HL Deb 24 April 1888 vol 325 cc296-300

(The Earl of Onslow.)

SECOND READING.

Order of the Day for the Second Reading, read.

THE SECRETARY TO THE BOARD OF TRADE (The Earl of ONSLOW) ,

in moving that the Bill be now read a second time, said, that it was not a Government measure, having been introduced into the other House of Parliament by a private Member. The Attorney General, however, made some modifications in and accepted it, and for that reason he was entrusted with the charge of it in their Lordships' House. It was a very short Bill, and was intended to remove what was now a very great abuse. Under the existing Law of Copyright the person owning the copyright of any musical composition might sue for the performance of it without his leave and permission, and was entitled to obtain a minimum penalty of 40s. and costs. That had been found to operate very harshly, more particularly in respect of copyright obtained under an old Act of Parliament. In former days the copyright of the piece was divorced from the right of performing that piece, the consequence of which had been that, where a person had parted with the copyright of his piece, he still retained the right of performing it. This right he might sell, and the purchaser might sue all over the country and obtain large costs, with 40s. damages at least, from any person performing the piece. He was informed that costs had been obtained not only against the persons who sung the song, but against the person who played the piano and the person who got up the concert. In one instance a penalty had been exacted from a child of 13, who had sung at a concert given in aid of a charity, and all the proceeds of the concert were absorbed in the costs of the prosecution. The Bill provided that in future the amount of damages to be awarded in respect of each unauthorized representation should be such a sum as in the opinion of the Court or Judge might be deemed reasonable, and he might award a smaller sum than £2, and the damages might be nominal. The 2nd clause left the costs of the action or proceedings in the absolute discretion of the Judge. The result would be to meet the justice of every case, and to prevent what had hitherto amounted to a gross system of blackmailing. The subject was dealt with by the Royal Commission on Copyright which sat in 1878, which recommended that the owner of the composition should only be entitled to recover damages or compensation according to the damage sustained, and that there should be no minimum penalty for an unauthorized performance. It was that recommendation which the Bill now sought to carry into effect.

Moved, "That the Bill be now read 2a."—(The Earl of Onslow.)

LORD BRAMWELL

, in moving that the Bill be read a second time that day six months, said, that the object of the Bill was to confiscate certain rights which certain people now possessed. At the present time a man might compose a song and might retain the right of publishing it, or he might part with it; but in addition to that he had the exclusive right of representation, and anyone who represented or sang the song without the permission of the owner was liable to pay the owner a minimum amount of £2 for damages. Whoever had composed the song retained the exclusive right of representation, and whoever purchased that exclusive right could proceed against anyone who infringed it to recover the liquidated sum of £2 at least, and any further damages he could prove. In this Bill this £2 was called a penalty, but it was not. That was proved by the case of "Fitzballv Brook" (6 Q. B., p. 873). It was incorrect to say that it was a penalty. It was a stipulated debt, which the owner of the right could recover from anyone who sang a song without his licence. If their Lordships would look at the Statute Book they would not find a word about a penalty mentioned in it. The case stood thus. Every man who had the right of representation, either because he had composed a song or purchased the right from the composer, was entitled to recover £2 every time the song was sung without his consent. He was to have, instead, a right to such damages as he could prove—an idle provision, for of course he could not prove that he was damaged by the song being sung. Why should his right be taken from him? If this Bill were only prospective the case would be different, but it was applicable to existing rights. He submitted that those rights ought not to be taken away, and that the Bill would establish a mischievous precedent. The Bill was wrong in taking away from people a right which they at present possessed and for which they had paid money. With regard to the cost of these proceedings, he should say that they ought to be like the costs of all other proceedings, and therefore it would be as well that some such provision as that contained in Section 2 of the Bill should exist. Again, the Bill provided that the proprietor of a place of entertainment should not be liable for the singing of a song unless it could be shown that he had wilfully caused it to be sung. He thought that was a very reasonable proposition, and, indeed, he doubted whether the Courts had not sometimes said that people were liable who ought not to have been made liable.

Amendment moved, to leave out ("now") and add at the end of the Motion ("this day six mouths.")—(The, Lord Bramwell.)

THE EARL OF SELBORNE

said, he thought the noble and learned Lord had rather argued against his own Motion, inasmuch as he admitted that two out of the four clauses in the Bill were very good clauses indeed.

LORD HERSCHELL

said, that the changes embodied in the Bill were recommended by persons who had not the reputation of disregarding rights of property. Among the Members of the Royal Commission appointed to consider the subject were the Duke of Rutland, the Earl of Devon, the present Secretary of State for the Colonies, Mr. Justice Stephen, and other highly-respectable persons, who certainly were not disposed to interfere with rights of property. He supported the provisions in this Bill, inasmuch as he was himself on the Commission which recommended the change in the law.

THE LORD CHANCELLOR (Lord HALSBURY)

said, he confessed that this was a matter in regard to which there was a divided opinion, and he thought it involved a greater principle than some noble Lords seemed to imagine. It raised the question whether property of this description was to be protected or not. It was not necessary for the Legislature absolutely to fix what the damages ought to be; the existence of a right to these damages ought to be treated as property. The product of a man's brain ought to be protected as much as any other kind of property, but under the general law it was left absolutely without protection. If without some such provisions as were contained in the Bill a man were to bring his action, it would be argued that it was idle to suppose that any damages had been suffered from the singing of a particular song on a particular occasion. In most cases it would be true. But it would be a different thing to say that this property should be left without any protection at all.

THE SECRETARY OF STATE FOR THE COLONIES (Lord KNUTSFORD)

paid, he did not care whether the 40s. fine was strictly recoverable as penalty or damages; but the right of copyright was preserved to the composer, and the Bill left it to the County Court Judge to decide what compensation should be given to the composer. Before the Royal Commission on Copyright, Sir Arthur Sullivan and other composers and publishers were unanimous that the existing Act required amendment. As regarded the question of damages, Sir Arthur Sullivan, and persons representing Messrs. Boosey, Messrs. Chappell, and Messrs. Novello, thought that the highest damages for singing a song might be assessed at 1s., and it was even suggested that the amount should be fixed at 6d. If the noble and learned Lord opposite had taken the trouble to read the evidence given before the Commission, he would have seen that practically only one gentleman—a Mr. Wall, who represented a small association with a long name—"The Authors', Composers', and Artists' Copyright and Performing Right Protection Association"—opposed the Bill. This gentleman had three clients, and Ids plan was to watch the occasions on which these songs were sung, and then to pounce down on the giver of the entertainment or proprietor of the hall where the song was sung. It was very desirable that the depredations of this musical hawk should be stopped, and the Bill would effect that purpose. He hoped they would read it a second time, and that the Committee stage would be taken at an early date.

On Question whether the word ("now") shall stand part of the Motion, resolved in the affirmative; Bill read 2a accordingly, and committed to a Committee of the Whole House on Monday next.