COMMONS AMENDMENT (Hansard, 2 November 1988)

HL Deb 02 November 1988 vol 501 cc255-69 255

§ 69 Leave out Clause 67 and insert the following new clause—

§ 'Recording for purposes of time-shifting

§ The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time does not infringe any copyright in the broadcast or cable programme or in any work included in it.'

§ AS AN AMENDMENT TO COMMONS AMENDMENT NO. 69

§ 69A That this House do disagree with the Commons in their Amendment 69, but propose the following amendment in lieu thereof—

§ Page 24, line 37, at end insert—

§ ("(3) The performance, showing, or playing of a work "in public" shall mean for the purposes of this Part any performance, showing or playing of the work, which is not a private performance, and a performance shall be considered a "private" performance if it is presented to persons who are all members of the normal circle of a family and its social acquaintances, but shall not be considered a "private" performance merely because it is presented—

(a) at a place which is not open to the public; or
(b) to the residents or inmates of any premises as part of the amenties provided at such premises; or
(c) to persons who share facilities for work, accommodation, education, entertainment or recreation.")

The Viscount of Falkland
My Lords, I beg to move that the House do disagree with the Commons in their Amendment No. 69, but propose the Amendment No. 69A in lieu thereof. I wonder whether I may at this stage, with the leave of the House and for the convenience of your Lordships, speak to the reasons that I move that we should disagree with the Commons in their Amendment No. 69. After I have dealt with those arguments, perhaps I may then go on to the insertion of subsection (3) on page 24, at line 37. Although there is a connection between those two aspects of broadcasting and copyright, there has been a difficulty in putting the matter before your Lordships. I think it would be clearer if I dealt with the substantive arguments as to why there should be an objection to the amendment in the other place. I can then come on to the aspect of a statutory definition of "performance". I am perfectly prepared to do it another way if your Lordships would prefer that, and perhaps I may seek guidance on that.

§ Lord Mottistone
My Lords, perhaps I may say to your Lordships and to the noble Viscount that I am only interested in coming in on the first part of what the noble Viscount is talking about—as to why the new clause should not be there. I am not interested at all in the second part of his amendment. Would it be possible for me to speak when the noble Viscount has spoken to his first part and for us all to deal with that? The second part could then perhaps be dealt with separately.

The Viscount of Falkland
My Lords, I thank the noble Lord. I think I shall have to ask the Minister whether that could be done, if I could divide it as clearly as that. Perhaps I may ask your Lordships to comment on the arguments that I shall put to you about the disagreement with the amendment made in another place. I am grateful, my Lords.
The Bill, as approved by your Lordships, when it went to the other place contained a provision for limited exemption with regard to time-shifting. Perhaps I may give your Lordships a layman's definition at this stage. Time-shifting is recording for convenience off the air. Your Lordships will hear me refer to off-the-air recording. This limited exemption permitted the recording for private purposes of cable and television broadcasts, but not of any copyright works included in them. This exemption represented a carefully balanced compromise between the interests of viewers and those of copyright owners. While authorising the recording of news, sports items and other broadcast material which did not have a copyright content, it did not allow the recording of films or other copyright works.
Both viewers and the industry—I think the Government also—agreed with this view, which enabled us to pass on to the other place what appeared to be a reasonable clause. However, when the Bill reached the other place, without warning and 257 causing surprise to the industry the Government proposed an entirely new exemption to replace the clause. Instead of the careful distinction between off-the-air recording of cable and television broadcasts and off-the-air recording of the copyright works contained in them, the new exemption would have legalised all off-the-air recording—for convenience, I have termed it time-shifting—including the recording of films and other copyright works, subject only to the proviso that the copy had to be erased within 28 days. Your Lordships may imagine the surprise to which this amendment gave rise.
It was narrowly approved by the Standing Committee in the other place but was widely denounced inside Parliament and outside it. Then on Third Reading the Government changed their mind again and proposed a further amendment to eliminate the 28 days while retaining the time-shifting exemption. This proposal was approved as Commons Amendment No. 69, which is now before us. It is this amendment which now comes to be considered by your Lordships for the first time. That is important. The British film industry obviously opposed the 28-day time-shifting exemption and most people who were interested in this legislation were opposed to it because, in fact if not in law, it would have sanctioned the building of video tape libraries without any compensation to the copyright owners.
The unlimited exemption which your Lordships have before you in Commons Amendment No. 69 is even more objectionable to the film industry, because in the absence of any time-limit the amended Bill now sanctions the building of a free video tape library in exactly the same way, but in law as well as in fact. Those who are interested in the British film industry urge your Lordships' House to reject this amendment and to restore the original, well-balanced clause which went to the other place. Your Lordships will see that we are arguing this against the background of an industry which loses each year in the region of £150 million. That is to the United Kingdom video industry alone, and of course sales are rising all the time.
I submit that it is fundamental to the copyright owner's statutory protection that the reproduction right remains; that is, the right to authorise the copying of the work. The Commons amendment really represents a radical erosion of that principle. If anyone can copy off the air for mere convenience, the right of reproduction under this Bill has lost almost all its meaning. Clause 67, as approved by your Lordships, respected the fundamental right of the film-maker to control copying, while liberalising the scope of other off-the-air copying of non-film material with no copyright content.
Introducing the Government's 28-day exemption in Committee, the Minister commented that the present law was unsatisfactory and needed to be placed on a more rational basis. However, it seems quite clear that no rational basis existed for making it an infringement of copyright to keep an off-the-air recording for 29 days, while exempting from infringement a person who kept the recording for 258 only 28 days. There was a clear absurdity there, which is presumably why the Government abandoned it so swiftly.
However, the important point, the nub of the matter, is this. Is it more rational to distinguish an off-the-air recording, which would be legalised under the unlimited exemption, from a back-to-back recording, which would remain illegal? I should explain that a back-to-back recording is one taken directly from a tape, and so on. If lawful off-the-air copies are allowed to circulate in the marketplace with copies made by commercial pirates—and of course they are unlawful whether they are made off-the-air or back-to-back—how can anybody prove that the pirates' products were not lawfully copied off the air in the first place?
Your Lordships must bear in mind that with the advanced technology of reproduction it becomes an ever more sophisticated manufacturing process, and the quality of reproduction is reflected accordingly. It is really very difficult to distinguish between a recording made off the air with sophisticated digital equipment and recordings made on other equipment used by people who pirate for their livelihoods.
Thus the Commons amendment is not only unenforceable on its own terms but, more importantly, it will make it much more difficult for copyright owners or the police to bring successful civil or criminal actions against the real culprits, the real miscreants—the commercial pirates who will not forgo any argument to defend their ever-growing illegal profits.
By contrast, the original clause suffers no such defects, I submit. By distinguishing an off-the-air recording of a broadcast or cable programme from an off-the-air recording of a film or other copyright work contained in the broadcast or cable programme, it establishes a reasonable and rational dividing line. It does nothing to impede the copyright enforcement efforts against the commercial pirates. It is this war against the commercial pirates which is central to my argument against this amendment.
The Commons amendment would allow consumers to tape feature films at home as soon as they are released on television, without permission or any form of payment to the copyright owners. These tapes can be kept, viewed again and again and passed around friends, family members and colleagues, not just for 28 days but for as long as that tape lasts. Admittedly it is not for perpetuity because it will wear out, but it will be available for a long time.
In effect, it legalises the building of free video cassette libraries, and inevitably this means that fewer video cassettes will be rented or sold, with obvious effects on the profits of the industry. As the quality of broadcast and satellite and cable signals increases, as I have described to your Lordships, with the improved technology the temptation to tape for free will obviously grow. The unavoidable result will be greatly reduced sales and rental income for producers, directors, performers and writers. This damages not only the supply side of the profession but also the demand side. The product will inevitably be affected.
259 The loss of income from unlawful home taping is a growing problem under the current law. That is no reason for Parliament to make the problem worse by legalising it completely, thereby depriving copyright owners of whatever means of moral persuasion they may have at their disposal to encourage consumers to buy or rent rather than taping off air at home.
The unlimited time-shifting exemption renders lawful activity that is presently unlawful. It takes away statutory rights, yet without compensation to the rights owners. This seems to the industry to be unfair—here I move on—and to be a violation of the Berne Convention. The Minister who introduced the time-shifting exemption in Committee stated clearly that the Government could not simply legalise private recording and leave it at that because to do so would breach our obligations under the Berne Convention. The Government presumably believed that their original amendment would avoid a breach of the Berne Convention because it contained a 28-day limit, albeit with the absurdities that I have pointed out. No such justification exists for the unlimited exemption.
Article 9(1) of the Berne Convention expressly recognises the right to authorise the reproduction of a work. Article 9(2) permits exceptions to that right only where the reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author. According to the official guide to the Berne Convention, this means that in cases where there would be serious loss of profit for the copyright owner the law would provide him with some compensation; that is, a system of compulsory licensing with reasonable remuneration. In other words, an exception for home taping is permissible but only if reasonable remuneration is afforded.
In the absence of any compensation to copyright owners under the time-shifting amendment, it is plainly inconsistent with Article 9 of the Berne Convention. Nor can it be argued that the inconsistency with the Berne Convention is any less pronounced because the Commons amendment legalises off-the-air recording only and not back-to-back recording. As a practical matter in the real world there is no way to enforce this distinction, and consumers will surely disregard it. In the real world the amendment legalises every kind of home taping to the detriment of the industry.
That is my case against the Commons amendment, and at this stage I agree that we should open it out.

§ Moved, That the House do disagree with the Commons in their Amendment No. 69, but propose Amendment No. 69A in lieu thereof.—(The Viscount of Falkland.)

§ 7 p.m.

§ Lord Mottistone
My Lords, I strongly support the argument of the noble Viscount. I was involved in this subject nearly 11 months ago in regard to Amendment No. 173. That was in Committee on 8th December 1987, surely making this one of the longest considerations of a Bill ever.
260 I gave notice to the private office of the Secretary of State that I intended to raise a specific question. What puzzles me about the Commons amendment is how it came about at all. As the noble Viscount said, the amendment before the House at that time was a happy compromise in a difficult area that seemed to satisfy everybody. It certainly satisfied me and my advisers. The Bill then went to the Commons. Without much warning, suddenly an amendment was tabled that was later found to be faulty—in respect of the 28-day period—so that in itself it has been flawed by being amended in part to its present form.
There was no pressure from any outside bodies calling for this to happen, so far as I can discover. Can the Minister say why the Government thought it necessary to spoil what was, as it left this House, quite a good compromise clause? I hope my noble friend can satisfy us that there was a good reason. However, if he too is unhappy, I hope that he may be able to agree at any rate to the first part of the noble Viscount's amendment even if he does not like the second part. I do not know how that can be arranged at this late stage.

The Viscount of Falkland
My Lords, with the leave of the House, if your Lordships disagree with the Commons amendment that in no way affects my amendment in lieu. We are effectively put back into the position in which we were originally. In any case, my amendment would amend that.

§ Lord Willis
My Lords, I warmly support the noble Viscount's amendment. The Government seem to have got into a great mess on the issue. The nettle that should have been grasped in earlier debates is the licence fee, sometimes known as a levy on blank tapes. The Government turned their face against that. They were therefore faced with the problem that all over the country there was widespread illegal home taping of television and other shows, and they had to solve that problem somehow. They have simply opened the gates without any further definition. I think that is a nonsense.
I agree very much with what has been said. We have reached a fair and reasonable compromise, although it is one with which I do not entirely agree. I persist in the view that the only answer to the question is a levy on blank tapes. I prophesy that within five years the Government will come round and will have to agree to it. We cannot reopen the issue today, but we can at least go back to the fair and reasonable compromise proposed by the noble Viscount, Lord Falkland.

§ Lord Williams of Elvel
My Lords, in spite of the fact that the noble Viscount, Lord Falkland, has tried hard to separate the different issues involved in his amendment, I believe that we are right in the middle of the question of time-shifting, whether in sound or in video. My noble friend Lord Willis raised the question of the blank tape levy. It is difficult to disaggregate the various issues, although I appreciate that the noble Viscount was trying to do so.
I think that the noble Viscount's amendment in essence although in different words, does more or less what Amendment No. 69C would do. His 261 amendment is probably better drafted and more comprehensive than Amendment No. 69C. For that reason, I think that we wish to support this proposal.
I agree with the noble Lord, Lord Mottistone, that it was a compromise that went from this House to another place. In a curious manner of which none of us took account, all kinds of pyrotechnics occurred, and this new version has now emerged in the Commons amendment. I think that our formula was probably better than anything that was subsequently on offer. If the Government are determined to go down the route of the Commons amendment, I shall insist that it is not just a question of copying for private domestic use in a particular place. It is also, as the noble Viscount's amendment makes quite clear, a matter of copying for use in another place. One can make a tape of a broadcast and use that tape in one's car. It is not just time-shifting, it is space-shifting as well.
The noble Viscount's amendment seems to me to point that up very clearly, because it defines the nature of a private performance as opposed to a public performance. If the Government are determined not to go back to their own White Paper and to accept the amendment which I remember was moved by the noble Earl who is now Deputy Leader of the House in favour of the blank tape levy, then I think they ought to be prepared to go down the route which the noble Viscount suggests. Otherwise, they are in a logically impossible situation. Whereas when the Bill left this House it was at least logically coherent however much we might have disagreed with the outcome, now, if we take the Commons amendment as it is, it appears to us to be logically incoherent. For that reason I support the noble Viscount.

The Viscount of Falkland
My Lords, perhaps I may ask the Minister whether he would like me to move on now or whether he wishes to respond to the arguments on the first part of my proposal.

§ Lord Strathclyde
My Lords, I think it is probably easier if I go ahead on the basis that I should reply to first part of the noble Viscount's amendment. I must start by saying that I have to resist the Motion standing in the names of the noble Viscount, Lord Falkland and the noble Lord, Lord Birkett. In speaking to this part of the amendment, we are looking also at Amendments Nos. 69B, 69C and 70.

§ Lord Williams of Elvel
My Lords, I am sorry, but is the noble Lord going to restrict himself to the subjects which the noble Viscount has raised or is he also embarking on the extension that I introduced in the light of the noble Viscount's comments that we are in a "seamless robe" situation?

§ 7.15 p.m.

§ Lord Strathclyde
My Lords, the point is that it all seems to hang together. I do not have a great deal to say about the amendment of the noble Lord, Lord Williams, and it is probably easier if I deal with it at the end of what I have to say now.
Commons Amendments Nos. 69 and 70 replace the existing Clause 67 with two new clauses, and the 262 overall effect will be that time-shifting will be legalised. Clause 67 restates the existing law. The making of a recording of a broadcast or cable programme for private purposes does not infringe copyright in the broadcast or cable programme. It will however infringe the copyright in any work included in the broadcast or cable programme. This means that recording a television programme on a video recorder almost invariably involves infringement of copyright.
One may record the live broadcast of, say, a sporting event, since in such a case only the broadcast copyright is involved and the exception will apply. But in almost every other case copyright in other works will be involved. The broadcast of an episode of a soap opera will involve the copyright in dramatic and musical works, film and sound recordings. Perhaps the oddest result of the present law is that one may freely record the live broadcast of the Cup Final in the afternoon, but not the recorded highlights shown in the evening because, in the latter case, the film copyright in the broadcaster's video recording will be infringed.
I am sure the House will agree that that is not wholly satisfactory. The problem is how to place the law on a more rational basis. We cannot simply legislate private recording. To do so would undoubtedly breach our obligations under the Berne Convention, which permits exceptions to the copyright owner's exclusive rights only in circumstances where copying does not conflict with normal exploitation or prejudice his legitimate interests. It was because of our Berne obligations that my noble friend Lord Beaverbrook was unable to accept an amendment tabled by some noble Lords which would have permitted recording of broadcasts.
In speaking to that amendment, the noble Lord, Lord Morton of Shuna, said: It does not appear to us that there is a breach of the Berne Convention in private recording for time-shirting purposes". [Official Report, 23/2/88; col. 1297.] We agree. Time-shifting—that is recording a programme in order to view it at a more convenient time—does not damage the legitimate interests of copyright owners nor conflict with normal exploitation of the work. But video recording other than time-shifting may operate against the interests of copyright owners. In particular, the recording of broadcast feature films for permanent retention may conflict with the normal exploitation of films through video hire and, to a lesser extent, cinema exhibition. So a blanket exception permitting private off-air recording goes too far.
However, to leave the law as it stands means that millions of people are in technical infringement every night of the week, even though in most cases they are not doing anything to the detriment of the copyright owner. Amendment No. 69 will provide an exception to copyright to allow the practice of time-shifting, while at the same time avoiding an unduly wide exception which would legalise prejudicial copying.
Amendment No. 69 will allow recording of a broadcast or cable programme solely for the purpose of enjoying it at a more convenient time without infringement of any copyright, whether of the 263 broadcast or cable programme or of any work included in it. Under its provisions, noble Lords could set their video recorders to record this evening's television broadcasts in order to view them tomorrow morning or at the weekend and they would not infringe any copyright.
Amendment No. 69 amends the Bill so as to allow time-shifting. Amendment No. 70, on the other hand, contains no significant changes of substance. In essence it restates what is at present in Clause 67(1)(b), which itself reflects the existing law. The taking of photographs from television pictures for private use is of minor significance and does no harm to anyone. The only new feature in the new clause is the reference to films included in television programmes, so as to avoid any distinction between live and recorded programmes.
I should also mention that, in response to criticism made by your Lordships, the phrase "private purposes", with its cumbersome definition in subsection (2) has been replaced by the phrase "private and domestic use". This is the expression used everywhere else in the Bill.
I now turn to deal with the amendments tabled to Amendment No. 69, especially the opening limb of Amendment No. 69A and Amendment No. 69B. The effect of disagreeing with Amendment No. 69 or of accepting Amendment No. 69B would be that time-shifting would be permitted only if the broadcast did not include a copyright work. In other words, we should return to the situation where virtually the only recording of television programmes would be the recording of live sporting events. For the reasons I have already outlined, I do not believe it would be right to continue to place millions of citizens engaged in a harmless activity on the wrong side of the law. I must therefore resist Amendment No. 69B.
Perhaps I may touch briefly on Amendment No. 69C, which stands in the name of the noble Lord, Lord Williams. Instead of time-shifting, this is concerned with what one might call "medium-shifting". It would allow a person, for example, to copy music from a record on to a cassette for use in the car. While we believe that time-shifting would be permitted for the reasons I have outlined, I am afraid that I cannot accept any further exception to copyright to allow copying for private purposes.

§ Lord Williams of Elvel
My Lords, I am grateful for the Minister's reply to my amendment. Perhaps he will answer my question before he goes on. Amendment No. 69 reads: The making for private and domestic use of a recording of a broadcast or cable programme solely for the purpose of enabling it to be viewed or listened to at a more convenient time". Could "at a more convenient time" be at a different place such as in a car, in a second home, on the Riviera, in the Scottish Highlands or wherever?

§ Lord Strathclyde
My Lords, I believe what the noble Lord says is right. The place does not matter.

§ Lord Williams of Elvel
My Lords, in that case, if Amendment No. 69 is accepted, would it be proper, 264 and not an infringement of copyright, for more than one recording of a broadcast or cable programme to be made for private and domestic use, or for 10 recordings to be made, one for the second home, one for the car and one for the hotel on the Riviera? Is the provision limited to one recording only?

§ Lord Strathclyde
My Lords, more than one recording would generally be regarded as unacceptable.

The Viscount of Falkland
My Lords, it may be convenient if I read out the amendment I have tabled in lieu of Amendment No. 69. It states: Page 24, line 37, at end insert— ("(3) The performance, showing, or playing of a work "in public" shall mean for the purposes of this Part any performance, showing or playing of the work which is not a private performance, and performance shall be considered a "private" performance if it is presented to persons who are all members of the normal circle of a family and its social acquaintances, but shall not be considered a "private" performance merely because it is presented—

(a) at a place which is not open to the public; or

(b) to the residents or inmates of any premises as part of the amenities provided at such premises; or

(c) to persons who share facilities for work, accommodation, education, entertainment or recreation.").

I realise that that is not a perfect definition of what constitutes a public or private performance. This country has no definition of a public performance. We differ in that regard to many other countries in Europe and elsewhere. The Government have argued that the task of defining "public performance' should be left to the courts. I maintain, and I hope that your Lordships will agree with this contention, that the Bill is a serious missed opportunity. It would put a burden upon the courts with which they are hardly equipped to deal in view of the amount of business they already have to handle.
It is Parliament's responsibility to define "public performance" in Clause 67, because the present law is unclear. The present case law on the meaning of "public performance", which the Bill would leave unchanged, is confused and uncertain. Before the video cassette revolution that uncertainty was much less of a problem in the film industry. Before the new technology, audio visual works were licensed for showing in cinemas and other venues on 16mm and 35mm film stock. No one could obtain a lawful copy of the work for showing in public without first agreeing to pay the appropriate public performance fee. Today, virtually all the products of the film industry are at one time or another available on video cassette. Anyone can buy or rent a video cassette from the local video shop. Anyone can show them in public without permission from or payment to the copyright owner.
As a result many markets previously served by the licensing of 16mm and 35mm film stock have been all but eliminated, with the consequent loss of performance royalties for film producers, directors, writers and anyone connected with the creation of the film. The new video markets which are suggested in the wording of my definition include hotels, apartment complexes, holiday camps, remote industrial sites such as oil rigs and terminals, residential institutions such as hospitals, nursing 265 homes, homes for the elderly, prisons and military bases. For the price of one video purchase or rental those users can show the latest films to large gatherings of people in a wide variety of non-domestic venues. For those multiple and rapidly multiplying performances of the work, the creators receive not one penny in royalties.
The copyright law cannot by itself stop unlicensed uses of work. It is up to the copyright owner to take action, but surely the law can define which uses of the work are infringing and which are non-infringing. The current law notably fails to do that, especially in the grey area between an obviously public performance—none of your Lordships would disagree about what is obviously a public performance in a cinema or other public place of entertainment where one goes through the turnstile and pays for a ticket—and an obviously private performance. Exercising our common sense we can distinguish between those performances. All the video performances in the places to which I have referred fall within the grey area.
The film industry has been forced to prepare test cases to seek judicial rulings on video performances in hotels and prisons. Those cases are in cold storage for the time being in the hope that Parliament will be able to clarify the position by giving a definition and rendering those test cases unnecessary, but the Bill is completely silent on the question of "public performance". Some people argue that the meaning of "public performance" can never be absolutely and precisely defined. That may well be true, but someone surely has to define it. However inexactly, some other countries have done so. If Parliament fails to do so, the job will go by default to the courts, casting a totally avoidable burden, as I have said, on an already overstretched system. It will impose a disproportionate cost on the private sector, which will have to foot the bill for litigating a series of test cases.
No one will deny that the meaning of "public performance" is difficult to pin down by statutory enactment. No one will claim that any statutory definition can anticipate every conceivable public performance. Other countries, notably the United States, France, Germany, Italy and Denmark, have adopted workable definitions of "public performance" in their copyright statutes. The problem of draftsmanship is not a sufficient reason for the United Kingdom to be the odd man out, when the Bill presents a good opportunity.
Accordingly, in the amendment I have offered a proposed definition modelled on other statutory definitions in the countries that I have mentioned to provide a starting point for addressing the major unresolved questions that any modern copyright law must surely confront when dealing with the video revolution.
The purpose of the amendment is to make it clear that performances cannot be considered private merely because they are presented in a place that is not open to the public; for example, a prison, hospital or school. The other day I went to a school which has a film society. The headmistress, who was a charming lady, rather red-facedly admitted to me that 266 nowadays they show videos rather than hire films, which used to cost them £75 or whatever it was. Now they use the videos, and who can blame them, because the audience consists of residents or inmates of institutions such as schools, nursing homes, universities or holiday camps, or they share facilities at work in a factory, or on an oil rig? In language that is closely based on statutes in the United States and several European countries, the amendment confirms that purely domestic performances are private performances.
Some have argued—and one can see why—that the showing of video in prisons, hospitals and other institutions is comparable to a domestic performance. That may be true if the prison or hospital as an institution were not involved in any way. For example, if one or two inmates of a hospital get together and show a video among themselves and the institution itself takes no part, there is a different view. But where the performance is presented by the prison or hospital authority as part of the amenities of the institution, that takes it outside the purely domestic sphere. I contend that that ought to be made clear in statute. As paragraph (b) of my amendment makes clear, when the institution takes part that performance is no longer a private one.

§ 7.30 p.m.

§ Lord Williams of Elvel
My Lords, before the noble Lord replies to the noble Viscount's most recent and eloquent submission I should like to follow one particular line of questioning which I have been pursuing. The noble Lord was kind enough to say that one recording only is involved. Are we to assume that if a broadcast is repeated—which frequently happens—a second recording can be made, namely a recording of the repeat broadcast? If the broadcast is repeated a third, fourth, fifth or sixth time, can we assume that on each occasion a recording can be made and six recordings can therefore be used for private domestic use?

§ Lord Strathclyde
My Lords, obviously I too do not wish to detain the House for any longer than I need to. I am sorry that I cannot reply to the noble Viscount immediately.
I should like to revert to the point raised by the noble Lord, Lord Williams. As I indicated earlier, the Berne Convention only permits copying which does not conflict with normal exploitation or prejudice the legitimate interest of the copyright owner. That time-shifting meets those criteria; the same cannot be said of the sort of copying which would be permitted by the amendment in the name of the noble Lord, Lord Williams. There is a fundamental distinction between buying a recording of a copyright work and buying the right to do what one pleases with the work. Recording a work from one medium on to another is not transfer of the work but reproduction. One has both the original and the new recording. The reproduction of copies of the work conflicts with the legitimate interests of the copyright owner and so should be his exclusive right.
Far be it from me to re-open the private copying and levy debate, but as I understood it the Opposition were arguing, both here and in another place, for 267 legalisation of private copying with compensation by means of a levy. That seems to me a tenable view to hold, even if it is one which in the final analysis we cannot accept. To legalise without compensation seems to represent quite a major change in attitude of some noble Lords. I trust that on reflection the noble Lord, Lord Williams, will see that his amendment goes too far in restricting copyright and that he will feel able to withdraw it.

§ Lord Williams of Elvel
My Lords, perhaps the noble Lord can respond to my question. I declare an interest as chairman of the Academy of St. Martin-in-the-Fields, an orchestra which records extensively. Its recordings are repeated extensively through broadcasts. I would be interested to have a response to my question.

§ Lord Strathclyde
My Lords, I am delighted to answer the noble Lord's question. The purpose of making a copy under Amendment No. 69 must be for the purpose of viewing or listening at a different time. The place itself is quite immaterial. However, it is difficult to see how multiple copying would be for the limited purpose permitted by Amendment No. 69.
It has been suggested that the time-shifting provision would encourage piracy. I cannot see how that would happen. Copies made under the time-shifting exception are unlikely to be of commercial quality. They will only be made one at a time. If the back-street pirate is caught with a garage full of infringing videos he cannot plead this exception in his defence. Even if the court were prepared to accept that he had made legitimate time-shift copies—and that seems a big "if"—he would not be able to rely on such a defence for the hundreds of other infringing copies.
My noble friend Lord Mottistone asked why the Government sought to legalise time-shifting and why we introduced the amendment in another place. When the matter was debated in your Lordships' House, the noble Lord, Lord Morton, pointed out that it was unreasonable to regard time-shifting as illegal. We had always accepted that time-shifting was not harmful but were unable to find a way of giving legislative effect at that time. It was in response to the arguments of the noble Lord, Lord Morton, as well as a number of others, and also following representations from the public that the amendments were introduced in another place.
Finally, I return to Amendment No. 69A. I have already explained why the House should agree Amendment No. 69. The amendment in lieu of Commons Amendment No. 69 tabled by the noble Viscount, Lord Falkland, and the noble Lord, Lord Birkett, has little or no relation to the issue of time-shifting. Instead it attempts to introduce into the Bill a definition of what is meant by "performance in public". It closely resembles one tabled at Report stage in another place but in the event not selected for debate. I am therefore glad of the opportunity to explain the Government's position.
The aim of Amendment No. 69A is to define "public performance" so as to include virtually all 268 performances outside the circle of the family and its social acquaintances. My honourable friend the then Parliamentary Under-Secretary of State for Industry explained in another place that we did not believe any statutory definition could satisfactorily cater for all circumstances, least of all the borderline cases most likely to lead to disputes. Since that time we have discussed the matter with the film industry and considered very carefully whether we could accept something on the lines of this amendment. I can understand the arguments of some copyright owners of wanting to do so but I remain convinced that it would be wrong.
The amendment would not prevent disputes over what constitutes public performance. They would continue to be borderline cases which only the courts could decide. Certainly the amendment would reduce the scope for hospitals and prisons, in particular, to argue that showings of videos to their inmates was not public performance and therefore not subject to the payment of royalties. However, if that is the intention I have to say that I do not think it is a reasonable or acceptable outcome.
Not all showings of videos in hospitals or prisons will be in circumstances where it would be justifiable for copyright owners to claim royalties over and above the purchase price or hire fee for the video. What if five or six patients in a hospital ward settle down in the evening to watch a hired video cassette which is returned to the hire shop next day? Is that something for which they should be expected to pay a public performance royalty of around £50, which I understand they might have to do if the film is relatively new? The same question can be asked in relation to the showing of videos in prisons.
Those responsible for the prison and hospital services believe very strongly that the circumstances in which videos are shown in their premises are comparable to domestic use, not public performance. They are prepared to have this tested in the courts but they point out that if we are to amend the definition of public performance there are just as strong arguments for a specific exception to take showings in hospitals, prisons and like premises out of the definition altogether as for keeping them in. In these circumstances I believe that the best course is to leave matters as they are, as indeed other copyright owners have urged us to do. No less a body than the Performing Right Society has made clear to us its opposition to a definition on the lines proposed.
The noble Viscount is also mistaken in his assertion that under the present law it is not an infringement to show a video film to a large gathering at a holiday camp, in a hospital or any similar place. In such a case it is difficult to envisage a court deciding that that was not indeed public performance. We think that what is wrong is the idea that any showing in, say, a hospital or wherever is public performance, no matter how few are present and how private that showing may be in reality.
I hope therefore that the noble Viscount will be willing to withdraw his amendment in the light of what I have said since I shall have to resist it strongly.

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The Viscount of Falkland
My Lords, perhaps I may start at the back end as it were, namely, the performance aspect of my amendment, since that is fresh in your Lordships' minds. I have already explained that such a case as that given in the example of the group of hospital inmates who see a video does not involve the management of the hospital. That is quite clear in my amendment. It is not part of the institutional services or entertainment provided should a video come in as part of a parcel of goods for a patient, among the grapes as it were, and that patient chooses to show it to one or two people in neighbouring beds. That case is covered by my amendment. Clearly it does not constitute a public performance. There is a difference between that showing and a performance put on by an institution.
The film industry in this country feels that not having this definition puts it in a difficult position in relation to other film industries and, as I said, the penalty for not having it means that the courts will be burdened with test cases and all the expense that that entails. I feel that that is a sad situation.
Turning to the main part of my amendment, which is the disagreement with the Commons amendment on the basis of time-shifting or recording, obviously I do not agree with the noble Lord's brief from his advisers and neither does the film industry. As I said, the problem is that we are dealing with a large industry in terms of an ever-growing turnover (and it is good that that is likely to continue). However there is in direct proportion a growing industry of piracy which deprives of their just returns those who have legally and rightfully invested in a product. It is a worrying matter and the film industry is very concerned about it.
It is late into the evening and I must say that if your Lordships' House had been better attended I might have been tempted to test its opinion. However, I think that it would be a fruitless exercise. I hope that there is now on record some of the very deep concerns of the film industry. Time will tell. I beg leave to withdraw the amendment.

§ Amendment No. 69A as an amendment to Amendment No. 69, by leave, withdrawn.