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. 33. Clause 32 provides the first of the educational exceptions to copyright. Subsection (3) provides the examination exception . Copyright in any work is not infringed by anything done for the purposes of an examination by way of setting the questions, communicating them to the candidates or answering the questions. This provision is wider than the corresponding provision in Section 41 of the 1956 Act in that it applies to copyright in all descriptions of work and the specific reference to communicating the questions means that acts such as reading a passage or playing a record to examination candidates does not infringe any public performance rights.
It is not permissible under the present law for someone preparing for the tests for competence on a musical instrument, say the piano, to photocopy the set piece of music rather than buy a copy. Music publishers were deeply concerned that the redrafting of the examination exception had widened it to such an extent that such copying would in fact be permitted under the Bill. Our own view is that it would not, and Amendment No. 33 will avoid any doubt.
The publishers will therefore have their income from selling sheet music to examination candidates protected. But the exception will continue to apply to manuscript copying for performance, which is obviously less damaging and to the written part of music examinations.
Moved, That the House do agree with the Commons in their Amendment No. 33.—(Lord Strathclyde.)

§ Lord Peston
My Lords, I rise to seek more clarification so that I understand precisely the logic that lies behind the amendment. If I am right, it will not be an infringement of copyright if a student is sitting a music examination and the examination paper contains some bars of music and the student is asked to do some analysis of what can be seen there. That will not be an infringement of copyright.
Secondly—and this is where I come more closely to the question—if the material is being put forward so as to test the student's ability to read music, that will not be an infringement of copyright. The question is: will it be an infringement of copyright if the examination is a test of the ability of the student to use a musical instrument, which I assume may include the voice? To copy material for that purpose would be an infringement of copyright. That would be the case in which the student would have to acquire the original material.
I simply wish to get clear in my own mind what is the nature of the amendment. I believe that the key distinction is the words that the noble Lord used: the tests for competence on a musical instrument". I wish to ask whether that concept includes the voice. However, if it is not a test of academic ability in music then the normal examination exceptions apply. I have not put the matter very clearly but I hope the noble Lord understands my point.

§ Lord Strathclyde
My Lords, from what I understand the noble Lord, Lord Peston, to be saying, I feel that he has answered his own question and he is quite correct in his assumption.