COMMITTEE.

HC Deb 06 May 1886 vol 305 cc478-89

Bill considered in Committee.

(In the Committee.)

Clause 1 (Short titles and construction) agreed to.

Clause 2 (Amendment as to extent and effect of order under International Copyright Acts).

MR. T. H. BOLTON (St. Pancras, N.)

Mr. Courtney, I beg to move the omission of all the words of the clause after the words "any other order," in line 15. The clause proposes to deal with the right to publish a work written by the citizen of a third country. The object of the Bill is to give mutual protection to the authors of countries which have signed a Convention; but this clause proposes to give protective rights in this country to the publishers of the works of citizens of countries other than the countries having Conventions with one another and with this country. It seems to me that if it is desirable that the clause should stand at all, it should stand in this way— The order may exclude or limit the rights conferred by the International Copyright Acts in the case of authors who are not subjects or citizens of the foreign countries named or de-described in that or any other order. If the clause ends there, sufficient power will be given; but if it goes further, it will raise fresh questions, which I shall be prepared to discuss when the second Amendment of which I have given Notice is considered. I appeal to the hon. Gentleman (Mr. Bryce) who has charge of the Bill to accept the Amendment I suggest. I am confident it will be quite sufficient for his purpose.

Amendment proposed, in page 2, line 15, to leave out from the words "any other order" to the end of the Clause."—(Mr. T. H. Bolton.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

The suggestion of the hon. Gentleman is one which I am afraid the Government cannot accept, because it would, at the very outset, throw us out of harmony with the provisions of the 3rd Article of the International Copyright Convention, to enable us to sign which this Bill is brought in. It is necessary that our own domestic law should be in accordance with the agreement arrived at, and to accept this Amendment would be to act contrary to the agreement. Therefore, whatever arguments may be advanced in its favour, it is impossible for the Government to accept the Amendment. Of course, I am discharged from the duty of arguing the matter fully on its merits, though, if I were to do so, I could give the Committee good reasons for believing that the clause, as it stands, is a very proper one to pass.

Question put, and agreed to.

MR. T. H. BOLTON (St. Pancras, N.)

Mr. Courtney, I have now to move that the words "the order contains such limitation and," be omitted, and in line 19, after the words "publisher of such work," the insertion of the words "provided he is entitled through the author," so that the clause will read— The order may exclude or limit the rights conferred by the International Copyright Acts in the case of authors who are not subjects or citizens of the foreign countries named or described, in that or any other order, and if the author of a literary or artistic work first produced in one of those foreign countries is not a British subject, nor a subject or citizen of any of the foreign countries so named or described, the publisher of such work, provided he is entitled through the author, shall for the purpose of any legal proceedings in the United Kingdom for protecting the copyright in such work be deemed to be entitled to such copyright as if he were the author, but this enactment shall not prejudice the rights of such author and publisher as between themselves. The object of this clause is to give certain rights in this country to a publisher resident in a foreign country of the work of an author who is not a citizen of that foreign country or of this country. The publisher may have no more right to publish the work in the foreign country than he has in this country; and unless you put in the limitation which I suggest, the effect of this clause is to give a publisher who chooses to publish a work of a citizen of a third country a right as against the citizens of this country. In other words, a work may be common property to the whole world; but a publisher in a foreign country, which is under a Convention with this country, may acquire the right to preclude the citizens of this country, who have equal rights with the publisher in that country, from publishing it. I can quite understand that if a publisher in America makes an arrangement with a German author to acquire his rights in America, whatever those rights are, that may give him a moral right to protect the translation and publication everywhere; but if he has no rights from the author, he has no moral right to interfere with the publication in this country. I suggest that the publisher in a foreign country should have no other right than the right he acquires by contract with the author. I quite sympathize with the right of the author to have full control over his work, and to obtain from the public the full benefit of his brains; but I cannot understand why a man, merely because he is first with a publication, should acquire rights which he has not obtained through the author, and to which he has no moral claim whatever. The word "produced" occurs in the clause. I suggest the substitution of the word "published," because in this Bill "produced" has a different meaning to "published." The Bill applies to dramatic works as well as to ordinary literary productions. I happen, in my own experience, to be acquainted with a case in which an American theatrical manager took a play which was property common to the whole world, and produced it in America. In England the work, being common property, was also produced. Under this Bill the theatrical manager in America, being first to produce the work, would acquire copyright as against the citizens of this country. [Dissent.] Hon. Gentlemen shake their heads. The case is that of The Beggar Student. The work was first produced in Vienna. It was afterwards produced in Now York, and subsequently in this country. It was common property. We had a perfect right to produce it, just as the American manager had a right to produce it; but if this Bill passes into law in its present form, and we have a Convention with the United States, the American manager, having first produced it, will acquire a copyright which will enable him to prevent the performance of the piece in this country. ["Hear, hear!"] An hon. Member cries "Hear, hear!" but is it reasonable that by the mere fact of having first produced it in America, without any arrangement with the author in Vienna, the American manager should acquire the right to exclude an English manager from producing that opera, which is common property? If the American manager made an arrangement with the author, he should have the right to preclude anyone else producing it; but without such an arrangement I cannot understand why he should have the sole right of production.

Amendment proposed, in page 2, lines 15 and 16, to leave out the words "if the order contains such limitation and."—(Mr. T. H. Bolton.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

The hon. Gentleman seems to me to have altogether mistaken the effect of the clause. The clause does not give any such effect as that my hon. Friend has described. It merely says that where an author, who is not a subject or citizen of the foreign country named or described in the order, the publisher shall represent the author. If the hon. Member will look at the end of the clause he will find the words— But this enactment shall not prejudice the rights of such author and publisher as between themselves. There is nothing in the clause to absolve the publisher from the duty of making out a good title. Agreeing with the hon. Gentleman as to the necessity of protecting the author, and differing only as to the construction of this clause, I cannot accept his Amendment, because I can see no occasion for it.

MR. T. H. BOLTON

What is the language of the clause?— The publisher of such work shall, for the purpose of any legal proceedings in the United Kingdom for protecting the copyright in such work, be deemed to be entitled to such copyright as if he were the author. I presume that in an action to enforce rights under the Convention it would not be competent to plead that the claimant was not the assignee of the author, because the Act of Parliament would be put in and prevent it— The publisher of such work shall for the purpose of any legal proceeding.… be deemed to be entitled to such copyright as if he were the author. How would it be possible, then, for the defendant to raise the question that the publisher was not entitled to sue? I really must press my view very strongly upon the hon. Gentleman (Mr. Bryce). I have a little legal experience and some considerable experience of Copyright Law, inasmuch as for many years I was solicitor for the Dramatic Authors' Society, and copyright cases have often come before me. I say unhesitatingly, as a lawyer, that it would not be competent, in an action by a publisher, for the defendant to plead that the plaintiff had no title. Of course, I am in the hands of the hon. Gentleman; but I press my objection very strongly upon him.

THE SECRETARY TO THE BOARD OF TRADE (Mr. C. T. D. ACLAND) (Cornwall, Launceston)

The meaning of this clause is very simple. The author may be either included or excluded. If the author is excluded, in that case, and in that case only, the publisher would come in and take the place of the author.

MR. T. H. BOLTON

Do I understand the hon. Gentleman (Mr. Acland) to say that if the Act of Parliament excludes the man who has the prior moral right, the publisher should have the right—the publisher, who ought only to have the right through the author?

THE UNDER SECRETARY OF STATE FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

The hon. Member wants to insert words which we say are already practically in the clause. According to the clause as it stands the publisher must prove his title, and that is what the hon. Member wishes to insure.

MR. WESTLAKE (Essex, Romford)

I think it would be well if the hon. Member the Under Secretary of State for Foreign Affairs (Mr. Bryce) would reconsider the wording of this clause, because I am under the impression that the hon. Member for St. Pancras (Mr. Bolton) is right in his interpretation of the clause as it now stands. I would suggest to the hon. Member in charge of the Bill the propriety of making the attainment of his object in it more sure.

MR. BRYCE

The matter has been very carefully considered and discussed; but I will have it reconsidered before Report, and if there is really any ambiguity the clause shall be amended.

MR. T. H. BOLTON

After that assurance, Mr. Courtney, I will not press the Amendment.

Amendment, by leave, withdrawn.

Clause agreed to.

Clause 3 (Simultaneous publication).

MR. T. H. BOLTON (St. Pancras, N.)

This clause provides that when a work is produced simultaneously in the United Kingdom and any foreign country, the Order in Council shall determine, for the purpose of copyright, in which country the first production takes place, and then there is a provision that the copyright shall be such only as exists by virtue of the Convention. Well, the effect of that may be to cut down the right of an English author, in some cases, to nearly half the copyright he would otherwise be entitled to under the English law. So far from cutting down the right of the English author under the English law, his right should be carefully preserved; the right he acquires under the Convention should be additional right, and not substituted or reduced right. The Amendment I have now to propose is, therefore, that where a work is produced simultaneously in the United Kingdom and in some foreign country or countries, and is by virtue of an Order in Council protected, the copyright acquired in pursuance of the Order shall not abridge or prejudice the right which the author has under the English law. Let us assume that a work is written by an English author and simultaneously produced in England and the United States, and that under the Copyright Convention it should be decided that the place of first production is the United States. The effect of that will be that the English author's right to copyright will be reduced to 28 years certain, with power to the author and his wife and children to renew for 14 years, instead of 42 years certain or the life of the author and seven years afterwards. The limit of copyright in the United States is 28 years certain, with power to renew for 14 years. The same term to copyright exists in Canada. Therefore, the effect of this clause may be disabling, disqualifying, and reducing, instead of enabling and giving additional advantage. I therefore move, that the clause, instead of restricting the rights of the author to the rights acquired under any Convention, should provide that the rights shall not be abridged or reduced.

Amendment proposed, In page 2, line 41, to leave out all the words after the word "shall," to the end of the Clause, in order to insert the words "not be abridged or reduced by such first production."—(Mr. T. H. Bolton.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

I am under a certain difficulty in dealing with the Amendments proposed by the hon. Member, because, unfortunately, they are not on the Paper. It is not very clear to me what their effects are, though I think I see the point of this particular Amendment. We cannot agree to it. It becomes necessary under the Convention to determine, in the case of a work being produced simultaneously in two countries, which country shall be deemed the country of first publication. When the country has been decided upon, it follows that the term of copyright in that country is to be the shorter of the two terms. That is the provision of the Convention which we are bound to carry out. I do not think, however, that what the hon. Member suggests is likely to improve matters, because it is always in the power of the author to produce his work first in which country he chooses. As regards the case of simultaneous production in the United States and here, if the author thought fit to publish first in the United States and then here, he might get a shorter copyright; but he would have the far larger advantage of having that copyright in the United States which he now wants.

Question put, and agreed to.

Clause agreed to.

Clause 4 (Modification of certain provisions of International Copyright Acts) agreed to.

Clause 5 (Restriction on translation).

MR. T. H. BOLTON (St. Pancras, N.)

This clause deals with translation, and provides that the author shall have the right in a foreign country of exclusive translation for 10 years. I think that 10 years is far too long a period. The Commission which dealt with copy- right recommended three years. Mr. Justice Stephen, in his Digest of the Law of Copyright, which he prepared for that Commission, recommended that the author should have the exclusive right of translation in a foreign country for three years, and that that right of translation should then last for 10 years. Of course, I can quite understand that the period of exclusive sale of the translation may be varied to suit the Berne Convention; but I cannot understand why an author should require 10 years to make up his mind whether he will authorize a translation of his work to appear in a foreign country. It seems to me that the term is inordinately and absurdly long. I suggest by my Amendment that three years shall be the period during which the author shall have the exclusive right to produce a translation, so that the English author in a foreign country shall have three years to make his arrangements for producing a translation in that foreign country, and a foreign author shall have three years to make up his mind whether he will produce a translation of his work in this country. If, after three years, an author is unable or unwilling to produce a translation, the right, to translate should be common property. I move that the term be three years instead of 10.

Amendment proposed, in page 3, line 22, to leave out the word "ten," in order to insert the word "three."—(Mr. T. H. Bolton.)

Question proposed, "That the word 'ten' stand part of the Clause."

MR. THOROLD ROGERS (Southwark, Bermondsey)

I am afraid my hon. Friend the Member for St. Pancras (Mr. Bolton) is not quite aware of the facts, or he would not talk so glibly about the matter. The author is entirely in the hands of the publisher. I, perhaps, am a little prejudiced against publishers; but I may say that I remember that a worthy divine printed a volume of sermons. After two editions of the sermons had gone to press the author was presented with a bill instead of proceeds, and when he went into church instead of reading the lessons he abused the publisher. I am bound to say there is a deal of moral in that story. If you accept this Amendment you will put authors more within the power of the publishers. I hope you will keep to the 10 years.

THE SECRETARY TO THE BOARD OF TRADE (Mr. C. T. D. ACLAND) (Cornwall, Launceston)

The Government cannot possibly accept the Amendment, and for this reason. Article 5 of the Convention expressly lays down the period of 10 years, and we are, therefore, bound to adhere to it.

MR. T. H. BOLTON (St. Pancras, N.)

In my opinion that period is altogether an unreasonable one, and is certainly opposed to the evidence which was given before the Commission on Copyright. I dare say my hon. Friend the Member for Southwark (Mr. Thorold Rogers) has possibly experienced the wickedness of these publishers, and is, consequently, prejudiced against them. I have no such experience; and, with all due respect to my hon. Friend and his facetious remarks, I cannot see what his observations have to do with the question under discussion.

Amendment negatived.

Clause agreed to.

Clause 6 (Application of Act to existing works).

MR. SPICER (Islington, S.)

If the Amendment to this clause which appears on the Paper in the name of the Secretary to the Board of Trade (Mr. Acland) had been put down first I do not think I should have given Notice of my Amendment. I do not think there is much between the two Amendments in regard to the object at which they aim; and, on the whole, I think that of the Secretary to the Board of Trade is the better of the two. Therefore, I shall not move mine.

THE SECRETARY TO THE BOARD OF TRADE (Mr. C. T. D. ACLAND) (Cornwall, Launceston)

I beg to move in page 3, line 42, to leave out from the words "except as regards," inclusive, to end of Clause, and insert— Provided, That where any person has, before the date of the publication of an Order in Council lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from or in connection with such production which are subsisting and valuable at the said date. In moving this Amendment I merely desire to say that it has been put upon the Paper at the request of a number of publishers in regard more especially to music, but also including publishers of other works, and after very careful consideration of their requirements.

Amendment proposed, In page 3, line 42, to leave out from the words "except as regards," inclusive, to end of Clause, and insert—"Provided, That where any person has, before the date of the publication of an Order in Council lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from or in connection with such production which are subsisting and valuable at the said date."—(Mr. C. T. D. Acland.)

Question proposed, "That the words proposed to be left out stand part of the Clause."

MR. T. H. BOLTON (St. Pancras, N.)

I cannot compliment the hon. Gentleman upon this Amendment. The clause as it originally stood was clear and definite, and expressed what it meant; but it appears to me that the amended clause will leave room for litigation— Where any person has, before the date of the publication of an Order in Council lawfully produced. Why "lawfully?" It must mean something. "Lawfully produced." If the words were "represented or published" that would mean something; but I cannot understand what this means— Where any person has. … lawfully produced any work in the United Kingdom, nothing in this section shall diminish or prejudice any rights or interests arising from or in connection with such production which are subsisting and valuable at the said date. The rights must be "subsisting," and they must be "valuable;" but it occurs to me that the question whether they are valuable or not will be a very difficult one for the Courts of Law to decide; and I think that if the hon. Gentleman takes a case into a Court of Law on the Proviso he has just moved he will find that very considerable difficulty will arise.

THE UNDER SECRETARY OF STATE FOR THE COLONIES (Mr. OSBORNE MORGAN) (Denbighshire, E)

I think the Amendment is clear enough. This is mere criticism. The word "lawfully" is intended, I presume, to exclude illegal or piratical production, and if rights are not valuable they are not likely to be contested.

Amendment agreed to.

THE UNDER SECRETARY OF STATE FOR FOREIGN AFFAIRS (Mr. BRYCE) (Aberdeen, S.)

In pursuance of the promise which I gave on the second reading I now move that you report Progress, Sir. The remaining clauses refer to Colonial copyright, and we do not propose to deal with them until we have ascertained the views of the Colonies themselves.

Motion made, and Question proposed, "That the Chairman do report Progress, and ask leave to sit again."—(Mr. Bryce.)

Motion agreed to.

Committee report Progress; to sit again upon Monday 24th May.