HL Deb 02 November 1988 vol 501 cc208-14

19 Clause 17, page 8, line 35, at end insert— 'This includes storing the work in any medium by electronic means.'.

20 Page 8, line 44, at end insert— '(6) Copying in relation to any description of work includes the making of copies which are transient or are incidental to some other use of the work.'.

Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 19 and 20 en bloc. In so doing, I shall also speak to Amendments Nos. 26, 48, 48A, 170, 177 and 306, which are also concerned with works which are in electronic form. The amendments made in another place represent the fruit of lengthy discussions between the department and representatives of the computer industry who are, I now understand, satisfied with the result.

The first thing these amendments achieve is a clear definition of copying. Amendment No. 19 adds words to Clause 17(2) to remove any doubts which might exist about copying in the context of works in electronic form. The Copyright (Computer Software) Amendment Act 1985, which is to be repealed, specifies that storing a work in a computer constitutes reproduction of the work. We believe Clause 17(2) of the Bill already achieves re-enactment of that principle but we were happy to remove any doubt on that score. Amendment No. 19 will restate the principle of the 1985 Act on the face of the statute in more general terms.

Your Lordships may recall that when the Bill was introduced, the restricted act of copying defined in Clause 17 specifically excluded the incidental copying which takes place in a computer when a program is run or when a work stored in a database is shown on a VDU. We were persuaded by the arguments put to us both in your Lordships' House and outside that this was wrong and we accepted that the incidental and ephemeral copying should require the authorisation of the copyright owner. Amendment No. 20 will remove any doubt that this is so.

Amendment No. 26 will fill a lacuna in the secondary infringement provisions and provide a remedy against those who export copyright works by transmission to overseas recipients for them to copy without the copyright owner's consent.

I now turn to Amendment No. 48, which provides a replacement to Clause 56. As we have seen, the use of a computer program inevitably involves the restricted act of copying. Thus anyone purchasing a copy of a computer program on a floppy disk cannot use it without the consent of the copyright owner. Of course where the copyright owner or his agent sells the disk, there must be an implied licence for the purchaser to use it. But that is not necessarily the case when the original purchaser passes the disk on to someone else. Any use of the disk would involve the restricted act of copying and so the use of the disk could be prevented by the copyright owner. That is not acceptable. In the absence of express provisions in the contract of sale of a copy of a work in electronic form or in any accompanying licence which prohibit or impose conditions on subsequent transfer, any subsequent user of the copy should be able to do any of the things that the original purchaser may do. Amendment No. 48 ensures this.

The noble Lord, Lord Williams, has tabled an amendment to Commons Amendment No. 48 which would allow the purchaser of a copy of a work to make a back-up copy for private and domestic purposes unless there is an express contractual term to the contrary. The amendment, like Amendment No. 48, is in general terms and would cover any work in electronic work, such as a videogram or compact disc. I do not believe it is the noble Lord's intention to legalise private copying of such things and of course his amendment would seldom, if ever, have that effect since there is almost invariably an express term forbidding copying. As I understand it, we are again dealing principally with computer programs and the noble Lord is saying that a purchaser should be entitled to make a back-up copy unless expressly prohibited from so doing.

Some have argued that there should be an absolute right to make back-up copies, because of the fragile nature of the storage of computer programs. The noble Lord has very sensibly concluded that one should not go that far, merely that the onus should be shifted from the position where the making of backup copies requires the consent of the copyright owner to one in which he must expressly prohibit the making of such a copy, and then only where the copying is made for private and domestic purposes. The amendment does not deal with the commercial sphere at all.

Many if not most programs sold for home use carry instructions to make a back up copy and so there is no problem. But where there is no such instruction or a prohibition on copying, should the consumer be free to make a back-up? It may be said that if the copyright owner does not feel sufficiently strongly to put the user on notice of infringement, it cannot do much harm to allow back-ups. But this seemingly attractive notion strikes at the root of copyright—the copyright owner has the exclusive right to copy his work. Inaction on his part should not deprive him of that right. Article 5(2) of the Berne Convention requires that the enjoyment and exercise of copyright shall not be subject to any formality. Requiring a copyright owner expressly to withhold his consent to copying before he can enforce his rights seems to us to sail pretty close to infringing Berne; it may even do so. I cannot see why we should run this risk when we have no evidence that copyright owners have ever used this right unreasonably in this area. I hope that the noble Lord, Lord Williams, will feel able to withdraw his amendment.

Finally, Commons Amendments Nos. 170 and 177 tighten up the definition of electronic form. Disks, such as CDs, do not store information electronically but mechanically in the form of minute pits on the surface. These are, however, read electronically by a laser in a similar way to the stylus in the groove of a vinyl record. Thus references to works in electronic form, in clauses such as 56 and 63, would not extend to CDs, when clearly they should. By virtue of Commons Amendments No. 170 such provisions will apply to CDs since they are works in a form usable only by electronic means. I would emphasise, incidentally, the word "only" in the amendment. This will prevent the printed word, which these days can be read electronically, from being treated as an electronic form.

The amendments made in another place provide the right regime in this difficult and often complex area where we are on the frontiers of technological development. I commend the amendments to the House.

Moved, That the House do agree with the Commons in their Amendments Nos. 19 and 20 en bloc.—(Lord Young of Graffham.)

4.15 p.m.

Lord Williams of Elvel

My Lords, it may be for the convenience of the House if I speak to the group of amendments that the Secretary of State has outlined, which includes my Amendment No. 48A. We embark here on one of the rather controversial subjects of this Bill. Whereas we may be discussing copies of computer programs at the moment, the noble Lord was right to point out that back-up copies or copies in electronic form spill over into copies of other works and bring us into the area of what I shall generally call the blank tape levy question.

I shall confine my first comments to computer programs. It is normal and in most cases necessary for back-up copies to be made of computer programs as a safeguard against loss or damage to the original. Indeed in many cases, the program comes with instructions from the manufacturer that copies should be made and the original should be put in one's bottom drawer. In that way one does not, by pressing the wrong key on the computer when using the original, wipe out all the software. In the absence of consent, or in the absence of explicit instructions from the manufacturer or the software producer, the making of such a back-up copy constitutes copyright infringement.

Two approaches can be used to ensure that the purchaser of a computer program can make a back up copy. One approach is to deal with it by statute as happens in the United States under the Copyright Act 1976 as amended in 1980. The legislation provides that it is permissible to make a copy of a computer program for archival purposes only and that all archival copies must be destroyed. The Australian Copyright Act is nearer to what we have in mind. It says: Copyright in a literary work being a computer program is not infringed by the making of a copy of the work, or of a computer program being an adaptation of the work, if it is made". Then there are restrictions. We do not wish to go even that far. We should like to shift the onus on to the manufacturer or the purveyor of software so that if he wishes to prevent someone making a back-up copy he should say so clearly.

Those who object to the first approach, which is the statutory approach, argue that there is no need for this because licences to make back-up copies are always granted. It is said that there is no problem, as the Secretary of State was trying to make out. Secondly, they say that sometimes it may be difficult to differentiate between private and commercial use of computer programs. For example, a person like myself who has a computer at home may use it for private and also for business purposes. It is difficult to distinguish between what is private and what is business. However, if all we do is shift the onus on to those who sell computer programs to take the back-up right away from the purchaser, so that in those cases the purchaser can ordinarily assume that the common practice of making a back-up copy is acceptable, we do not run into any of the definitional problems which the noble Lord outlined. It should be noted that we do not wish to go so far as to give the purchaser an absolute right as is the case in the United States and Australian legislation. We want to change the onus.

It is also worth noting that new Clause 56, which is Commons Amendment No. 48, provides for any back up rights of a purchaser to be transferred to a transferee of that computer program. The provision of a back-up right would be very much in line with new Clause 56. I accept that we are sliding into the blank tape levy debate. We are not frightened of that because we shall be fighting our corner on that issue when the time comes. However, I should like to remind your Lordships of the judgment of the noble and learned Lord, Lord Templeman, in the case of CBS Songs Ltd v. Amstrad plc which is quoted in the All England Law Reports of 17th June 1988. On page 498 the noble and learned Lord said: From the point of view of society the present position is lamentable. Millions of breaches of the law must be committed by home copiers every year. Some home copiers may break the law in ignorance, despite extensive publicity and warning notices on records, tapes and films. Some home copiers may break the law because they estimate that the chances of detection are non-existent. Some home copiers may consider that the entertainment and recording industry already exhibit all the characteristics of undesirable monopoly, lavish expenses, extravagant earnings and exhorbitant profits, and that the blank tape is the only restraint on further increases in the price of records". The noble and learned Lord then allowed himself a flight of imagination. He went on to say: Whatever the reason for home copying, the best of Sergeant Pepper and the soaring sounds of the Miserere from unlawful copies are more powerful than law-abiding instincts or twinges of conscience. A law which is treated with such contempt should he amended or repealed". We understand that in what they are proposing on off-air recordings the Government have gone some way towards meeting the concerns of the noble and learned Lord. Nevertheless, if I may return to back-up copies of computer programs. unless the purchaser of a program can have the right to know that he is entitled for his own purpose to make one copy where that is not forbidden by the contract under which he purchased it, we are in considerable difficulty. Further, it is inconsistent with some of the other points that the Government have been putting forward in another place on other aspects of home copying.

Lord Young of Graffham

My Lords, the noble Lord, Lord Williams of Elvel, has argued cogently for his amendment and it is true that in certain countries laws allow the making of back-ups, while other countries take a contrary view. In the end it is a matter of judgment as to whether there is a problem on a scale sufficient to justify limiting the rights of copyright owners. We have no evidence of a problem in this area and do not therefore propose to give a new right to users.

There is the difficulty that under article 5(2) of the Berne Convention the enjoyment and exercise of copyright should not be subject to any formality. I think that that would be a difficulty which would prevent us doing what the noble Lord desires.

Lord Williams of Elvel

My Lords, there are two different views as regards that article of the Berne Convention. No doubt the noble Lord's legal advisers in the department take one view, while my advisers take a slightly different one. It is, as I think he said in his opening remarks, a slightly grey area of whether it would be in contravention of the convention. However, that is not an argument which I think we can seriously entertain at the moment.

Nevertheless, I ask the noble Lord, if he can, to comment further on the proposition that purchasers of programs must be absolutely clear about what their rights are. Can the Government give some assurance that whatever measure and encouragement are appropriate, through whatever channel is appropriate for software manufacturers, they will ensure everyone who purchases a program is aware of what their rights are and what they are not. If that can be done, I think it will go some way towards satisfying our comments.

Lord Young of Graffham

My Lords, I must confess to being an enthusiastic user of personal computers at home. Indeed, as a matter of interest I bought the second Apple on sale in the United Kingdom just 10 years ago.

The way that computer programs are sold these days, they are either protected from copying or they are not. I suspect that the position is that those which are sold in an unprotected form have by implication the licence agreement of the copyright owner to let them be copied for normal use. However, that is very much a matter of fact in each case. All the computer programs which I have used contained reference to the fact that the copies may be taken for the use by one licensee only—unless they are sold under some form of copy protection, where clearly an endeavour to copy them would be a clear breach of copyright. I suspect that this is a problem which is being settled by fact and not one where we must run the risk of limiting protection.

Lord Peston

My Lords, may I ask the noble Lord, as I am a fellow computer user, whether he can at least clarify logically the distinction between making a back-up copy of a program on a soft disk and copying it on to the hard disk of the more expensive systems that one or two of us have, which is certainly the most sensible course if you have a hard disk? I do not quite see why copying it onto the hard disk is not an infringement of copyright, as I understand it—because otherwise no one would use hard-disk machines at all—whereas making a copy, as it were a back-up copy, would be regarded as an infringement.

It seems to me that all of this falls into the category that the noble Lord, Lord Williams, has raised. No one here is in the business of doing anything illegal; they are essentially in the business of not wasting time, so to speak, which I should have thought almost anyone interested in the subject would be all in favour of.

Lord Young of Graham

My Lords, let me assure the noble Lord before we get carried away with all the technology of computers, that there is no difference in practice for this purpose between a hard disk and a floppy disk. It is very much a matter of fact that time after time programs which are in a copyable form have with them as part of the printed material the permission of the copyright owner or the vendor of the program that copies can be made for the purchaser's own use. Indeed the amendments we are suggesting, by implication, carry that right on to any subsequent purchasers of that program. Those that are sold without the right to copy are invariably copy protected in some form. However, none of these measures is infallible and this provision is obviously to protect those who break the copy protection and thereby copy.

On Question, Motion agreed to.