COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Young of Graffham
My Lords, I beg to move that the House do agree with the Commons Amendment No. 2. In speaking to the amendment, I also speak to Amendments Nos. 52, 52A, 53, 155 and 179.
These amendments deal with three different points relating to the recording, broadcasting or cable diffusion of spoken words or music. Amendments Nos. 2 and 155 have the effect of moving the definition of when a work is considered to be made from Clause 149 to Clause 3. Amendment No. 179 adds an appropriate entry in Clause 169, which provides an index to all defined terms. The point of moving the definition from Clause 149 to Clause 3 is to ensure that it will have general applicability to Part I.
The concern addressed by the new clause introduced in Amendment No. 52 is the fear of broadcasters that those whose spoken utterances are recorded—for example in a speech to a public meeting—may invoke copyright to prevent or control the editing of the recording by the broadcaster, or even prevent broadcasting altogether. Your Lordships will recall that when the Bill was previously in this House the Government undertook to bring forward amendments in another 198 place to meet these anxieties. This amendment fulfils that pledge in relation to Part I. We shall come to a similar amendment covering performers' rights when we reach Part II.
The new clause will allow recordings of the spoken word or copies of such recordings to be. used without infringement of copyright for the purpose of reporting current events in whatever medium, or of broadcasting or inclusion in a cable programme service—in this case not necessarily restricted to reporting current events. The exception would apply provided that all the conditions in subsection (2) are met. Our aim has been to reach a reasonable compromise between on the one hand the needs of broadcasters, cable operators and those in other media who use recordings to convey the spoken word as material for reporting on current events and on the other hand the interests of those whose spoken words are made use of in this way. We believe that the clause achieves a fair balance and the broadcasting organisations have expressed themselves content with it.
The amendment to Amendment No. 52 proposed by the noble Lord, Lord Williams of Elvel, alters this balance in favour of the media. If, for example, a newspaper recorded an interview for the purpose of reporting current events, the amendment would allow newspapers to sell the recording to a broadcaster knowing that it could be used for general broadcasting purposes without the consent of the speaker. That is neither fair nor necessary. The media lobbied for the new clause on the basis of two essentially separate grounds; namely, that their news reporting should not be unreasonably curtailed by copyright, and that where someone had agreed to an interview knowing that it was to be recorded and broadcast then he should not subsequently be able to prevent the broadcast being made.
The new clause fully meets those concerns. I do not believe that there is any need to restrict the rights of copyright owners still further by allowing the media to use the recordings made for one purpose for an entirely different purpose. I hope that the noble Lord, Lord Williams, will feel able to withdraw his amendment in the light of my remarks.
Amendment No. 53 meets a different concern of the broadcasters. They pointed out the fact that when broadcasting or recording live events such as eisteddfodau if a speaker unforeseeably—and it may often be unforeseeably—recites an extract from a literary or dramatic work without the consent of the copyright owner, placing reliance on the exception in Clause 58, the broadcaster will find himself unwittingly infringing copyright. The amendment ensures that that will not occur.

§ Lord Williams of Elvel
My Lords, for the convenience of the House I shall also speak to the grouping recited by the Secretary of State in his introduction. I have only two points to make. I should like to ask the noble Lord for clarification of 199 the meaning and intent of the amendments proposed by the Commons, and I shall address myself in particular to Amendment No. 52.
If that amendment is passed and incorporated into the Bill, what will be the situation when material used in previous broadcasts is incorporated into a broadcast which may refer to current events? Recently, there were a number of broadcasts about the anniversary of the October 1987 stock market crash. By way of introduction a number of the broadcasts included news items which were broadcast at the time of the crash. The newsreader would report that the stock market had fallen X or Y per cent., or 10 or 100 points, and the items were reproduced in the programme by way of introduction. I am not clear about where the copyright subsists in the broadcasts finally put out quoting items of news from events a year earlier. I should be grateful if the noble Lord could enlighten me on that matter.
Speaking particularly to my Amendment No. 52A, I am bound to say that I regarded it more as a drafting point than as the substantive point which the noble Lord made of it. Subsection (1) of the new clause refers to two purposes: (a) of reporting current events, or
(b) of broadcasting and so forth. The subsection then uses the expresssion "to use the record"—and I shall return to that point in a moment—and continues "for that purpose". I believe that if one has two alternatives, (a) or (b), one cannot use the expression "for that purpose". The expression must be "for either of those two purposes". I regard that as a simple drafting amendment but the noble Lord appeared to make a substantive point which neither I nor my advisers had noticed.
While the noble Lord is obtaining advice about that matter I should like to return to the expression "to use". The new clause proposed by Amendment No. 52 includes the expression: to use the record or material". One can imagine plenty of uses of the record of material which do not necessarily come under the ambit of copyright legislation. I shall not say for what I would use parliamentary Bills but it is possible to imagine all kinds of circumstances in which one could use them without offending copyright. Our original idea was to put forward an amendment which would accurately reflect the Government's intentions; words to the effect of "reproduce", or "give out to the public". In the event, we decided not to table an amendment but to ask the noble Lord for clarification of the expression "to use".

§ Lord Lloyd of Kilgerran
My Lords, when the Bill was before the House in its earlier stages I put forward many amendments on behalf of ITV and the BBC. I have no interest in either organisation but they asked me to submit those points. At one stage I complained that the Government were unsympathetic towards the unique position which had arisen for the broadcasting media as a result of copyright being given to the spoken word. However, 200 I understand that the amendments put forward by the Secretary of State improve the position. I am supported in that view because, so far, I have received no complaints or observations about the amendments.
I agree with the noble Lord, Lord Williams of Elvel. I believed that his Amendment No. 52A was a drafting amendment. I did not understand the point of principle which arose in the course of the Secretary of State's address. No doubt I have misunderstood.

§ Lord Young of Graffham
My Lords, I should first like to deal with the matters raised by the noble Lord, Lord Williams. I hope that I shall make myself clearer in future. The example given by the noble Lord of the anniversary of the crash would result in the broadcasters being able to use the old recordings because the broadcasting purpose would remain the same. Obviously, they were recorded at the time for the purpose of being in the news and consent must have been given for them to be used for broadcasting. That would remain, and the ownership of copyright would not be affected. The amendment does no more than to allow the use of material despite the copyright being owned by someone else.
The noble Lord, Lord Williams, said that his Amendment No. 52A was a drafting amendment. We believe that it will make a substantive change to the Bill. If the word "either" is used and a recording is made for one of the purposes listed—either (a) or (b) of subsection (1)—it could be used for either of those purposes. Under the Bill a recording must be used for the purpose for which it was made. Therefore the purpose for which it was originally made is the purpose for which it can be used later. It is true that the word "use" has a wide meaning but it is limited by the purpose of reporting current events and broadcasts. I do not see too much difficulty about that.

§ Lord Williams of Elvel
My Lords, I am grateful to the noble Lord. However. I am still not entirely clear about the distinction he draws between my drafting amendment and the substantive amendment. I shall read carefully what he has said as, no doubt, will the legal profession, and we shall be quite clear about what is meant.
I should like to ask the noble Lord one supplementary question. Am I right in assuming that any broadcast or spoken words which have been used in the past for the reporting of current events, whatever remote past that may be, if reproduced by somebody else in an alleged documentary to illustrate current events of the day, do not infringe copyright? Is that a correct understanding of what the noble Lord said.

§ Lord Young of Graffham
Yes, my Lords. That would be my understanding of the matter. It is, I believe, because, at the time at which the broadcast was recorded, consent was given to its being broadcast. Providing it continues to be used for that purpose, that will continue.