HL Deb 02 November 1988 vol 501 cc225-7

27 Clause 27, page 12, line 5, leave out subsection (6) and insert—

'(6) In this Part "infringing copy" includes a copy falling to be treated as an infringing copy by virtue of any of the following provisions—

section 32(5),(copies made for purposes of instruction or examination),

section 35(3) (recordings made by educational establishments for educational purposes),

section 36(3) (reprographic copying by educational establishments for purposes of instruction),

section 37(3)(b) (copies made by librarian or archivist in reliance on false declaration),

section (Transfer of copies of works in electronic form) (2) (further copies, adaptations, &c. of work in electronic form retained on transfer of principal copy),

section (60)(2) (copies made for purpose of advertising artistic work for sale),

section 65(4) (copies made for purpose of broadcast or cable programme), or

any provision of an order under section 135 (statutory licence for certain reprographic copying by educational establishments).'.

Lord Strathclyde

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 27. In doing so I shall speak also to Amendments Nos. 34, 37, 38, 57, 66, 137 and 178, which are all concerned with the same basic point.

As your Lordships are doubtless aware, Chapter III of the Bill allows copies to be made for certain purposes without infringing copyright. For example, recordings of television broadcasts may be made for education establishments under Clause 35(1) for the purposes of instruction. But if a school makes a video recording under Clause 35 it should not be able to deal in copies of videograms, even though they were legitimately made. Clause 27(6) of the Bill as it left this House provided that copies legitimately made under clauses specified in paragraphs (a) and (b) were to be treated as infringing copies for purposes of secondary infringement and the offences in Clause 103(1)(d) and (e).

We subsequently realised that while that general principle is a sound one, subsection (6) is deficient in two respects, First, it does not cover all the cases in which copies can be made legitimately and then subsequently dealt with for purposes beyond those envisaged by the exception to copyright. Secondly, a general provision in Clause 27(6) does not permit sufficient flexibility to cover all the differing circumstances that can arise.

Amendment No. 27 therefore deletes Clause 27(6) and replaces it with a new subsection (6) identifying subsections in other clauses which make specific provision in respect of subsequent dealing in infringing copies. Not only do we now cover all cases, but the provisions can be varied according to circumstance. For example, it is quite right that the exhibition of a copy of an artistic work made under Clause 60 should be treated as an infringement once the sale which justifies making the copy is over, since the purpose of the Clause 60 exception is to facilitate production of sales catalogues and posters, not to provide cheap exhibition material. However, the exhibition at a parent's open evening of a pupil's work made under the provisions of Clause 32(1) should not lay the school open for an action for infringement, and so in this case exhibition is not included in the definition of subsequent dealing.

We have also applied the new formulation in respect of the so-called ephemeral right in Clause 65. Failure to destroy the ephemeral copy after 28 days is no longer to be a breach of statutory duty but a secondary infringement of copyright. The ephemeral copy will be treated as an infringing copy for all purposes other than broadcasting and after 28 days becomes an infringing copy for all purposes. That will be greatly welcomed by the copyright owners.

Moved, That the House do agree with the Commons in their Amendment No. 27.—(Lord Strathclyde.)

Lord Williams of Elvel

My Lords, I should like to refer to Amendment No 34, which is grouped with Amendment No. 27. I have one simple and rather unimportant question. Why is the definition of "dealt with" included only in Clauses 35, 36, 60 and 135 and not in Clause 32, where it seems to us that it should occur? Is there some reason for that which has escaped our attention?

Lord Strathclyde

My Lords, the noble Lord, Lord Williams of Elvel, raises an interesting point.

Lord Lloyd of Kilgerran

My Lords, I should like to rise briefly to support Amendment No. 27. We are coming to the end of a very important chapter of the Bill. It is the part of the Bill which defines what infringement means in many of the clauses from Clause 16 to Clause 27. I had hoped to speak in support of the Government in opposing Amendments Nos. 21, 22, 23, 24 and 25 from the other place. Somehow or other, in the excitement of getting more money for authors and composers, I was shut out and was unable to make the speech which I had intended to make on that occasion. I shall give only an abbreviated version of it now.

Infringement is a most important matter. Any clarification of infringement is of great importance to industry. At the patent Bar I always did my best in intellectual property matters to seek agreement and settlement rather than to go for litigation. Under the Bill not only can there be litigation in the courts but matters can also arise under the Copyright Tribunal. With the leave of the House, I should like to mention a series of seven amendments which I put down regarding the rules of the Copyright Tribunal. Questions of infringement can easily be raised before that tribunal, largely for strategic reasons in many cases, thus delaying proceedings and increasing costs. Amendment No. 27 is one parameter in the great help which has been given to industry in clarifying the question of infringement.

Perhaps I may end my speech on this matter with an apology. Owing to a commitment entered into many months ago I have to be at the Royal Society very shortly and I shall be unable to stay very much longer in your Lordships' House this evening.

Lord Strathclyde

My Lords, I am grateful to the noble Lord, Lord Lloyd of Kilgerran. He has made a fine case. We regret that he will not be with us for the rest of the evening. However, perhaps we shall continue long enough for him to be able to return after his engagement.

As for the point raised by the noble Lord, Lord Williams of Elvel, there is a definition of "dealt with" in Clause 32. As I have explained, we need to look at the various circumstances which can arise in dealing with legitimately made copies and define that dealing appropriately. Clause 34 relates to performance and not to reproduction and thus no question of a special meaning of infringing copy can arise under that clause.

Lord Williams of Elvel

My Lords, I am grateful to the noble Lord but I find it difficult to agree with him. Commons Amendment No. 34 uses the expression "subsequently dealt with" and does not explain what "dealt with" means. Commons Amendment No. 37 uses the expression "subsequently dealt with" and says: For this purpose 'dealt with' means sold or let for hire, or offered or exposed for sale or hire". I call that a definition. That second definition is contained in Clause 35 but it does not appear in Clause 32. I wonder innocently why that should be so.

Lord Kilbracken

My Lords, if my noble friend looks at the top of page 5 I think that he will see there the definition of "dealt with".

Lord Williams of Elvel

My Lords, my noble friend is absolutely right. I apologise. It was a question of which page we had reached, and I had not turned to the next page. I withdraw all the comments I made.

On Question, Motion agreed to.

5.15 p.m.