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 Amendments Nos. 5 to 14 inclusive en bloc.
These amendments are all concerned with the definition of "cable programme service". For the most part they are little more than drafting or housekeeping amendments, but Amendments Nos. 5, 6 and 7 address a point of some substance and I will deal with them first. Amendments 5,6 and 7 all relate to the issue of copyright in interactive cable services, which, as your Lordships will recall from our earlier debates, is a particularly complex area of copyright. The general effect of Clause 7 is to bring within the scope of copyright all cable diffusion services which are receivable by the public. Thus, cable systems providing general entertainment will normally be included, and so will databases whose material is available to the general public. A service is not excluded purely by virtue of the fact that a user can communicate with the system in order, for example, to select which page or item in the store he wants to view.
However, what should not come within Clause 7 are those elements of a service which are genuinely interactive in the sense that input from the user modifies what is contained in or sent through the system. Thus, the definition of a cable programme service for copyright purposes is not intended to cover teleshopping through Prestel, or the input into a medical diagnostic service, where data supplied by a user modify the output to subsequent users. There are private communications between a single user of the service and the provider of it, even though the input may become part of the database subsequently included in the cable programme service.
The exception which takes genuinely interactive elements out of the definition is contained in subsection (2). The difficulty with it as at present drafted is that it does not recognise the existence of mixed services, only those that are either wholly of a kind in which the content of the service cannot be modified by the user, or wholly interactive in the sense that I have described. The result is that any interactive aspect of a service renders it wholly outside the scope of "cable programme service". The solution contained in these three amendments is simply to make the exception in subsection (2) apply only to those elements of a mixed service which are genuinely interactive, and not to those parts which are concerned solely to convey images, sounds or other information to the user without any modification by him. The result in relation to Prestel and similar services, for example, is that, in their normal mode of presenting information to the user, they will fall within Clause 7 but, when they are used for purposes of ordering goods or conducting banking transactions, they will not.
205 I stress, however, that this will not take out of the definition of "cable programme service" any element of the service capable of purely passive reception, even though it may be used interactively, so that, to take the example of teleshopping, the sending of the catalogue pages to subscribers will be a cable programme service, even though each subscriber may then order goods and receive confirmation of the order; it is only the latter aspect which is taken out of the definition.
Amendments Nos. 8 to 14 are all, as I have said, either drafting or housekeeping amendments to clarify meaning, improve grammar or ensure consistency. They contain no points of substance, but I shall of course be happy to explain them in detail if your Lordships wish me to do so.

§ Lord Williams of Elvel
My Lords, these amendments seem to be perfectly satisfactory except on one point. I refer to Amendments Nos. 6 and 7, to which the Secretary of State spoke. I am uncertain on how far it is possible technically to decide what is not interactive.
As far as I am aware—and I declare an interest, being a director of a cable company—there is no technical change between interactivity and direct broadcasting in the sense defined by the noble Lord. Unless there is some sort of technical change—a switch which one can operate and say "I am now going into interactive" and which can be switched back into passive reception—I do not see how it is possible to define "part of a service" (using the phrase in Amendment No. 7) or "or so far as it is not" (using the phrase in Amendment No. 6).
The Government may have greater expertise than I have. They may have great expertise on the cable system or, indeed, the future developments of interactive cable mechanisms; which I know will be great. However, the Government may be piling up trouble for themselves as a result of the difficulty of defining what is interactive and what is passive reception.

§ Lord Young of Graffham
My Lords, governments of the day are never unaware of the fact that in passing legislation of this nature there is a danger of piling up difficulties because technology changes so quickly. However, perhaps I can help the noble Lord. My department runs a service called "Spearhead", which is a database accessible by the public which will give up-to-date information on the effect of 1992. The public can access it and by using a modem on their home computer can turn the pages and acquire information but cannot input any information to the programme. It is, so to speak, read only. Those would be covered. The services into which the public could input information for the purpose of teleshopping or whatever would be outside that definition.

§ Lord Peston
My Lords, may I put one question to the Secretary of State as he has referred to the rise in 206 technology? If we are looking at a database of quantative data I believe the technology already exists—and if not, it certainly will—whereby the user can specify the form in which the data will be transmitted. He might ask for the information in the form of a graph or even something more complicated. He will issue such instructions to the sender.
I can see the noble Lord's point holding for the original data at the far end, but I am not clear who has any rights in regard to the material as it comes this way, so to speak, the user having specified the form in which the material arrives. As I said, a graph is a good example but one can think of several others of a similar nature. It is a matter of clarification and whether the Secretary of State knows who has the copyright in this form where the sender said, "Yes, you can convert it into that form if you wish; but you choose to do it and you may be the only person who thought of doing it".
This highlights what my noble friend Lord Williams said: the matter is rather complicated. The key point was made by the Secretary of State himself. With everything changing one would like the Bill to accommodate all the changes.

§ Lord Young of Graffham
My Lords. I am grateful to the noble Lord, Lord Peston. At this stage it is not necessary for there to be a technical difference between interactive and non-interactive parts of the service. The test is how they are used. If the service is used interactively, copyright will not apply; but if it is used non-interactively it will apply. That is the only test we can apply at the moment.
As farseeing as Ministers are on this side of your Lordships' House, we are not totally infallable. If by chance we have it wrong there is the possibility of amending the exceptions by Order in Council under subsection (3). We have to look to tat in a fast-changing world. In the example given by the noble Lord, Lord Peston, one must distinguish between copyright in the graph, which is artistic work, and copyright in the service, which is different. The former is not affected by the amendments.