COMMONS AMENDMENTS (Hansard, 2 November 1988)

§ Lord Young of Graffham
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1. In speaking to this amendment I shall also speak to Amendments Nos. 15, 17, 76, 82, 97, 103, 152, 153, 158, 160 to 167 inclusive, 176, 180, 301, 302 and 313 to 317 inclusive.
Amendment No. 1, and indeed the majority of the amendments in this group, are drafting, paving and consequential amendments prompted by substantial changes in respect of the Crown and parliamentary copyright to be found in Amendments Nos. 160 to 164. In summary, the existing Crown copyright provision in Clause 157 has been deleted and replaced by new provisions: Amendment No. 160 relating to Crown works, Amendments Nos. 162 and 164 relating to parliamentary works and Amendments Nos. 161 and 163 dealing with the copyright status of Acts, Measures and Bills.
Perhaps I may deal with the question of Crown copyright first. Clause 157 is to be left out. It is to be replaced by Amendment No. 160. This is very similar to Clause 157 but there are two significant changes. The first is the exclusion of parliamentary works, at which we shall look in a moment. The second is the removal of commissioned works from the scope of Crown copyright. This fulfils a pledge given by my noble friend Lord Beaverbrook at Third Reading to the noble Lord, Lord Mottistone.
Clause 157 places the Crown in a better position than other commissioners who have to acquire copyright contractually. This differential treatment cannot be justified and Amendment No. 160 places the Crown in the same position as other commissioners of works. For consistency of treatment we are also amending Clause 158 (Amendment No. 165) to bring the provisions relating to international organisations into line. As a result, when the Crown or a House of Parliament commissions a work it will not be the first owner of copyright. If it wants copyright it must arrange for the author to assign his copyright.
194 I turn now to parliamentary copyright. Under the existing law many works emanating from this House or another place are Crown copyright by virtue of what is called the first publication rule, that is to say, works first published by the Crown are deemed to be Crown copyright. Thus the Official Report, which is published by HMSO, is Crown copyright. The position of other works—for example, a sound recording or broadcast of parliamentary proceedings—is not always clear but it is certainly not Crown copyright.
The first publication rule for Crown copyright is not to be re-enacted by this Bill. That has left the position of parliamentary papers at large, and Clause 157 provided that Crown copyright subsists in all works made by or under the direction or control of either House of Parliament. The intention was to ensure that parliamentary works of whatever kind are protected by copyright. However, since the exercise of all Crown copyright is vested in the control of Crown HMSO, it means that it has control over these works. That is an undesirable result. Amendments Nos. 162 and 164 will ensure that works emanating from either House of Parliament enjoy copyright protection and that the copyright is controlled by the House concerned and not by the Crown.
The basic provision for parliamentary copyright is contained in Amendment No. 162. Parliamentary copyright is to subsist in any work made by or under the direction or control of either House of Parliament. This will include all works made by officers or employees of the House in the course of their duties. Perhaps more significantly, parliamentary copyright will subsist in any sound recording, film, live broadcast or live cable programme of House proceedings. The position of works commissioned by the House is the same as that in respect of Crown works. Unless there is an assignment of future copyright, the first owner of copyright in such works will be the author or his employer.
As your Lordships will know, the legal personality of the House is not altogether clear, and it is necessary to make provisions so that parliamentary copyright can be vested in a legal person who can then exercise the copyright. Amendment No. 163 specifies that for copyright purposes each House is to be regarded as a body corporate even though it is not. The Clerk of the Parliaments is nominated to exercise copyright on behalf of this House and Mr. Speaker will fulfil the same function in another place. Provision is made for cases where either of those posts is vacant and for exercise of copyright during dissolution. These amendments will clearly establish that copyright subsists in parliamentary works and that the relevant House, rather than the Crown or a broadcasting organisation, is the first owner of copyright in the work.
Finally, I turn to Amendments Nos. 161 and 163, which set out the copyright status of Acts, Measures and Bills. These amendments were introduced after close consultation with Counsel to the Lord Chairman of Committees and Counsel to Mr. Speaker in another place. Broadly speaking, 195 parliamentary copyright subsists in a Bill. This ceases on Royal Assent, when Crown copyright will subsist in the Act, or when the Bill falls.
These amendments will provide an appropriate regime for Crown and parliamentary copyright. In the meantime, I commend the amendment to the House.

§ Lord Williams of Elvel
My Lords, at the beginning of what promises to be a rather long session in your Lordships' House because of the number of amendments that have come from the Commons, perhaps I may make three general remarks about our proceedings this afternoon and perhaps this evening.
First, I should like to assure the Secretary of State that the Opposition will move matters forward as expeditiously as possible. We believe that this is a Bill which should pass your Lordships' House and that such Commons amendments as are in front of us should be treated in a proper but expeditious fashion.
Secondly, I should like to thank the noble Lord, and through him his department, for the co-operation that the Opposition have received in the explanation of the Commons amendments that are before your Lordships. I believe that it is unprecedented for the department to have issued it, but it has issued what I regard as something of a child guide on the Commons amendments which has been very useful for those of us who are children in this matter and have imperfect understanding of copyright and other matters which are in the Bill.
Thirdly, I should like to assure the Secretary of State that we approach this debate, as we have approached previous stages of this Bill in your Lordships' House, on a wholly non-party and non-partisan basis. If we move amendments, they are designed to make sure that in our view the Bill will subsist, as we said at Committee stage in your Lordships' House, for 20 years. Every 20 years or so we have a copyright Bill. We should like to make sure that when the Bill leaves your Lordships' House it is as good as it can possibly be and will last for that time.
Having made those general remarks, perhaps I may now turn to the amendments on which the noble Lord has spoken. For the convenience of the House, I shall speak to the grouping that he recited. All of them, bar one, seem to us to be an improvement on what has happened before. We are grateful to the Government for having listened, as indeed they listened throughout the Bill, to representations made by the Opposition and other Benches and outside parties and they have met legitimate and reasonable presentations and comments.
My one worry is about Amendment No. 162. It refers to Parliamentary copyright and the noble Lord took us through some of the provisions of this new clause. My worry is that the new clause reintroduces an expression which was found to be very difficult to handle in the 1956 Act. That is the expression, under the direction or control of". 196 It was an expression that was picked up from the 1956 Act where I believe it was used in respect of Crown copyright. The Crown copyright provisions are improved by the expression that copyright arises only in circumstances where a work is made by a Crown officer or servant in the course of his duties. That must be right.
However, this expression, under the direction or control of was criticised by the Whitford Committee as part of a wider criticism of Crown copyright. We now see it reappearing in this new clause which deals with parliamentary copyright. The matter is made somewhat more complex by subsection (4) where it seems to cut back substantially the scope of the clause as a whole. I understand that it is an attempt to define what "direction" or "control" really mean, but ambiguity still seems to be there by reason of the expression in the penultimate line of subsection (4) that a work is not caught: by reason only of its being commissioned by or on behalf of that House". I wonder why the word "only" is required and whether that does not cast doubt on the whole issue of "direction and control of" and whether there is not some kind of explanation that the Government could give which would satisfy us that ambiguity in terms of parliamentary copyright will not continue even after the Bill is enacted.

§ Lord Mottistone
My Lords, I should like briefly to thank my noble friend for the amendments which affected the discussions on Crown copyright that I had with Ministers earlier in the progress of the Bill. There will no doubt be other places where amendments which I put down might have been incorporated in these. Rather than take up the time of the House, I should like automatically to thank ministerial staff at this stage on my own behalf and also on behalf of the CBI who in the main gave me advice on these matters. The Crown copyright provisions are certainly much improved.

§ Lord Lloyd of Kilgerran
My Lords, I too support the statement of the noble Lord, Lord Mottistone, that the amendments have improved the Bill. In rising to support the amendments generally, I presume to remind your Lordships that the Bill has already had a heavy hammering in this House. We had about 1,500 amendments and now there are 411 amendments from the House of Commons with a few added by your Lordships. In my general view, enough is enough. The Bill is very much improved and therefore I should like to say that I shall not be raising many matters this afternoon.
I paused there because I hoped that there would be a general shout of agreement with what I had said! There is the one matter which I found relevant in the very interesting speech of the noble Lord, Lord Williams of Elvel. That was his reference to the words in Amendment No. 162: made by or under the direction or control of the House of Commons or the House of Lords". That is a phrase which arose in the 1956 Act, if I remember. We have done very well with those words 197 so far without much trouble, and I should have thought that, subject to any explanations that the Government may have to make, matters should stand as they are.

§ Lord Young of Graffham
My Lords, I am very grateful to the noble Lord, Lord Williams of Elvel. I am glad that he found our child's guide to be of great assistance. May I confess that I am the child for whom it was originally commissioned. I gladly vest in him any copyright in the work in future.
It is true that we have had a large number of amendments on the Bill. I accept gladly the assurances given by all in your Lordships' House that we should look at our work today in a spirit of explaining any anomalies which exist, but facilitate the passing of the Bill. It will be a much needed improvement in the law of copyright and intellectual property in the land.
We do not believe that the same difficulties will arise from the problem raised by the noble Lord, Lord Williams of Elvel, concerning directional control as under the 1956 Act. Subsection (4), to which the noble Lord referred, removes most of the doubts which previously existed. The reason for the last few words about commissioned work is that the work in question is commissioned, but because the author concerned is not directed or controlled, parliamentary copyright will not subsist. But if there is direction or control. parliamentary copyright will subsist, even in the case of a commission. The test really is whether the work is actually directed or controlled.