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COMMONS AMENDMENT

147

After Clause 113, insert the following new clause--

Amendments of Copyright, Designs and Patents Act 1988 relating to cable programme services

'Schedule (Amendments of Copyright, Designs and Patents Act 1988 relating to cable programme services) (which contains amendments of the Copyright, Designs and Patents Act 1988 relating to broadcasts included in cable programme services) shall have effect.

Lord Inglewood: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 147. I spoke to this amendment with Amendment No. 134.

Moved, That the House do agree with the Commons in their Amendment No. 147.--(Lord Inglewood.)

On Question, Motion agreed to.

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COMMONS AMENDMENT

148

After Clause 113, insert the following new clause--

Copyright licensing

'. (1) After section 135G of the Copyright, Designs and Patents Act 1988 there is inserted--
"Power to amend sections 135A to 135G.

135H.--(1) The Secretary of State may by order, subject to such transitional provision as appears to him to be appropriate, amend sections 135A to 135G so as
(a) to include in any reference to sound recordings any works of a description specified in the order; or
(b) to exclude from any reference to a broadcast or cable programme service any broadcast or cable programme service of a description so specified.
(2) An order shall be made by statutory instrument; and no order shall be made unless a draft of it has been laid before and approved by resolution of each House of Parliament."
(2) After section 151 of that Act there is inserted--
"Award of interest.

151A. --(1) Any of the following, namely--
(a) a direction under section 123(3) so far as relating to a licence for broadcasting a work or including a work in a cable programme service;
(b) a direction under section 128(3) so far as so relating;
(c) an order under section 135D(1); and
(d) an order under section 135F confirming or varying an order under section 135D(1),
may award simple interest at such rate and for such period, beginning not earlier than the relevant date and ending not later than the date of the order, as the Copyright Tribunal thinks reasonable in the circumstances.
(2) In this section "the relevant date" means--
(a) in relation to a direction under section 123(3), the date on which the reference was made;
(b) in relation to a direction under section 128(3), the date on which the reference or application was made;
(c) in relation to an order under section 135D(1), the date on which the first payment under section 135C(2) became due; and
(d) in relation to an order under section 135F, the date on which the application was made."
(3) Subsection (2) does not apply in any case where the reference or application to the Copyright Tribunal was or is made before the commencement of this section.'

Lord Inglewood: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 148. In speaking to this amendment, I speak also to Amendment No. 148A.

Amendment No. 148 will allow an order to be made in the future to vary the application of a statutory licence. The House examined the background to this amendment when my noble friend Lord Lyell tabled an amendment during consideration of the Bill in Committee. The Government do not feel it is appropriate to proceed with any changes to the statutory

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licence at the moment; but the amendment will facilitate changes in the future should they become appropriate. The Government have in mind in particular the possible removal of on-demand services from statutory licensing.

The amendment would also give the copyright tribunal the discretion to add an element of interest to awards, including a backdated payment or repayment to compensate any party who has been financially disadvantaged by the unreasonable behaviour of another. This power to award interest will apply to cases involving the statutory licence and can be used by the tribunal if it feels that a licensee has unacceptably exploited its entitlement to a statutory licence.

By reason of the scope of the Bill, the amendment does not apply to cases where copyright works are used other than in broadcasting or cable programmes. But the Government intend to apply this change to all disputes which can be heard by the tribunal when the opportunity arises. I commend the amendment.

Moved, That the House do agree with the Commons in their Amendment No. 148.--(Lord Inglewood.)

AMENDMENT TO COMMONS AMENDMENT No. 148

148A

Line 12, at end insert--


("(1A) Before making an order under subsection (1), the Secretary of State shall consult those persons, including broadcasters and licensing bodies, who would be likely to be affected by the order (if it were to be made).").

The Viscount of Falkland: My Lords, I beg to move Amendment No. 148A as an amendment to Commons Amendment No. 148.

There has been a good deal of discussion on the subject of statutory licences. I need not go into the meaning of such licences. As some noble Lords will be aware, an amendment brought forward by the Government in another place gave new powers to the Secretary of State to exclude certain broadcasters from the provisions of the statutory licence. I do not think any reasonable broadcaster, or the House, will have any difficulty in agreeing that such powers should exist.

As the Government have already indicated, clearly at some time in the future we may be faced with circumstances where it is necessary to exclude from statutory licensing some broadcasters with some particular types of broadcasts in mind. There is no problem with that. However, I tabled the amendment for two reasons.

First, I seek from the Minister an assurance, if he is able to give it, that before any broadcaster is excluded, that broadcaster and any other bodies relevant to the type of broadcast involved will be properly consulted. We have already had some discussion about consultation or the lack of it in relation to preceding amendments. But an assurance from the Minister on that point would be extremely helpful.

Secondly, perhaps the Minister at this stage could enlighten the House as to exactly what kind of broadcasts he has in mind for exclusion. Some of us have our own ideas, but perhaps he can guide us in this area.

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We are dealing with the prospect of on-demand broadcasting, which is linked with the new technologies which we have discussed at length. It has been suggested, that on-demand broadcasting would be a possible area for exclusion in the future. However, the definition seems extraordinarily wide.

As digital broadcasting becomes more widely adopted, as one might expect more and more programming will be available in an on-demand form. Viewers will be able more and more to select, order and receive an increasing range of broadcasts on an individual basis. One would expect musical content to play a large part, of which a small fraction would be the type of on-demand service that could be expected to affect the interests of rights holders. High-quality music recordings could well affect the sales of records in the shops, and that may well be a reason for introducing a refusal to grant a statutory licence.

It seems at this stage that in a vast number of cases there would be no adverse effect on rights holders. The reason for withholding permission for statutory licences is to protect rights holders. I am sure the House will agree that it is important that proper consultative procedures are put in place to make sure that no broadcaster is unfairly excluded, or that his particular type of broadcast should have been thoroughly examined to see that exclusion was just and fair. My amendment was tabled in a spirit of inquiry. I look forward to the Minister's comments. I beg to move.

Moved, That Amendment No. 148A, as an amendment to Commons Amendment No. 148, be agreed to.--(The Viscount of Falkland.)

7 p.m.

Lord Inglewood: My Lords, I am very grateful to have had from the noble Viscount an explanation of his concerns underlying this amendment. I am very glad to be able to give him an assurance on behalf of my colleagues at the DTI that there will be further consultation and an opportunity for interested parties to express their views before any order changing the application of the statutory licence is made. I should also like to remind the House that no order can be made until it has been debated by both Houses, so your Lordships will have an opportunity in the future to express views on any proposed changes to the statutory licence.

It is also important to be clear that so far as we are concerned now, on demand is all that we have in mind for exclusion; but there may be other categories in future as technology develops, and precise definitions might well be rather tricky to make. Hence we felt it would be appropriate to have an order-making power of this kind. I very much hope that in the light of the assurance and the explanation I have given, the noble Viscount may feel able to withdraw his amendment.

The Viscount of Falkland: My Lords, I thank the noble Lord the Minister for that reply and for the explanation. Certainly that satisfies my concerns and the concerns of the broadcasters who have been behind my tabling of the amendment. In the circumstances, I beg leave to withdraw the amendment.

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Amendment No. 148A, as an amendment to Commons Amendment No. 148, by leave, withdrawn.

On Question, Commons Amendment No. 148 agreed to.


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