HL Deb 02 November 1988 vol 501 cc232-6

29A That this House do disagree with the Commons in their Amendment No. 29.

Lord Williams of Elvel

My Lords, I beg to move my Motion 29A, That the House do disagree with the Commons in their Amendment No. 29.

The amendment, which is designed to change subsection (3) of Clause 29 in the Bill as it left your Lordships' House, seems to us to make it much worse rather than better. It is a time-wasting and, in our view, wholly uneconomic activity to require that all students in a group queue up at a photocopying machine to copy extracts from a work when the teacher is not allowed to make 20 or 30 copies and distribute them to the students. This seems to be carrying legislation to the further shores of lunacy. The teacher should be able to take multiple copies on behalf of his students within the general scope of the fair dealing exemptions.

For the life of me I cannot understand why the Government wish to change what seems to us to be a perfectly sensible clause in the Bill as it left your Lordships' House, Clause 29, and produce something which makes it extremely difficult to understand and accept. For that reason I wish to move that your Lordships oppose this Commons amendment.

Moved, That the House do disagree with the Commons in their Amendment No. 29—(Lord Williams of Elvel.)

Lord Howie of Troon

My Lords, I am sorry to say, having supported my noble friend to the extent of going through the Lobby with him earlier this afternoon, that I have to dissent in the case of this amendment. I dissent because fair dealing, in the nature of things, must be evenhanded. By that I mean that it must be fair dealing between the student—to whom he drew attention—the author and the publisher.

In the example that my noble friend Lord Williams gave of a teacher copying a number of articles or parts of a book for his students, it is something that he would do not once but this year, next year and the year after. He would do that so long as that book or article remained relevant to the course upon which he was engaged. What he would be doing is taking from an author or publisher something that is the intellectual property of the author or the publisher and not paying for it.

There are distinctions to be made here about an individual student taking a copy for himself. I do not think any author, such as my noble friend Lord Willis, would worry if some young student did that. As a publisher, I should not worry if a student took an article from one of my magazines and copied it for his own use. However, I would object and so would my noble friend if it became a matter of copying his work or my work and scattering it to be broadcast free. That would be wholly wrong.

My noble friend, with the best of intentions, is making a mistake. He is destroying the concept of fair dealing. I believe the clause ought to stand.

Lord Hardinge of Penshurst

My Lords, I agree with the noble Lord, Lord Howie of Troon. I listened carefully to the eloquent and knowledgeable words of the noble Lord, Lord Williams of Elvel. The point is that the purposes of fair dealing for private study or research are private purposes; that is, they are for the purposes of one student or researcher. Clause 29 (3), before its amendment in another place, opened the door to what has been called "one for me and one for each of my six fellow students". This is a kind of concealed multiple copying, known as systematic copying. It is expressly disallowed in respect of library privilege copying in Clause 40 and must not be allowed in respect of fair dealing copying either.

I should perhaps declare a very small interest. In retirement I have a slight connection with the book publishing industry. Apart from the reasons given by the noble Lord, Lord Howie of Troon, these are the reasons why I cannot agree with the amendment.

Lord Lloyd of Hampstead

My Lords, I too must declare an interest as the author of a number of books which can and possibly have been used for research purposes or private study. My views are not influenced by the modest returns that the work of producing books of this kind entails.

The Commons amendment, which I venture to support, seeks to draw a distinction between a casual copy carried out or executed by a single student and systematic copying on a large scale which clearly would encroach upon the circulation of a book. If, for example, somone sought to copy a whole chapter of a book for study purposes and then copied it for all his friends, whether in the same institution or in other places, this becomes an act of large-scale depredation. It is surely unfair that an author should be subjected to this kind of thing. Therefore the limitation that the Commons amendment seeks to place on this kind of copying represents a perfectly reasonable restriction and deserves support.

Lord Strathclyde

My Lords, in speaking to oppose the motion standing in the name of the noble Lord, Lord Williams, I shall also speak to Amendment No. 29.

Clause 29 provides that fair dealing for purposes of research or private study does not constitute an infringement of copyright. Subsection (3) was included in the Bill to make it explicit that a student or researcher could avail himself of the fair dealing exception even if he did not do the copying personally. We believe that to be the existing law, but this statement on the face of the Bill caused some alarm, particularly among publishers. They were concerned that this could lead to systematic multiple copying where a class of 30 students could ask a librarian to make 30 copies of, say, a learned article and each would then rely on his own individual fair dealing exception.

As far as library copying is concerned, clause 40 already imposes restrictions on multiple copies of the same material. Paragraph (a) of Amendment No. 29 will ensure that those restrictions are read over to fair dealing. But, of course, librarians are not the only ones to copy on behalf of others. Copy shops do so too. Industry also does much in-house copying. Paragraph (b) of Amendment No. 29 therefore extends the principle of paragraph (a), which was agreed by your Lordships, to the general case.

The noble Lord, Lord Williams, has given notice of his objection to Amendment No. 29. I must confess we were a little surprised, like perhaps some other noble Lords, since the extension of the principle of paragraph (a) to the general case was one urged on us in another place by the Opposition and which we accepted was right. I understand that he may be worried that Amendment No. 29 will lead to queues of students at a photocopier, all waiting to exercise their fair dealing allowance instead of getting a single individual to do it for them. But without Amendment No. 29 all sorts of multiple photocopying can be excused as cumulative fair dealing. I know from previous debates on this general question that the noble Lord, Lord Williams, does not wish to encourage extensive photocopying in industry and elsewhere without payment to copyright owners. Where multiple copying takes place it should be done under licence. For many educational purposes this is already possible and as more institutions take out licences it will become increasingly so. If queues build up at photocopiers, that may lead to positive results by encouraging the take-up of licences.

It is in this respect that Amendment No. 29 has considerable importance in the context of the commercial research debate which has raged throughout the passage of this Bill. While we believe it right that industry should be able to deal fairly with copyright works for research purposes, it cannot go beyond those limits without infringement. What industry has asked for, and what it is has obtained, is the preservation of fair dealing for research purposes. But industry must be prepared to pay for copying which is not fair dealing. Research is not some kind of copyright free zone.

It is generally accepted that multiple copying is not fair dealing. This amendment will remove doubts that certain practices, such as multiple in-house copying, are not fair dealing and require the licence of the copyright owner. The hand of the copyright interests will be strengthened by the amendment in negotiations for licences for copying for commercial research which is not fair dealing. That is something which I believe the noble Lord, Lord Williams, can support. I hope that, in the light of my explanation, he now feels able to support Amendment No. 29.

5.45 p.m.

Lord Peston

My Lords, as an academic I must always place on record my extreme discontent with the view that is expressed. It can only be put forward by people, as I have argued before in connection with this Bill, who have had no experience whatever of students, libraries or teaching. The Government's position essentially is this: if I say to my course on monetary economics that I want them all to read a particular page of an article by Professor Friedman, it is perfectly all right for all 30 students to traipse downstairs, get the article and copy the page one after the other. That is fair dealing. But if one of them takes it and presses the "30" button that is not fair dealing. I believe that is nonsense. I accept that everybody is anxious to protect the author, but there are limits to which we should let this form of nonsense go ahead.

As an academic I must once again place on the record the fact that I believe it is not for your Lordships to let proceed any piece of legislation which is such palpable nonsense. I understand whom the noble Lord is trying to protect—the author. I am for that. But there are limits to which one should engage in nonsensical behaviour for that purpose.

Lord Howie of Troon

My Lords, before my noble friend sits down, will he take note, when he has finished waving his hands at me, that it is not really a good idea if he wishes to be persuasive to open his remarks by saying that those of us who take a different view from him have no experience or do not know what we are talking about. Some of us do.

Lord Williams of Elvel

My Lords, I am grateful to the noble Lord, Lord Strathclyde, and to other noble Lords who have participated in the debate. Without impertinence I should like to offer advice to the noble Lord opposite. He would do well to avoid references to my honourable friends in another place. At the outset of today's proceedings I announced that we were dealing with the matter on a non-partisan and non-political basis. Throughout I have tried to keep the discussion as open as possible. if I happen to disagree with an honourable friend in another place, or if he happens to disagree with me, or if the Government happen to disagree with one of their Back-Benchers, that is perfectly in order on a Bill of this nature. I hope that party political constraints will not enter into the issue.

As regards the burden of my difficulty with the new subsection of Clause 29, a number of noble Lords who have participated in the debate did not appear to have clearly grasped the meaning of Clause 29. It is about research and private study and fair dealing in copying for the purposes of research or private study. I can understand and support anybody who wishes to restrict multiple copying for any other purpose. However, we are talking about copying for research and private study and anything else does not have the fair dealing exemption. I support that point of view. The problem is that, given that position, we must ask ourselves what is the best way to ensure that the exemption is practical under the different circumstances which teachers and librarians meet. The original subsection (3) in the Bill states: The fair dealing mentioned in subsection (1) or (2)", which is copying for the purposes of research or study, may be done by the researcher or student himself or by another person acting on his behalf". Provided that it is for research and private study it does not open up any of the problems put forward by the noble Lords, Lord Lloyd of Hampstead and Lord Hardinge, or my noble friend Lord Howie.

I am not persuaded by the arguments but I believe that the Government are intent on making sure that the amendment is passed. I must respect the fact that it was passed in another place and for that reason I do not intend to press the matter. However, I wish to be placed on record the fact that I believe that this is a ridiculous notion. I beg leave to withdraw my amendment No. 29A.

Motion, by leave, withdrawn.

On Question, Motion (Commons Amendment No. 29) agreed to.