COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Strathclyde
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 28. Clause 28 provides an introduction for the various exceptions to copyright listed in Chapter III. It may be thought that subsections (2) to (4) are merely statements of the obvious, but the consultation exercise we carried out in the summer of 1987 demonstrated that there were a number of misunderstandings and the subsections were provided to make explicit what some of your Lordships may feel does not need saying.
The addition to subsection (1) set out in Amendment No. 28 falls into much the same category. It makes explicit for the benefit of those who will be affected by this Bill the intent of the exceptions under Chapter III. The various exceptions are just that-exceptions to copyright. They mean that certain acts falling within the broad scope of the restricted acts set out in Chapter II do not constitute infringement. But the fact that something can be done without infringement does not mean that it is invariably permitted.
Chapter 3 does not establish a charter of inalienable user's rights. In particular, the fact that something is allowed by Chapter 3 does not mean that a contractual term forbidding it is rendered void. Thus, if a work is supplied to a library on the condition that it is not copied, the exceptions in Clauses 37 to 43 do not entitle the library to make copies. By complying with those provisions, the library would not be liable for copyright infringement but it would not escape any contractual liability it had entered into. This is the existing law and we are happy to make it clear that this will continue.
It is essential that this freedom of contract be preserved. For example, the makers of training films and videos, which are of high cost and low production run, may need to retain firmer control over copies of their videos than copyright alone can give if they are to get a sufficient return to justify investment. Similar considerations apply to certain computer programs. It is also right that people should be able to protect their property in and use of articles which embody copyright works. Copyright law is one way of protecting the intellectual property in a copyright work. But contract law is another; and property in the articles which embody copyright works is yet another. They are complementary and not mutually exclusive. The provisions of copyright law can always be overriden by mutual contractual agreement between the copyright owner and the user, and they do not affect other property rights.

§ Lord Williams of Elvel
My Lords, the matter which the noble Lord has explained to the House is about overriding copyright and a contract which can be negotiated that might restrict or may include licence to copyright. I think that the problem with the whole question of overriding rights is best set out in the judgment on the recent Spycatcher case delivered by your Lordships' Judicial Committee.
229 The full copyright implications of the comments of the House of Lords in the recent Spycatcher decision have to be seriously examined. A number of uncertain, perhaps unusual and rather—how can I say?—not fully explored propositions were made about copyright law in relation to the book. For example, there was some suggestion in the judgment of the noble and learned Lords, Lord Keith of Kinkel, Lord Griffiths and Lord Jauncey of Tullichettle, that no copyright existed in Spycatcher because of the iniquitous acts of its author. Others preferred to assume that if copyright subsisted, the courts might not be prepared to enforce it on behalf of particularly undeserving authors and/or publishers.
I should like to quote from the words of the noble and learned Lord, Lord Jauncey, who said: The publication of Spycatcher was against the public interest and was in breach of the duty of confidence which Peter Wright owed to the Crown. His action reeked of turpitude. It is in these circumstances inconceivable that a United Kingdom court would afford to him or his publishers any protection in relation to any copyright which either of them may possess in the book. That being so anyone can copy Spycather in whole or in part without fear of effective restraint by Peter Wright or those claiming to derive title from him". In other words, the noble and learned Lord, Lord Jauncey, introduced into copyright the notion of turpitude: that if someone created in a manner which reeked of turpitude a work which would normally be under copyright, no UK court in the noble and learned Lord's opinion would afford him or his publishers any protection in copyright.
There were also suggestions that any copyright in Spycatcher did not subsist in the author but in the Crown because the publication was in breach of his duty of confidentiality. For instance, the noble and learned Lord, Lord Keith of Kinkel, said: There remains . . . the question whether the Crown might successfully maintain a claim that it is in equity the owner of the copyright in the hook. Such a claim has not yet been advanced, but might well succeed if it were to be". The noble and learned Lord, Lord Griffiths, said: If Peter Wright owns the copyright in Spycatcher, which I doubt, it seems to me extremely unlikely that any court in this country would uphold his claim to copyright if any newspaper or other third party chose to publish Spycatcher. . . I would expect a judge to say that the disgraceful circumstances . . . disentitle him to seek the assistance of the court to obtain any redress . . . I say I doubt if Peter Wright owns the copyright because as at present advised I accept the view of Scott J. and Dillon L. J. that the copyright in Spycatcher is probably vested in the Crown". Thus was introduced to me quite a new notion of how far the Crown has overriding rights on copyright in a work which has been created by an author whose actions reeked of turpitude. How far should it go? What is the meaning of "reeked of turpitude"? What are the United Kingdom courts to make of this judgment and how far should it be reflected in the law of the land that we are at present considering? What is the position of publishers who in their innocence may publish a work which they did not know was created by somebody who reeked of turpitude? They were perfectly innocent parties but they found that according to the judgments I have quoted they may well not have any copyright at all in the work.
So what their Lordships said has left considerable uncertainty in this area of copyright law and the alleged overriding right that the Crown may have in 230 respect of its own servants. However, the situation becomes worse because there are other people, not only the Crown, who employ servants on a confidential basis who may publish works in a manner which reeks of turpitude. There are any number of organisations which place confidence in employees and indeed have contractual relationships with employees which specify that the employee shall not publish any of their secrets.
I myself belonged to one such organisation, which was a merchant bank. When I joined the bank I signed a document stating that I would not give away any of its secrets. Let us suppose that I write in a book all the secrets of the bank and that book is published, perhaps by the firm of the noble Earl, Lord Stockton. My behaviour reeks of turpitude. Have I no longer the copyright? Does Macmillan no longer have the copyright? Where does this all end?
I raise these questions on this amendment to Clause 28 which has been quoted by the noble Lord, Lord Strathclyde, because the judgment of their Lordships in Judicial Committee took place since the Bill was in this House, and as I say, a number of concerns are raised which we believe should properly be dealt with in this Bill. If the House of Lords in a judgment raises a whole series of issues which we were not able to consider on the Floor of the House as the Bill relating to this judgment passed in front of us, we must seize the occasion the moment that the Bill comes back to us and before it is enacted to discuss these issues and, I would hope, put them properly into statute.
There is great uncertainty about the effect of the Spycatcher decision both in terms copyright law and the effect that the admonitions in their Lordships' judgment will have on judges in the courts of the United Kingdom. There is no doubt that if the Law Lords pass a judgment and they are almost unanimous in saying that actions reeking of turpitude lose copyright and so on, and if that is true, that will certainly influence the behaviour of judges in the UK courts. I believe that the Government ought to attend to this very seriously and give us a clear explanation of exactly where they stand on these issues to remove the uncertainty.
The House of Lords having opened up a major area of uncertainty before the Bill is enacted, it is for the Government to respond to say where they stand.

§ Lord Lloyd of Hampstead
My Lords, with great respect to the noble Lord, Lord Williams of Elvel, I regret that I cannot agree with his view of the effect of the Spycatcher case or the notion that in some way the doctrine enunciated by the noble and learned Law Lords in that case should be embodied in this present Bill.
The fact of the matter is that the noble and learned Law Lords were seeking to apply doctrines which have been long established in our common law. They are doctrines which are variously referred to as public policy, whereby contracts or other legal transactions may be deemed by the court to be so immoral that they lose their validity or enforceability. These doctrines necessarily are of a rather vague character 231 because to a large degree it depends upon the circumstances which arise. It has always been recognised that there are these overriding common law doctrines which the courts can, in appropriate cases, invoke. It is also well understood that the courts are extremely chary of raising these doctrines in particular cases and only do so in very limited circumstances.
On copyright, this doctrine has been invoked in earlier cases. There was the celebrated Glyn case in 1915. A well-known authoress at that time, Elinor Glyn, wrote what we today would regard as an exceedingly harmless and innocent novel. Nevertheless, because it dealt with adultery, it was considered in 1915 as something very outrageous. Therefore the court held that it was against morality, and copyright in the book could not be enforced.
There is nothing outstanding or completely novel about the invocation of this doctrine. It has always been recognised that it would not he appropriate to reduce these general doctrines of common law into precise formulations in statutes. I therefore suggest to your Lordships that it would he quite inappropriate for us, or for Parliament, to attempt to place precise boundaries or limitations on these general common law doctrines in a Bill which is expounding the law of copyright. These doctrines have worked reasonably well in the general range of law and have not been subject to any strenuous criticism over the long period in which they have operated.
With the greatest respect to the noble Lord, Lord Williams, I suggest that neither the Government nor your Lordships are under any obligation to try to incorporate in this Bill the matters that were discussed in Spycatcher.

§ Lord Strathclyde
My Lords, the debate on this case is interesting. I have to agree with the noble Lord, Lord Lloyd of Hampstead, in what he says. In the Spycatcher case four of your Lordships, acting in their judicial capacity, concluded that in the light of the circumstances in which Mr. Wright had written the book, the English courts would decline to grant him any relief in respect of any breach of his copyright. The basis of this conclusion was that the courts would not enforce a claim to copyright where a publication of the work was against the public interest and in breach of a duty of confidence.
In the past there have been other cases where the courts have refused to enforce copyright where the work involved was tainted in some way. The underlying principle in these cases applies to the circumstances of the Spycatcher case. However, Clause 28 is not relevant in this regard. This clause introduces the exceptions to copyright in Chapter III of Part I of the Bill and provides that certain specified acts may be done without infringing copyright.
The common law exception referred to in the Spycatcher case would work differently. If someone published Spycatcher without Mr. Wright's permission, that would amount to an infringement of his copyright. However, the English courts would grant him no relief in respect of that infringement. 232 Perhaps I may draw your Lordships' attention to Clause 161(3) of the Bill, which states: Nothing in this Part affects any rule of law preventing or restricting the enforcement of copyright, on grounds of public interest or otherwise". Consequently the Bill does not affect the courts' powers to decline to grant relief to someone in the position of Mr. Wright.