HC Deb 20 October 1953 vol 518 cc1841-8
Sir L. Ungoed-Thomas

I beg to move, in page 8, line 3, to leave out "the interest mentioned in that subsection," and to insert: a German enemy interest. If it is convenient to the Committee, perhaps we can at the same time consider the next Amendment in my name, in page 8, line 7.

The object of these two Amendments is simply to confine the operation of the subsections to what the man-in-the-street would regard as German enemy property. The Clause deals with infringements of copyright where such infringements have occurred and have been made on behalf of the Crown. They are dealt with as a separate category of infringement of copyright. Clause 6 deals with infringements of copyrights made by a person acting in a good faith on behalf of the Crown,.. Subsection (2), with which my first Amendment deals, provides that in the case of that infringement of copyright on behalf of the Crown the relevant action shall, as against any person claiming in right of the interest, be deemed not to have bean any infringement of copyright.

In other words, if there is an infringement of copyright on behalf of the Crown it is not to be considered an infringement as against any person claiming any right to the interest mentioned in subsection (1). I wish to look at the words any person claiming in right of the interest mentioned in that subsection. That deals with infringement when at the time of the taking of the action, that is the making of the infringement in this case, there subsisted an interest which was a German enemy interest, or was properly treated as a German enemy interest.

In subsection (4) we get a definition of what property is treated as a German enemy interest. The words appear: for the purposes of subsection (1) of this section an interest in the copyright in a work shall be deemed to have been properly treated by a person as a German enemy interest if, at the time when the relevant action was taken, the work or a copy thereof was in that person's possession or under his control in consequence of the removal of the work or a copy thereof from Germany: 5.15 p.m.

Subsection (2) deals with the abolition of action for infringement; Subsection (3) deals with the extinction of the copyright if the only interest in the copyright was an interest described in the subsection, in other words if that interest was not merely a purely German enemy interest. It is quite clear from this definition and subsection (4) that a copy of a work might come into a person's possession in consequence of its removal from Germany even though the copyright itself did not belong to a German at all, but even if it belonged to an ally or to a British soldier engaged in fighting the Germans.

What one would have expected here would have been the extinction of a copyright—abolition of action under subsection (2), extinction of the copyright under subsection (3)—to be confined to oases in which the only interest was a German enemy interest and not to include an interest which subsection (4) provides should be properly treated as a German enemy interest. Subsections (2) and (3) mean that allies and even British people may have their copyright in works extinguished. That seems to me to be the meaning of those subsections. If I am wrong in my analysis I am sure that the Parliamentary Secretary will correct me.

My view is supported by the provisions when the Bill proceeds to deal with other parallel rights. If we turn to Clause 7 (1), we are now leaving the realms of infringement and extinction of copyright which results where there has been action on behalf of the Crown, and are dealing with cases in which action is not on behalf of the Crown. That subsection provides that an infringement of a patent shall be deemed not to be an infringement as against a German enemy or a successor in title. It is limited to that in exactly the same way as I wish that limitation to be applied to Clause 6 by my Amendment. I do not understand why this limitation to the German enemy or his successor in title in Clause 7 is not equally applicable to Clause 6.

I turn to Clause 8 (2), which limits abolition of payment for the use of a patent to cases where there is the use of a German enemy interest. Again, Clause 9 (1) limits the abolition of breach of contract for disclosure to cases where the patentee was a German enemy.

I am puzzled that in the case of Clause 6, when it comes to a case of infringement of copyright and for the extinction of a copyright, we should have this provision which extends it beyond cases where the interest in the copyright is a German enemy interest.

Mr. Janner

In dealing with some previous Amendments I tried to emphasise the importance of not being unjust to people who are our own allies or nationals, and to take every precaution so that innocent victims should not be affected by any legislation we may pass. The shoulders of the custodian are in all cases much broader than those of the person who has a legitimate claim which can be established.

Our anxiety in this matter is the same as in some of the previous provisions. We do not feel that it would be either just or moral for any individual not an enemy alien to have imposed upon him anything which would prevent him from claiming his legal rights. That would seem to be the position here. I do not intend to repeat anything which has been said by my hon. and learned Friend the Member for Leicester, North-East (Sir L. Ungoed-Thomas), who expressed himself in very clear terms. But unless he and I are mistaken that seems to be the difficulty in this matter. It is the victimisation of a person who should be entitled to what are today his legal rights. In those circumstances, and if we are right, I hope that the necessary Amendments will be made to enable such a person to obtain his rights as they exist today.

The Attorney-General

I can best assist hon. Gentlemen opposite—although it may take a little longer—if I start at the beginning of this rather complicated matter. We are concerned here, in connection with this extinguishment of copyright, as I understand, very largely with the postwar user of certain material made available to the public by an intelligence organisation which operated in Germany, and with which the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas) is very familiar.

It may be difficult, in those circumstances, to show whether or not that would have Crown authority after the war, and it would be very difficult to envisage a list of the possible postwar cases of infringement which might arise. Therefore, it was decided to go further and not only have a barring of the claims but the actual extinguishment of copyright in certain cases.

As I understand, under Clause 6 as drafted the result is to provide for what would otherwise be an infringing action during the war period; and persons acting on behalf of the Crown are not to be deemed to be capable of infringement in certain circumstances if, at the time of the infringing action, there was a copyright which was a genuine German enemy interest or properly treated as such.

The effect of the Amendment, if I understand it aright, is two-fold. First, it removes or raises the bar on infringement actions based on interests properly treated as German enemy interests, as apart from actual German enemy interests. The second effect is that it removes the provision as regards the date, and, therefore, leaves open to question whether the relevant date is that upon which the infringing action was taken, as it would be in subsection (1), or whether it is the date on which the claim for infringement was brought.

As regards barring the claim in respect of copyright where there was not an actual German interest, but the interest was properly so treated, it is obvious that at the time there was no means available for any close investigation into the ownership of the copyright. These documents were collected in large numbers and were required urgently. In addition, there was no register of copyright as in the case of patents and designs. As a result it would have been impossible to discover the ownership of the copyright in various manuscripts and other documents without prohibitive difficulties and delays.

Whereas under the Patents Act and the Registered Designs Act there is power for the Crown to use inventions and designs, subject to payment and compensation, and so on, there is no such provision in the Copyright Act which makes it a quite distinct problem. Therefore, such user of these copyright articles might constitute an infringement in respect of them, and heavy claims for damages might be made. I do not know of any such cases and I do not know whether hon. Members opposite are aware of any, but quite obviously that might be the case.

This has a safeguard against the extinguishment of copyright in works in which there was clearly no German interest at all. There is a proviso in subsection (4) which governs the case where the interest was forfeited or affected in circumstances where there was no reasonable grounds for believing it was not a German enemy interest, and that goes a long way to deal with the sort of case which one can imagine might arise.

Regarding the question of date, it is surely out of the question that any change in the ownership of interest, anything which happens after the infringing action took place, should be permitted to have any effect on whether a claim in respect of infringement should or should not lie. That would open the door to possible action on the lines of the assignment of interest, or some kind of arrangement which would defeat the main object of the Clause, which is to put the German-owned copyright infringed during the war period in the public domain.

To do that, and to cover the work necessarily done, one has, in the view of the Government, to include also all the property which was properly treated as German enemy interest at the time, even though it was not an actual German interest. That is the scheme of it. I appreciate that it does not agree with the view of the hon. Member for Leicester, North-West (Mr. Janner). We are dealing with indemnity. I have tried to explain the way in which the thing works.

In a few moments we are coming to paragraphs (a) and (b) which I do not think it is right for me to refer to now. But there again I think there is some slight misunderstanding between us, because there we provide for the case where there is a non-German interest which ought to be looked after. For example, in the case of a neutral owner or a non-enemy owner of a copyright and a German licensee, the copyright is not extinguished, the licence is extinguished.

It occurs to me that there may be some slight misunderstanding, because the next Amendment is designed to remove paragraph (b), which is designed for the very purpose which hon. Gentlemen opposite so clearly have in mind, to prevent the non-German from being penalised. If there is a German interest then the copyright goes altogether, but if there is a non-German interest in the copyright then provision is made that it is only the licence and not the copyright that goes. That is the scheme. Whether we can agree on it is another matter.

5.30 p.m.

Sir L. Ungoed-Thomas

I am grateful to the Attorney-General. I fully appreciate the force of what he says about the dates, but I should like to press the matter a little further because I am not fully satisfied with the reply. I appreciate what was said about the proviso to subsection (4) which says: Provided that an interest shall not be deemed to have been so treated if the relevant action was taken in circumstances affording reasonable grounds for believing that the interest was not a German enemy interest. I appreciate that limitation, but despite that proviso the interest which is properly treated as a German enemy interest may still be an interest which is owned by a neutral or by an ally or even by a British person.

There may be a case which is properly treated as a German enemy interest and there may be an allied or British-owned interest even though there were circumstances at the time which did not afford reasonable grounds for believing that the interest was not a German enemy interest. Therefore, although that proviso is helpful it does not go to the extent of covering the cases I have in mind.

The Attorney-General said there might be cases of neutrals, and so on, who would be outside the operation of subsection (3). That may be but, equally, there may be neutrals and even British persons who are caught within that subsection which says: if at the time of the relevant action the interest mentioned in that subsection was the only interest subsisting in the copyright, the copyright shall be deemed to have been extinguished. An interest is defined by subsection (4), which says that it is one where at the time when the relevant action was taken, the work or a copy thereof was in the infringer's possession or under his control in consequence of the removal of the work or a copy of the document from Germany. Obviously a person might have in his possession or control a copy of a work from Germany even though the copyright in that work belonged to a neutral, an allied or a British person. Therefore, even though the interest belonged to a British person that interest is extinguished. However, I appreciate that in many cases my fears would be groundless. The answer of the Attorney-General would cover many of them. Nevertheless, there are some which are not covered by the answer, and that is what we are concerned about.

I go a stage further. I appreciate that in the cases of infringement of copyright an indemnity might well have to be given. I was very much persuaded on that by what the Attorney-General said, but I cannot understand why the extinction of the copyright should follow. If there is an infringement of the copyright done in prosecution of the law, and so on, by authority of the Crown, it might well be so; but I do not understand why there should be the extinction of a copyright. Even in cases where there is an infringement I do not understand why some compensation should not be paid to the owner of the copyright. Although we do not give a right of action against the person who acted on behalf of the Crown, nevertheless there should be some provision for compensating the person whose copyright has been infringed.

I ask the Attorney-General and the Parliamentary Secretary to the Board of Trade to consider this matter a little further. It seems to us that there is a case and that there might well be an injustice. I appreciate what was said about patents. There is provision that the Crown can use the patents and pay compensation. A good deal of our complaint would go if there was a similar provision in this case, but the trouble is that there is no provision for a right of action or for compensation of any kind. If some parallel right of that kind could be provided which would meet the injustice which might arise, it would go very far towards meeting the difficulties we have in mind.

The Attorney-General

There are two sets of circumstances in view—where the material may be required for industrial purposes or where it may be required for historical purposes. There is undoubtedly a good reason for not wanting the copyright to subsist. I agree that this is a matter which we must look into to see exactly how it works in the circumstances described by the hon. and learned Member for Leicester, North-East (Sir L. Ungoed-Thomas). Of course, there is the proviso. One would have thought that that would go a very long way. If one thinks of it in reverse the case covered is one where the relevant action was taken in circumstances affording reasonable ground for believing that it was German enemy property. That will exclude a large number of cases. If it is possible to deal with a matter by way of compensation in a hard case that is something which we cannot really discuss on this Clause.

I cannot take the matter any further than that. It seems to me that a case that was not caught by the proviso might be rather difficult to justify for the time being. We will look into the question again but I cannot give any undertaking.

Sir L. Ungoed-Thomas

I would not ask for any binding undertaking in a question of this difficulty. I am glad to hear that the Attorney-General will examine it again. In those circumstances, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause ordered to stand part of the Bill.

Clause 7 ordered to stand part of the Bill.