider that point and come back with a firm view at a later stage. As I said in Committee, Clause 39(3) restates the provisions of the 1956 Act which have not come in for great criticism. I do not think that we can necessarily infer that this is because the provision causes no difficulties. It would seem that at least some librarians have only become aware of this provision of the 1956 Act as a result of seeing it restated in Clause 39. It may well be that there have been few difficulties because observance has not been all that it might have been.

Be that as it may, the question we have to ask ourselves is whether this is a reasonable burden to place on librarians. We have come to the conclusion that the answer is no. The extra protection subsection (3) gives copyright owners is small compared with the hurdle placed in the way of the librarian. As the noble Lord, Lord Williams, put it, it seems rather hard on the librarian if, every time he is required to make a copy, he has to ask himself, "Could I by reasonable inquiry ascertain the name and address of the person entitled to authorise the making of a copy?"

It must be remembered that Clause 39 only allows the librarian to make a single copy of a reasonable proportion of a work for research or private study purposes. Much of that copying could equally be carried out under the terms of the fair dealing exception in Clause 29. Thus in many cases, the consent of the copyright owner would not be needed.

It therefore seems undesirable to require librarians to attempt to track down the copyright owner to seek permission which in many cases is not needed. Furthermore, the majority of copying by librarians is of complete articles from periodicals and that is permitted under Clause 38. Even though Clause 38 is concerned with complete works, it is not felt necessary in that context to impose any requirement to seek out the copyright owner. It is difficult to see why the situation should be different in Clause 39 which is concerned only with parts of works. I believe that the provisions of subsection (2) of Clause 39, taken in conjunction with Clauses 37 and 40, provide sufficient safeguard for copyright owners so that subsection (3) is an unnecessary and bureaucratic gloss. I beg to move.

The Earl of Stockton

My Lords, I am sorry to have to disagree with my noble friend in this case. I think that he should look again at the decision to drop the subsection. The publishing industry is greatly alarmed to see that the Government are proposing to delete it and thereby permit widespread copying of books by libraries.

Successive departmental inquiries by Gregory and Whitford have held that this concession to libraries is not justified. The present rule is that libraries may only copy parts of books if they are unable to obtain the name of the copyright owner to whom they should apply for permission. It is this precondition which the Government are now proposing to delete and so provide a general permission instead of a limited one.

The existing precondition is surely a reasonable and necessary one. If a person using a book wants to photocopy a small part for ease of retention or handling he may usually do so as fair dealing. To extend this by permitting libraries to make a copy as a substitute for use of the book is a different matter entirely and goes to the root of copyright—the right to make copies—and also to the viability of publishing the book.

There is also the danger that the new provision would open up libraries to becoming supply centres for computerised works which could be regarded as published editions, so destroying the possibility of a sensible investment in them. A single copy of a part of a book may not sound very much to your Lordships, but once permitted it expands rapidly and it is difficult or impossible to prevent abuse as evidence of repeated or regular copying is almost impossible to obtain.

The result is that libraries soon provide copies of substantial extracts for people wanting to use the books instead of purchasing the required number of copies. That is economical but perhaps not a fair reward for the owner of the copyright of the book or the originator. There is not even a need for such a development. The Copyright Licensing Agency is willing to grant licences to make copies of parts of books on reasonable terms, and as libraries anyway have to require a form to be completed and a payment to be made for the copying little or no extra administration is involved in charging a royalty for the copyrighter. I am very unhappy about this and I hope that the Minister will reconsider.

Lord Williams of Elvel

My Lords, I am afraid that I have to take a diametrically opposite view to that of the noble Earl, Lord Stockton, as I am sure he will understand. I do so if only to preserve my own consistency in the course of further debates on this Bill.

I believe that as the Bill has gone forward at its various stages we have got the position of the librarian a little clearer and more sensible. We started off in the Bill with a rather rigorous position for a librarian, which was that by acting in good faith he could still be caught. As we have gone forward and the Government have accepted the thrust of a number of amendments, the librarian no longer has the onus laid on him or her to ascertain various things or to make sure of various things before copies are made.

I believe that the Government are correct in their current assessment of the situation. I support Amendment No. 25 and I very much hope that the noble Earl will not wish to seek the opinion of the House on this amendment because if he does we will support the Government.

Lord Beaverbrook

My Lords, I am grateful to the noble Lord, Lord Williams. I shall briefly reply to the point made by my noble friend Lord Stockton. I accept that publishers receive requests from librarians for consent to copy under the equivalent provisions of the 1956 Act. I understand that normally this consent is given without payment. This, if I may say so, appears to support my view that doing away with subsection (3) will not harm the publishing industry. Publishers will not be deprived of any revenue which they now receive, and they, as well as the libraries, will be relieved of the administrative burden of dealing with such requests. For that reason and for the reasons that I stated earlier I commend Amendment No. 25 to the House.

On Question, amendment agreed to.

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

Lord Beaverbrook moved Amendment No. 26: Page 16, line 8, leave out ("or a person acting on his behalf").

The noble Lord said

My Lords, this is a purely drafting amendment that we missed at an earlier stage. Your Lordships will see that Clause 37(6) renders the phrase, a person acting on his behalf in Clause 40 superfluous. I beg to move.

On Question, amendment agreed to.

Clause 41 [Copying by librarians: supply of copies to other libraries]:

Lord Beaverbrook moved Amendment No. 27: Page 16, line 23, leave out ("thereby").

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

On Question, amendment agreed to.

Clause 42 [Copying by librarians or archivists: replacement copies of works]:

Lord Beaverbrook moved Amendment No. 28: Page 16, line 38, leave out ("thereby").

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

On Question, amendment agreed to.

Clause 46 [Royal Commissions and statutory inquiries]:

Lord Beaverbrook moved Amendment No. 29: Page 17, line 36, after second ("a") insert ("published").

The noble Lord said: My Lords, in moving Amendment No. 29, with leave I shall speak also to Amendment No. 30. The first amendment to Clause 46 will make the clause again consistent with the analogous provisions in Clause 45 which your Lordships may recall we amended on Report.

The second amendment in my name seeks to clarify the position of bodies such as the Office of Fair Trading and others which carry out investigations without being able to take evidence on oath. Obviously such bodies should not be obstructed by copyright considerations any more than the courts or a more obviously recognised statutory inquiry.

It is not altogether clear whether investigations of the type carried out by the OFT can be called an inquiry, but use of the word "investigation" removes all doubt. I should point out that investigative bodies like the Monopolies and Mergers Commission which can take evidence on oath already fall within Clause 45 because of the breadth of the definition of the expression "judicial proceedings" in Clause 165. So for them the result of the amendment would only be to clarify the position of their reports as provided for in Clause 46(3) rather than of their proceedings as well. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 30: Page 18, line 1, after ("held") insert ("or investigation conducted").

The noble Lord said: My Lords, I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 48 [Material communicated to the Crown in the course of public business]:

Lord Beaverbrook moved Amendment No. 31: Page 19, line 2, leave out from ("purpose,") to second ("the") in line 3 and insert ("which could reasonably have been anticipated by").

The noble Lord said: My Lords, with the leave of your Lordships I shall speak also to Amendment No. 32. We discussed Clause 48 on Report in the context of an amendment of my noble friend Lord Mottistone to delete the words "or any related purpose" from subsection (2). I explained on Report why the phrase could not be deleted. For example, material submitted to a departmental committee is communicated for the purpose of persuading the committee of some particular case but the committee should not be precluded from copying that material for inclusion in its report.

In circumstances such as those I have in mind, I believe it would normally be within the contemplation of the person writing to the committee that his work would be copied and perhaps included in the committee's report. Since we accept the criticism that the phrase complained of by my noble friend Lord Mottistone is potentially too wide, we are proposing that the Crown's freedom to use material communicated to it is confined to purposes which could reasonably have been anticipated by the copyright owner.

The Crown's freedom of action under this clause can be further limited by agreement with the copyright owner, a provision now given its own subsection, and the clause as originally drafted and as amended does not give the Crown freedom to breach any trust or confidence. Clause 158 sees to that. The amendment further limits what the Crown may do. I do not believe the Crown would have abused the provision as drafted but this amendment will limit the potential for abuse and, I hope, satisfy my noble friend Lord Mottistone. Although I do not believe the amendment will make much difference in practice I see merit in stating on the face of the statute that the Crown cannot deal unreasonably with other people's works. I beg to move.

Lord Mottistone

My Lords, I thank my noble friend very much for going some way towards what I was seeking to achieve. I do not think that he has gone quite as far as I was hoping, but it is certainly a move in the right direction and I thank him for it.

Lord Williams of Elvel

My Lords, I agree with the noble Lord, Lord Mottistone, that the Government have gone some way towards what he wished to achieve. I have the difficulty that when the Government move in certain circumstances, half-way they tend to create problems for themselves by adopting a half-way position. I feel that the Government may be creating a problem for themselves by including the words which could reasonably have been anticipated by". I assume, in the pursuit of good English, that "anticipated" means "expected" in that context. I hope that at some stage the draftsman may be persuaded to use proper English. The word "anticipate" means something quite different.

Nevertheless, assuming that the words mean "which could reasonably have been expected", I wonder what the copyright owner could reasonably be deemed to expect. Perhaps the noble Lord will be able to clarify that point and tell the House the circumstances he has in mind which the amendment covers. The Crown can argue perfectly properly that for the purposes for which the work was communicated to it, it is not an infringement of copyright if it issues copies of the work to the public. That is quite clear. It is not entirely clear that the Crown can argue successfully that a copyright owner should have been able to expect that the Crown would have used it in such and such a way. I shall be grateful if the noble Lord can give some further explanation of exactly what he has in mind.

5.30 p.m.

Lord Beaverbrook

My Lords, I agree with the noble Lord, Lord Williams, when he says that a halfway house can sometimes be a difficult position. As I said earlier to the noble Lord, Lord Harris of Greenwich, the Government find themselves in the position of having to try to establish a fair compromise on a great number of issues in the Bill.

The intention of the amendment is to enable any person, body or company which submits evidence to a government body to be sure that the evidence or submission will not be unfairly used but will be used in connection with a purpose for which it was originally intended by the user. The example I used earlier is a case in point. A person providing material to a committee can reasonably anticipate that the material will be published. Where the evidence is provided to a government body or department, very often a report is likely to flow from the inquiry or from the department which is looking into some matter. Therefore, the Crown should not be limited in using the evidence in a report.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 32:

Page 19, line 9, at end insert— ("(5) This section has effect subject to any agreement to the contrary between the Crown and the copyright owner.").

The noble Lord said: My Lords, I have already spoken to Amendment No. 32. I beg to move.

On Question, amendment agreed to.

Clause 50 [Acts done under statutory authority]:

Lord Beaverbrook moved Amendment No. 33:

Page 19, line 16, leave out subsection (1) and insert— ("(1) Where the doing of a particular act is specifically authorised by an Act of Parliament, whenever passed, then, unless the Act provides otherwise, the doing of that act does not infringe copyright.").

The noble Lord said: My Lords, with permission I shall also speak to Amendment No. 207. The amendments address a possible defect in Clause 50 which has been pointed out to us by the Music Copyright Reform Group. The exception in Clause 50 is intended to apply only when some particular act is authorised by an Act of Parliament. An example in Section 19 of the Companies Act 1985 which requires a company to provide a copy of its memorandum and articles of association to any member who requires it. The copyright in those documents will not necessarily belong to the company itself.

It has been pointed out that the exception as drafted could possibly be taken to exempt from copyright control some whole class of activity which is authorised by an Act of Parliament—for example, broadcasting by independent television authorised by the Broadcasting Acts. That is certainly not our intention. In so far as it is a real possibility, it should be prevented. The amendments are intended to put the matter beyond doubt, both in relation to Clause 50 and the corresponding exception in Schedule 2. I beg to move.

On Question, amendment agreed to.

Clause 51 [Design documents and models]:

Lord Beaverbrook moved Amendment No. 34:

Page 19, line 23, leave out subsection (1) and insert— ("(1) It is not an infringement of any copyright in a design document or model recording or embodying a design for anything other than an artistic work of a typeface to make an article to the design or to copy an article made to the design.").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 35: Page 19, line 37, leave out ("decoration applied to the surface of the article") and insert ("surface decoration").

The noble Lord said: My Lords, I have already spoken to the amendment. I beg to move.

On Question, amendment agreed to.

Lord Mottistone moved Amendment No. 36: Page 19, line 38, after ("article") insert (", or those features of shape, configuration, pattern or ornament capable of registration in respect of an article pursuant to the Registered Designs Act 1949").

The noble Lord said: My Lords, the proposed amendment will have the effect of allowing copyright to subsist in aspects of design capable of registration under the Registered Designs Act 1949. As such, all the exceptions contained in that Act as to what can and cannot be protected will apply to copyright in industrial applied aesthetic designs. It has been said that design right is primarily intended for the protection of functional designs and that the Registered Designs Act is primarily intended for the protection of aesthetic designs. However, use of the Registered Designs Act as a means of protection requires industry to file design applications. That can be an expensive process requiring the use of skilled professional practitioners.

The Design Copyright Act 1968 was intended to relieve industry of the burden of applying for registered design when copyright would suit its needs as well. That situation has not changed. The proposed amendment permits dual protection by copyright and registered designs in industrial applied aesthetic designs. It does not give industry greater protection than that provided by the Registered Designs Act. However, it allows industry to opt for a lesser and cheaper protection where appropriate. The amendment is necessary because of the present working of subsection (3)(d) of Clause 195. I beg to move.

Lord Beaverbrook

My Lords, the amendment standing in the name of my noble friend is certainly not without merit. As he has indicated, an industrially applied aesthetic design may be registered under the Registered Designs Act. Under the present law it also enjoys the weaker protection of copyright even if it is not registered. Why, my noble friend asks, should we remove that weaker protection if the designer chooses not to register? He says that the problem with copyright protection for the design of articles concerns functional and not aesthetic designs and that Clause 51 should be limited in its effect to functional, non-aesthetic designs.

That view is not unfamiliar to us. Indeed, it is a view which we have constantly sought to take into account in the long gestation of the Bill. It is therefore with some reluctance that I say to my noble friend that we cannot accept the amendment. The principal difficulty is that it introduces into the law of copyright, which is a non-registrable right, a test which is appropriate only to a registrable right. The test is, to use the words set out in Clause 245 of the Bill, whether the design features in question are features which appeal to and are judged by the eye, not including features dictated solely by function. There is also the element of materiality, for which I am proposing a drafting improvement in Amendment No. 177.

The test is fairly easily applied if an application is made for registration of a design. The design is scrutinised by the staff of the designs registry in the Patent Office. There is the opportunity for appeal to a court against an adverse decision and the opportunity is always there for those who think that a design should not have been registered to apply for cancellation or rectification of the registration. In other words, the world can always readily ascertain the status of a design under the Registered Designs Act.

The problem with my noble friend's amendment, however, is that the same test would have to be applied without the benefit of the provisions in the Registered Designs Act. Someone wishing to exploit the design of the shape or configuration of an article which has been on the market for a few years would have to ask himself whether the design would have been registrable had the designer bothered to apply, but without any help from the presence or absence of the design on the register or the possibility of applying to the registrar for cancellation of the registration if he thinks that it was wrongly obtained.

In some cases the answer will be obvious, but in other cases he will have to guess; and if he guesses wrong, he could be sued for damages; or, if his wrong guess was in the other direction, he would decide not to exploit something which he was in fact free to exploit. The only way in which he could be sure of his position—unless of course the owner of the copyright was prepared to concede that the design was not capable of protection under the Registered Designs Act —would be to sue the copyright owner for a declaration, a very heavy-handed and expensive way of sorting things out, and one which is in any event no use if the copyright owner cannot be found. We think that these difficulties outweigh the benefit of my noble friend's amendment.

It might be said that the question of registrability already has to be addressed under Section 10 of the Copyright Act 1956. This is true, but that is the very thing that is wrong with Section 10, the very defect inadvertently introduced by the Design Copyright Act 1968 which we are now seeking to put right. This is precisely why the very next clause in the Bill, Clause 52, which replaces Section 10, does not mention registrability.

Finally, there is a lesser but not insignificant objection to my noble friend's amendment. It would produce the result that if articles, the shape or configuration of which was aesthetic, were not put on the market so as to cause the period of 25 years in Clause 52 to start running, the design in question would remain protected for the full term of copyright of life plus 50 years. That is too long. Unless the article itself is an artistic work such as a sculpture, we think that the design of its shape or configuration should be kept out of the public domain for no longer than 25 years at the most. I should add that this is not a mere drafting defect in my noble friend's amendment; it is a flaw in the whole concept.

My noble friend said that the situation has not changed since the Design Copyright Act 1968. I am afraid that I disagree. Before that Act there was no protection for an unregistered registrable design. Under the Bill, all designs will at least get the protection of design right in Part III. The designer of aesthetic articles has a choice. He may register his design and get 25 years' protection; or he may chose to rely on the unregistered design right in Part III of this Bill and get between 10 and 15 years' protection. We think that this is fair. My noble friend's amendment goes too far, and I must resist it.

Lord Mottistone

My Lords, I am grateful to my noble friend for his careful comments on the amendment. He has given me and my advisers a great deal of food for thought. I would not be at all surprised if they come back at some stage in another place. What is important is that my noble friend and his advisers have taken great care over the matter. I am grateful to them for that. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 54 [Use of typeface in ordinary course of printing]:

Lord Beaverbrook moved Amendment No. 37: Page 20, line 39, leave out ("or import").

The noble Lord said: My Lords, in moving this amendment I shall speak also, with the leave of the House, to Amendment No. 38. An identical amendment to omit the words "or import" was moved by my noble friend Lord Rodney at the Report stage. Unfortunately, the amendment was tabled too late for us to give the proposal serious consideration at that stage and my noble friend kindly withdrew his amendment to give us the opportunity to look into the point.

As I explained at the Report stage, the philosophy underlying subsection (1) of Clause 54 is that the owner of copyright in the design of a typeface should have the exclusive right to control its reproduction and dealings in infringing copies, but should not be able to control the use of his typeface in normal printing processes. It seems right to allow a printer to continue to possess and use a typeface, even if it is an infringing copy he has innocently acquired. In such a case the copyright owner has a right of action against the dealer who sold the printer the infringing copy.

As the clause now stands, the printer can import an infringing copy for his own use and the copyright owner can take no action. He can act against an importer only if he imports for onward sale. It seems wrong that the copyright owner could find himself with no one to sue in respect of infringing copies. It may be fair that the printer should not be liable if someone else was responsible for introducing the infringing typeface into the United Kingdom, but not if he himself did so. We have concluded that my noble friend Lord Rodney was right in proposing the deletion of "import" from Clause 54(1)(b).

The second amendment in this grouping is a consequential amendment that we missed at Report stage. Your Lordships may recall that we added possession to the list of secondary infringements on Clause 24 and a corresponding amendment should have been made here, in Clause 54. We now propose to correct that oversight. I beg to move.

On Question, amendment agreed to.

5.45 p.m.

Lord Beaverbrook moved Amendment No. 38: Page 21, line 7, after ("importing") insert (", possessing").

The noble Lord said: My Lords, I have just spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 39: After Clause 55, insert the following new clause:

("Incidental copying in course of use of work in electronic form.

.—(1) This section applies to works whose use in electronic form ordinarily involves incidental copying of the whole or part of the work.

(2) Any such copying which a purchaser of a copy of the work is permitted to do without infringing copyright, by express or implied licence or by virtue of any rule of law, and in respect of which he incurs no further obligation as to payment or otherwise, may also be done without infringement of copyright by any person into whose hands that copy of the work subsequently comes.").

The noble Lord said: My Lords, in moving Amendment No. 39, with leave I shall speak also to Amendment No. 208.

These amendments arise out of an amendment to Clause 17 which was accepted by your Lordships on Report. That amendment, in the names of my noble friends Lord Mottistone and Lord Stockton, had the effect that incidental copying in the course of running a computer program, or viewing a work stored in a computer database, was no longer excluded from the restricted act of copying. This provided the necessary legal basis for copyright owners to specify and enforce conditions about the numbers of permitted users of such works. However, in accepting the amendment, I said that the Government would bring forward an amendment to ensure that anyone legitimately acquiring a copy of such a work from a previous user who had been given a free licence to use it could use it freely to the same extent.

These amendments give effect to my undertaking. They apply to any work whose use in electronic form ordinarily involves some incidental copying. Computer programs are the most obvious examples of works which are used in this way but it is quite easy to envisage other kinds of copyright work, such as music, being made available in electronic form and played back through a computer, where incidental copying takes place.

The purpose of the amendment is to ensure that when a copy of a work in this form is sold and the first purchaser is free to use it without any further obligation, such as the requirement to make further payments after a period of use, then anyone who later acquires that copy is free to use it to the same extent as the first purchaser. This is in my view a necessary safeguard since without such a provision rights owners would be able to prevent second-hand use of copies even though they had been willing to sell such copies unconditionally in the first instance. As with other exceptions to copyright, a corresponding exception is needed in Part II. This will be provided by new paragraph 10A in Schedule 2. I beg to move.

The Earl of Stockton

My Lords, I should like to take this opportunity to thank the noble Lord for taking away our amendment at an earlier stage and bringing it back in such an embellished and improved form.

Lord Mottistone

My Lords, I should also like to add my thanks to my noble friend.

On Question, amendment agreed to.

Lord Lloyd of Kilgerran moved Amendment No. 40: After Clause 55, insert the following new clause:

("Sound recording of spoken literary work.

. If a sound recording of a spoken literary work has been made without infringement of copyright it is not an infringement of copyright in the literary work to broadcast, copy or otherwise exploit such a sound recording.").

The noble Lord said: My Lords, this amendment is directed once again to a problem that arises with broadcasters and relates to the sound recording of spoken literary work. The amendment says: If a sound recording of a spoken literary work has been made without infringement of copyright it is not an infringement of copyright in the literary work to broadcast, copy or otherwise exploit such a sound recording".

The difficulty that broadcasters have had with the extended definition of literary work is that it introduces an unacceptable level of uncertainty into the re-use of recordings which they had made in good faith.

Whether or not a copyright subsists in any particular piece of spoken word material or whether the scope of an implied licence extends to a particular re-broadcast are nice questions and expensive ones with which lawyers can deal and to which it might be some time before decisions of the courts give definitive answers. The purpose of this amendment is simply to ensure that if the broadcaster has obtained any consents required in order to make the recording in the first place, he should be able thereafter to use the recording without fear of infringement. That seems to me to be a commonsense position which arises out of the change in the basis of copyright under this Bill as regards broadcasters.

In the case of pure extemporisation, no consent will be necessary because copyright in the literary work will not subsist until the recording is made; so making the recording of itself will not constitute infringement of copyright. However, broadcasters usually have no way of telling in advance whether a speaker will deliver a prepared text from memory or speak from notes. Therefore, a broadcaster might well prefer formally to obtain consent or to ensure that the speaker is aware that the recording is being made.

I understand that the subject of this amendment has been carefully and somewhat sympathetically dealt with by the noble Lord's officials. I beg to move.

Lord Beaverbrook

My Lords, the noble Lord, Lord Lloyd of Kilgerran, has raised again the issue of copyright in the spoken word and the fears of broadcasters that this copyright could be invoked by those interviewed on television or radio to prevent or restrict use of the recorded material.

Your Lordships will recall my saying at Report stage that if we could find a way of reconciling the concerns of broadcasters with the degree of protection which those whose spoken words are recorded for radio or television are entitled to, we would consider it. Since Report stage we have been considering the matter further with the broadcasting organisations and we have been persuaded that an exception to copyright in the spoken word would be justified in relation to recorded interviews. Our previous argument against this was that broadcasters' fears were exaggerated and that such an exception was not necessary. This was because recorded interviews would either not be "works", or would be covered by an implied licence to broadcast. We still think that this will generally be the case. But we accept that sometimes there will be an element of doubt and that this could place an unreasonable burden on broadcasters.

We therefore propose that when a spoken work is recorded and all necessary consents to make that recording are obtained (so that the recording itself does not infringe copyright), the broadcasting of that recording or its inclusion in a cable programme service will not infringe copyright. Only if the speaker indicates, before the recording is made, that it is not to be used for purposes of broadcasting or inclusion in a cable programme service will this new exception not apply.

This, we believe, is a reasonable compromise. Speakers who agree to be recorded for broadcasting will still be able to impose conditions as to use if they wish to do so, but the onus will be on them to make this clear. Broadcasters will not have to worry about copyright being invoked after the event to prevent broadcast of a recorded interview to which the speaker has—tacitly or otherwise—consented.

I should perhaps stress that our proposed exception is confined to copyright as such; it will not extend to moral rights. This means that while broadcasters will he free to broadcast interviews and other spoken works which have been recorded with consent, they will still be obliged to ascribe authorship if the right to be identified is duly asserted and must observe the author's right not to subject the work in any way to a treatment which prejudices his honour or reputation.

We have not had time to work out the details of our proposed exception or to study the noble Lord's amendment closely enough to judge if it would serve the purpose. I hope, however, in the light of my assurances that we shall come back in another place, that the noble Lord will be willing to withdraw this amendment.

Lord Lloyd of Kilgerran

My Lords, I thank the noble Lord for his remarks. On the basis of that assurance I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 59 [Advertisement of sale or exhibition of artistic work]:

Lord Beaverbrook moved Amendment No. 41: Page 22, line 19, leave out from ("advertising") to end of line 20 and insert ("the sale of the work").

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

On Question, amendment agreed to.

Clause 62 [Hiring of sound recordings, films and computer programs]:

Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 42: Page 22, line 32, leave out ("sound recording").

The noble Lord said: My Lords, Amendment No. 42 is grouped with Amendment No. 45. I shall be speaking later to Amendment No. 45 and in those circumstances I do not propose to move Amendment No. 42 at this stage.

[Amendment No. 42 not moved.]

Lord Beaverbrook moved Amendment No. 43:

Page 23, line 7, at end insert— ("(5) Nothing in this section affects any liability under section 23 (secondary infringement) in respect of the hiring of infringing copies.").

The noble Lord said: My Lords, in moving this amendment I shall also speak to Amendment No. 204. Your Lordships will recall that Clause 62 is a new clause introduced at Report stage into the Bill as one of a group of amendments which, taken together, provide the new rental right. The substantive amendment was new subsection (3) in Clause 18 which makes the hiring of copies of sound recordings, films and computer programs a primary infringement.

Clause 23(b), which echoes the 1956 Act, already provided for secondary infringement in respect of hiring of infringing copies. We now have a primary infringement in respect of hiring copies, whether legitimate or not, and a secondary infringement of letting for hire of infringing copies.

Your Lordships may possibly recall that the relationship between primary and secondary infringement was a question addressed by your Lordships' House in its judicial capacity in the case of Infabrics v. Jaytex. In that case the primary infringement of "publication" was given a narrow construction in order to give the secondary infringement scope in which to operate. We do not want Clause 18(3) given a restricted scope in order to give Clause 23(b) some meaning.

This amendment will ensure that this does not happen. Although Clause 62 imposes a statutory licence in respect of the hiring of copies, this does not entitle people to hire out infringing copies on payment of reasonable royalty. That is still secondary infringement under the terms of Clause 23(b).

This is perhaps a convenient point to address the other consequential amendment following on from the introduction of the rental right. The new rental right introduced into the Bill at Report stage should not apply in respect of copies acquired before commencement for the purpose of hiring them out, even if those copies were only first released during the preceding 12 months. If a trader acquires goods in the legitimate expectation of being able to deal with them freely, he should not later find himself unable to do so, or able to do so only on the payment of an unexpected royalty.

This amendment to Schedule 1 ensures that the new rental right, in both its early exclusive phase and during the remainder of its term, does not bite on copies which have been legally acquired under a regime in which there is no restriction on rental. I beg to move.

On Question, amendment agreed to.

[Amendment No. 44 not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 45: After Clause 62, insert the following new clause:

("Reference to Copyright Tribunal.

.—(1) After the end of the calendar year following that in which copies of a sound recording are first issued to the public in the United Kingdom reference may be made to the Copyright Tribunal in relation to a refusal by the copyright owner to permit the hiring of copies to the public or in relation to any terms and conditions including any royalty set by the copyright owner arising from the granting of a licence to hire any sound recording.

(2) Nothing in subsection (1) shall oblige the copyright owner to permit the hiring of a sound recording prior to the end of the calendar year following that in which copies of that sound recording are first issued to the public in the United Kingdom.

(3) In this section 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, the noble Lord has referred to the new Clause 62 regarding the important matter of rental. My amendment would introduce a new clause after Clause 62 as a kind of corollary in order to avoid the many bureaucratic licensing systems which might arise under arrangements in Clause 62 as it stands. It is intended to conform as far as possible with the general policy of the Government; namely, where it is in the public interest to do so to allow businesses to develop if the market so dictates.

My amendment is intended to conform with that theme to allow rental businesses to develop if the market so dictates. Indeed, the key to my argument is that the issue of rental should be left more and more to market forces with a minimum of interference and a minimum of bureaucratic control. Therefore, in my submission, it would not be advisable to have a central licensing system as envisaged by Clause 62 since this would take a vital function out of the hands of private business, in particular the record companies.

The proposed rental provisions are a corollary to those proposed by the Government. First, the new Clause 62 that the Government introduced at Report stage establishes the right for any hirer to refer to the Copyright Tribunal any matter arising from a refusal by the record company to grant a licence to hire on unfair terms and conditions imposed by the licensee. The right to approach the tribunal with any matter under such licensing shall arise only after the initial period of one year following the year of issue—the Government's proposed year of exclusivity.

There is another point on which my amendment is intended to be helpful. It is envisaged that record companies shall make available certain repertoire for hire. Should the hirer be dissatisfied with the terms of the licence granted, or if there has been refusal of a licence, he may refer the dispute to the Copyright Tribunal for adjudication but only with regard to sound recordings that are out of the period of exclusivity—that is, one year after the year of issue.

I speak somewhat tentatively. I do not want to get involved in any general policy difficulties, because I have been talking so much about public interest. This illustrates the record industry's desire to accommodate the hiring business while retaining the right to make individual judgments as to terms and conditions and the right to protect to a degree the interests of record manufacturers and the record industry. There is a basic difference in principle between granting a right that is subject to some kind of overriding jurisdiction in circumstances where unfairness arises, and taking away the right altogether after a period of time by imposing a statutory licence. The record industry feels that by this amendment the interests of all parties concerned will be properly protected in the circumstances that I have indicated. I beg to move.

6 p.m.

Lord Jenkin of Roding

My Lords, I originally added my name to Amendment No. 49 that comes later. It is in the same form as the amendment to which I spoke on Report. Having now studied Amendment No. 45 that the noble Lord, Lord Lloyd of Kilgerran, has just moved, I should like my noble friend to appreciate that it represents an attempt to meet both the interests of the record companies and the Government's perfectly legitimate interests and concern on behalf of the consumer that records should be available for hire.

I understand the Government's anxiety, based perhaps on the American experience. If a rental right is given even for a limited period—it was indicated earlier that a five year rental right might have been appropriate—during that period compact discs would not be made available for rental. However, the fact remains that the clause as it now stands would not give the record companies the protection they reasonably require against what is illegal but unenforceable—home copying.

Popular records may well make a profit for the record companies in a comparatively short time. However, my concern is for records of a classical nature. It may well take much longer before those earn a return for the record company. It seems to me that some additional protection is required for the record company in the circumstances envisaged.

I mention again to the House that I am trustee of a musical trust that provides concert and sponsor recordings of music, mostly of the baroque period. There is no question that the records have a considerable following but lack the kind of mass appeal that can earn for the record companies a return in a short period. I have to impress upon my noble friend that the record companies, and those with whom they contract to make these records, are seriously concerned that the clause in the Bill as it stands, by imitating the Japanese rule, will deprive them of some very valuable protection. To that extent it will undermine the pre-eminent place that the British recording industry holds in the world industry. There is serious concern about this.

The amendment moved by the noble Lord, Lord Lloyd of Kilgerran, goes some way to recognise that concern. I hope that my noble friend will feel able to accept it—at least the intention, if not the present drafting.

Lord Beaverbrook

My Lords, this amendment seeks to give the owners of copyright in sound recordings a full exclusive right in respect of rental but during the period when the hiring out of film and computer programs is subject to statutory licence those who are refused licences to hire out sound recordings may apply to the Copyright Tribunal. It is not clear what is to happen then, since we are given no guidance as to what the tribunal is to consider, whether it can order that a licence be granted, or what factors it should consider before making such an order.

I must say that the record industry seems to want its cake and to eat it since the first year's exclusive right is to be preserved without tribunal jurisdiction. If it is accepted that an exclusive right is appropriate if supervised by the tribunal in the last 49 years of the term, I cannot see why it should not be similarly supervised in the first year.

I hope the noble Lord will not press the amendment because I shall have to resist it at this time. However, we shall give the amendment further consideration at a more leisurely pace after this Bill has left this House. However, I would not hold out great hopes that we shall accept its underlying thrust. On that basis I hope that the noble Lord will withdraw the amendment.

Lord Lloyd of Kilgerran

My Lords, I am tempted to reply at some length because I feel that the Minister has not been quite as fair to the industry as I had hoped, especially after the considerable support given to the amendment by the noble Lord, Lord Jenkin of Roding.

However, at this late stage of the Bill, and remembering that this is Third Reading, the industry is trying to show that it is prepared to rent in the fairest possible way and to bring in the tribunal to take whatever decisions are necessary and fair in the public interest. The noble Lord indicated that there might be some light at the end of this tunnel in another place. I therefore beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 [Works included in, film or sound-track in which copyright has expired]:

Lord Beaverbrook moved Amendment No. 46: Leave out Clause 64.

The noble Lord said: My Lords, with leave I shall also speak to Amendment No. 231. The noble Lord, Lord Hacking, presented an eloquent case at Report stage as to why Clause 64 should be left out of the Bill. I replied that we broadly accepted his arguments and would seriously consider accepting his amendment to that effect. I am happy to say that having looked at the matter further we accept that there is no good reason to retain this clause. Since none of your Lordships rose to question the noble Lord's amendment at Report stage I do not think that I need to go into the arguments again unless your Lordships wish me to do so.

Amendment No. 231, the amendment to Schedule 6, is consequential. I beg to move.

Lord Lloyd of Hampstead

My Lords, as one who put down an amendment at an earlier stage to omit what was in Clause 61, which was also supported by the noble Lord, Lord Hacking, I should like to say that unfortunately I was unable to be present when that amendment was due to be moved. I should like to express my satisfaction that the Minister has now recognised that the clause contained an anomaly which was repeated from the earlier 1956 Act. I heartily endorse his moving that the clause be omitted.

On Question, Amendment No. 46 agreed to.

Clause 64 negatived.

Clause 65 [Incidental recording for purposes of broadcast or cable programme]:

Viscount Brentford moved Amendment No. 47: Page 23, line 34, leave out ("or authorise").

The noble Viscount said: My Lords, the intention behind this amendment is to tidy up the exemption for what are known as ephemeral recordings by making the wording accord with the Berne Convention. The clause as a whole gives a person who has been authorised by a copyright owner to broadcast his work or to include it in a cabled programme the right to record it for either of those purposes. It is a special case where the normal right of a copyright owner to control the recording of his work is overridden by statute. The Berne Convention, Article 11^bis, permits this, but only if the recordings are made by the broadcasting organisation, by means of its own facilities and used for its own broadcast". As the convention does not permit the broadcaster to have these recordings made by someone else, the words "or authorise' in line 34 should be omitted. I beg to move.

Lord Lloyd of Hampstead

My Lords, I should like to support the amendment. Again, I am sorry to say, with apologies to your Lordships, I was unable to be present when an amendment I had tabled at an earlier stage was reached. There is no need for me to repeat the reasons that were so clearly given by the noble Viscount, Lord Brentford. This seems to go beyond the wording of the Berne Convention for the reasons that the noble Viscount gave. I strongly support the proposal that these words "or authorised" be omitted from the Bill.

Lord Beaverbrook

My Lords, I have listened with interest to the argument advanced for restricting use of the so-called ephemeral exception to cases where the broadcaster makes the recordings himself in-house. The Government agree, and indeed the Berne Convention demands, that the exception should not be used to permit a recording to be made without copyright authorisation except where a particular broadcaster makes it himself for use in one of his own broadcasts, or sub-contracts it out, again with a particular broadcast in mind.

However, we do not think it is practicable or right under modern conditions to restrict use of the exception to the broadcaster himself; nor do we regard this as required by the spirit (or necessarily even the letter) of the Berne Convention. Present-day realities are that all sorts of bodies are involved in the preparation of a broadcast. In some cases the broadcaster's own facilities may be minimal and almost all production work may be contracted out. We think that the Berne Convention is concerned to prevent the speculative making of recordings by outsiders for offer to broadcasters. The ephemeral exception had to be updated to meet these realities, as we said in the White Paper, and the Bill does this.

The main provisions of the exception—that is, its 28-day term and the restriction to use in respect of authorised broadcasts—will remain unchanged. We believe that this strikes a fair balance between broadcasters, some of whom argue for a more generous exception, and copyright owners, some of whom would like to see the exception withdrawn altogether. I regret therefore that my noble friend's amendment is not acceptable to the Government.

Viscount Brentford

My Lords, I am slightly surprised by what my noble friend has said, in the light of my understanding of the Berne Convention. The question may be raised again in another place at a later stage, but in view of the present position I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.15 p.m.

Lord Beaverbrook moved Amendment No. 48: After Clause 65, insert the following new clause:

("Recordings for purposes of supervision and control of broadcasts and cable programmes.

.—(1) Copyright is not infringed by—

1. (a) the making or use of recordings by the Independent Broadcasting Authority for the purposes mentioned in section 4(7) of the Broadcasting Act 1981 (maintenance of supervision and control over programmes and advertisements); or
2. (b) anything done under or in pursuance of provision included in a contract between a programme contractor and the Authority in accordance with section 21 of that Act.

(2) Copyright is not infringed by anything done under or in pursuance of

1. (a) a notice or direction given under section 16 of the Cable and Broadcasting Act 1984 (power of Cable Authority to require production of recordings); or
2. (b) a condition included in a licence by virtue of section 35 of that Act (duty of Authority to secure that recordings are available for certain purposes).").

The noble Lord said: My Lords, with permission I shall speak also to Amendments Nos. 210, 236, 237, 238, 242 and 243. These amendments are to meet concerns raised by the broadcasting industry and the Cable Authority that the Bill as drafted fails fully to protect broadcasters and providers of cable programme services in relation to the provision of copies of their transmissions for purposes of supervision and control. It is certainly our intention that where copies of programmes are required to be made and used for purposes of supervision and control, this may be done without infringing copyright.

Under the Bill as drafted it is intended that the needs of broadcasters and cable operators should be met by reliance on existing provisions in the Broadcasting Act 1981 and the Cable and Broadcasting Act 1984, as amended in minor respects by Schedule 7 to this Bill. It has been pointed out, however, that these provisions do not cover the making of copies by the ITV programme contractors, and do not give protection in respect of the normal practice of the cable industry, which is that the requirement on cable operators to make copies of programmes for purposes of supervision and control is imposed as a term of their licences rather than in exercise of specific statutory powers.

The approach we have adopted is to introduce new provisions into the body of the Bill. These provisions are based partly on the Broadcasting Act and the Cable and Broadcasting Act and are partly new. The necessary exceptions with regard to copyright are made by the new clause to follow Clause 65, and the parallel exceptions to rights in performances are made by the amendments to Schedule 2. The first two amendments to Schedule 7 correct a minor deficiency in Section 7 of the Broadcasting Act 1981, and remove from that section the exception which will now appear in subsection (1)(a) of the new clause. The third amendment to Schedule 7, coupled with the amendments to Schedule 8, repeals those provisions of the Cable and Broadcasting Act which are now replaced by subsection (2) of the new clause.

This set of amendments will, we believe, provide adequate protection from copyright infringement in relation to recordings made for the relevant purposes by the IBA, Cable Authority, and their contractors and licensees. We recognise that similar provisions will also be required for the BBC. This has presented us with a drafting problem which regrettably we have been unable to solve before the Bill leaves your Lordships' House. This arises because the BBC operates under Royal Charter, not under legislation, and the provisions under which it agrees to maintain programme standards are in the form of a resolution by the board of governors of the BBC, which is itself not formally linked to the Royal Charter. The relevant amendments regarding the BBC will therefore have to be tabled in another place. I beg to move.

Lord Lloyd of Kilgerran

My Lords, in view of certain observations I made earlier in the proceedings some months ago about the attitude of the Government towards the broadcasting system, I thank the noble Lord for his words of sympathy on the problems of broadcasting.

On Question, amendment agreed to.

Clause 67 [Free public showing or playing of broadcast or cable programmes]:

Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 49: Page 24, line 21, 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, in the circumstances I ought to explain that this amendment includes letting for hire, but having regard to what the Minister said in relation to my submissions and those of the noble Lord, Lord Jenkin of Roding, on Amendment No. 45, I have the permission of the noble Lord, Lord Jenkin, not to move the amendment.

[Amendment No. 49 not moved.]

Clause 72 [Right to be identified as author or director]:

Lord Lloyd of Kilgerran moved Amendment No. 50: Page 26, line 20, leave out from ("of") to ("a") in line 21.

The noble Lord said: My Lords, in moving Amendment No. 50 I should also like to speak to Amendments Nos. 51, 52, 53, 79, 80, 125 and 127.

Noble Lords

Hear, hear!

Lord Lloyd of Kilgerran

My Lords, I am much obliged. These amendments deal with the problems arising for broadcasters as a result of the change in the basic law of copyright. The first two amendments have the effect of removing the right of an author of a literary work to be identified when the work is performed in public, broadcast or included in a cable programme servicee. In the circumstances of broadcasting that appears to be eminently reasonable.

The third amendment removes the artist's right of indentification in cases where the visual image of an artistic work is broadcast or included in a cable programme service. I have dealt briefly with Amendments Nos. 50, 51 and 52.

Amendment No. 53 removed the artist's right of identification in relation to public performance of a film, including the visual image of an artist at work if the public performance is of a broadcast or cable programme which includes the film in question. The net outcome is that as regards broadcasting the right of paternity would be preserved for the authors of dramatic works and directors of films but it would be lost by the authors of literary and artistic works.

Broadly speaking, that would put broadcasters on the same footing as newspapers, periodicals and the publishers of encyclopaedias, dictionaries, yearbooks or other collected works of reference. The justification for doing so would be the same. In other words, it puts broadcasters in the same position in which journalists now find themselves.

Inter alia, as with newspapers and periodicals, the broadcasters rely on a multiplicity of free-lance contributions which are often assembled rapidly or united into a large collectivity which is a programme. It would be hopelessly impractical, irksome to the listener and viewer and of no real benefit to the author to have to identify each and every contribution. Those remarks deal with my first four amendments.

I should like to turn to Amendment No. 79 which has been tabled by the Government. According to the groupings I should at least refer to it. I have difficulty in understanding this amendment in the context of the amendments relating to broadcasting tabled in my name.

My Amendment No. 80 relates to the way in which derogatory matters should be treated. The Government's amendment would remove the right to object to derogatory treatment of works made for the purpose of reporting current events, but it does not go far enough. That amendment relates to Clause 76. The broadcasters do not seek to be better treated than newspapers and periodicals or the publishers of encyclopaedias, yearbooks, dictionaries and other collective works of reference. They are seeking to be put in a similar position to that of newspapers. Broadcasters seek recognition of the fact that in terms of content their current affairs, talks, features and documentary programmes occupy identical ground to and appeal to the same interests as the daily and Sunday press and periodicals. For example, at one end of the spectrum is the Times Literary Supplement while at the other end there is Punch.

Amendments Nos. 125 and 127 have been tabled by the Government. They are brief and appear to be straightforward but in the short time available to me I have been unable to do them justice. I beg to move.

Lord Willis

My Lords, I am sorry to differ from my noble friend but I hope that the Government will resist these amendments. It is tremendously important for an author to have credits. He is often underpaid, especially at the beginning of his career, but being identified as the author of a particular work will make a great deal of difference to his future career. As I see it, these amendments nibble away at the moral rights already established in the Bill. I believe that they are totally unjustified and I hope that the Government will resist them.

Lord Beaverbrook

My Lords, I should like to speak to the group of amendments as listed by the noble Lord, Lord Lloyd of Kilgerran. However, I believe that he missed out Amendment No. 59, the first amendment on this subject tabled in my name.

Lord Lloyd of Kilgerran

My Lords, I am sorry, I referred to it but I did not understand what was meant in the context of my submission.

Lord Beaverbrook

My Lords, perhaps I shall be able to enlighten the noble Lord a little. This grouping of amendments deals with a number of proposals for further exceptions to moral rights. With the leave of your Lordships I should first like to speak to my own amendments to add a fourth subsection to both Clauses 74 and 76.

These are amendments which reflect a point raised by the noble Lord, Lord McGregor of Durris, at the Report stage about press agency services. We realise that time is very much of the essence with a wire service and the pressures are much the same as those applying to newspapers so far as moral rights are concerned. However, we felt that merely adding the words "press agency" to the newspaper exceptions would not be satisfactory because so much of the information provided by such agencies is for non-newspaper purposes —such as relaying the latest stock exchange prices to banks and financial institutions. We decided that a broad approach would be more appropriate so the rights are disapplied to any works made for the purpose of reporting current events.

This formula has the added advantage of meeting some of the fears expressed on Report by the noble Lord, Lord Lloyd of Kilgerran, about the effect of moral rights on broadcasters. I explained on Report that we felt that an exception to all works made for the purposes of broadcasting would be going too far. However the noble Lord, Lord Morton, suggested that the amendment be limited to news reporting and this idea appealed to us. It means that newspapers, radio and television will be treated alike when it comes to the reporting of current events.

In the light of the amendments of the noble Lord, Lord Lloyd of Kilgerran, it is apparent that this new exception does not go far enough to meet the concerns of the broadcasting organisations. The amendments to Clause 72 seek to disapply the paternity rights in respect of literary works, including the lyrics accompanying musical works, and the visual image of artistic works which are broadcast or included in a cable programme. Amendment No. 80 proposes an exception to the integrity right in respect of literary and artistic works when they are included in certain programmes.

The Government have already gone a long way towards meeting broadcasters' concerns. It is appropriate that all of the media should be exempt from moral rights in relation to news and current affairs broadcasting and this is what the amendments I have just spoken to provide. To go further than this would I fear dilute moral rights to such an extent that they would be worthless, and would introduce all kinds of anomalies, which of course we are trying to avoid. As I explained at the Report stage, the Government decided that the fast-moving nature of the newspaper world and the risk of injunctions made a special case for newspapers. Beyond the demands of current affairs reporting the Government have concluded that these pressures do not apply to broadcasters to the same degree. I must therefore resist these amendments.

The second aspect of my own amendments concerns composite, or as we have defined them "collective" works. As I explained in response to the amendment tabled by my noble friend Lord Stockton, the Government agreed with his proposal to include composite works in the exception made for newspapers, magazines and periodicals. The problem before us was finding the best way of defining such works. We are grateful for the various suggestions made to us as to the best definition for composite works. I do not pretend that these amendments are the only way of tackling this question, but I can assure your Lordships that a great deal of thought has gone into them and I believe we have a solution which is both concise and easily understood.

The exception will apply to collective works of reference including encyclopaedias, dictionaries and yearbooks which are works of joint authorship or works in which there are distinct contributions by different authors or in which works or parts of works of different authors are incorporated. The exception will apply to both the paternity and integrity right and the other amendments provide a definition in Clause 165 and an entry for the index in Clause 166.

6.30 p.m.

Lord Morton of Shuna

My Lords, I am very grateful to the Minister for taking up something which I suggested. I believe that this is the effective compromise which is necessary because news reporting must have some protection. It is my experience as a reader—and of course I have no other experience—that if a literary work which is not a piece of news reporting is printed in a newspaper, normally the author's name is printed. In broadcasting, I see no reason if that type of work is being written and produced in some way, that the author should not also be identified. Therefore, I believe that the compromise of the government amendment is to be preferred.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the Minister. Perhaps I may try to understand the case that he has made based on my Amendment No. 50. I understand him to say that his Amendments Nos. 59, 79, 125 and 127 move a certain way, as I believe they do, towards the position of broadcasters and their problems. In those circumstances, he recommends that I withdraw all the amendments in my name; in other words, Amendments Nos. 50 to 53 and Amendment No. 80. As I said, I have not had the opportunity to study with any advisers the precise scope of the four amendments grouped with mine. However, in view of what the noble Lord has said, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 51 to 53 not moved.]

Lord Beaverbrook moved Amendment No. 54: Page 27, line 29, leave out from ("74") to end of line 30 and insert ("(exceptions to right)").

The noble Lord said: My Lords, in moving this amendment I should like to speak also to Amendments Nos. 55, 56 and 58. This group of amendments deals with two drafting points. Amendments Nos. 54, 55 and 58 reflect the different meaning of exceptions to, non-applicability of, and non-infringement of the paternity right.

Amendment No. 56 is a simple drafting point: it is not a typeface which is a work but the design of a typeface. We have already considered the significance of this point at some length during earlier stages of the Bill. I beg to move Amendment No. 54.

On Question, amendment agreed to.

Clause 74 [Cases in which right does not apply]:

Lord Beaverbrook moved Amendments Nos. 55 and 56: Page 28, line 23, leave out from ("director") to end of line and insert ("is subject to the following exceptions."). Page 28, line 27, at beginning insert ("the design of").

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 57:

Page 28, line 28, at end insert— ("(2A) The right does not apply to anything done by or with the authority of the copyright owner where copyright in the work originally vested—

1. (a) in the author's employer by virtue of section 11(2) (works produced in course of employment), or
2. (b) in the director's employer by virtue of section 9(2)(a) (person to be treated as author of film).").

The noble Lord said: My Lords, during the Report stage I agreed in principle with the amendment of my noble friend Lord Stockton to disapply the paternity right to employees. As I explained then, considerable concern has been expressed by employers about having to identify authors of all works in the manner required by this clause and we felt that the paternity right should not apply to employed authors and film directors.

I was unable to accept my noble friend's amendment at Report because it did not cater for film directors. We have now done this in Amendment No. 54. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 58 and 59:

Page 28, line 29, leave out ("does not apply in relation to") and insert ("is not infringed by"). Page 28, line 41, leave out subsection (4) and insert— ("4) The right does not apply in relation to any work made for the purpose of reporting current events. (4A) The right does not apply in relation to the publication in—

1. (a) a newspaper, magazine or similar periodical, or
2. (b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication.").

On Question, amendments agreed to.

Clause 75 [Right not to suffer unjustified modification of work]:

Lord Beaverbrook moved Amendment No. 60: Page 29, line 8, leave out ("unjustified modification") and insert ("derogatory treatment").

The noble Lord said: My Lords, in moving Amendment No. 60, I shall speak also to Amendments Nos. 61 to 75, 77, 84, 85, 89, 90, 96, 100, 102, 106, 107 and 205.

A great deal of thought has been given to the wording of the integrity right in Clause 75. During the Report stage the noble Lord, Lord Lloyd of Kilgerran, proposed that we should drop the reasonableness test and adopt the exact wording of Article 6 bis of the Berne Convention. I agreed that the "reasonable in the circumstances" test should be left out because it went further than what is specified by Berne.

Having looked again at the wording of Article 6 bis it does seem wise to use it where possible. We have tried to fit the new expressions into the existing structure of the clause. Thus instead of an "unjustified modification" we will have "derogatory treatment" which is a distortion or mutilation of the work which is prejudicial to the author's honour or reputation. I believe that those words enhance the clarity of the integrity right and have the added advantage of familiarity. I hope these amendments meet the concerns expressed by the noble Lord, Lord Lloyd of Kilgerran, and the views expressed by the noble Lord, Lord Morton of Shuna, on the same subject. I beg to move Amendment No. 60.

Lord Morton of Shuna

My Lords, I am very grateful for this modification of the definition which makes the matter much clearer and more precise. That is especially so as regards the definition of what amounts to derogatory treatment which, as I understand it, Amendment No. 62 makes much clearer than the original definition in the Bill. I thank the Minister for taking on board the suggestion that both I and the noble Lord, Lord Lloyd of Kilgerran made.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 61 to 75: Page 29, line 10, leave out ("modification") and insert ("treatment").

Page 29, line 15, leave out paragraph (b) and insert— ("(b) the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.").

Page 29, line 18, leave out from ("section") to end of line 20 and insert ("references to a "derogatory treatment") of a work shall be construed accordingly.").

Page 29, line 24, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 27, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 30, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 32, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 33, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 39, leave out ("modified version") and insert ("derogatory treatment").

Page 29, line 42, leave out ("unjustified modification") and insert ("derogatory treatment").

Page 29, line 46, leave out ("modified version") and insert ("derogatory treatment").

Page 30, line 1, leave out ("modified version") and insert ("derogatory treatment").

Page 30, line 3, leave out ("modified version") and insert ("derogatory treatment").

Page 30, line 5, leave out ("modification") and insert ("treatment").

Page 30, line 6, leave out ("modification") and insert ("treatment").

On Question, amendments agreed to.

[Amendment No. 76 not moved.]

Clause 76 [Cases in which modification need not be justified]:

Lord Beaverbrook moved Amendment No. 77: Page 30, line 11, leave out from second ("right") to end of line 12 and insert ("to object to derogatory treatment of work) is subject to the following exceptions.").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 78: Page 30, line 15, leave out subsection (3).

The noble Lord said: My Lords, in moving Amendment No. 78 I shall speak also to Amendments Nos. 81 and 83. In our discussions on Report about possible exceptions to moral rights, the noble Lord, Lord Morton of Shuna, raised a valid point about the integrity right which we are now following up in this amendment. Concern was expressed about an employed author or director who is identified on a work that has been subjected to derogatory treatment. If the work was published, or exploited in some other way, the employee would have no remedy.

That certainly did not seem fair and we feel that the best way to deal with such a situation is for employed authors and directors to be given the integrity right where they are identified, or have previously been identified, but for the right not to be infringed if the derogatory treatment is accompanied by a disclaimer which explains that the work has been modified without consent. This will apply to authors and film directors when the copyright in their works vests in an employer, the Crown or an international organisation.

The disclaimer must be clear and reasonably prominent and if the author or director is identified on the work, appear with the identification. Thus the employed director of a film which was cut to half its original length for television showing would be entitled to a disclaimer in the credits of the film. I hope this meets the noble Lord's concerns.

Perhaps I may mention here that the reason I did not move Amendment No. 76 a moment ago is that it refers to line 22 when it should refer to line 10. It was intended as a paving amendment for Amendments Nos. 78, 81 and 83. This will also have to be put right in another place. I beg to move Amendment No. 78.

Lord Morton of Shuna

My Lords, it seems to be my pleasant job this evening just to say thank you to the Government for having taken on board various of my suggestions. I do it again and thank the Government very much for doing so.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 79:

Page 30, line 25, leave out subsection (4) and insert— ("(4) The right does not apply in relation to any work made for the purpose of reporting current events. (4A) The right does not apply in relation to the publication in—

1. (a) a newspaper, magazine or similar periodical, or
2. (b) an encyclopaedia, dictionary, yearbook or other collective work of reference,

of a literary, dramatic, musical or artistic work made for the purposes of such publication or made available with the consent of the author for the purposes of such publication. Nor does the right apply in relation to any subsequent exploitation elsewhere of such a work without any modification of the published version.").

On Question, amendment agreed to.

[Amendment No. 80 not moved.]

Lord Beaverbrook moved Amendment No. 81: Page 30, line 30, leave out subsection (5).

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 82:

Page 30, line 36, at end insert— ("(6) The right is not infringed by anything done for the purpose of—

1. (a) avoiding the commission of an offence, or
2. (b) complying with a duty imposed by or under an enactment, provided, where the author or director is identified at the time of the relevant act or has previously been identified in or on published copies of the work, that there is a sufficient disclaimer.

(7) A "sufficient disclaimer" means an indication that the work has been subjected to treatment to which the author or director has not consented which—

1. (a) is given at the time of the relevant act, and
2. (b) if the author or director is then identified, appears along with the identification,

and which is clear and reasonably prominent.").

The noble Lord said: My Lords, we looked at this matter on Report and the possibility of making exceptions to the integrity right in respect of modifications made in pursuance of statutory requirements. This was in response to an amendment tabled by the noble Lord, Lord Lloyd of Kilgerran. This amendment to Clause 76 makes such an exception.

It provides that modifications may be made to a work to avoid committing a criminal offence or to meet statutory requirements without infringing the integrity right. This is subject to a sufficient disclaimer being made in cases where the author is or has previously been identified in or on published copies of the work. I explained this new idea of sufficient disclaimer in speaking to Amendment No. 83.

Subject to one point, I hope this will meet the concerns expressed on Report on behalf of broadcasters who sometimes have to make modifications in respect of obscenity or acts of violence shown on television. That one point is of course the position of the BBC. I have already spoken about it on Amendment No. 48, and what I said there applies here also. I am afraid that the BBC will have to wait until this Bill is considered in another place to discover how its concerns are to be met. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I thank the Minister for bringing forward an amendment which was adumbrated by me in the earlier proceedings on this Bill.

On Question, amendment agreed to.

The Deputy Speaker (Lord Renton)

My Lords, Amendments Nos. 83, 84, 85 and 86 have already been discussed with previous amendments. Subject to your Lordships' wishes, I put them en bloc.

Lord Beaverbrook

My Lords, I understand that I have to move these amendments formally.

The Deputy Speaker

My Lords, I call Amendment No. 83.

Lord Beaverbrook moved Amendment No. 83:

After Clause 76, insert the following new clause:

("Qualification of right in certain cases. .—(1) This section applies to works in which the copyright originally vested—

1. (a) in the author's employer by virtue of section 11(2) (works produced in course of employment),
2. (b) in the director's employer by virtue of section 9(2)(a) (person to be treated as author of film),
3. (c) in Her Majesty by virtue of section 154, or
4. (d) in an international organisation by virtue of section 155.

(2) The right conferred by section 75 (right to object to derogatory treatment of work) does not apply to anything done in relation to such a work by or with the authority of the copyright owner unless the author or director—

1. (a) is identified at the time of the relevant act, or
2. (b) has previously been identified in or on published copies of the work;

and where in such a case the right does apply, it is not infringed if there is a sufficient disclaimer. (3) A "sufficient disclaimer" means an indication that the work has been subjected to treatment to which the author or director has not consented which—

1. (a) is given at the time of' the relevant act, and
2. (b) if the author or director is then identified, appears along with the identification,

and which is clear and reasonably prominent.").

On Question, amendment agreed to.

Clause 77 [Infringement of right by possessing or dealing with modified work or copy]:

Lord Beaverbrook moved Amendments Nos. 84 and 85: Page 30, line 37, leave out ("not to suffer modification)") and insert ("to object to derogatory treatment)"). Page 31, line 2, leave out ("unjustified modification") and insert ("derogatory treatment").

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 86:

After Clause 78, insert the following new clause:

("Right to privacy of certain photographs and films.

.—(1) A person who for private and domestic purposes commissions the taking of a photograph or the making of a film has, where copyright subsists in the resulting work, the right not to have—

1. (a) copies of the work issued to the public,
2. (b) the work exhibited or shown in public, or
3. (c) the work broadcast or included in a cable programme service; and, except as mentioned in subsection (2), a person who does or authorises the doing of any of those acts infringes that right.

(2) The right is not infringed by an act which by virtue of any of the following provisions would not infringe copyright in the work—

1. (a) section 31 (incidental inclusion of work in an artistic work, film, broadcast or cable programme);
2. (b) section 45 (parliamentary and judicial proceedings);
3. (c) section 46 (Royal Commissions and statutory inquiries);
4. (d) section 50 (acts done under statutory authority).").

On Question, amendment agreed to.

Clause 79 [Duration of rights]:

Lord Beaverbrook moved Amendment No. 87: Page 32, line 11, leave out from ("director)") to ("continue") in line 12 and insert (", section 75 (right to object to derogatory treatment of work) and section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films)").

On Question, amendment agreed to.

6.45 p.m.

Lord Beaverbrook moved Amendment No. 88: Page 32, leave out lines 13 and 14.

The noble Lord said: My Lords, in moving this amendment I shall speak to Amendments Nos. 99, 103, 132, 133 and 134.

We discussed both in Committee and on Report what should happen to moral rights when the author dies. Concern was expressed about the lapse of the paternity and integrity rights in situations where neither a specific bequest had been made nor would the rights pass with copyright as part of the estate. I agreed on Report that it would be unreasonable not to give the paternity and integrity rights the same treatment as the false attribution right and promised to return with government amendments to meet the concerns of the noble Lord, Lord Morton of Shuna.

The amendments to Clause 88 provide that after the death of the author moral rights are exercisable by his personal representatives if there is no specific bequest or if the rights do not pass with copyright. Subsection (5) is split into two so that new subsection (6) can apply to subsection (1) as well as to subsection (5).

Amendments Nos. 132, 133 and 134 make the equivalent changes for the transmission of rights in performances upon the death of the performer. I beg to move.

Lord Morton of Shuna

My Lords, this is where I repeat myself. I thank the noble Lord for the consideration given to the problems I had at an earlier stage. I think he has met the problems.

On Question, amendment agreed to.

Clause 81 [Application of provisions to joint works]:

The Deputy Speaker

My Lords, Amendments Nos. 89 and 90 have already been discussed with Amendment No. 60, and I put the Question on these amendments together.

Lord Beaverbrook moved Amendments Nos. 89 and 90: Page 32, line 40, leave out ("not to suffer modification)") and insert ("to object to derogatory treatment of work)"). Page 32, line 42, leave out ("modification") and insert ("treatment").

The noble Lord said: My Lords, I am told that I should formally move these amendments. I beg to move.

On Question, amendments agreed to.

The Deputy Speaker

My Lords, owing to the rapid progress that we have made I now find myself swimming against the stream and may need your Lordships' assistance from time to time.

Lord Beaverbrook moved Amendment No. 91: Page 32, line 43, leave out ("Any") and insert ("A").

The noble Lord said: My Lords, in moving this amendment perhaps I may say that I am happy to give the noble Lord on the Woolsack any assistance that may be needed. I am grateful to him for all the assistance which he has given us so far.

In moving Amendment No. 91, with the leave of the House I speak also to Amendment No. 92. These are drafting amendments. Amendment No. 91 simply replaces the words "Any waiver" with the words "A waiver". The amendment to subsection (4) is necessary to make it clear that the false attribution right applies if there is any false statement as to the authorship of a work of joint authorship and not just in the situation where sole authorship is attributed to a work of joint authorship, or vice versa. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 92: Page 33, leave out lines 3 to 6 and insert—

1. "(a) by any false statement as to the authorship of a work of joint authorship, and
2. (b) by the false attribution of joint authorship in relation to a work of sole authorship;

and such a false attribution infringes the right of every person to whom authorship of any description is, whether rightly or wrongly, attributed.").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 93:

Page 33, line I3, at end insert— ("(6) The right conferred by section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films) is, in the case of a work made in pursuance of a joint commission, a right of each person who commissioned the making of the work, so that—

1. (a) the right of each is satisfied if he consents to the act in question, and
2. (b) a waiver under section 80 by one of them does not affect the rights of the others.").

On Question, amendment agreed to.

Clause 82 [Application of provisions to parts of works]:

Lord Beaverbrook moved Amendments Nos. 94,95 and 96: Page 33, line 14, leave out ("right") and insert ("rights"). Page 33, line 15, leave out ("applies") and insert ("and section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films) apply"). Page 33, line 17, leave out ("not to suffer modification") and insert ("to object to derogatory treatment").

On Question, amendments agreed to.

Clause 83 [Assignment and licences]:

Lord Beaverbrook moved Amendment No. 97: Page 33, line 27, leave out ("acts") and insert ("things").

The noble Lord said: My Lords, with leave, I speak also to Amendment No. 153. On Report my noble friend Lord Stockton sought to insert wording, found in Section 36(2)(a) of the 1956 Act, into subsection (2) of this clause. He said that it is vital for publishers to establish that classes of book volume rights, such as paperback rights and book club rights, are rights and copyrights and that enforcement of these rights should not merely be in action for breach of contract but also for infringement of copyright.

For the reasons I gave at that time I do not think anything is necessary, but being ever willing to assist my noble friend when circumstances permit I return with this amendment which I hope will remove any doubts that publishers may have. The replacement of the word "acts" by the word "things" should avoid the misconstruction placed on the present draft that an assignment could not sub-divide the various restrictive acts. For example, it was believed that one had to assign the copying rights as a whole and could not assign the paperback rights while retaining the hardback rights.

As I have said, that construction of the clause is misconceived; but it should not arise with the new drafting. For the sake of consistency the corresponding Clause 204 in Part III should be amended in a like manner. I beg to move.

The Earl of Stockton

My Lords, I thank the Minister for reassuring the publishing industry which is indeed a splendid thing.

On Question, amendment agreed to.

Clause 87 [Moral rights not assignable]:

Lord Beaverbrook moved Amendment No. 98: Page 34, line 39, leave out from ("by") to ("are") in line 41 and insert ("Chapter IV (moral rights)")

The noble Lord said: My Lords, I have already spoken to this amendment, and I beg to move.

On Question, amendment agreed to.

Clause 88 [Transmission of moral rights on death]:

Lord Beaverbrook moved Amendments Nos. 99 to 103:

Page 34, line 42, leave out subsection (1) and insert— ("(1) On the death of a person entitled to the right conferred by section 72 (right to identification of author or director), section 75 (right to object to derogatory treatment of work) or section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films) —

1. (a) the right passes to such person as he may by testamentary disposition specifically direct,
2. (b) if there is no such direction but the copyright in the work in question forms part of his estate, the right passes to the person to whom the copyright passes, and
3. (c) if or to the extent that the right does not pass under paragraph (a) or (b) it is exercisable by his personal representatives.")

Page 35, line 21, leave out ("not to suffer modification") and insert ("to object to derogatory treatment")

Page 35, line 22, after ("work)") insert ("or section (Right to privacy of certain photographs and films) (right to privacy of certain photographs and films)")

Page 35, line 24, leave out ("modification") and insert ("treatment or act")

Page 35, line 30, leave out from beginning to ("in") in line 32 and insert— ("(5) Any infringement after a person's death of the right conferred by section 78 (false attribution) is actionable by his personal representatives. (6) Any damages recovered by personal representatives by virtue of this section")

On Question, amendments agreed to.

Clause 92 [Right to seize infringing copies, &c.]:

Lord Beaverbrook moved Amendment No. 104:

Page 36, line 34, leave Out paragraph (b) and insert— ("(b) that at the time when any copy or article is seized the person by whom it is seized leaves at the place where it is seized a notice in the prescribed form containing the prescribed particulars as to the person by whom or on whose authority the seizure is made and the grounds on which it is made.").

The noble Lord said: My Lords, in moving Amendment No. 104, with leave, I shall speak to Amendment No. 135. These amendments concern the seizure provisions and arise from the questions which the noble Lord, Lord Williams of Elvel, asked when we discussed the matter at Report stage. The noble Lord in fact asked three questions. His first was, in effect, is the expression "a local police station" sufficiently clear. At the time I said that I thought it was, and having reflected on the matter, I believe that I was right. It is a simple question of fact. As a result, I am not proposing any change.

However, I am proposing a change in response to the noble Lord's second question. This was: how long after a seizure is effected could the prescribed notice he delivered? As I said at Report stage, it was our intention that the notice should be left at the time the seizure is made and I am very grateful to the noble Lord for pointing out that the clause did not quite say this. The amendments will I think put the matter right.

The noble Lord's final question concerned the clarity of the notice, bearing in mind that it will be aimed at street traders and not, we hope, at lawyers. As I said at Report, we were also concerned about this and had therefore proposed to take powers to specify the form that the notice should take. Prompted by the noble Lord's question, we have looked at this again. As a result, we have decided that we could usefully tighten things up a little. The amendments will ensure that not only will the notice have to be in the prescribed form, but it will also have to give prescribed details concerning the grounds on which the seizure is made. In this way we shall be able to ensure that the notice sets out all relevant information in the clearest possible terms.

I very much hope that these amendments will remove any remaining concerns. As I said, I am very grateful to the noble Lord, Lord Williams, for what I hope he will allow me to describe as his constructive probing. I beg to move.

Lord Morton of Shuna

My Lords, on behalf of my noble friend Lord Williams, I should like again to say thank you. It is very pleasant that on this occasion it seems that some of the suggestions from this side of the House are acceptable and are acted upon. We hope that this approach will move into other Bills and perhaps they may be treated in the same way.

On Question, amendment agreed to.

Clause 96 [Remedies for infringement of moral rights]:

The Deputy Speaker

My Lords, Amendments Nos. 105, 106 and 107 have been discussed. Does the noble Lord move them?

Lord Beaverbrook

My Lords, with leave I move those amendments en bloc. Page 38, line 14, leave out from ("of") to end of line 17 and insert ("a right conferred by Chapter IV (moral rights)") Page 38, line 21, leave out ("not to suffer modification") and insert ("to object to derogatory treatment") Page 38, line 24, leave out from ("court,") to end of line 25 and insert ("dissociating the author or director from the treatment of the work.")

On Question, amendments agreed to.

Viscount Brentford moved Amendment No. 108:

Before Clause 97, insert the following new clause:

("Presumptions. .—(1) In proceedings brought by virtue of this Chapter it shall be presumed, in the absence of evidence to the contrary—

1. (a) that copyright subsists in the work to which the action relates, and
2. (b) that the plaintiff, if he claims to be the owner of the copyright, is the owner.

(2) Where in any such proceedings the plaintiff claims to be exclusive licensee and shows that a document purporting to grant an exclusive licence was signed by or on behalf of a person purporting to be the copyright owner, it shall be presumed in the absence of evidence to the contrary that that person was the owner of the copyright at the time the licence was granted.")

The noble Viscount said: My Lords, at earlier discussions on this Bill my noble friend the Minister suggested that the presumptions in favour of different parties as set out at present in Clauses 95 and 96 were adequate. In Clause 95 there are presumptions in favour of an author. In Clause 96 there is a presumption in favour of the owners of sound recordings and films. I suggest that without the wording in Amendment No. 108 there are no presumptions in favour of the copyright owners of the literary, dramatic or musical works themselves. This amendment seeks to rectify the defect. It is only the copyright owners or in some cases their exclusive licensees, who are permitted to sue for infringement. This amended clause fills that vacuum. I beg to move.

Lord Beaverbrook

My Lords, this amendment seeks to reinstate a clause which your Lordships agreed should be left out at Report stage. Clause 94, as it then was, found few friends in Committee and was strongly criticised both inside and outside your Lordships' House. I am rather surprised to see it resurface so quickly after what I had hoped was a decent burial.

The rejected Clause 94 which this amendment seeks to restore may seem justified when one is considering a case of out-and-out piracy. For example, it may be glaringly obvious to the layman that the latest box office and video rental hit from Hollywood is entitled to copyright and that the producer or his successor in title owns that copyright, and in such circumstances the presumptions set out in this amendment might seem reasonable. But this is only one end of the spectrum of cases of infringement which the courts will have to consider, and elsewhere in that spectrum these presumptions would give wholly the wrong result. For example, a defendant may be alleged to have infringed copyright in an artistic work by using that work as the design of wallpaper.

The defendant may well deliberately have copied that design from an existing source, but be under the impression either that that source was in the public domain or that the person who gave him permission to copy the design from that source was entitled to do so. He is in no position to produce evidence to dispute the plaintiff's claim until he knows what the plaintiff is alleging as the basis for his claim.

For example, the plaintiff might claim that the design apparently within the public domain was first drawn by a very youthful artist who lived to a very great age and died 49 years ago and that he, the plaintiff, is the assignee of the artist's great grandson. That situation may be highly improbable, but not impossible, and the very stuff of legal proceedings. That sort of claim might not even get beyond cross-examination. If it did, the defendant ought to be allowed to see the particulars of the plaintiff's claim before having to decide whether to defend it and, if so, upon what grounds. He should not have to produce evidence which he does not have in order to rebut a presumption which may have no foundation.

I believe your Lordships were right to reject the old Clause 94. I do not want to go over the ground we covered a little over four weeks ago, but your Lordships may recall that I referred to the "Notice to admit" procedures, which the noble Viscount, Lord Brentford, has mentioned today I believe. The noble and learned Lord, Lord Donaldson of Lymington, before he became a member of this House, said in an unreported case in the Court of Appeal referred to in Supreme Court Practice: The powers given by Order 27 are all too rarely exercised. The use of those rules and the penalties as to costs are of the greatest importance in the administration of justice and ought to be relied on more frequently". The procedure endorsed by the noble and learned Lord should not be dismissed until it has been tried in the copyright field and found wanting. But in any event, there can be no going back to the extreme presumptions contained in this amendment. For that reason, I oppose my noble friend's amendment.

Viscount Brentford

My Lords, I appreciate the very full answer given by my noble friend. I am glad that he can see the reasonable circumstances that can give rise to it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 101 [Forfeiture of infringing copies, &c.]:

Lord Beaverbrook moved Amendment No. 109: Page 40, line 43, after ("it") insert ("has been or").

The noble Lord said: My Lords, in moving this amendment, I also speak, with leave, to Amendment No. 160.

On Question, amendment agreed to

7 p.m.

Clause 104 [Infringing copies may be treated as prohibited goods]:

Viscount Brentford moved Amendment No. 110: Page 42, line 7, leave out ("printed").

The noble Lord said: My Lords, the text of Clause 104 gives the owners of printed works and of sound recordings and films a right to request the commissioners of Customs and Excise to stop those goods being imported. As it is often the copyright works embodied in a sound recording or film that need to be treated as prohibited goods, the amendment seeks to extend the facility to other copyright owners.

My noble friend has previously resisted amendments along these lines mainly on practical grounds and in particular because of the difficulty that the commissioners might have in checking computer programs at ports of entry. I suggest that this practical problem could be eased by the commissioners making regulations under the power given to them by Clause 105 to require copyright owners of the recorded material to give the commissioners details of the relevant sound recordings or films. All the commissioners will then have to do is find the sound recording or film. I beg to move.

Lord Mottistone

My Lords, I support the amendment, having moved earlier amendments along these lines. The solution suggested by my noble friend is a good one The arguments were that the poor old customs officers were so overworked that they could not cope. I do not think that that is good enough. The amendment deserves inclusion in the Bill.

Lord Lloyd of Hampstead

My Lords, I moved an amendment along these lines on a previous occasion but withdrew it because the Minister put forward practical considerations that seemed difficult to resist. If, as suggested, there are ways of meeting these practical difficulties for the commissioners of Customs and Excise, perhaps the point deserves reconsideration. Therefore, I support the amendment.

Lord Beaverbrook

My Lords, an identical amendment was tabled in Committee and on Report, and I must again resist it. As I pointed out in Committee, Clause 104 introduces a significant change in the law in relation to the importation of infringing films and sound recordings. However, due to practical considerations and resource constraints we cannot do much more. I explained the reasons very fully in Committee and on Report, and I do not intend to go over the ground yet again. If any noble Lord wishes to know the reasons, I refer him to the relevant Hansard.

I have listened carefully to what my noble friend has said. There is much more to the question of resource difficulties than can be cured merely by the notification that he suggested. Computer programs in particular require special equipment in order to be read.

I regret that I am not convinced by what has been said by my noble friends Lord Brentford and Lord Mottistone. The major considerations are resources, and I stand by what I said at an earlier stage.

Viscount Brentford

My Lords, I am grateful to my noble friend for his explanation. I remain concerned about the balance in the Bill. The Minister has not been able to accept any of the amendments that I have put forward, particularly on behalf of composers and their publishers, which have so far failed on home taping, on rental, on limiting the ephemeral and on reinstating the presumption for onus exemption.

I can only hope that the Government will reconsider these points when the Bill goes to another place. I remind noble Lords that the Secretary of State for Trade and Industry on Second Reading said that those with ideas deserve to receive a fair reward. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 107 [Licensing schemes and licensing bodies]:

Lord Lloyd of Kilgerran moved Amendment No. 111: Page 44, line 12, at end insert— ("(1 A) Any conditions which are printed on or issued in association with a copyright item may not restrict or prohibit an act which is not an infringement under this Part unless the conditions are also included in a licensing scheme.").

The noble Lord said: We have reached another chapter of the Bill concerning licensing schemes and licensing bodies of which Clause 107 is the first clause.

The purpose of the amendment is to deal with questions arising at what is technically known as point of sale licensing; that is, printing of details of terms on each journal issue as part of a licensing scheme. The amendment is considered important from the point of view of the Library Association. The conditions covered in the amendment are straightforward. I notice with some gratitude that the noble Earl, Lord Stockton, nods his head in what I hope is approval.

The purpose of the amendment is to stem the use by publishers of what is known as a negative form of point of sale licensing. It is advisable for reminders of statutory copyright to appear on items sold. It is desirable for items to show positive point of sale licensing details as to how payments may be made for the extensions of legal allowances. It appears inappropriate to my advisers to print on items various restrictions of actions which are neither infringements nor conditions in the formal licence.

If the practice is to remain as drafted in the Bill, it will cause confusion and prevent a potential purchaser from exercising his normal rights of use. The prohibitive phrases are mostly unseen at the time of purchase. The fear of litigation succeeding unfairly on implied contract grounds, despite the absence of a statutory basis, would be removed by the amendment. I beg to move.

Lord Beaverbrook

My Lords, we have not had as long to consider the amendment as we might have wished. However, from briefing material circulated by the Library Association we surmised that the purpose was to prevent contract from prohibiting acts which are permitted under copyright law. I have to say that Clause 107 is rather a curious place to provide such an amendment, but I would have to resist the amendment wherever it was placed.

The exceptions to copyright in Chapter III of Part I of the Bill do not confer inalienable rights on users of copyright material. They can be negated by contract. The person selling copyright material is free to impose any conditions he wishes in his contract of sale. If the buyer cannot accept those conditions, he can decline to buy. A common condition imposed on the sale of books prohibits rebinding. That has nothing to do with copyright. There is no restricted act of binding a copyright work and, obviously, no exception to be negated.

Rather than going the way suggested in this amendment, we are giving serious thought to tabling an amendment in another place to provide a specific reference in Chapter III to the fact that contract may override its provisions. For example, it is imperative that those who make expensive training films are able to impose conditions in their contracts of supply to their customers. The same applies to expensive computer programs on disc or magnetic tape.

The copyright owner must be in a position to prohibit onward transmission by sale or hire of such valuable commodities. I cannot accept that he should be able to prohibit acts which would damage his interests only if he joins a licensing scheme. Joining a licensing scheme will usually be the last thing such copyright owners would wish to do. Part of the reason they exercise such tight contractual control over copies is to limit the opportunity for copying. For those reasons I must resist the amendment tabled in the name of the noble Lord, Lord Lloyd of Kilgerran. However, I should emphasise to him that we are, as I have already said, considering the possibilities in the matter.

Lord Lloyd of Kilgerran

My Lords, I must again apologise for the lateness with which this amendment was lodged. I am grateful to the Minister for what he has said and in the circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 112: Page 44, line 17, leave out ("extending to the works of several authors") and insert ("covering works of more than one author").

The noble Lord said: My Lords, in moving Amendment No. 112 I shall, with the leave of the House, speak also to Amendments Nos. 113, 116 and 129. The intention of Clause 107 has always been to define a licensing body so as to cover organisations whose licensing activities are concerned with the works of a number of unconnected authors. Recently it has been pointed out to us that as drafted the definition could apply to a body whose licensing activities are confined to a single collective work, or collective works, of which the authors are the same. That would not be right and such a situation was never intended by us. Therefore the amendments to Clause 107 seek to rectify that situation. The amendment to Clause 115 is a consequential drafting amendment and the amendment to Clause 166 is the usual addition of another defined term to the list. I beg to move.

Lord Williams of Elvel

My Lords, I have no comment to make on the Government's amendment. However, it would be appropriate for me to comment on the grouping which the Minister has put forward. The tight grouping, which as I understand it is the final version produced by the Government Whip, places Amendment No. 112 together with Amendment No. 116. Nevertheless, I think the Minister said that he was also speaking to Amendment No. 129. We have had trouble on previous occasions with groupings in Bills and I must say that it is somewhat confusing for the Opposition if such groupings are not correct. I very much hope that the noble Lord will report back to the Government Whip that we should like the groupings to be right.

Lord Beaverbrook

My Lords, it seems that an error has somehow crept in, either in the Marshalled List or perhaps in my own notes. However, these amendments sit together and I should just say that it is an error on the right side in that we have slightly overgrouped on these small amendments, rather than the other way round, which would have been rather less helpful to the House.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 113:

Page 44, line 19, at end insert— ("(4) References in this Chapter to licences or licensing schemes covering works of more than one author do not include licences or schemes covering only a single collective work or collective works of which the authors are the same.").

The Deputy Speaker

My Lords, is it just Amendment No. 113 that is being moved at this stage? I think the noble Lord could go as far as Amendment No. 116, as all those amendments have been referred to in discussion.

Lord Williams of Elvel

My Lords, with respect, I do not think the noble Lord has spoken to Amendment No. 113.

The Deputy Speaker

My Lords, the other amendments have not been discussed so it is just a question of Amendment No. 113 at present.

On Question, amendment agreed to.

7.15 p.m.

Clause 109 [Reference of proposed licensing scheme to tribunal]:

Lord Beaverbrook moved Amendment No. 114: Page 45, line 1, leave out from ("a") to ("be") in line 2 and insert ("licensing scheme proposed to be operated by a licensing body may").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 115, 117 and 118. I said on Report, when replying to the noble Lord, Lord Lloyd of Kilgerran, that we were persuaded that a case existed for enabling would-be licensees to refer to the Copyright Tribunal, without the consent of the licensing body, prospective schemes of licences which a licensing body might have offered to them. I promised that provided we were satisfied that this would not result in an unacceptable degree of compulsory licensing or a breach of our convention obligations we would return with our own amendments.

These amendments fulfil that undertaking. On the issue of compulsory licensing the clauses as amended will, as before, apply only to schemes which it is actually proposed should be operated and to licences which it is actually proposed should be granted. Moreover, they will only be applicable to schemes or licences offered by licensing bodies, which are by definition in the business of licensing their repertoires for general use.

There will be no compulsion on any individual copyright owner who does not want to licence his work for the use in question. Nor will it be possible to take a licensing body to the tribunal in circumstances where no scheme or licence has been offered and where no such offer is intended, unless those circumstances come within Clause 112. We are satisfied that this is sufficient protection for the copyright owner who does not want to license his works for a particular use.

As I said on Report, we recognise that there must nonetheless be a means whereby users, such as broadcasters, can gain access on arbitrated, equitable terms to the works controlled by monopoly licensing bodies, when agreement on terms cannot be reached by voluntary negotiation. The amendments will ensure that that will continue to be possible in the future, as it is already in practice under the 1956 Act.

However, we have incorporated one extra safeguard, which is that the tribunal will have a discretion to judge whether a reference is premature before deciding whether to entertain it. Obviously the tribunal should not have to consider a proposed scheme or licence which is at such an early stage of its drafting that no sensible order could be made in respect of it. The substance of the change as regards licensing schemes is contained in the amendments to Clause 109, and as regards licences in the amendments to Clause 116. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I am most grateful to the Minister for bringing forward these amendments, based on amendments which I originally tabled.

On Question, amendment agreed to.

The Deputy Speaker

My Lords, it would seem that Amendments Nos. 115 to 118 inclusive have already been discussed. Therefore, does the noble Lord wish to move them?

Lord Beaverbrook moved Amendments Nos. 115 to 118:

Page 45, line 7, after ("shall") insert ("first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature. (2A) If the Tribunal decides to entertain the reference it shall").

Clause 115, page 48, line 7, leave out ("the").

Clause 116, page 48, line 20, leave out (", with the consent of the licensing body,").

Page 48, line 22, after ("shall") insert ("first decide whether to entertain the reference, and may decline to do so on the ground that the reference is premature. (2A) If the Tribunal decides to entertain the reference it shall").

On Question, amendments agreed to.

Clause 152 [Denial of copyright protection to citizens of countries not giving adequate protection to British works]:

Lord Beaverbrook moved Amendment No. 119: Page 64, line 30, leave out ("copyright protection given") and insert ("rights conferred by this Part in relation").

The noble Lord said: My Lords, with leave, I shall speak also to Amendments Nos. 120 and 121. These are amendments to Clause 152, and with them I am honouring a commitment previously given to the noble Lord, Lord Lloyd of Kilgerran, on Report. The noble Lord moved that a new clause, which was closely modelled on what is now Clause 152, should be inserted in the Bill. As he explained, his object was to avoid moral rights being conferred on authors and directors whose countries do not confer similar rights on British authors and directors.

I accepted the desirability of providing powers to deny moral rights to citizens of countries not giving adequate protection to British authors in the same way as Clause 152 provides such powers in respect of adequate protection of copyright. As I indicated at the time, I think we can achieve this object by amendment of the copyright clause rather than providing an additional, virtually identical, moral right clause. I hope the amendments meet the concerns of the noble Lord. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I should briefly like to thank the Minister and his officials for bringing forward the amendments, which are based on what I originally suggested.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 120 and 121. Page 64, line 33, leave out from ("that") to ("for") in line 34 and insert (", for the purposes specified in the Order, works first published after a date specified in the Order shall not be treated as qualifying"). Page 64, line 40, after ("provision") insert ("for all the purposes of this Part or for such purposes as are specified in the Order, and").

On Question, amendments agreed to.

Clause 154 [Crown copyright]:

Lord Beaverbrook moved Amendment No. 122: Page 65, line 17, leave out ("of") and insert ("taken from").

The noble Lord said: My Lords, I must say that I am not entirely clear whether this amendment is grouped with that of the noble Lord, Lord Mottistone; namely, Amendment No. 123. However, if the noble Lord does not object, and with the leave of the House, I shall speak to Amendment No. 123 at the same time.

Amendment No. 122 is a drafting amendment. The wording of Clause 5(2) was amended on Report in response to various criticisms which had been voiced in Committee. We should have made a corresponding change in the Crown copyright provision, and that is what my amendment will do.

The more substantial amendment in the group is the one standing in the name of my noble friend Lord Mottistone. It seeks to remove commissioned works from the ambit of Crown copyright so that the Crown would be in the same position as any other commissioner in that it would have to acquire copyright from the author by assignment in cases where it wants copyright. This is a matter that my noble friend raised both in Committee and on Report. He has received some support from noble Lords opposite who expressed misgivings about the extent of Crown copyright, and who, if I have understood them correctly, will welcome any amendment that reduces its scope.

Our debate on Report caused me to give careful thought to the need for a commissioned works provision in Clause 154. I initiated consultations to see whether the Crown would be seriously inconvenienced if the commissioned works provision were to be deleted. In the light of those consultations, I can move on this point and I can accept my noble friend's amendment.

Although the principle underlying the amendment standing in my noble friend's name is plain, the drafting is defective because it removes one word too many. The word "or" at the beginning of the amendment needs to remain in the Bill. For that reason, I cannot accept his amendment, and so I hope he will not press it. I realise that acceptance of his amendment would be an appropriate recognition of his great persistence. But, given my assurance that he has won the day, I hope that he will let the matter rest there. I do not doubt that there will be those in another place who will ensure that the assurances I have given today will be honoured. I would accept a similar amendment to Clause 155. In the meantime, I beg to move.

Lord Mottistone

My Lords, I am grateful to my noble friend. I am sorry that there was a small error and that we were unable to have a complete triumph in the House. I am sure that our friends in another place will help us. I am grateful for the fact that after this long time my noble friend finds himself able to accept the amendment and, what is more important, the principle behind it. When my turn comes I shall move my amendment. I realise that I cannot do so. What a pity.

Lord Williams of Elvel

My Lords, I, too, am grateful to the noble Lord for affording the noble Lord, Lord Mottistone, a partial triumph. The Government have accepted that there are substantial doubts about Crown copyright in the Bill as it is presently drafted. The Government seem to have allowed a breach in that wall. I can assure the Minister that when the Bill goes to another place—if I may have the attention of the Government Front Bench—further attempts will be made to widen that breach to ensure (in so far as we can ensure it) that Crown copyright conforms with what we regard as being the proper principles and is not in blanket form, as it was in the original Bill. We are grateful for the small breach that has occurred.

On Question, amendment agreed to.

[Amendment No. 123 not moved.]

Clause 158 [Rights and privileges under other enactments or the common law]:

Lord Beaverbrook moved Amendment No. 124:

Page 67, line 19, at end insert— ("2A) Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise.").

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

On Question, amendment agreed to.

Clause 165 [Minor definitions]:

Lord Beaverbrook moved Amendment No. 125:

Page 70, line 12, at end insert— (" "collective work" means—

1. (a) a work of joint authorship, or
2. (b) a work in which there are distinct contributions by different authors or in which works or parts of works of different authors are incorporated;").

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

On Question, amendment agreed to.

[Amendment No. 126 not moved.]

Clause 166 [Index of defined expressions]:

Lord Beaverbrook moved Amendments Nos. 127 to 129:

Page 71, line 41, at end insert— ("collective work section 165").

Page 72, line 28 [numbered 27], column 2, at end insert ("and 1(A)")

Page 73, line 21 [numbered 19], at end insert— ("work of more than one author section 107(4)") (in Chapter VII).

The noble Lord said: My Lords, I have already spoken to these amendments. I beg to move.

On Question, amendments agreed to.

Clause 170 [Infringement of performer's rights by use of recording made without consent]:

Lord Lloyd of Kilgerran moved Amendment No. 130: Page 74, line 43, at end insert ("but where a recording of the whole or a substantial part of a qualifying performance has been made with the performer's consent then the performer's consent to the making of a copy of that recording for a purpose other than that for which the recording was originally made shall not be unreasonably withheld.").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 209 to Schedule 2. The object is to deal with the problem which I think I described on Report as the tenth spear; that is, the one recalcitrant performer in a minor role whose withholding of a consent can prevent the exploitation of a recording of a large-scale television drama and jeopardise the possibility of further remuneration to other members of the cast. That is the sole object of these amendments.

It is accepted that a performer should have the absolute right to authorise or refuse consent to the making of the first recording. It is also accepted that a performer has the right, on reasonable grounds, to refuse consent to further exploitation. But the BBC, in particular, feels strongly that once the first recording has been authorised the performer should not be entitled to refuse consent, without reasonable grounds for doing so, to further exploitation. I beg to move.

Lord Beaverbrook

My Lords, the noble Lord, Lord Lloyd of Kilgerran, has returned to a question about performer's consent which he raised on Report. The issue is whether broadcasters and cable operators should have to have the consent of performers when they want to make copies of authorised recordings for purposes of repeat broadcasting, cable distribution, or perhaps for marketing to other broadcasters. It is another issue that we have been discussing further with broadcasters since the Report stage.

Your Lordships may recall that I said then that we would consider what might be done if, on examination, the exception to performers' rights contained in Schedule 2 paragraph 12 turned out to be inadequate. On consideration we have come to the conclusion that the exception contained in Schedule 2 does not after all provide a sufficient answer to broadcasters' needs. I am therefore happy to accept in principle that an amendment along the lines proposed by the noble Lord is necessary. I am afraid that we shall want to reflect a little further on the wording. We shall therefore have to return to the matter in another place. I hope that in the light of my assurance the noble Lord will be willing to withdraw the amendment at this stage.

Lord Lloyd of Kilgerran

My Lords, I am grateful that the noble Lord is sympathetic to the problems of broadcasters, and upon his assurance, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 174 [Infringement of recording rights by use of recording made without consent]:

Lord Lloyd of Kilgerran moved Amendment No. 131: Page 76, line 6, at end insert ("or that of the performer").

The noble Lord said: My Lords, the amendment is summarised as being a rectification of bootleg recordings. I am advised that where a recording has been made without the consent of a performer or the recording company, Clause 174, as drafted, requires that if the BBC, for instance, wishes to broadcast the recording the consent of the recording company must be obtained.

By contrast, Clause 173, which deals with the making of a recording of a performance in relation to which a recording company has recording rights, provides that the maker of the recording can obtain consent from one or other of the performers or the recording company. It is therefore difficult to see what justification there is for the distinction between the two clauses. As the legislation confers upon performers and recording companies the same rights in relation to performances before the commencement of the new legislation as in relation to those taking place after, a broadcaster may be unable to locate the relevant recording company which may by now be defunct to obtain the consent for the broadcast of a perhaps unique recording of a performance. I beg to move.

Lord Beaverbrook

My Lords, the noble Lord's amendment deals with a point which has recently been drawn to our attention by the BBC. If a broadcaster has made a recording of a concert and has inadvertently failed to obtain the consent of all the performers, then exploiting that recording may infringe not only the rights of those performers but also the rights of those with whom they have exclusive recording contracts. If the broadcaster wants to rectify the situation, he will, as matters stand under the Bill, be obliged to obtain the consent of the recording company.

The purpose of the noble Lord's amendment is to provide that it will be a sufficient alternative to obtain the consent of the performer. I must point out that in the circumstances envisaged by the BBC it is the person with recording rights rather than the performer whose economic interests are affected.

We cannot accept the amendment as it stands, but we shall look further at the matter and if necessary return to it in another place. It may be that in a case in which the performer also had his own rights, his consent alone would suffice. But if the performer had no rights himself, it would be of no concern to him that the recording company might be adversely affected. Therefore, the performer's consent should not suffice. In other words, the performer's consent should suffice only in the case of qualifying performances. I hope that in the light of my assurance the noble Lord may be able to withdraw his amendment at this stage.

Lord Lloyd of Kilgerran

My Lords, I am very grateful to the noble Lord for the attention that he has given to this matter. In view of his assurances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Dundee

My Lords, your Lordships may consider that we have reached a suitable moment to break in order to return to the subject in an hour's time at 8.30. If so, I beg to move that the further proceedings after Third Reading be now adjourned.

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

Housing Benefit (General) Amendment

Regulations 1988

Housing Benefit (Supply of Information)

Regulations 1988

Social Security (Payments on account,

Overpayments and Recovery)

Regulations 1988

Income Support (General) Amendment

Regulations 1988

Family Credit (General) Amendment

Regulations 1988

7.30 p.m.

The Parliamentary Under-Secretary of State, Department of Health and Social Security (Lord Skelmersdale)

My Lords, I beg to move the first Motion standing in my name on the Order Paper. I shall try hard not to confuse the noble Baroness, Lady Jeger, as much as I unfortunately did yesterday. However, as all the Motions in my name on the Order Paper today are what I might describe as pure social security amendment regulations, I trust that the House will allow me to speak to all of them at once and in due course to move them en bloc, as has been noted on today's Order Paper.

The first three regulations contain a number of amendments to regulations which were debated and approved by the House in November last year, setting out the detailed rules for the introduction of the new income support, family credit and housing benefit schemes from April. Your Lordships will be well aware of the background to the income related benefit changes and will therefore be relieved that I do not intend to rehearse again tonight the reasons underlying them. Most of the changes in the amendment regulations are necessary to correct minor or technical deficiencies in the original set.

One aspect of this block of amendment regulations will however find special favour with the House. It enables any income or capital received from the Macfarlane Trust, set up to help haemophiliacs who are unfortunately HIV positive, to be ignored completely in assessing a person's entitlement to income support, family credit or housing benefit. The most notable part of these is that claimants will not be required to declare receipt of any such payments to the department or their local housing authorities. I am sure that the country as a whole will particularly welcome this move, which will help to keep the individual's conditions confidential.

I should perhaps mention at this point that the Government will in due course be bringing forward similar amending regulations to disregard payments from the Independent Living Fund which, as the House will know, will enable severely disabled people on low incomes to employ help in order that they may live independently in their own homes. These are people who are in the unfortunate position of being disadvantaged if by some mischance they should become seriously disabled or their circumstances change for the worse after the new social security arrangements are brought into effect. Other amendments in this set of regulations are consequential to the 1986 Act.

The House will also be interested in housing benefit. The Housing Benefit (General) Amendment Regulations contain provisions to enable local authorities, in the still unlikely event for many, to make payments on account of housing benefit where they are unable to assess claims properly under the new scheme after 1st April. This temporary provision will run for only three months, that is until 30th June. The regulations also enable local authorities to issue short-term notices of determination for the same three-month period. I should however like to point out that from our latest information I expect only a very small proportion of local authorities, for a variety of reasons, actually to have to use these provisions.

The Housing Benefit (Supply of Information) Regulations 1988 which are also before us tonight deal with the information which is to be exchanged between the department and the local authorities, in accordance with Section 31(1) and (2) of the Social Security Act 1986. In detail, these regulations provide for local authorities to be supplied with information from the Department of Health and Social Security about the outcome of claims for income support and also for local authorities to be notified when entitlement to income support ceases. Local authorities will also be supplied with information necessary to calculate and recover overpayments of housing benefit. These regulations simply continue the arrangements which already apply under the existing schemes.

Moving on to the draft Social Security (Payments on account, Overpayments and Recovery) Regulations, I should say that one of the objectives of the Social Security Act 1986 was to provide a common framework for the administration of benefits. Previously many of the benefits had slightly different rules, each set down in its own set of regulations. The recovery of overpayments was one area where we provided for a single test—that of misrepresentation or failure to disclose a material fact. In 1987, regulations bearing the same title as the present draft provided the new common rules for overpayments and recoveries for all benefits and included interim payments—that is, payments on account of benefit when, for a variety of reasons, we may not be able to process a claim but the person needs to be paid quickly.

I should also like to draw your Lordships' attention to Part 8 of these regulations, which lays down the manner in which the recovery from earnings of income support payments for the first 15 days following a trade dispute shall take place.

Taken together, these five sets of regulations complete the detailed preparations for a fundamental reform of the income-related benefits system. The change will achieve a clearer and more coherent system which will be easier for claimants and staff to understand and which will focus help more effectively on those groups most in need. The regulations we are debating tonight complete the final link in this chain. I commend them to the House.

Moved, That the draft Housing Benefit (General) Amendment Regulations 1988 laid before the House on 14th March [20th Report from the Joint Committee]; Housing Benefit (Supply of Information) Regulations 1988 laid before the House on 14th March [20th Report from the Joint Committee]; Social Security (Payments on account, Overpayments and Recovery) Regulations 1988 laid before the House on 7th March [20th Report, from the Joint Committee]; Income Support (General) Amendment Regulations 1988 laid before the House on 16th March [20th Report from the Joint Committee]; and Family Credit (General) Amendment Regulations 1988 laid before the House on 16th March [20th Report from the Joint Committee] be approved—(Lord Skelmersdale.)

Baroness Jeger

My Lords, we appreciate that all the regulations should be taken together. However, the most important element in the Motions concerns housing benefit. I am glad to see that the noble Lord is talking about all these matters tonight. I am also very glad that my noble friend Lord Stallard is with us and that he has recovered after surgery and attention at the Westminster Hospital. I am sure that my pleasure at his recovery is shared by all noble Lords.

There are several problems about these regulations. I appreciate what the noble Lord is trying to do. However, we are trying to work out how we can deal with disabled people who will not get any help under the new system. The citizens' advice bureaux have said today that they believe that under the new system more people are going to be worse off than are going to be better off. People will have to pay water rates, which they did not have to pay before. That makes it very difficult for us to see whether the Government's policy will help the poorest people or whether it will make life more difficult for them.

I know that we cannot deal with these things by a vote tonight but I have to say that I think we are not making it clear in this House that the Government really care about the poorest people.

I have a cutting from The Times which states that sick and disabled people: stand to lose by up to £18 a week under the new social security reforms". When we are asked to deal with these matters tonight it is very difficult for us to see where the regulations relate to the facts of the situation. All I can say tonight on behalf of my noble friends is that we do not approve of these regulations and that we hope at some time that there might be some reconsideration.

Lord Banks

My Lords, the House is indebted once again to the noble Lord, Lord Skelmersdale, for his explanation on this occasion of no fewer than five sets of regulations. The regulations complete the framework for the new regime which comes into force next week. The House may think that they do so just in the nick of time.

The noble Lord will be aware that we on these Benches have many criticisms and many anxieties about that new regime. The Government say that two-thirds of claimants will be better off; but of course that was challenged by the benefits research unit at the University of Nottingham when it set out its view in the Guardian on 24th February. It reckoned that 60 per cent. of those changing from supplementary benefit to income support will be worse off.

Yesterday the Department of Social and Administrative Studies at Oxford University was reported as saying that in its view 75 per cent. of claimants would be worse off. Today as the noble Baroness, Lady Jeger, has said, the National Association of Citizens' Advice Bureaux has issued the results of a survey which it conducted of 80 of its cases in an area of the country chosen at random. That would seem to indicate that as regards the sick and disabled there are five times more losers than gainers; five out of six sick people would be worse off if this survey is an indication of what is going to happen. And 70 per cent. of able-bodied pensioners would also be worse off. It is responsible people who are saying these things. So it is no wonder that we have anxieties.

These regulations, as the noble Lord said, make a number of comparatively minor changes to the regulations approved last year. He mentioned in particular three of the orders dealing with income supplement, family credit and housing benefit respectively which provide for payments from the Macfarlane Trust to be disregarded. That is welcome as is the maintenance of confidentiality with regard to those payments.

I should like to ask the Minister about the Independent Living Trust which has been established in order to provide help for the very severely disabled. I understand that payments made from that trust are also to be disregarded. Can the Minister say when provisions for that will come before Parliament?

The provisions for the exchange of information for housing benefit purposes between the Department of Health and Social Security and local authorities appear sensible as does the provision to allow local authorities to calculate housing benefit on a rough and ready basis for the first three months.

But I am concerned about two points with regard to that. First, I understand that some formula is to be followed that should prevent any significant overpayments. I should like to know more about that if the noble Lord can enlighten us. It does seem that a claimant may have no idea that he is being overpaid and may be faced with the difficult problem of the repayment of a considerable sum. Will the noble Lord say how that is to be avoided?

My second point relates to the noble Lord's statement that he expects only a very small number of local authorities to be unable to proceed on the proper basis next week. It is encouraging to hear him say that but it runs in the face of a lot of information that has been conveyed in the press and indeed in the debate on this subject in another place where it was variously suggested that 17 per cent. of local authorities, 101 out of 281 local authorities or even 50 per cent. of local authorities might not be ready. There has been talk in the newspapers of possible chaos. Can the noble Lord give us a little more information about that and say perhaps how many local authorities he anticipates will not be able to proceed on the proper basis next week and will have to use the rough and ready method of calculation? Is it not a fact that the local authorities have been put in a very difficult position owing to the late production of the regulations with only some five months to work on the changes?

Turning from housing benefit, when we discussed the Unemployment Benefit (Disqualification Period) Order 1988 dealing with disqualification for unemployment benefit because of voluntary unemployment, we made it clear that we saw no reason to extend the maximum period from 13 to 26 weeks. We said this because small numbers were involved, the last doubling of the maximum period had had no effect and there was evidence to suggest that the maximum length of disqualification was not in fact known to those affected who were not deterred by it. Of course there was the fact that those disqualified, if they qualified for supplementary benefit, had it reduced by 40 per cent.

The Income Support (General) Amendment Regulations 1988 contain the consequential and similar extension of the maximum period for the 40 per cent. reduction of income support. We object to that on the same grounds as we objected to the extension of the unemployment benefit disqualification maximum period and on the additional ground of the increased cumulative hardship caused by so long a period of curtailment of what is after all a subsistence benefit.

In conclusion, I wish to ask the noble Lord if he can give any indication of how many persons the Government estimate will be reliant on means-tested benefits once the new income related system is in force? The new system brings help to some on benefit by taking away from others on benefit. It takes from the poor to give to the poorer at a time when large sums are made available through tax cuts to the top 5 per cent. of earners.

I believe that the movement to greater reliance on means-tested benefits exemplified by the switch of resources this year from child benefit to family credit is retrogressive. The alternative is not a bolstering of the status quo. It is to move in the direction of a tax credit scheme designed to take people off means-tested benefits.

Lord Kilmarnock

My Lords, we also would like to thank the noble Lord, Lord Skelmersdale, for steering us rapidly through these five sets of regulations. We certainly welcome the concessions that he has indicated in respect of the Macfarlane Trust to the haemophiliacs and also the Independent Living Trust Fund.

The whole new regime that the Government are bringing into operation caused considerable disquiet on these Benches when it was first introduced. I do not think that disquiet has diminished at all as implementation draws nearer and nearer. Confusion has been sown in the public mind to a serious extent as to how people are going to be affected. I should like to ask the noble Lord whether he can tell the House what the Government are doing in the field of information to offset rumours and clarify the position of people who are going to be worse off under the new arrangements.

It seems to me that there is a particular area of concern as regards the poorest pensioners. It is calculated that many of them will be in the region of £3 or £4 a week worse off. There is also a serious area of concern as regards part-time workers who will fail to qualify under the new income support scheme if they work for 24 hours a week or more, as against the current limit of 30 hours. I understand that there are around 15,000 part-time workers who will lose the right to claim supplementary benefit and/or income support. Perhaps the Minister will comment on that matter.

I believe that I am right in saying that a large number of those people will be single parents. That group will lose out badly when the new arrangements are in operation. One of the causes of that deterioration in their situation will be the lack of transitional protection for those on housing benefit. The noble Lord, Lord Stallard, who is an expert in that area, will doubtless be talking about housing benefit. Therefore, I shall not go into that matter.

However, I should like to hear from the noble Lord whether the Government have any plans to revise the transitional arrangements for housing benefit. I understand that the Minister's honourable friend, Mr. Scott, acknowledged in the media today that there were serious difficulties and anomalies arising from the new arrangements. However, that is hearsay and I am not sure what commitment, if any, he made to look into the ways of alleviating the transitional difficulties. Perhaps the noble Lord will say more on that subject.

Lord Stallard

My Lords, I should like to join those who have congratulated the Minister on his introduction of the regulations this evening. I should also like to agree with my noble friend Lady Jeger in her remarks on income support and family credit, and with the other noble Lords who have spoken.

I am mainly concerned with the housing benefit regulations. I believe that it is worth spending a few minutes on those matters because this will be our last opportunity to do so. I should have agreed wholeheartedly with the noble Lord, Lord Banks, had I been present last night when he raised the question of the Guardian advertisement. That concerned proceedings in Parliament. Before both Houses had agreed the regulations, they were published elsewhere. Have the Government or the Minister raised any objection with the Guardian as regards the advertisement? It seems to have been a bit arrogant. If no protest was made, that is even worse because it makes it appear that other people are agreeing with it.

Given the background and circumstances, as well as the fact that we do not have as much time as we should like, I shall not go too deeply into the first set of regulations and the supply of information. I recognise that, given the circumstances, the supply of information will be necessary. Local authorities and other organisations, as well as the Secretary of State, will need liasion on the subject of information. I hope that the liaison between the government departments such as the DHSS, the DoE and others is better than it has been up to now. I have found it difficult to get the same kind of information from two departments on the same issue. There is room for improvement.

Having said that, I think that there is nothing we can do about that matter at the moment. Therefore, turning to the other amendments to the regulations, I join with those who have welcomed the exemption of payments under the Macfarlane Trust. I congratulate the Government on their response to the concerns expressed on all sides of both Houses about the treatment of payments to haemophiliacs and the provision which the Government have made for them in the regulations. That is to be generally welcomed.

Concerning the other regulations before us, the Minister in another place described the housing benefit regulations as tidying-up regulations and said that they would deal with two minor matters. The Minister has this evening referred to minor matters to be dealt with by the regulations. Having read them and thought about them, I believe that it would be more accurate to say that they deal with major matters; namely, the miscalculation of the time required for implementation of the new scheme and a gross underestimation of the burden on local authorities in the timescale allowed and with the scarcity of finance for the task. Those are major matters.

Those of us who attend social security debates will recall the chaos that followed upon the introduction of the current housing benefit scheme in 1982–83. The first six months were plagued with problems of widespread delays in payments, errors in assessment, computer breakdowns leading to arrears and even some evictions of bewildered tenants. Local authority staff and voluntary organisations were confused and overstretched. Claimants were even more confused and ill-informed. That is relevant to our discussions tonight because we are now in almost the same situation.

So widespread were the delays and the misunderstandings on the first occasion that transitional arrangements had to be introduced twice to extend the implementation of the scheme, and the final date of transfer to the new scheme had to be deferred until December 1983—nearly 18 months after the passing of the Act. Now we are once again discussing transitional arrangements before a new scheme is implemented.

After the passing of that Act, some local authorities had still not been able to complete the necessary arrangements. There was a huge backlog of cases. We were all aware in our own local authorities of the number of cases which built up. There were literally millions of such cases which were left to be resolved. Some of them are not yet fully and satisfactorily resolved because of the delays. It was The Times which described the implementation as being the biggest administrative fiasco in the history of the welfare state. Now we have a new set of regulations.

It is also interesting to recall the reaction of the government spokesman at that time to the criticisms. The problems were described as teething difficulties. Perhaps that is the same as saying "minor problems". The Government said that the problems would disappear once the scheme had settled down and that there was nothing to worry about. The Secretary of State claimed at the time that out of 500 local authorities only 15 were experiencing difficulties in June 1983. A month later, he was forced to admit that 100 local authorities were still in trouble with the scheme. Now we are almost back in the same situation.

I have mentioned those matters because I think they are relevant. I believe that it does noble Lords good to draw parallels between the circumstances which existed then—we all objected in those debates—and the present circumstances. Remembering the introduction of these regulations outlining more transitional arrangements for local authorities which will not be able to implement them by the effective date, the remarks of the Minister in another place, the remarks of the Minister in this House which I mentioned a moment ago, the previous fiasco and this Government's record for ill thought out and panicky legislation on social security, to which we have all referred from time to time, I think that we on these Benches are entitled to be a hit sceptical about the almost complaisant approach that the Government are taking towards the regulations.

For a variety of reasons, mainly a shortage of staff and resources and difficulties with computer software, about 17 per cent. of local authorities will not be ready for the April deadline and may not even be ready for the deadline beyond April. That is not a minor affair. It is estimated that 1 million cases will be affected. There is nothing minor about 1 million cases when the hardship and deprivation caused by these problems is known. It is a serious problem.

Those delays cannot be attributed to local authorities. The very fact that the regulations are before us is an admission of the Government's failure to provide the extra funds and the extra time and to make provision in the legislation and in the regulations with which we dealt last November. The fact that these regulations had to come before us is an admission of failure on the part of the Government. They can no longer dodge the problem and leave it to local authorities. It is up to the Government to reimburse local authorities for the expenditure incurred as a result of this whole rushed exercise.

Local authorities have estimated expenditure of £46 million for the transition to the new scheme. The government grant will be about £25 million, which is just over half that figure. That is totally inadequate and does not take account of the extra burden that is being placed on the authorities by the transitional arrangements.

I know that my local authority is not the most popular in this House. It is popular to the extent that almost every noble Lord is an expert on Camden. More quotations are made about Camden on all kinds of issues than about any other local authority. Perhaps we should be glad that we are internationally famous and have been quoted on television thousands of times. Such references are never very complimentary.

I should like to congratulate Camden's housing benefits section on being one of the few that hopes to be ready. In fact Camden was one of the few that was ready for the last debacle in 1983. It is ready only because it was prepared. It knew of the difficulties that would be caused to ordinary tenants and other people if it was not ready. It has been prepared to feed in staff to work extra hours and overtime and to do the calculations by hand if the computer was not functioning or the software was not available. Camden has been doing just that up until now. It deserves credit for its efforts and some recompense, as do all the other local authorities that are perhaps doing the same, for the added expenditure incurred in trying to put right the Government's failure in this regard. I hope that the noble Lord will be able to give an assurance that the Government will look again at the expenditure being incurred by local authorities.

It is emerging already from information which I hope will be supplied to the Government that two out of every three claimants in Camden will lose money as a result of the new scheme. There is nothing minor about that. Nationally, the figures are quite horrific and frightening to anybody who really cares about the deprivation that will arise as a result of the losses under the new schemes. The article in The Times yesterday has already been mentioned. It says: More than four million people will have benefit payments cut in real terms because of social security reforms which start to come into effect on April 4, according to an analysis by independent researchers. The Policy Studies Institute, which has based its research on Department of Health and Social Security figures, also says that in spite of government claims that they will save nothing from the changes, the reforms will raise £545 million, mainly from cutting housing benefits. The losers, representing 48 per cent. of the 8.6 million claimants, include more than two million pensioners, 830,000 unemployed families and 73,000 working families. Many could lose up to £12 a week, the institute says". This is the last chance we have before these regulations are implemented to remind ourselves and the Government of the position. I have three examples from Camden of how people will be affected. I could quote many more. They are typical of what will happen as a result of the implementation of the regulations. The first concerns a claimant, a lone, grandparent pensioner, who is bringing up her deceased daughter's child. Her total income is £98.22, made up of state pension, a small private pension and child benefit. Under the new calculations she will lose £13.08. No one in her circumstances can afford to lose £13.08.

The second example is a claimant who is a lone pensioner aged 77. She has a state pension of £41.15. She earns £17 a week from a part-time job. Under the new regulations she will lose £7.89 of the benefit that she has been receiving up until now. That is a large loss for a woman in her circumstances. The third example concerns a youngster. Young people and the very old have been attacked by almost everything the Government have done in social security. The examples I have given are typical of groups. There will be thousands like them in those groups.

The youngster is 18 years old and is in full-time work. Her take-home pay is £53.47. Her previous entitlement was £14 a week. Her entitlement under the new scheme is £1.48. She will lose £12.52 a week. Those are typical examples of three different groups of people who will lose as a result of the implementation of the new allowances and the housing benefits scheme.

There is no transitional arrangement for the housing benefit scheme. There is for the others—but not for housing benefits. I hope the Minister will be able to tell me that I am wrong, and that there will be. At the moment I understand that there is none.

I should like to ask the Minister for further clarification of the point that was raised by the noble Lord, Lord Kilmarnock. He asked about overpayment. The regulations which we debated last November—and they were also debated in another place—provided, as has always been the case, that local authorities could not recover an overpayment where it occurred through official error and where the claimant had no way of knowing that he or she had been overpaid. That had always been the position. However, it would appear that under the new regulations the local authority will have powers, even if it has committed an official error during the transitional period up to 30th June, to recover the overpayment from the claimants. The regulations give that power to the local authorities. Perhaps the Minister will clarify that point.

Am I right in thinking that this is a departure from previous practice? What are the exact details? Does the Minister know how many tenants will be acquainted with that probability? How will they be acquainted with it and how will they check? Is it the department's intention to publish a book of guidance, instructions or information for the use of tenants so that they can check these matters, know the workings of the regulations and know how they are likely to be affected? If that is not done I do not see how thousands, perhaps millions, of people will know whether or not they have been overpaid or by how much. They may get into serious trouble if they carry on budgeting as they have been budgeting in regard to their previous allowances.

So I should like the Minister to give us further information on how tenants will be acquainted with these arrangements. I hope that he will not just say that it is up to the local authority, because it has already been demonstrated that local authorities cannot afford to do now the tasks which have been loaded on to them. It is up to the department to make some information available to the tenants.

Finally, much as I would have liked to vote against these regulations because, as I have said, in the main they are an attempt to put right the failures and miscalculations of the Government in the original Bill and the original regulations, we cannot do so tonight. But we on this side of the House are still opposed to the new scheme and the scheme which fathered this one. I certainly am still opposed to it, as I always have been. I am convinced that when the effects of this latest pernicious legislation become more widely apparent there will be many more demands for debate and further argument, especially when it becomes generally known that many of those millions of people who will be worse off are youngsters who are already struggling to exist on low wages; and that there will be many elderly people who have exercised thrift, and been encouraged by the Government to exercise thrift, who have prudently saved for their old age and who will now find that they will lose their entitlement entirely because of having a nest-egg put by for their retirement. I think that there will be demands from all quarters for more discussion on this question and I look forward to such a debate in the very near future.

8.15 p.m.

Lord Skelmersdale

My Lords, I am grateful to all noble Lords who have spoken on these five orders this evening. Perhaps I may say straight away how pleased we are to see the noble Lord, Lord Stallard, back in his place and obviously fighting fit.

To noble Lords generally I admit that the basis of these orders has been controversial in the past, and it is quite clear from today's short debate that it is still controversial. However, I submit that this matter has been thoroughly discussed in earlier debates, notably the debate that took place on what is now the Social Security Act 1986. I do not believe that these changes are pernicious, as the noble Lord, Lord Stallard, suggested. They follow an intention that has been set out ever since the publication of the Green Paper on this subject. There is an intentional targeting of the mammoth resources available. There is no hiding of skeletons in closets or anything like that about this matter.

I now turn to the individual points that have been raised during our discussion. The noble Lord, Lord Banks, asked me how many recipients of income-related benefits there will be once the reforms are introduced. That is a very good starting point for my response. Figures on the total number of benefit recipients must by definition be imprecise because of multiple receipt of a number of income-related benefits. There is no change in that under either the existing or future provisions. However, in broad terms we estimate that about 8 million people are presently in receipt of these benefits and that between 6½million and 7 million will be in receipt of benefits when the new system is fully implemented. A little later I shall explain why that is so.

The noble Lords, Lord Kilmarnock, Lord Banks and Lord Stallard, raised the question of an inadequate time for preparation, especially in regard to the new scheme of housing benefit. We made no secret about it. We always recognised and appreciated the heavy demands that the preparation for the changes placed on local authorities and DHSS local offices. Originally we intended to lay regulations before the House in mid-April last year, but as the House knows well, because we reported this matter to it, our legal advice was that we could not do so without including the final benefit rates. Obviously, that was not possible until the September retail prices index became available on 9th October. The moment that it became available we acted as quickly as we possibly could and as parliamentary time allowed. I do not believe that we were laggards in that respect.

The noble Baroness, Lady Jeger, and the noble Lord, Lord Banks, raised the question of the newly disabled who claim after April. I personally would have preferred to combine their disregard into the relevant orders that we are discussing this evening. Unfortunately, there just was not time because in the queue as it was the Macfarlane Trust came slightly earlier than the fund and regrettably there were drafting difficulties because of other legislation. Therefore it was impossible to combine the two for the order tonight.

I believe that our record for helping the sick and the disabled is very good indeed. Overall spending on benefits for the long-term sick and disabled under pension age now amounts to £6.75 billion a year, which is an increase of 80 per cent. over the lifetime of this Government. Under income support some 85 per cent. of the sick and disabled will gain or be unaffected by the reforms. As regards the question of when the provisions for the disregard of payments for the Independent Living Fund will come before your Lordships, I can say that we are in the process of determining the terms of that fund and the nomination of trustees. Once those matters have been completed we propose to bring the regulations before Parliament, which I hope will be in a matter of weeks.

The noble Baroness, Lady Jeger, raised another point on income support with special reference to water charges. The income support personal allowances take account of the supplementary benefit expenditure on water charges. However, I admit straight away that they are not separately identified—a point which alerted the noble Baroness. This change meets one of the aims of the reformed scheme; namely, to encourage self-reliance by providing a system of support which, so far as possible, leaves claimants free to manage their own financial affairs.

Several noble Lords have zeroed in on recent criticisms of the various reforms from very eminent bodies. The noble Baroness, Lady Jeger, mentioned the citizens' advice bureaux and another noble Lord, possibly the noble Lord, Lord Banks, mentioned the study by the Policy Studies Institute. I believe that there is a basic misunderstanding in the comments of all those eminent commentators. They have all underplayed the spending on transitional protection.

I point out straight away to the noble Lord, Lord Stallard, that there is no transitional protection for housing benefit because one of the objectives is to remove the payment of that benefit from people who have higher amounts of capital and to target it on those people who have lower amounts of capital. That ensures that under income support virtually all the present supplementary benefit claimants will receive just as much money as they do now. It is misleading to apply average single payments figures for all income support families with children in the way that the Policy Studies Institute has done, for example, since the available evidence suggests that two-thirds of such families do not receive such payments.

I also believe that it is misleading to use estimated single payments figures which predate the necessary changes made in 1986 and 1987. Noble Lords will remember a speech on this subject made by my noble friend Lady Faithfull at the Committee stage of the recent Social Security Bill. For the reasons given then by my noble friend it is particularly misleading to assume that any government would have allowed the growth in single payments prior to 1986 to continue unchecked.

I think that it was the noble Lord, Lord Kilmarnock, who commented that 15,000 part-time workers will lose their right to claim supplementary benefit or income support because of the 24-hour rule. I must confess that there are no official estimates of the numbers of people who may be working part time. The CAB figures therefore must rest on speculation. Almost nine out of 10 lone patents receiving benefit when the new income support scheme is introduced will have an increase or no change in their benefit income after they have paid their housing costs. For married couples the figure is 92 per cent.

Furthermore, the reforms help single parents to work by easing the amount that they can earn without affecting their income support payments from £12 a week up to £15 a week. While child care costs will no longer be specifically disregarded in this way, the evidence suggests that this helped only a minority of single parents on supplementary benefit. The higher £15 rule will help them all and for those working more than 24 hours a week the new, more generous, family credit will be available.

The noble Lord, Lord Banks, returned to a subject that we have discussed over recent weeks; namely, the voluntary unemployment deduction period. I do not think that I can do better than to repeat what I said then. The extension keeps the deduction period in step with the period for which the claimant is disqualified for unemployment benefit, and for the same reason. It is not equitable to pay a person who has brought about his own unemployment the same as one who is unemployed for reasons beyond his control.

The consequence of the unemployment benefit disqualification period order being brought over into income support by extending the maximum period of voluntary unemployment deduction from 13 to 26 weeks is obviously pertinent to what I have just said. The 40 per cent. deduction from the personal rate of income support is a sanction that has existed for many years. It serves the same dual purpose of encouragement to act responsibly and a penalty for disqualification for unemployment benefit. If there are others in the claimant's household there is no reduction in benefit for them. The deduction applies only to the amount for the claimant. It is modified to a rate of 20 per cent. where there is a pregnant or seriously ill person in the family and the claimant's capital is not more than £200.

All noble Lords were concerned with the notification to claimants about these payments. The noble Lord, Lord Banks, was interested in overpayments especially, as I understand it, in the realm of housing benefit. Guidance is issued to all local authorities and that will ensure that if followed in at least 90 per cent. of the cases the money will not be overpaid. Those amounts that are overpaid will generally be small. Regulations ensure that claimants are notified at the time payments are made that they are payments on account and that an overpayment will be recovered and underpayments will be reimbursed.

The noble Lords, Lord Kilmarnock and Lord Stallard, raised the question of the money we have allocated to local authorities for setting up the new housing benefit scheme. The total sum of £25 million provides a very reasonable level of support when viewed in relation to local authorities' current administration costs and workload and compared with the total sum of £20 million spent on introducing the current scheme. Although we asked for it, there was no convincing evidence from local authorities' estimates of likely costs that the £25 million was inadequate. I am therefore rather surprised to hear the noble Lord, Lord Stallard, suggest at this late stage that it is inadequate. Estimates for items of expenditure such as staffing varied so widely that we concluded that some authorities had allowed a safe margin of error in their calculations. It was also clear that not all the costs envisaged by authorities were necessitated by the reforms.

We ought to remember that in 1983 the basis of the changes was slightly different from those that we are considering this evening. The objective then was to move payments from the department's local offices to local authorities. The noble Lords, Lord Banks and Lord Stallard, asked how many local authorities will not be able to implement the reformed housing benefit on 1st April. In other words, they picked up what I said earlier. I believe that the various press reports that the noble Lord, Lord Banks, quoted—reports that there will be chaos on 1st April—are totally inaccurate. In response to a questionnaire issued by my department, less than 10 per cent. have indicated that they will not implement fully on 1st April. Even this is a gross overestimate. My officials have visited authorities up and down the country and have not come across any, or indeed heard of any, who will not be in a position to pay benefit either under the new scheme or the arrangements debated tonight.

On the question of authorites not being given enough time to implement the scheme, I have already mentioned the consultations with local authority associations. I would add that these have been continuing for over 18 months. Authorities asked for a year to implement the new scheme. Draft regulations were issued to authorities in May 1987, only six weeks late. The next final regulations issued in November 1987 did not differ significantly from draft regulations issued in May. Those were the ones, as I have just told the House, that legal advice suggested would not be in a suitable and fair form to put before Parliament. Visits by senior officials have confirmed that the vast majority of local authorities are in a considerably better position than they were in 1983.

I should like to finish by commenting briefly on the housing benefit reforms and the capital rule. I know that this will be repetition but I have a few seconds left and I should like to make the comment for the benefit of those noble Lords both inside and outside the Chamber. We have changed the housing benefit capital rule because we want to be consistent across the three income-related benefits. The new cut-off point of £6,000 is double the current supplementary benefit limit of £3,000. Our policy is to give help to those most in need. Your Lordships may well be as amazed and as alarmed as I was to discover that at present one can be in receipt of housing benefit with £25,000 sitting in a current account. This cannot be right and indeed does not make sense. The better off should use their own resources before receiving help from public funds. That is exactly what public funds are for.

The new rule is beneficial for those with small savings because of the increase from the £3,000 limit to £6,000 limit. The only losers are those with large amounts. I do not believe that this is penalising thrift. We have sought to strike, and I believe have succeeded in striking, a careful balance between the need to ensure that money goes only to those who need it and the need not to penalise thrift. People do not have to spend all their capital before they become entitled to benefit. If people's savings dip below £6,000 they will become entitled to benefit, only providing that the money has not been used extravagantly but has been spent on reasonable day-to-day living expenses. It is ridiculous for the Opposition to talk about this Government penalising thrift. Under the last Labour Administration pensioners saw the value of their savings destroyed to a very large extent through inflation.

Staff in the department and local authorities have made tremendous efforts over the last two years to ensure that the benefits are successfully implemented. New computer systems have been developed. Detailed instructions have been prepared. Revised forms and leaflets have been printed and thousands of staff trained on the new systems. Advertising campaigns have been undertaken in regional and national press to draw attention to the income support and housing benefit changes. We have this week launched a major press and television campaign on family credit. That is the final point that I had not answered. On that basis, I commend en bloc the Motions standing in my name on the Order Paper.

On Question, Motions agreed to.