§ Sir L. Ungoed-Thomas
I beg to move, in page 14, line 36, to leave out from "Germany," to the end of line 40.
I suggest that this Amendment and the one immediately following it in page 14, 1855 line 43, might conveniently be taken together. I shall deal first with the scope of this Clause and then come to the Amendments which stand in the names of myself and my hon. Friend the Member for Leicester, North-West (Mr. Janner).
This Clause defines "German enemy" for the purpose of Part II of the Act. Part II provides that if a German enemy's copyright is infringed or brought into an allied country, then it is deemed to be extinguished. The second thing it does is that if a patent is infringed, then there is no right to a German interest in the patent. Thirdly, no person is entitled to payment for use by the Crown of the patent so long as the patent is the right of a German interest, and, fourthly, there can be no action for breach of contract for disclosing information about inventions on behalf of the person who is a German enemy. All of them were very drastic provisions, obviously all abolishing legal rights.
We say that the abolition of legal rights should be limited to German enemies in the popular sense of that term and should not extend to neutral, Allied or British people by some artificial definition of "German enemy" beyond the ordinary man's understanding of what he means by "German." Therefore we approach the definition in Clause 12 wishing to limit in that way the drastic abolition of these legal rights.
Subsection (1, b) provides that the expression "German enemy" shall include:an individual being a German national—Our amendment is a probing inquiry. What comes within subsection (1, b, ii), which we are moving to leave out by our Amendment? Does the Order referred to provide for specified individuals or specified categories, and what kinds of category and what kinds of individual? On what principle does this specific expression "German enemy" go? Who are included within it, and on what principle are the Orders made?
- (i) resident in Germany or in enemy territory other than Germany, or
- (ii) deemed for the time being to be an enemy for the purposes of the Act of 1939 by virtue of an order made under subsection (2) of section two of that Act."
1856 The second Amendment proposes to add words at the end of subsection (1, c), which provides that a "German enemy" shall include:a body of persons, whether corporate or un-incorporate, being a body incorporated or constituted in, or under the laws of, Germany.That could, for instance, mean a corporation or a company incorporated under German law in which all the holders of the shares were British. Nevertheless it would be a German enemy for the purposes of Part II of the Bill, and a patent owned by that company would be completely extinguished. We propose by the second Amendment that if that German company is controlled by an individual or by individuals of other than German nationality, if the controlling interest is non-German, that the company should be treated as non-German
I say at once what I mentioned on Second Reading, that I fully appreciate the difficulties of penetrating beyond the constitution of a company in order to ascertain the beneficial interests and acting in accordance with them, but the Government are hoist by their own petard. If the Parliamentary Secretary to the Board of Trade will look at subsection (1, d) he will see that it says:a body of persons, whether corporate, or un-incorporate, being a body controlled by the German State or by such an individual or body as is mentioned in either of the two last foregoing paragraphs"—in other words, that it is controlled other than by a German national.
The Government themselves provide, for the purpose of including in the definition of "German enemy," control by a company which may be a non-German company not registered in Germany and not formed according to German law. They include in the definition of "German enemy" a company controlled by the German State or an individual who is a German. They themselves adopt the test of control of the company. What we are suggesting by the second Amendment is that the test of control of the company which the Government adopt in paragraph (d) for the purpose of including in the definition of "Germany enemy" should be adopted in paragraph (c) for the purpose of excluding from the definition of "German enemy."
I do not think that it lies in the mouth of the hon. and learned Gentleman to say that there is difficulty in penetrating 1857 beyond the constitution of the company in order to find out where control lies when he himself, for his own purposes, has adopted that test in this very paragraph. I therefore follow the wording which he himself has adopted in paragraph (d), in the Amendment which I am proposing for paragraph (c). I hope therefore that I shall not meet with any difficulty about accepting my proposal on the ground that we cannot penetrate beyond the constitution of a company.
§ Mr. Janner
The point of the first Amendment has been expressed so lucidly and clearly by my hon. and learned Friend that I can hardly say anything without repetition of what he has said. This is a very important matter and I hope that the Attorney-General will listen to what my hon. and learned Friend has said.
Perhaps I may be allowed to put the matter in this way. A question of international law is involved and I would like to have an answer on one point. There are neutral nationals, and their inclusion would contravene a rule about confiscation of property without compensation belonging to foreign nations.
The same remarks apply on the second Amendment. I believe that the Attorney-General will agree that the question whether a body is being incorporated is often quite incidental. Allied and neutral nationals should not be punished for having invested money in a body which is incorporated or constituted under the laws of Germany. There was nothing before 1939 to prevent them from doing it. How will he prevent injustice from taking place if he does not accept the Amendments which we now propose?
I would put another point about which I have asked questions on a number of occasions and not yet had a reply. Has anything been passed by any other country before, making similar provisions to those in the Bill in regard to neutrals, allies, or their own citizens?
§ The Attorney-General
I am afraid that this is a matter on which I cannot be sympathetic because this is a case where we are dealing with a situation which arose during the war when, some time ago now, it was necessary to take a very strong line on matters of economic warfare. We have to remember that. If one were to accept the first 1858 Amendment to line 36 the effect, first of all, would be to omit from the definition of "German enemy" those German nationals who were resident during the war in Spain, Portugal, South America and other neutral countries, some of whom were the worst people of all from this point of view. I understand that that is agreed, and that surely would be fatal.
There is no doubt at all about the effect of Clause 12 (1, b ii). The black list is dealt with there. Under Section 2 (2) of the Trading with the Enemy Act, 1939,The Board of Trade may by order direct that any person specified in the order shall, for the purposes of this Act, be deemed to be, while so specified, an enemy.There is no doubt that those are individuals. The hon. Member for Leicester, North-West (Mr. Janner) is always very kind to everyone, but surely he is here being kind to people to whom we cannot afford to be kind.
In addition there was an agreement called the London Patents Accord which allowed patents owned by German residents outside Germany to be treated as non-German if certain provisions were complied with but the property of that class of German national is specifically included in the definition of German enemy property. The first Amendment, therefore, is something which we could not possibly be asked to accept.
On the second Amendment and the question of control, I ask again here for a realistic approach, because the effect of the Amendment would be to exclude from the definition of "German enemy" German constituted or incorporated bodies of persons controlled by non-Germans. When we realise what was going on in Germany during the war surely we cannot adopt that attitude. Some of the most undesirable people of all were in that kind of position. The owners of these firms who operated in Germany no doubt might be said to have objected to what they were doing, but in fact one had a German company operating during the war and owned by people in a neutral country. Surely we cannot have any sympathy with that.
The other proposal involved in the second Amendment is that British firms should be open to claims for infringement of copyright or patent where the 1859 proprietors were a German firm simply because that German firm happened to be controlled by a neutral during the war. That would be the position. Information brought back by the B.I.O.S. from Germany was made available to British firms, and now if this Amendment were adopted a claim would be made against them by the German company for using the material. All that I can say is that I am very sorry but we do not consider that it is realistic to make this alteration.
§ Sir L. Ungoed-Thomas
The first Amendment was put down purely for the purpose of probing. I was anxious to verify that this provision was limited to the black list and to specific persons and was not made in accordance with some general principle of which perhaps the Committee might not wish to approve. My purpose in moving the first Amendment has been fully satisfied and I agree with the Attorney-General that it would be quite improper for us to press it.
As to the second Amendment, I appreciate what the Attorney-General says, but it is not quite as simple as all that. I should appreciate his answer more fully if we were dealing here with the property of a German firm which was in Germany or somehow made available to Germans during the war or something of that kind, which of course we are not. In Part II of this Bill we are dealing with the abolition of legal rights for infringements of copyright of patents. We are dealing with abolishing those rights in cases where the control of a German company is even owned by a British subject.
Despite what the Attorney-General said I still feel some difficulty about that. His answer would be completely convincing if he were dealing merely with something during the war period only, with something which the Germans could have used during the war and which we did not, and if we were limiting our remedies under Part II of the Bill to actions then taken and not going on to deprive the true owners of patent rights and copyrights of any remedy of any kind whatsoever and abolishing the patent right altogether. That is the kind of consideration which we had in mind when we put down the Amendments to this Clause.
1860 I hesitate to press this point because I appreciate that there are cases which ought to be covered and which would not be covered by it. I appreciate that cases which will have to be covered by indemnity and so on, as provided by Part II, would not be covered if the Amendment were carried. But again this is a case where the Bill goes further than is necessary for the true purpose which the Government have in mind and with which we agree. There is little time, unfortunately, between now and the Report stage to deal with these matters, but again I ask the Government whether they cannot look at this point again. I would not expect them to give as full consideration to this matter as to the first two matters which they have been good enough to undertake to examine with a view to incorporating in the Bill the objects which we have in mind. I will not press this Amendment. I think that it would be quite improper to do so, but I hope that the Government now appreciate what we have in mind and realise that it has not been met by the answer given.
§ Mr. H. Strauss
Whatever view may be held on the very complicated provisions which have been previously considered, I feel absolutely confident that it would be wrong for me to give the slightest hope on this definition Clause. These German-constituted or incorporated bodies of persons were enemies both at common law and under statute. The Committee should also remember the sort of circumstances under which the British Intelligence Objectives Sub-Committee were acting, very much in the national and indeed world interest, in getting hold of some of the things of which the Germans had made the greatest use in the war. If they were not entitled to treat as the property of enemies what was the property of enemies by any legal definition I think that it would be really deplorable. I honestly believe that this definition Clause really must stand as it is and I am absolutely convinced that we should be unable to meet the requests which have been made from the benches opposite.
§ Sir L. Ungoed-Thomas
I only rise because I am afraid from the observations of the Parliamentary Secretary that he may not have fully appreciated the point 1861 I have in mind. I appreciate, of course, that those who during the war have taken the actions to which he has referred must be protected against infringement and so on. There is nothing between us on that. The point I have in mind is this. Taking a 100 per cent. British controlled German company, incorporated according to German law, we have not merely an abolition of a right to sue for infringement but we have the patent extinguished, the copyright extinguished without any compensation or any provision of any kind for it. That is the difficulty.
I am hoping that when the Parliamentary Secretary considers the two points which he said he would look at closely, perhaps a good deal of my concern on this definition will be met. I hope that when he looks at the first two Amendments to which I spoke he will also have in mind this definition Clause. There may well be interaction between them, and I think that he may very well be able to frame any Amendment which he might wish to propose in such a way as will meet the objection which we have to the definition Clause.
§ Mr. H. Strauss
I would only ask the hon. and learned Member to have a look at the London Patents Accord and he will find that what has been done here is in accordance with it.
§ Amendment, by leave, withdrawn.
§ Sir L. Ungoed-Thomas
I beg to move in page 15, line 3, to leave out from "enemy," to the end of line 5.
This Amendment raises a short point which again was dealt with elsewhere, which the Government said they would consider but on which there has been no answer. "German enemy interest" is defined in the Bill as including an interest which belongs to or is held on behalf of two or more persons of whom any one was then a German enemy.
The point is that there might be an interest which is owned jointly by, say, 20 people—one can take any number one likes—of whom one is a German enemy, not in the popular sense of "a German enemy" but a German enemy within this very much wider definition which we have 1862 in Clause 12, and yet because just one of those persons is a German enemy the whole of that interest is extinguished. The whole of that interest in the copyright and in the patent is extinguished without any remedy at all.
Therefore, if one of 20 people happens to be a German enemy within the wide definition of this Clause, and has an interest in the copyright, that copyright is completely extinguished without any remedy at all for any of the other 19, even though all the other 19 are British subjects. It seems to us that that is going unnecessarily far. This is a matter which the Government said they would consider, and I should like to know what their explanation is for insisting upon the inclusion of this definition.
§ Mr. H. Strauss
Of course, co-ownership always does involve difficulties. The hon. and learned Gentleman took a case where the enemy interest was extremely small, but of course the enemy interest might be very big. In any event, we have to consider other matters as well. As the hon. and learned Gentleman knows, it is not always very easy to tell without litigation whether one is infringing a patent. It is not always absolutely clear. One gets complicated cases. During the war a manufacturer may have unwittingly infringed a patent. Is he to be liable to be sued merely because there is one non-German co-owner? I think it is quite impracticable.
In so far as the question now put by the hon. and learned Gentleman is bound up with the question at an earlier stage which my hon. and learned Friend the Attorney-General said he would consider, of course it will be considered, but my view at present is that the whole of this definition Clause would stand whatever our conclusion on those other subjects. I am only telling the hon. and learned Gentleman my view at the moment, but I need hardly say that all undertakings given on the part of the Bill specifically dealt with by the Attorney-General will, of course, be carried out.
§ Sir L. Ungoed-Thomas
I entirely agree with what the Parliamentary Secretary said about infringement actions. I did not, in fact, specifically refer to those. The difficulty which I feel is on the abolition of copyright and the abolition of the right in the patent. What I 1863 fail to appreciate is why, instead of abolishing all rights in the interests in the copyright and in the patent, one could not simply abolish the rights of the German enemies in the interest. I am sure the Parliamentary Secretary has that point in mind.
I am not suggesting that it is desirable that the German enemy should have an interest which survives. I am not suggesting that a person who quite properly has infringed the patent should not have indemnity. The difficulty which I feel is confined to the case where there is joint ownership and interest, where a German enemy is one of the joint owners, and British and allied people are joint owners. Why could not we limit the extinction of the interest to the interest of the German enemy, and no extinguish the interests of all the other joint owners who are not German enemies? It is to that point that I invite the Parliamentary Secretary to reply.
§ Mr. Strauss
I will certainly consider that point. What we have in mind at the moment is present and, no doubt, future use in the public interest of some of the information rightly obtained by us during the war.
§ Sir L. Ungoed-Thomas
I would agree with that. That may be very desirable, and there may be very good reasons why that should be so. But if that is so, and if that is the reason, obviously there should be compensation for the non-German enemy joint owners. That is my concern. I am not concerned in any way to cut down the effect of this Bill in so far as it is in the public interest. What I am concerned about is that if it is in the public interest to do anything under this Bill it should not be done so far as British allied and neutral people are concerned without giving them proper compensation. The Conservative Government are here proposing nationalisation without compensation. We propose that compensation provisions should be inserted, and I hope that the Parliamentary Secretary will look into this matter. I beg to ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause ordered to stand part of the Bill.
§ Clauses 13 and 14 ordered to stand part of the Bill.