§ Order for Second Reading read.
§ 3.32 p.m.
§ The President of the Board of Trade (Mr. Peter Thorneycroft)
I beg to move, That the Bill be now read a Second time.
This is a large and complex Measure. Its first purpose is to restate the law of copyright. Its second is to state it in the context of the new technical developments which have taken place since the original Copyright Act, 1911, in television and the like. The third purpose is to permit full participation by the United Kingdom in international arrangements to protect the author. This is in no sense a party Measure. Whatever divisions of opinion there may be about individual Clauses of the Bill, I think they will straddle the Floor of the House of Commons and will not fall out upon a party line.
Before I explain the provisions of the Bill, there is one observation which I think I should make. Each right given by the law of copyright is of interest to more than one section of the community. Therefore, each right has to be, in a sense, a compromise between conflicting claims. One must, therefore, consider not only those who benefit but others, sometimes sections, sometimes the public at large, at whose expense the rights are given. We consider that the provisions of the Bill represent a fair compromise between these conflicting claims, though, naturally, the details in individual cases will need to be debated fairly closely in Committee.
The basis of the Bill is the work done by the Copyright Committee, appointed by the right hon. Gentleman the Member for Huyton (Mr. H. Wilson), which was under the chairmanship of, first, my right hon. and noble Friend the Marquess of Reading, and, later, Sir Henry Gregory. Its Report was published in October, 1952, and, with minor exceptions here and there, is incorporated in the Bill. I think that hon. Members on all sides of the House would wish to join in paying a tribute to the work of the Committee. This has been a most formidable task. The Measure would have been quite impossible without that preparatory work.
The Committee was charged particularly to consider two matters: first, the 716 technical developments since 1911, and, secondly, the revised International Convention for the protection of literary and artistic works which was signed at Brussels in June, 1948.
I should like, first, to deal with the Convention. The object of the Convention is, of course, that as many nations as possible should treat copyright in the same way so that we can take reciprocal advantages from one another. The signatories of the Brussels Convention are known as the countries of the Berne Copyright Union. We have been a member of that club for a long time. We were a founder-member in 1886. Our adherence to the latest text does not involve any very large alteration in the existing law, but it does mean some small alterations.
Under the Convention the copyright enjoyed in literature, dramatic, musical and artistic works is exclusive for the life of the author plus 50 years thereafter. We have arrangements whereby a system of compulsory licensing could be exercised after the author's death. That would not be consistent with the new text, and will have to go.
I will not go into the merits of these provisions, which are set out in some detail in paragraphs 15–23 of the Committee's Report. The Committee stated the position very well, as follows:the advantages of continued adherence to the Berne Union and to the latest Convention are overwhelming and greatly outweigh any possible disadvantages which might flow from the repeal of those provisions.I commend that view to the House. In reaching a common international agreement, all nations have to compromise to some extent with each other's point of view.
The next thing that I would say about the Brussels Convention is that some countries, and, most importantly, the United States of America, are not in it. Until recently, the author of a work in the English language was unable to obtain copyright protection in the U.S.A. unless his work was manufactured there in the sense of being printed there from type set up in that country. That was a source of considerable and legitimate criticism by British authors, as I am sure the House will agree. Attempts have been made from time to time to bridge the gap between the Berne Union and the U.S.A. and some other Transatlantic 717 countries. The last attempt has been successful in the form of another International Convention known as the Universal Copyright Convention, drawn up under U.N.E.S.C.O. and signed in Geneva, in 1952. It is now in force.
The United States has ratified that Convention and has altered the provisions of its domestic law in favour of other countries who ratify to the same effect. Thus, if we become members, the work of our authors can enjoy protection in the United States upon the simple provision that on first publication the work should bear imprinted on it a small letter "c" plus the name of the copyright owner and the first year of publication. That will be an important and substantial gain for British authors. To permit ratification, only a fairly minor, technical amendment of the law is necessary. All that is largely uncontroversial and is largely covered in Part I of the Bill.
The same cannot be said about questions raised by the technical developments which the Copyright Committee considered. These technical developments are in such things as photocopying, sound recording. television and broadcasting generally. They have made necessary both the curtailment of some existing copyright privileges and the creation of some new rights. The object of the Bill is to try to seek a fair balance between the authors, the composers, the librarians, the record makers, the broadcasting authorities, the purveyors of entertainment and, last, but by no means least, the general public, the readers, students and the millions who enjoy television in their own homes. Our attempt here has been to strike a balance between those rights. Opinion can differ as to where the balance should be struck. I shall touch on some of the points in my remarks this afternoon and others will be debated in more detail later.
Perhaps I may start with a word about the normal term of copyright under the Berne Convention. The term of copyright for literary, dramatic, musical, or artistic works, which is intellectual property, protected internationally by the Convention, is the life of the author plus 50 years thereafter. The Copyright Committee was impressed by the disparity between the term of protection given under the Copyright Act, 1911, to things like gramophone records, for example, 718 and that in the field of industrial property, for example, patents, where the right was 16 years.
The Committee accordingly recommended that copyright in things produced by quasi-industrial processes should normally be not 50, but 25 years to bring the two states of rights rather closer together. The Bill provides for this for photographs, sound recordings, typographical arrangements and for the new television performing right. As originally introduced, the Bill provided for 25 years for films as well, but the Government have been impressed by the argument that, artistically speaking, a film, by the nature of the contribution which its director makes to it, is very much more than the sum total of its component parts. The Bill now provides for 50 years in the case of films while retaining 25 years for those other purposes.
§ Mr. J. T. Price (Westhoughton)
Can the right hon. Gentleman say what status is enjoyed by some of the ancient Transatlantic films now being put across the B.B.C. television network, for example, "Movie Museum", which many of us regard as absolute rubbish? Will it be improved, or made less lucrative by this legislation?
§ Mr. Thorneycroft
They stand under the existing law; whereas I am here referring to a new right. They stand in a position whereby various rights exist in the parts of which the films are composed. These will come to an end at various times, depending on the life of the author. It was because of the complexity of this system that it was thought better in future to erect a new right, to which I have been referring in films. For the first time, there will be not only a conglomeration of rights in the parts which go to make up a film, but a new right of 50 years in the film itself.
Technical developments in photocopying have also been responsible for certain provisions in the Bill. Clause 7, subject to certain safeguards, permits the copying and publication of copyright works in libraries and archives. Copying by the permission of the owner, of course, is not an infringement and requires no provision in the Bill. Our object here is to enable librarians to help students and, on occasions, one another by supplying copies of works on their shelves without breach of copyright.
719 What is permitted here, however, is at the expense of the copyright owner. Every right, as I have said, is a sacrifice from someone else and, therefore, copying must be fairly closely prescribed. I hope that the House will bear that in mind when it considers detailed safeguards, which can more conveniently be discussed when we deal with Clause 7 in Committee.
Part II of the Bill deals with matters deserving of copyright protection other than original literary, dramatic, musical and artistic works, matters such as sound recordings, films, television, sound broadcasts and the like. I will begin by saying a word about gramophone records, a subject which has excited a certain amount of interest and discussion in many quarters. The record makers enjoy today and under the Bill will continue to enjoy two rights.
The first is a right to prevent the copying of their records and the second is the right to control their public performances. I need not say much about the first, because I think that that right is, and has always been, uncontroversial and it is generally accepted that the record makers should have that right. The second right, to control public performances, is more controversial and, indeed, may originally have been given by accident. Certainly, from time to time it has probably been pressed too far, but the House will remember that, having examined it in detail, the Copyright Committee came down in favour of continuing it, subject to safeguards.
The Bill brings in two special additional factors. The first is that the right to control the public performance of gramophone records will no longer be exercisable in residential premises where no charge for admission is made, nor where the performance is part of an activity by societies not run for profit and having general philanthropic objects. That is a right which is considerably curtailed from that under existing law.
The second factor is that there is an entirely new proposal for the introduction of a Performing Right Tribunal, the object of which is to protect the general public against the abuse of performing right. I will not say any more about that at the moment. I will refer to it later when I deal with the new Performing Right Tribunal.
720 There is one further gramophone record problem, namely, that which surrounds the question of the licence of right. After the composer has permitted one gramophone record to be made, other manufacturers may record the same composition upon payment of a statutory royalty. Suggestions have been made, and fairly strongly pressed, that this right should be permitted for some forms of music and not for others—some people suggest for light music and not for serious, and others for jazz and not symphonies, or for short-play rather than long-play records.
I have no doubt that we shall have some discussion of these matters during the later stages of the Bill, but I would state my preference now. It is that we should keep this right for all works or for none. I do not believe that the House of Commons can strain its ingenuity to the extent of deciding what is serious or light music, or what is the difference between jazz and symphonies. We can do many things, but this is somewhat outside our orbit. I believe that it should be a case of all or none, and at the moment my preference is for retaining this right in all cases.
I now want to say something about broadcasting and television, which, for rather obvious reasons, were not dealt with in the 1911 Act, First, under the Bill, both sound and television broadcasts are protected against recording otherwise than for private purposes and against rebroadcasting. In the case of television only broadcasting authorities are given a right—for the first time—to control a public performance to a paying audience.
I want to emphasise the limited extent of this control. It has no restrictive effect upon television in the home. That is probably clear, but it is as well to state it very clearly. At one time the control included hotels, bars and clubs, but sports promoters now agree that it should be limited to places where payment for admission is made, and the Bill has already been amended to this effect.
The object of this control over the public performance, in the case of television and where payment is made for admission, is really two-fold. First, it would be somewhat inequitable if cinemas were able to use television programmes free. If they were able to do that, they would be selling something prepared by 721 somebody else's skill and at somebody else's expense. On that ground alone there is reason in the case for giving this right. Secondly, and perhaps even more important, entertainment providers are more likely to permit the television of their events if there is some control of this nature over the performance of the programme.
The power of control over this public performance lies with the broadcasting authorities. To place it elsewhere—for example, with sports promoters—would mean endless applications to diverse sources before any programme could be performed in public. We have, therefore, concentrated control in the broadcasting authorities.
I now want to say a word about films —and I will return to the points which the hon. Member for Westhoughton (Mr. J. T. Price) put to me. Films were in their infancy in 1911. Many people contribute to a film; the authors, the composers, the photographers, and the like. Most of these have rights under the law as it now stands, and these rights come to an end at different times. I think that in all cases they are calculated in relation to the life of the author. It is, therefore, very difficult to say when the copyright in a film comes to an end. It does so in different parts at different times. To remedy this state of affairs the Bill provides that all films shall have a copyright of their own of 50 years, normally from the date of registration.
The copyright in the component contributions to the film will continue for all purposes other than the performance of the film, and will expire at the normal period prescribed for their life. That is to say, if a theme song is played it will have its normal copyright apart from the film.
Part IV of the Bill deals with the Performing Right Tribunal. The performing rights of composers and record makers are normally organised through fee-collecting societies, and it is very difficult to see how this could be done by any other method. It is from these fees, collected from those who use the performance, that the composers receive their income—far more so in the case of a musician than from the sale of sheet music. The Copyright Committee felt that when such rights are exercised upon a virtually monopoly basis—and these are 722 —the public should have a right of appeal either against the refusal to grant a licence to perform at all or if it were felt that the terms demanded were exorbitant.
I emphasise that the Tribunal is relevant only in the case of the fee-collecting society; it is not relevant in the case of an individual composer. Although it would be a rather rare occurrence, if an individual composer elected to strike a bargain of his own, the Tribunal would not come into the matter. If the prospective licensee thought that too hard a bargain was being driven he could go to some other composer. The Tribunal is relevant only because of the essential monopolistic nature of the fee-collecting society.
The Tribunal will thus have jurisdiction over licences issued by the Performing Right Society, which controls virtually all copyright music, and also over the licences by the gramophone makers and broadcasting authorities. Our proposals for setting up a tribunal have been generally welcomed, not only by the music users but by the copyright owners; indeed the Performing Right Society itself, before the introduction of the Bill, pressed for the setting up of an independent body of this kind.
The Bill, naturally, contains a large number of points of interest and importance, for the most part better dealt with in detail when we consider it Clause by Clause. There are such matters as the precise dividing line between the law of copyright and the protection of industrial designs. Most of those points will be better dealt with at a later stage.
Perhaps I should say a word about the scope of the Bill. It differs in this respect from the 1911 Act, which applied to the United Kingdom and also, automatically, to the Colonies, and could be adopted by the self-governing Dominions. All this was before the Statute of Westminster. Circumstances in the self-governing Dominions, and to some extent in the Colonies, have changed markedly since 1911. The new procedure is, therefore, applicable, initially, to the United Kingdom alone.
The Bill provides, however, that it can be extended by Order in Council to the Isle of Man, the Channel Islands, or any Colony or Protectorate—with limited power for the local legislature to modify its provisions. This is in accordance with modern constitutional practice. A further 723 provision enables the United Kingdom, by Order in Council, to apply the provisions of the Bill to protect works originating in the self-governing parts of the Commonwealth or works of authors who are nationals or residents in foreign countries in order to ensure reciprocity among the countries of these various Conventions.
As I have said, the Bill covers a large and complex field. It is not without importance in our industrial and social life. It affects many different organisations and large numbers of individuals and confirms or modifies a wide range of rights. In its nature it is difficult to discuss in a wide-ranging Second Reading debate, but I hope I have said enough to indicate the main outline of our proposal, the main points of controversy and to commend the Measure to the House.
§ Sir Beverley Baxter (Southgate)
I have no great personal interest in this matter, because I dare say that 50 years from now I shall not be interested in what is happening to my writings. I have often wondered, however, and have never been able to find out, why a writer, an artist or performer has a limited copyright in what he produces, whereas a man who buys land or a house has copyright in perpetuity. Would the President of the Board of Trade be good enough to explain the origin of that, and why there is a limit to the ownership of a creative piece of work?
§ Mr. Thorneycroft
If my hon. Friend is not interested, then I hope that posterity will be interested in his work. It is perhaps for that very reason that after a time great works of art pass from the private to the public domain.
§ 4.2 p.m.
§ Mr. Anthony Greenwood (Rossendale)
It is an unusual and pleasurable experience for me to be able to follow the President of the Board of Trade without finding it necessary to offer criticism of him for some positive act of policy or to complain of some neglect of duty on his part. The right hon. Gentleman, however, has given a most lucid explanation of the Bill, and I think we are all indebted to him for the way in which he has explained it to us. In order to encourage him, I might perhaps say at this stage that we welcome the 724 Bill, and we shall give it a much more cordial reception than we gave to the Restrictive Trade Practices Bill, which the right hon. Gentleman recently introduced.
We welcome the Bill especially since the substantial improvements which were made to it in another place. We welcome it for three main reasons. In the first place, it brings us more into line with international feeling, and enables us to comply in a large measure with the Brussels Convention, to which the right hon. Gentleman referred. Secondly, by making amendments to our law, we make it easier for the United States to enter into a more general international agreement that has been the case in the past.
Thirdly, we welcome it because it puts into effect many of the recommendations of the Copyright Committee which was set up by my right hon. Friend the Member for Huyton (Mr. H. Wilson), as the President has reminded us, to review the situation in the light of the technical developments which have taken place since the Act of 1911. All of us appreciate the work of that Committee. On behalf of right hon. and hon. Members on this side of the House, I wish to join with the President in thanking Sir Henry Gregory and the members of the Committee for the work they did.
The fact that we shall not vote against this Measure this evening, however, does not mean that it will be given an easy passage through its Committee stage. There are many doubts still to be resolved and, I think, a number of loopholes which have to be filled.
Much of the Bill pleases us. I think it wise of the right hon. Gentleman to propose to set up the Performing Right Tribunal to avoid any possibility of abuse by the fee-collecting societies. I think it proper to give publishers the right to prevent copying of their typographical arrangements. It is good that the borderline between copyright and registered designs should be more clearly defined than at present. And I think it excellent that we should be, as it were, legitimating the use of copyright material for educational purposes. That will remove a hazard to which teachers are now daily subjected, and it is a step which has been, I think, especially welcomed by the various local government organisations.
725 In Committee we shall seek to try to apply more effectively the basic principle which governs our approach to the Bill. That is the principle that the general good must prevail, and I think that is the effect of the fair dealing Clauses in the 1911 Act. But where there is a conflict of interest we shall put the interest of the creator before the interest of the exploiter. When I say "exploiter "I do not use that term in any aggressive sense. What I have in mind is that if, for example, there is a clash of interest between a composer and a gramophone company we shall be on the side of the composer. If there is a clash between a script writer and a film company we shall be on the side of the script writer. If there is a clash between the working journalist and a newspaper company we shall prefer to protect the interests of the working journalist.
The criticisms which I am going to make of the Bill are all directed to that end because, although I appreciate the efforts of the right hon. Gentleman and the Board of Trade, I do not think that so far we have reached the reasonable compromise between clashing interests which I hope will emerge in later stages of this Bill. I should like to begin with the position of the journalist who is commissioned to write an article for a newspaper. I understand that now he has full copyright in that work, but in Clause 4 (2, b) the Government propose that if a commissioned work is created in certain conditions—conditions which will often preclude the making of a written contract which would safeguard the writer's interest—the writer's copyright shall in some measure pass to the commissioner.
I believe that to deprive the author of a commissioned work of even part of his copyright, except with his express consent, is unjustified. It was, I believe, a common law right before it became a statutory one. I hope that this House will always look very jealously on any attempt to erode in any way the common law rights of the subject and will only agree to such a step for the gravest and most compelling of public reasons. The effect of that Clause is, as it were, to split the copyright between the person commissioning the work and the writer who is actually writing the article. The person commissioning the article will have the copyright without express assignment to him in so far as it relates to the publication 726 of the work in any newspaper, magazine, or similar periodical. The author, on the other hand, has the remainder of the copyright that is to say he retains his rights in any book or film which may be based upon his work.
I do not think the British Joint Copyright Council exaggerates when it describes that change as being most retrograde. I think it wrong that an article which is bought cheaply should become a source of great profit. I think it unfair that the rights of the person commissioning the work should not be restricted to the paper for which the work was commissioned and to which the payment agreed related. I think it is inequitable, because the circumstances in which an article is commissioned often militate against a contract being made.
For example, if a journalist finds himself in the middle of a South American revolution or involved in a flood disaster in India, there is no time to cable backwards and forwards so that a contract can be made which will reserve the journalist's full copyright in the work he is about to create. I suggest that copyright should be lost only by express agreement on the part of the parties to the transaction.
The Joint Under-Secretary of State for the Home Department put the matter very clearly in another place when he said that of the parties in such a transaction it is probably the author rather than the business house which is in greater need of protection. That is what we are trying to bring about in our attitude to the Bill. We say that there is a great difference between contracting in and contracting out in respect of commissioned works.
My own feeling at this stage is that there is a difference between the position of a journalist who is writing a commissioned article and that of a journalist who is working under a contract of service to a newspaper company, but I know that some of my hon. Friends think that the same protection should be given to the second type of journalist I mentioned, and I know that my hon. Friend the Member for Deptford (Sir L. Plummer), who has great experience of newspaper management, has a point of view on this matter which is more radical than my own. I very much hope 727 that he will have an opportunity of catching your eye, Mr. Speaker, at a later stage.
The second point that I want to make deals with photographs. I cannot believe that it is good to reduce the period of copyright from fifty years to only twentyfive years, and I base my objection to that change on two main grounds. The first is from the point of view of the public. The House should remember that it is a long-established custom of the trade, which has been endorsed by the courts on a number of occasions, that, although the copyright of a photograph rests in the person who commissions the work, the negative remains the property of the photographer who takes the picture. If the Bill is passed in this form, the copyright will cease twenty-five years after the date of publication, and the photographer will then be able to make any use which we wants to make of the picture which has been taken.
That could be a source of embarrassment to firms which have had photographs taken of secret processes in their factories, or it could be embarrassing to individuals whose proud parents had photographs taken of them in their earliest days reclining on a leopard skin in a state of some undress. I think that none of us would welcome the possibility that pictures of that kind could suddenly be made available to newspapers or used in other ways.
The second ground is that this proposal is even more objectionable from the photographer's point of view. I have no doubt that hon. Members read the letter in The Times of 21st December from A. F. Bucknell, Secretary of the Institute of British Photographers, who told us that many photographers specialise in particular classes of photographic work—nature photographs, anthropology, scenery, historic buildings, objects of antiquarian interest and other subjects of that kind.
They build up valuable libraries, which are libraries of continuing value to the person who owns the copyright in the photographs, but to create those libraries is a slow and extremely expensive process, and they call for endless patience on the part of the photographer. For instance, it would be necessary to be prepared to sacrifice several nights in order 728 to get a picture of a badger leaving its set. I am afraid that photographers will not be so eager to take photographs of that kind if they do not get rather more protection than is being afforded to them in the Bill.
Indeed, it is conceivable that the income of some photographers who have been building their libraries over a long period might well be very nearly halved by the fact that the protection is to be for only twenty-five years instead of for fifty years. I cannot see why a photographer should have less than half the protection which is afforded to the creator of a painting, a drawing, or a piece of sculpture. Instead of having protection for only twenty-five years after the work is made, those creators are to have protection for fifty years after their death.
Unfortunately, the Copyright Committee did not argue that point. The Committee dealt with it in two paragraphs. In paragraph 311 it explained why the matter came within its terms of reference; and then, in paragraph 312, the Committee said quite baldly:It seems to us that a period of 50 years is unduly long for the protection of photographs and we recommend that this period should be reduced to a period which would terminate 25 years from the 1st January following the date upon which the photograph was taken.The Committee advanced no reason why this period of twenty-five years is preferable to one of fifty years, and I hope that the Parliamentary Secretary will be able to tell us why there is this discrimination against photographers. I hope later to move an Amendment to increase the period from twenty-five years to fifty years.
It is an easy transition from photographs to films and to the provisions of Clause 13. I got the impression from the President's remarks that he believes that the Bill has simplified the situation, but I am afraid that the provisions relating to films have created a whole new field in which confusion can develop. For the purpose of a film the copyright in all the constituent parts thereof—that is to say, the story or the music—will expire with the expiration of the copyright in the film, that is to say, fifty years after the film was made, notwithstanding that as separate works the copyright would continue in them until fifty years after the death of the author or composer in the case of the book on which 729 the film was based or the music which was used.
It may well be that when the copyright in a film expires and writers are unable to continue to draw their royalties, the owner of the film will continue to make money out of it, without having to hand over any to the author or the composer. That seems to me to be an inequitable proposition which is not in keeping with Articles 7 and 14 of the Brussels Convention. That is a point of detail about which we could argue at a later stage.
I wish to turn to Clause 8 which, among other things, provides, as the President said, for the continuation of the present compulsory licence system in respect of mechanical recordings.
§ The Parliamentary Secretary to the Board of Trade (Mr. Derek Walker-Smith)
Before the hon. Gentleman leaves the question of films, would he be good enough to make clear what he proposes that the Bill should do about films, and what he would put in place of the fifty years' contract?
§ Mr. Greenwood
All I can say at this stage is that it seems inequitable to me that when the producer and the owner of a film can continue to make a profit out of the work, which stems from the brains of the composer and the author, they themselves should be debarred from profiting from the exhibition of that film. I do not want to become tied down too much to details at this stage, but that is the basis of the criticism which we are making.
I was beginning to speak about the present compulsory licence system in respect of mechanical recordings. At present, if the owner of the mechanical rights has once given his permission for a recording to be made, any other person wishing to record that work has an automatic licence to do so if he gives certain notice to the owner of the mechanical rights and pays a statutory royalty. I think everybody will agree that that is a system which worked well in the past when only a small number of manufacturers—four or five—were making only 10-in. or 12-in, records, but technical developments have meant that longer-playing records are taking the place of the old I0-in. and 12-in. records, while the advent of tape recorders has enabled 730 many new manufacturers to enter the recording field.
It is interesting to note that when the Copyright Committee was sitting there were only five major recording companies —that is to say, companies which were issuing catalogues of their productions. By 1955 the figure had risen to eighteen, and a further sixty firms were operating in a small way without issuing catalogues of their works. There is thus much less control over manufacturers than was the case a few years ago.
Some of the new manufacturers who are entering the field are inevitably mushroom firms and some of them are probably unsatisfactory. I would suggest to the House that the composer or any other owner of mechanical rights— and it may not be the same person—must have the same rights as everyone else, that is to say, the right to refuse to do business with a firm which he believes to be unsatisfactory. Established firms are well-versed in the rules of copyright and have special departments handling agreements of this kind, but the new firms which are growing up have not that wealth of experience, and they may fail to give the prescribed notice, or to pay the prescribed royalty at the prescribed time or in the prescribed manner.
Naturally, a copyright owner will not normally refuse permission for his work to be recorded. The more his work is used the better financially it is for him, but I think that he must have the right to refuse to allow his work to be recorded if he regards the firm which wants to do it as being unsatisfactory for any reason known to him.
There are two other points in the Clause which, perhaps, I may touch upon briefly. The first arises out of the compulsory licence, and relates to the production of musical plays in this country. I understand that a musical play, when it is produced in the United States, probably plays there for a year before coming to this country. If that play is to succeed here as a commercial venture when it arrives, it is most important that the public should not be sick to death of the music upon which it is based because they have heard it over and over again on records played in the "Housewives' Choice" programme or in other ways. Once a recording is licensed in the United 731 States, the mechanical right owner cannot compel any other person not to produce and sell the records here. He has to give them a licence.
In the past that has worked reasonably well because there has been a limited number of manufacturing firms and they have been prepared to enter into reasonable arrangement with the owners of the copyright in this country, but with these new mushroom firms growing up, it is not so easy to control the situation. Once one firm breaks away from the general agreement there will be every inducement for others to do so, and the production of musical plays here will become increasingly difficult.
The second point is that dealing with a statutory royalty, which I hope that we shall discuss on a later date. Hon. Members have no doubt seen the complaint of Sir Arthur Bliss in The Times, and the later suggestion by Mr. Benjamin Britten and others that…the provisions of Section 8 of the Bill should be confined solely to records whose playing time does not exceed that of the average record available before the long-playing record was introduced—namely, eight minutes or four minutes a record side. This would leave the composer free to agree with the manufacturers of these longer records an equitable royalty commensurate with the playing time of the record.That has been the case with some companies in the past, but with the growth in the number of companies it is going to be much more difficult, and I hope that we shall be able to improve these provisions during the Committee stage.
My next point is another which affects composers, and it is one which, unfortunately, is dismissed in the Report of the Copyright Committee as "a comparatively small matter." It relates to ephemeral recordings as they are called, and is dismissed in the Report of the Copyright Committee in two paragraphs. This is a matter of some importance in the field of copyright. Ephemeral recordings are the recordings which the broadcasting authority makes to facilitate a subsequent broadcast. No one would question the need for these recordings to be made, but I think that the extension of the word "ephemeral" to cover a month is rather stretching the meaning of language, and I hope that we can later discuss some other period of protection.
732 This work is authorised by the Brussels Convention, but, here again, I think that the Bill is going rather further than was envisaged at the time of the Convention itself, At present, the author or composer has two rights. The first is the right to authorise the recording, and the second is the right to authorise the broadcast. Those two rights may not necessarily belong to the same person. It seems to me to be unfair that because one person has authorised the making of a broadcast, automatically the right to make the recording should follow, although it is not necessarily the same person who benefits from the two rights.
There has been in the past an amicable arrangement between the B.B.C. and organisations dealing with the mechanical rights of musicians by which a fee was paid for both rights. I understand that a similar agreement is likely with the programme contractors on commercial television—if, indeed, it has not already been made. But this Bill gives the broadcasting authorities the right to make ephemeral recordings without any licence or payment, and they thus get two services for the price of one. I really cannot see why the broadcasting authority should be enabled to "do down" the owner of mechanical rights in this way, just because the owner of performing rights has agreed to the broadcast taking place. As Sir Arthur Bliss pointed out in The Times, the payment which the B.B.C. has made in the past has done something to compensate composers for the loss of revenue from sales of sheet music. So I am afraid that Clause 6 will have to be amended at a later stage.
One other provision which I wish to touch upon is that relating to the relay companies. That provision, at the moment, is, I believe, another example of the way in which, no doubt quite unintentionally, we are eating away the rights of the composers. Here again, I think that the Copyright Committee did the problem less than justice. There is only one paragraph—paragraph 120—which relates to the relay companies, and in that it is stated:We do not suggest any alteration in the present relationship between the Postmaster-General, the B.B C. and the relay companies.But under the Bill we are now going to say that the operations of the relay companies do not constitute public performances. That is a point of view which, 733 at the moment, I do not feel prepared to accept.
Under the existing law, it is the generally accepted view—and I think that it is one advanced by Mr. Skone James, the editor of the leading authority on copyright law—that the operations of a broadcast relay system are public performances and in the light of that interpretation the Performing Right Society, for example, has entered into many contracts with the Crown Agents for the Colonies and commercial owners of relay stations abroad.
The President of the Board of Trade rightly reminds us that the Bill makes provision for the Act to be extended in its operation to colonial authorities outside this country. Here in Britain, the B.B.C. has paid a fee on the basis of all holders of Post Office licences, whether or not the holders were subscribers to a relay service. Abroad, however, in the case of Hong Kong, for example, the Government there repudiates liability for those receiving the local relay station. In the case of Malta, there is, I understand, only a relay system available. It seems, therefore, that relay systems at the moment have a considerable importance in the world of copyright.
If the Bill is passed unamended, and the operations of relay stations do not constitute public performances, there will be a serious loss of revenue to authors and composers. From my own reading of the International Convention, I believe that that is not in accordance with Article 11 of the Brussels Convention.
Those are the main points upon which I wanted to touch, and which I wished to bring to the attention of the House. Other hon. Members on both sides of the House will want to raise other points of criticism. I hope that the Parliamentary Secretary will be able to give us some idea of the lines along which the minds of his right hon. Friend and himself are working on this subject, and whether the Committee stage is likely to be a rewarding and satisfying experience for those of us who will be taking part in it.
§ 4.31 p.m.
§ Sir David Gammans (Hornsey)
This is a very technical and complicated Bill, as the President of the Board of Trade has said. It is not easy to define a rigid frontier between matters which we ought 734 to discuss on Second Reading and those which are more appropriate to Committee, but there are four matters which have been mentioned by the hon. Member for Rossendale (Mr. Anthony Greenwood) which are of considerable concern to the British Joint Copyright Council. This is a very representative body and has many constituent members. It consists of the Composers' Guild, the Institute of Journalists, the League of Dramatists, the Mechanical Right Society, the Performing Right Society, and the Society of Authors.
The first point with which that body is concerned relates to Clause 2 (5) and Clause 46 (3). As the hon. Member for Rossendale has suggested, these Clauses virtually say that the operations of a broadcast relay station do not constitute a performance. I think that the reason why my right hon. Friend has followed this line in the Bill is that until now the arrangement has worked reasonably well. What I do not think he has envisaged are the developments which are almost bound to take place in the years ahead. It is 45 years since we last had a Copyright Act, and I dare say that my right hon. Friend hopes it will be another 45 years before we have another. I certainly do. At all events, all sorts of things can happen during that period.
As the hon. Gentleman pointed out, at present the Council has a very satisfactory arrangement with the B.B.C. because it understands, rightly, that where there are subscribers to a relay service those subscribers must have had a Post Office licence in advance. Under the existing law, it is easy for the Council to make satisfactory arrangements with overseas Governments and commercial companles overseas.
However, I foresee that, if the Bill passes into law in its present form, there are almost bound to be complications and difficulties. In the next 45 years we can certainly expect an extension of broadcasting in this country. We can probably look forward before very long to the ending of the B.B.C. monopoly in sound, as we have seen happen in the case of television. Broadcasting stations will be developed all over the Commonwealth and all over the world, and new technical processes at present not even envisaged will certainly come into operation.
735 I suggest that it would be impossible for the Council to negotiate with the various commercial and public bodies overseas if the Bill says from the beginmng that the operations of a broadcast relay station do not constitute a performance. It seems to me that, by saying that, we shall have swept the ground from under its feet before it has entered into negotiation.
I believe that this fact was realised when the Bill was considered in another place, because there the Government spokesman made it clear that the Government were considering the matter very carefully. I hope the Parliamentary Secretary will be able to assure us that the Government will be prepared to table some Amendments in Committee to remove the fears which are being expressed on both sides of the House and which I believe all hon. Members feel as strongly as I do.
I should also like to support the hon. Member for Rossendale in his interpretation of Clause 4. As the Bill stands, a newspaper commissioning an article will be able to republish it in any newspaper or magazine without the author's permission and without paying him anything at all. The only share of the copyright which will remain in the author's hands is the copyright on a film or on a book. I do not quite agree with the hon. Member for Rossendale. I believe that this provision should be extended beyond the free-lance journalist to the journalist who works full-time for a newspaper. It seems to me that it is a work of creation on his part and that he is entitled to the full protection which he can get under the Measure. In fact, I do not believe it is possible to define a boundary between the working journalist and the free-lance journalist. Once we get involved in defining who is a freelance journalist and who is a working journalist we shall get bogged down in such a mass of detail that the whole thing will have broken down before we know where we are.
It may be argued that the journalist ought to protect himself by an agreement. That may be true, but, as everybody knows, many newspaper articles are commissioned by telephone. As the hon. Member said, they may be commissioned by telegram from India. It is no good suggesting that one solitary individual 736 sunk in the depths of India can protect himself against a newspaper here in London when all the odds are loaded on the side of the newspaper which has commissioned the article.
My right hon. Friend is at this moment engaged in tackling monopolies in another Measure. I suggest that here is a case where the man who needs protection is the journalist rather than the newspaper proprietor. I wonder whether the Parliamentary Secretary can give us some indication of the Government's feeling about the matter. If he can, it might save a considerable amount of tabling of Amendments and discussion in Committee.
I want also to say a word about Clause 6 (7) which deals with the ephemeral recording. An "ephemeral recording" is an odd expression. Apparently it is something which does not last more than 28 days. I do not know what is to prevent a broadcasting authority from making another recording on the twentyseventh day and then carrying on ad infinitum. It seems to me that the whole business could be dropped altogether. I cannot see anything in favour of it in its present form.
Clause 8 deals with another matter which was raised by the hon. Member. As soon as a composer has given authority for a gramophone company to record his vote—[Laughter]—work, then, automatically, anybody else can do it as well if they give notice and pay the necessary royalty. If this is to be continued in these days when there are many broadcasting, gramophone and recording companies, and when we have coming in recording tape as well as long-playing records, it seems to me that it is rather a dangerous principle for the House to accept. After all, it is no good to suggest that the composer or author is likely to be dog-in-the-manger about it, because the more companies to which he gives the right to reproduce his work, the greater his income. What is most undesirable, however, is that the right should be automatic without any regard for the standing of the gramophone company, its financial resources or anything else.
These are the only four points which I wanted to raise. I think it is quite clear that there has been no party division on the main provisions of the Bill. In fact, I welcome the main provisions just as 737 much as does the hon. Member for Rossendale. I hope that, if possible, my hon. Friend the Parliamentary Secretary will give some indication of the Government's views.
§ 4.40 p.m.
§ Mr. Roy Jenkins (Birmingham, Stechford)
Like the hon. Member for Hornsey (Sir D. Gammans) and my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood), I welcome the Bill generally and I hope that it will go through all its stages quickly in order that we may ratify the Brussels Convention and the U.N.E.S.C.O. agreement which the United States has signed. If, therefore, the only points which I wish to make are critical of the Bill, I hope this will not in any way be taken as a sign of general opposition to the Measure.
I should like, without arguing the case, as it has already been so forcibly and fully argued, to support the points which have already been made about Clause 4. The position under Clause 4 as it stands is most undesirable. It is quite clear that there is general feeling about this provision in all quarters of the House. I add my appeal to that of the hon. Member for Hornsey to the Parliamentary Secretary to tell us that the Government will amend Clause 4. This would, I am sure, give general satisfaction and would expedite the further progress of the Bill very considerably.
The other point I want to raise refers to the change which comes about as a result of the Bill because part of the 1911 Act is not re-enacted. That part relates to the provision under which full copyright ceases to exist 25 years after the death of the author or 30 years if the work in question was written before the passage of the 1911 Act. When such a period has passed, it is possible under the existing Act, and remains so until this Bill is passed, for another publisher other than the author's own publisher to produce a cheap, popular edition even if he cannot reach agreement with the original publisher, on a payment of a 10 per cent. commission on the published price of the popular edition to the estate of the deceased author.
Under the Bill that will no longer be possible. Full copyright will exist for 50 years after the death of the author, and I think it should be realised that a period 738 of 50 years after the death of the author means, generally speaking, a period more like 75 or 80 years after the work in question has been written. There is no doubt that this period of 50 years after the death of an author gives a much longer period of copyright than the United States period of 50 years after the date of first publication of the work.
It would be highly undesirable to change the present position. My hon. Friend the Member for Rossendale laid down as a general principle that where a choice had to be made, it was desirable to protect the work of a creator rather than the exploiter. That is a very sound principle, but I do not think that to object to this extension of copyright in any way conflicts with that principle.
§ Mr. Montgomery Hyde (Belfast. North)
I hope the hon. Gentleman appreciates that it would be impossible to adhere to the new form of the Berne Convention unless we gave up the last 25 years.
§ Mr. Jenkins
I realise that that is one of the complications arising from this question. I was first trying to point out the undesirability, as I regard it, of this new provision. If the undesirability is generally accepted by all, including the Government, we can then consider whether, for reasons outside our control, we should none the less accept this provision. There is no doubt that it is highly undesirable. I am not sure at this stage whether the Government are going to rest their defence on the position of the Bill in relation to the Berne Convention, or whether they are going to defend the Bill on its merits. Without knowing, I am bound to say something about the merits of the case.
I do not think that to stand on the 1911 position would in any way damage the interests of authors. One is, after all, only discussing the period between 25 and 50 years after the death of the authors in question. But if one is dealing with their estates, and not with the individuals concerned, it is by no means clear that the estates would do less well under the existing provision than they would under the new one. An author's estate could often do better as a result of the publication by a rival firm of publishers of a cheap, popular edition of the author's work, than if the rights were to remain 739 with his original publisher who might not specialise in cheap editions and who would be unable to bring out such cheap editions but who did not want anyone else to do so.
I think that authors' estates have done very well out of this arrangement. Oscar Wilde earned no less than £3,500 from one British publisher under this 10 per cent. rule. Therefore, what I am suggesting is not in any way inimical to the interests of authors or even the estates of dead authors.
If one is going to accept the position as it is laid down in the Bill, without question it is going to be very difficult to apply. It is already the case that works of a number of authors who have been dead for more than 25 years, but who have not been dead for more than 50 years, are being published in these cheap editions. For example, Henry James and D. H. Lawrence are in this category at the present time. A substantial number of other important authors will come into this category in the very near future. Arnold Bennett and Saki come out of full copyright this year. In 1957, Lytton Strachey and Jerome K. Jerome will come out of full copyright, and in 1958 so will Thomas Hardy, Galsworthy and several other authors.
The Government cannot adopt the attitude that these will be retrospective, in the sense that in the case of authors whose works are already being published in cheap editions such arrangement will have to cease as soon as the Bill becomes law. But what is the position going to be about authors who have been dead for some time, where arrangements have been made for cheap publications, but where that would not be possible if one were to stand on the letter of the Bill as it exists at present? Even if it is not possible, whether for reasons put forward by the hon. Member for Belfast, North (Mr. Hyde) or whether for other reasons, for the Government to allow the position to revert to that under the 1911 Act in this respect, the Government can at least make a compromise by which the new Measure will apply only to the works of authors dying after it comes into operation. In that way there could be a reasonable compromise.
Unless that is done, apart from the considerable undesirability of preventing the 740 works of authors of note reaching a wide market and becoming more cheaply available in this country, we may be at some disadvantage in competitive markets abroad. American copyright will be less long lived in this respect and the Americans will be able to bring out cheap editions of English authors where we are not able to do so. I believe that Kipling is already out of full copyright in the United States, whereas here his works will not even be out of half copyright for some time. Kipling is an interesting example. There has been no cheap edition of his works.
§ Mr. Jenkins
I agree that his case may be exceptional, but what the hon. Gentleman says underlines the point. One can argue that under the Bill it will be possible for someone who wishes to publish a cheap, popular edition of Kipling, or any other author, to negotiate an arrangement with the original publishers. We must guard against a position in which the publishers might want to do that but it might be possible for the executors to be unduly restrictive. I suggest that that is the position in connection with Kipling's works.
The President of the Board of Trade, in his pleasantly rounded reply to the intervention of the hon. Member for Southgate (Sir B. Baxter), suggested that at a certain time works passed from the private domain into the public domain. I think that has occurred with Kipling. It is highly undesirable that a restriction should be applied to prevent his works being more freely available in a cheap edition.
This is not a purely theoretical point. There is a practical point involved, and I hope that the Parliamentary Secretary will apply his mind to it. I hope that he will be able to say that we can go back to the 1911 position which, I think, is satisfactory in this respect. I hope that, at least, he will be able to accept the compromise that the new position suggested in the Bill will apply only in the case of authors who die after the Bill becomes law.
§ 4.52 p.m.
§ Mr. G. R. Howard (St. Ives)
I should like to add my congratulations to those already expressed and to say how glad I am that it has been said from both sides of the House that this is a nonparty Measure. In that context I wish to support very strongly what was said by the hon. Member for Rossendale (Mr. Anthony Greenwood) about photographers. Before I continue I must disclose my interest. I am a very humble member of the Royal Photographic Society. I might be described as an amateur photographer who trles to pay for a very expensive hobby by the occasional sale of a photograph. I am, therefore, speaking this evening more for the men in my own category than for the professionals to whom photography represents a rather precarious and highly competitive livelihood.
Clause 3 (1, a) lays it down that photographs come within the definition of "artistic work," yet subsection (4, b) excludes photographs from the fifty-year copyright. This seems to me pretty contradictory. I know that the position has been dealt with in a small way by the Lords Amendment which said that there should be a copyright of 25 years after publication, but it will be extremely difficult to prove the year of publication.
The hon. Member for Rossendale mentioned the photograph taken of a child and reproduced later. I should like to give another example of the photograph taken of a young and ambitious man at an extremely gay party. That is something which perhaps he would not like to be published later on. Eventually the man may become a famous public figure. It would not be to his liking if an unscrupulous periodical got hold of the photograph of him having a gay time and published it against his will. In an example such as that it will be extremely difficult to prove the date when the photograph was taken.
Why should films and photographs be treated differently from works of art? My right hon. Friend said that he could not make any distinction between the jazz record and the symphony, and that they must be treated in the same way. They are far more different than the good still photograph and the good film. Again, suppose a still photograph is taken from 742 a film and reproduced. Will that come under the 25 or the 50-year copyright?
Mention has been made of the expense to which some specialist photographers go to build up a library which may not be of use for a number of years. I have a special example in mind. It is that of Mr. Tom Weir of Glasgow who, following Shipton's discoveries, fitted out a small private expedition to the Himalayas and built a very fine collection of colour photographs from which he hoped to derive an income for the rest of his life. His speciality is photographing mountain scenery, flora, etc., mainly in places which others have not yet reached. It is obvious that an expedition of that sort would be extremely difficult and expensive to organise. It is unfair that such a man should be deprived of his copyright after 25 years.
The President of the Board of Trade said that both sides should be protected. and I agree. The example I quoted earlier would be a good illustration of that. What is the situation with regard to Crown copyright? Hon. Members may have seen a very clever advertisement for a certain baby food in which are used the words, "Fit for royal babies." The time might come when a totally unsuitable photograph might be reproduced at the top of one of these advertisements. That, I think, would be a grave breach of public good taste and would probably in no way meet the wishes of the photographer who has taken the picture.
I do not see why photographers should not be considered to be artists. Many of us think that our efforts to produce something artistic are far more difficult than those of painters. An artist goes to a place like Cornwall where he sees a beautiful chapel, with a valley and hills. He paints a picture of that, and it is so easy for him to leave out the public telephone kiosk which has just been put in front of the chapel, thanks to the good work of the Postmaster-General. A photographer who wishes to make an attractive picture of that scene has to get rid of the kiosk in some way. Perhaps my right hon. Friend might include that operation under the heading "mechanical means" to which he referred earlier. None the less, I maintain that we should be considered to be artists. Therefore, I hope that this point will be considered very closely in Committee. The many 743 photographers whom I know feel that it is most unfair that they should have been singled out for only 25 years' protection, especially when films are protected for 50 years.
§ 4.59 p.m.
§ Sir Leslie Plummer (Deptford)
I begin straight away by declaring an interest in that I am a director of a newspaper and periodical publishing house and have some connection, also, with a programme company dealing with commercial television. My colleague in both those enterprises will doubtless disagree with almost everything I have to say. None the less, it is important that I should make it quite clear that I have some interest in the Bill and its future.
I support what was said by the hon. Member for Southgate (Sir B. Baxter). He and I, I know, have almost utterly opposite views about the rights of inherited property. He believes to a very large degree in inherited property. As a Socialist I have different views about it, but I agree with him absolutely when he says that there seems to be no logic at all in the way in which we treat the creator of an original work.
It would, I think, be an advantage for anyone trying to choose his father in the future not to choose an Ibsen, but to choose a "Master Builder," because his "Master Builder" father will hand down permanent property of considerably more value than an Ibsen could hand down to his descendants. I do not understand why it is that 50 years after a man's death we should expropriate from his descendants a property which he has, very properly, left to them. I am sorry to see that this Bill, which I admire in many respects, continues a piece of harshness towards the descendants of, in particular, the literary artist.
The law, both as it exists and as it is proposed to be altered, does not treat all artists alike. If a man hands down the rights in, let us say, a poem, the descendants lose those rights 50 years after his death, but if he is a maker of silverware and he hands down to his children some beautiful examples of his work, they will continue to own them in perpetuity or until such time as they decide voluntarily to dispossess themselves of them. I hope that at some time we shall decide to 744 protect the originator, that we shall at last protect the author in a proper fashion.
The argument has been advanced this afternoon that the public benefits to some degree, because works get into the public domain under the present system. Does the public benefit to that degree? Is it not the publisher who benefits first, or is it not the film producer who snatches a script, as it were, out of the air and uses it free? Is not the man who benefits the man who wants to put on a musical comedy, who can adapt an original work without having to pay copyright fees for it? I should not be at all surprised if it was a descendant of someone whose work had passed into the public domain who first said that Barabbas was a publisher.
The hon. Member for St. Ives (Mr. G. R. Howard) dealt with the position of the photographer. This Measure will work very harshly on the photographer who works in the main for newspapers and periodicals, and who has built up over a long period a specialist library. Newspapers know that they can go to these specialists to get pictures dealing with any special subject; for example, the editor of a newspaper who wants a photograph of a ship launched at the beginning of this century knows immediately where to get it, namely, from the specialist photographer who has invested his work and a good deal of capital—probably the whole of his life in building up such an extremely valuable service.
Such a specialist photographer hopes to continue with the library he has built up, but now, at the end of 25 years, he is to lose his rights in many of his photographs. He has worked, in my view, as hard in the preparation of this service as has the man who has written, let us say, the text or the caption which accompanies a picture. The caption might be quite a long one, almost a pamphlet. The descendants of the man who writes the pamphlet will enjoy the rights for 50 years, while the descendants of the man who has worked hard to collect the photographs lose theirs 25 years after his death.
There seems to be no logic and no justice in this situation. I am concerned about it for this reason. My interest in this Bill, and the reason I support it, is my desire that it shall be the protector at all times of the creator. My 745 hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) is right when he says that that is the paramount interest. We have seen too often the case of a man who has been trying to get published a story, a book, or a piece of music; such a young man is flattered, overwhelmed, by the fact that his work is accepted and is going to be published; he then rushes into a contract which is a bad and harsh contract. I know that he ought to consult an agent or a solicitor, but he does not do either of those things. We have all heard over and over again stories of the way in which men have sold for a few pounds a piece of work which has made for a publisher thousands or, indeed, hundreds of thousands of pounds.
The artist, by definition, is not a businessman, and it is the artist I want to protect. The artist should be protected as far as possible, not from the rapacity of the publisher—I do not think it is that but from the natural desire of the publisher to get the best of the deal that he possibly can.
I come now to Clause 4. I remember the time when the Parliamentary Secretary was enjoying, with me, his frolic in Fleet Street, which he graced at that time, if I may say so, with some distinguished contributions to the newspapers which I then managed. He would have been horrified if it had then been suggested that practically all his rights should be taken away from him because he was working under a service contract. Fortunately, he worked for a benign manager who saw to it that those rights were not taken from him. It is true also that his work was unsaleable in any other place than where he published it.
§ Mr. Walker-Smith
I am sure the hon. Gentleman will recollect that at the time of entering into this agreement to which he refers he pointed out that the remuneration was modest for the quality of the articles he expected, and suggested it might be increased if we got on well together. Unfortunately, we did not get on well enough for that result to come about.
§ Sir L. Plummer
Of course, these things will happen. It is the tug of war in Fleet Street. I am sure that both of us enjoyed it very much, and I am sure that those right hon. and hon. Gentlemen and other readers who can remember the hon. Gentleman's contributions 746 and compare them with those which are appearing today will regret his disappearance from the newspaper.
I was dealing with Clause 4 and the position under it of the work of a writer for newspapers, periodicals and magazines. As my hon. Friend the Member for Rossendale has said, we want the publisher under those circumstances to "contract in" It is too much to say that the syndication rights of an article or a news story contributed by the writer should vest in the newspaper, unless, of course, the man wants to sell those syndication rights to the newspaper or wants to participate in the result of the syndication sales. I would like to see the Bill altered, and I hope that my hon. Friend will introduce an Amendment to this effect, to see that the only rights which the writer automatically surrenders are the rights of first reproduction in the newspaper, magazine or periodical for which the article or story is designed.
In America, for example, the market for good, original work is very considerable and very lucrative. It would be no exaggeration at all to say that a man who can write a good, informative article on, let us say, so esoteric a subject as trout fishing, for which he can get paid here only in guineas, can measure his rewards in American publications in hundreds of dollars. In my view, it is too much that a man should be at the mercy of the newspaper, periodical or magazine as to whether he receives any significant share of the results of the syndication of such an article, or, indeed, of any other article.
It is not only in that respect that I want to see the Bill altered. I have in mind also the case of a man who writes for a newspaper and finds that the practice of what is called "milking the copy", which I will explain later, works against him. Newspapers in this country employ journalists who work for other newspapers all over the country to send them in copy which they gather from their own local newspapers. There is, therefore, a constant raid being made on the original work of other people. Because this benefits newspapers in general, no particular objection is taken to it by proprietors.
I take very strong objection to anybody lifting the property of anyone else, and in particular to the journalist, who may be a staff contributor, a man on the payroll, and not a free-lance journalist, finding 747 that, whether he likes it or not, his contribution to his newspaper is lifted and published by another without any payment to him. The Institute of Journalists has for a long time protested against this treatment of the writer. I hope that, later, we will have an opportunity of putting its point of view.
Clause 5 (5, b) deals with infringements of copyright in public places. I suggest that it opens the door very wide to evasions. The Clause provides that sub-section (5) describing the infringements of copyright, shall not apply where somebodygave the permission"—for a performancegratuitously, or for a consideration which was only nominal or (if more than nominal) did not exceed a reasonable estimate of the expense to be incurred by him in consequence of the use of the place for the performance.This opens a very wide field of evasion.
All that a man who offends has to say is that he did not make any money out of the infringement, or did not intend to do so. In fact, he might have made a great deal of money out of the infringement but, presumably, if he says that he did not intend to do so, he would be in a strong position. What rights would the author then have of being able to collect what is his due as a result of the infringement?
George Bernard Shaw, who would never allow any charitable organisation to perform any of his works free because, he said, that would bankrupt him, would have been staggered at the suggestion that somebody should take one of his plays and put it on in the village hall without paying him the necessary three guineas, on the basis that the organisation did not propose to make any money out of it or did not think that it would do so.
Clause 6 (3) says:(3) No fair dealing with a literary, dramatic or musical work shall constitute an infringement of the copyright in the work if it is for the purpose of conveying news of current events to the public in a newspaper, magazine or similar periodical, or by means of broadcasting, or in a cinematograph film, and is accompanied by a sufficient acknowledgment.Surely, the word "reasonable" is needed here. Is it to be argued that as a result of desiring to publish a news story or to make a cinematograph film, the copyrighted work of somebody else should be 748 used simply because it illustrates the point that the newspaper or film is trying to make? Surely it can be only a reasonable quotation, otherwise the whole of a man's work can be taken in this way by some-body who has no right to it.
For example, I should think that under this system a whole poem by Kipling— for instance "If", not that I like it, but simply as an example—could be used over and over again to support the flagging spirits of unsuccessful politicians in their disappointments over an Election, or it could be used to sustain a Prime Minister who found himself in a jam in a cinematograph film illustrating that jam. Rudyard Kipling would never allow a newspaper to publish two lines from a poem of his without payment for it. He was a man who saw to it that practically never a word of his was printed free.
By the proposed Clause, however, Rudyard Kipling's poem "If" could be published practically in its entirety. Perhaps the last two lines could be left out, which would in any case improve the poem. It might then be argued, that this was a fair dealing. I am, of course, exaggerating the case. Nevertheless, it is my view that one must be careful of this business of fair dealing for the purpose of conveying news of current affairs.
I am worried about Clause 18 (3), which says that unless the owner of a copyright can become aware of an infringement within a period of three years, he is to lose his rights. What is the reason for this? By nature, many journalists and writers are peripatetic. They are constantly travelling all over the world. The hon. Member for South-gate and myself have gone through their expense accounts too often not to know that this is true. Many of them are out of touch with the kind of papers, magazines and periodicals which would be likely to take their work without permission. It is somewhat hard on these men, who, by the nature of their occupation, are travelling the world, that a period of three years should be used against them, as it were. I should have thought that seven years was a much more reasonable period for this kind of protection to the author.
On the whole, this is a good Bill. It does not go far enough, but I never think that anything the President of the Board of Trade produces ever does go far enough, and so I have to accept that this 749 goes a little further in the interests of justice than the last Bill introduced by the right hon. Gentleman. We shall give it our support, but we shall do our best to improve it in Committee, not for the purpose of making party points but in the interest of preserving at all times the interests of the writer, the musician, and indeed of the artist generally.
§ 5.16 p.m.
§ Sir Beverley Baxter (Southgate)
It is not very often that we pay compliments across the Floor of the House, but I am much gratified to the hon. Member for Deptford (Sir L. Plummer) for his kindly references towards me. It recalls the day when we were colleagues in the same newspaper enterprise.
A Second Reading debate allows a somewhat wide range of discussion. It is not very often in this House that the artist, the expressionist, comes under the gimlet brains of both sides of the Chamber: therefore I want to say one or two things, because I do not think we shall have another opportunity for some time.
The politician, if I may use the word externally, may say that the artists and expressionists are not numerous enough in number to matter certainly their votes do not matter. But if they chose to exert the power of the written and the spoken word, the power of caricature and the power of argument in print, no Government could stand against them, not even this extraordinarily popular Government which is now in office.
Therefore, I warn my right hon. Friend the President of the Board of Trade that while he is sitting in comparative security at present, if he does not think more kindly of those who live by expressing the inner thoughts and dreams of mankind even he may be in danger of being relegated to the back benches where, if that happens, I hope he will join those who would abolish hanging.
The basic absurdity of saying that a man who creates something enduring from his brain shall have only a limited financial interest from it when it belongs to him is utterly unsound. For instance, let us consider the case of that great Member of the House, my right hon. Friend the Member for Woodford (Sir W. Churchill). My right hon. Friend writes his manuscripts. In time they are 750 turned into books and the books are published. He is heavily taxed, and rightly so, upon them. In time, his family and his descendants may come upon hard days, but the rights from his books will have expired. They can sell the physical thing—the manuscripts—as mementos or relics, but what he has created from his brain cannot bring financial tribute to his family.
The right in the physical thing lives on: the reward for the spiritual does not, for, by Acts of Parliament, there is a limit to the proper reward for what a man creates with his mind. My hon. Friend the Member for Belfast, North (Mr. Hyde) knows the case of Oscar Wilde. Any publisher today can publish an edition of Oscar Wilde's works without paying any royalties to Oscar Wilde's family. His first son died, but his second son, as my hon. Friend knows, is still alive. He is a man, not of humble circumstances, but who certainly does not live in an extravagant way. He is not a man of great talent. A publisher can publish an edition of Oscar Wilde's works and not pay one penny to the estate. What is basically right about that? Oscar Wilde's manuscripts constitute property. and property is regarded as immortal, but what the artist creates is not.
There are the Gi1bert and Sullivan opera rights. They are running out. I do not know anything about the descendants of Gi1bert and Sullivan. Gilbert and Sullivan added greatly to the gaiety of the nation. They have been a great asset. Suppose Gilbert had descendants. Gi1bert, I think, was a bachelor, but he may have had descendants even so.
§ Sir B. Baxter
However, let us assume there are descendants and that they have come upon hard days. If Gi1bert or Sullivan had left them a house, or any piece of property like that, it would be theirs. The rights in Gi1bert and Sullivan's creative works, however, do not continue to belong to them.
A painter may struggle for fifty years, and receive little for his paintings, which may be sold and resold at an ever increasing price when at last their merit is 751 recognised, but his heirs have no benefit from that. I say to my right hon. Friend that it would be a marvellous thing if he would tell America and other countries that we shall take a different view aItogether about the rights of a creative artist.
We should at least regard the claims of the artist's descendants with a sense of responsibility comparable to that with which we regard the claims of industrialists' dependants. I see that the right hon. Gentleman the Member for South Shields (Mr. Ede) is with me in spirit. I may not be putting the case very logically, but at least I am putting it sincerely, and very often sincerity lacks logic.
§ Mr. Ede (South Shields)
Since the hon. Gentleman does me the honour to allude to me, perhaps he will permit me to say that, while I am listening to what he is saying and endeavouring to make up my mind upon it, I should not like him to think that I have as yet been convinced.
§ Sir B. Baxter
I very often find myself in that condition.
I do not intend to delay the House for more than a few moments longer. I have tried to make the case of the young author whose book after fifty years becomes a success. He may have had many hard years. I am grateful to my right hon. Friend for the Bill, because it is an improvement upon the existing law. What a splendid thing it would be if in these difficult times this House were to do some justice and give some benefit to those whose votes, being few, count for little, for those whose financial and material influence upon the country is nothing, but without whom our lives would be bleak, lacking in leadership and lacking in inspiration. I make this plea for them with sincerity if not with entire and coherent logic.
§ 5.26 p.m.
§ Mr. Harry Randall (Gateshead, West)
I have listened with great interest to the hon. Member for Southgate (Sir B. Baxter). On occasions like this, when we are not divided on party lines, there is, more often than at other times, complete understanding between hon. Members, and, personally, I feel nothing but admiration at the sincerity with which the hon. Member has spoken.
752 However, I want to introduce into the debate an issue rather apart from that which the hon. Member has presented to the House. I hope he will not mind, therefore, if I do not follow him further. The President of the Board of Trade said that the Bill is a very large and complex Measure. It is indeed, and I do not pretend to a complete understanding of it. Far too many of the Measures which come before the House are complex, and much of the time of hon. Members is taken up in trying to understand them. Much in this Bill pleases me, and I believe that it represents an effort to bring about a fair compromise, but there is one issue upon which there has not been the compromise which, I had hoped, we should have obtained.
I speak of staff—of workers'—retiring rooms where there are radio sets for the enjoyment of the staff using the retiring rooms. I see the Postmaster-General here, and I would tell him that I have particularly in mind Post Office staff retiring rooms. I was astonished to learn a few weeks ago that it is necessary to obtain from the Performing Right Society a licence in order that the staff may hear sound recording broadcasts in the retiring room.
I have had some correspondence with the Postmaster-General and the Board of Trade about the matter, and they have been good enough to reply to me. I make no complaint of the letter which the Postmaster-General sent to me, nor of the letter which came from the Parliamentary Secretary to the Board of Trade, except that in that letter, in reply to my request that something be done about this matter, it was said:No expression of opinion that I or the President might give you on this point would be authoritative. It is a legal issue, and the only way of ascertaining whether or not a given performance in a Post Office retiring room was in public is by decision in the High Court.That is a very expensive procedure.
I should have thought that in a Copyright Bill some consideration might have been given to how far it was possible so to construct a Clause as to provide that conditions in staff retiring rooms would be regarded as being very similar 753 to the conditions set out in Clause 12 (7), which states:"Where a sound recording is caused to be heard in public—I should have thought that a definition of workers' retiring rooms would come very close to the terms of Clause 12 (7).
the act of causing it to be so heard shall not constitute an infringement of the copyright in the recording …
- (a) at any premises where persons reside or sleep, as part of the amenities provided exclusively or mainly for residents or inmates therein, or
- (b) as part of the activities of, or for the benefit of, a club society or other organisation which is not established or conducted for profit and whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare,
I have been trying to define such rooms. They are rooms set aside for meals, not rooms where meals are purchased. Frequently, the occupants go there to eat their sandwiches or brew themselves a cup of tea. Therefore, there can be no question of making a profit in them. The rooms are provided for rest and recuperation. They are not public in any sense of the word, and there is no charge for admission to them. In the main, good employers provide them. It is regarded as very necessary that there should be this opportunity to get away from the desk. Far too many clerical workers take their meals at the desk, and this provision of staff retiring rooms is an excellent idea. It is done within the Civil Service and provides a most useful amenity. Ought it not to be possible to alter the Clause in such a way that these staff retiring rooms can be included within the definition?
Post Office workers have made their contribution to joint productivity. There is no hope of giving them incentive bonuses or payment, but that has not prevented them from making their contribution, as I am sure the Postmaster-General will agree. By staff discussions we have been able to work out a lump sum payment as an incentive, and with some skill we have found ways and means of distributing that money, under Treasury authority. Part of the money has been distributed on a national basis. Some has gone to local post offices, where local Whitley committees, in considering 754 how best to use the money, have decided to provide radio sets in retiring rooms.
Yet, having secured this money from their efforts in joint productivity, they are told that the rooms must be licensed because a radio broadcast there becomes a public performance. Surely no one could argue that the workers' staff room is a public place—and no profit is made there. I hope, therefore, that the Minister will be prepared to consider this point sympathetically, and be ready to have inserted in the Bill appropriate words to provide that staff retiring rooms shall come within the definition of Clause 12 (7).
If I am given the opportunity I shall move an Amendment to that effect in Committee. I regard it as a matter of some importance to many workers. If it does not traverse the many other weighty matters which have been mentioned in the debate, or touch some of the eminent personalities to whom reference has been made today, it would at least do something useful for the workers of the country.
§ 5.36 p.m.
§ Mr. Kenneth Pickthorn (Carlton)
I do not want to try to follow the noble example of my hon. Friend the Member for Southgate (Sir B. Baxter) in making a Second Reading speech. I propose to follow all the other examples, for this is one of those Bills which consist almost entirely of Committee points. I hope that I shall be very short in asking one or two questions and that, if I am short enough, my hon. and learned Friend the Parliamentary Secretary to the Board of Trade may forgive me if I am not here, as I should like to be, though I am afraid I shall not, when he comes to reply.
I do not quite understand the point which was raised by the hon. Member for Gateshead, West (Mr. Randall). A similar point had been in my mind, but I had not quite understood how one spotted one's philanthropic disc jockey. I come, I am afraid, always with some suspicion to the State's distinction between the wicked men who are out for profit and the good men who are philanthropists.
I do not regard the State as infallible in making those distinctions, and I had a little wondered how the State was going to tell that a given disc jockey was 755 always not philanthropic. I suppose that it turns on the words,…advancement of religion, education or social welfare….I should be the last to try to weaken the advantages which are enjoyed by some institutions in these connections, but I should like to ask whether these words are all of them judicially defined and it is known exactly what they mean and whether any of them would begin to require definition only now We cannot distinguish between serious and light music and we may perhaps be a little modest about distinguishing between philanthropy and profit.
There is a point on Clause 4 which is part of a major point that has been made several times. It has been suggested to me—I do not adopt it, I put it purely interrogatively—that possibly a university professor or official might be caught by the definition here of employment and that it might be held in the courts that anything he wrote, at least on the subject on which he lectures, might come under the mischief of Clause 4 (4). I am told that there has in fact been no such case, but I think it would be reassuring if we could have a few words upon that.
I understand the difficulties about photostats from librarians, having discussed them with various librarians. Those librarians whom it concerns, and whom I personally know best, would have preferred to be left with the old fair dealing and not to have had the elaboration under this Statute. I know that my librarian friends are probably in a minority in their world, but I should like to be reassured that this has been fully considered, and will be more fully considered before we part with the Bill. Particularly, the question has been put to me whether the new words in Clause 7 exclude fair dealing or whether the application of the fair dealing concept would remain as well as the new statutory elaboration. I am not sure if I am making it clear, but I hope that the point is sufficiently indicated.
One other thing and then I will sit down. I am afraid these are, in a sense, all Committee points, but they go to the nature of the Bill and I hope I am not too far away from Second Reading. My last point concerns the nature of the Tribunal. The chairman is to be the 756 seven-year lawyer, and so on. I understand that it might be inappropriate to try to define exactly who the other three members ought to be, what professions they ought to come from, or what qualifications they should have. On the other hand, from the point of view of trying to get at something in one's imagination of the kind of tribunal it will be, it would be convenient if the House might have some indication of the composition which is in the minds of the Ministers, and possibly that may be given to us today.
§ 5.42 p.m.
§ Mr. Eric Fletcher (Islington, East)
I must begin, like other hon. Members, by disclosing an interest. I suppose most of us have an interest of some kind or other in the Bill. I am afraid that my own modest contributions to authorship have not been sufficiently profitable to enable me to count them as an interest. But a substantial part of my professional career has been spent in advising individuals engaged in the film industry, film companies, and recently a television company, on the not very simple matters of the law of copyright.
Having said that, I want to join in what was said by my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) and by other hon. Friends of mine who have spoken from these benches in saying that our approach to this subject is one of sympathy for those who are responsible for the creation of some artistic or intellectual work, whether literary, dramatic, musical or in some other form. We believe that their rights and interests should be fully protected and, in certain respects, should be strengthened beyond the provisions of the Bill.
I believe that the Bill was considerably improved in various matters of detail during its passage through another place, and I hope that in our Committee stage we shall have further opportunities of introducing Amendments, as, for example, that suggested by my hon. Friend the Member for Gateshead, West (Mr. Randall). After all, the entire subject is, in a sense, artificial. Copyright is the creation of statute, and the right hon. Gentleman the President of the Board of Trade has said that it is the object of all of us, in approaching the Bill, to attempt to strike a fair balance between the conflicting rights of all the parties interested in this field, including the general public.
757 I have a great deal of sympathy with the observation of the hon. Member for Southgate (Sir B. Baxter). There is no special magic in the period of 50 years after the death of an author as the period of copyright. There is no reason why that should be 50 rather than 60 or 75 years, or any longer period. Incidentally, I am not sure whether, if one wanted to give effect to his suggestion, one would be in any way departing from the provisions of the Berne Convention. If one were not transgressing that, I should be in sympathy with his suggestion. However, I regard it as a paramount consideration, as I think did the President of the Board of Trade, that in this matter we should bring ourselves into line in the international sphere with all the countries who are parties to that Convention, now brought up to date at Brussels, and that we should not deprive ourselves of the full benefit of the new advantages that will be derived from the new Universal Copyright Convention.
It is inevitable that in speeches in this Second Reading debate we should raise a certain number of Committee points, and they are no less relevant and valuable because they will give the Ministers concerned advanced notice of them and an opportunity of dealing with them when we come to the Committee stage. One Committee point of special importance is the one referred to by the hon. Member for Hornsey (Sir D. Gammans), namely, that of the relay companies. I entirely agree with what the hon. Gentleman said. I think that this will lead to intolerable confusion and hardship, unless it is clarified. This is merely an illustration of the highly complex nature of the subject with which we are dealing. Whilst we are all agreed that protection should be given to creative authors and others, when we enter the realm of mechanical rights and devices we are in a much more difficult sphere, as to the considerations which should apply.
In order to explain the matter it is necessary to go a little further than the hon. Member for Hornsey went. He pointed out correctly that the Copyright Committee, in dealing with the question of the relay companies, contented itself with the observation at paragraph 120 that it was not prepared to suggest any alteration in the present relationship between the Postmaster-General, the B.B.C. and the relay companies.
758 Of course, at the time of the publication of that Report in October, 1952, the B.B.C. alone was responsible for both broadcasting and television. We had not entered into the highly controversial discussions as to whether commercial television should or should not be introduced into this country. Since then a great deal has happened and, for better or worse. we now have not only the B.B.C. providing television programmes, but also the I.T.A., under arrangements with programme contractors, as laid down in the Television Act.
As a result we get this curious situation. In the old days, when the B.B.C. alone provided broadcasting and television programmes, the Corporation collected fees from the public. Owing to the fact that in various areas of this country reception is not perfect, a number of relay companies set themselves up. Their mission in life was to pick up at convenient strategic points the signals sent out by the B.B.C. and then, by a mechanical device, to pipe them, as it is called, under a licence from the Postmaster-General to its subscribers in order that various members of the public in areas of imperfect reception might enjoy good transmission. They charged a fee to the subscriber and they conferred a benefit on the B.B.C. and on the public generally. In those days no question arose of copyright or infringement of copyright. Therefore, it was logical for the Committee in 1952 to say that it was not prepared to disturb that position.
However, since then the Independent Television Authority has been set up, and in its wisdom—it might have been required to do so by the Act—it has divided the country into various regions and appointed programme contractors to provide television programmes in definite regions. The programme contractors do not derive any revenue from fees; they derive their revenue from advertisements, advertisers being encouraged to advertise on their respective stations in the belief that there would be a certain number of self-contained areas within which each programme contractor would be able, in competition only with the B.B.C. and not with any other programme contractor, to supply a programme.
In that situation one has to consider what the operations and functions of the relay companies are. It became obvious 759 to the Independent Television Authority and to others that if relay companies could continue to operate not only for areas of imperfect reception, but also for fringe areas between one region and another, it would, unless there was control, be possible for, for example, one programme contractor, such as a London contractor, by setting up relay station apparatus on the periphery of his area, to pipe his programmes not only into adjacent regions, but, in time, into Scotland, Wales and elsewhere.
If the relay companies were entitled to do that, without infringing anyone's copyright, we should have a situation which would destroy the whole basis on which the Independent Television Authority was set up and the whole basis upon which the various television companies have sought advertising revenue from various defined areas. Therefore, an intolerable situation was produced, and, indeed, would be perpetuated under the Bill as it stands, because Clause I4 omits any requirement that a relay company should obtain a licence, and furthermore, in Clause 46, as at present drafted, it is specifically provided that the operation of a broadcast relay station should not be taken to constitute a performance.
As the hon. Member for Hornsey pointed out, we have in the Bill as it stands the anomalous situation that a television copyright is being given to both the B.B.C. and the I.T.A. and at the same time the whole of the apparatus set up by the I.T.A. will be defeated if relay companies are entitled to copy, with impunity, the programme provided by a television contractor and transmit it by some mechanical device all over the country.
It is only fair to say that the Postmaster-General and the Government as a whole have obviously considered the problem. As I understand it, the suggestion which has hitherto been made by the Postmaster-General is that this extraordinary position should be solved not, as one would have thought, by amending the Bill, but by introducing a condition in the licence under which the relay companies work. That will be essential in any event. Under the Wireless Telegraph Acts the Postmaster-General has power to lay down the conditions under which relay stations operate, but that position may change. In fact, the whole condition of television 760 is likely to change in the next few years. As the hon. Member for Hornsey foreshadowed, it will not be very long before television companies operating from overseas will, unless regulated, be able to transmit programmes into this country that will compete with both the B.B.C. and the I.T.A.
That may or may not be desirable, but what is clearly undesirable is that people should be able to do that without any control or regulation and without the obligation to pay any fees to the authors of programmes, to the creators of original work which is being broadcast or televised, and to the composers of music and so forth included in such programmes. It is most undesirable that the whole of that matter should be left in a state of unregulated and complete confusion.
Consequently, I want to stress before we reach Committee that the Bill in that respect is most unsatisfactory and will lead to very serious consequences to all concerned. It does not seem to me to be by any means satisfactory to rely merely on the powers of the Postmaster-General to deal with the matter by introducing conditions into his licences. I am doubtful how far that safeguard may continue to be satisfactory. I do not know whether the conditions of the licence are such that fresh conditions can be introduced in respect of licences which have already been issued. I do not know what sanctions can be attached if a relay station which has been granted a licence then infringes conditions attached to the licence.
Whatever the position may be, if the matter is regulated in that way it means that those concerned—I refer now to the I.T.A., programme contractors, authors, composers, the providers of sporting events and owners of copyright—will have no direct relief or redress. They will merely have the opportunity of complaining to the Postmaster-General that some relay station has violated one of his conditions.
I do not want to minimise the value of that protection, but I think it will be agreed that to state the proposition in those terms is to show that, although this may serve as a necessary expedient, until we know how the Bill will emerge into law, it would be a most unsatisfactory way for us, as legislators, to leave the matter. Consequently, I urge that the 761 most serious consideration should be given to this aspect before the Committee stage.
A number of other Committee points will arise. In general, all I want to say is that I should wish to support some of the Amendments which have been indicated by my hon. Friend the Member for Rossendale and other hon. Members, which will be designed to strengthen the protection which will be given to authors, composers and originators of artistic work generally under the provisions of the Bill.
§ 6.0 p.m.
§ Mr. Montgomery Hyde (Belfast, North)
Like the hon. Member for Islington, East (Mr. E. Fletcher), I have an interest to disclose, but it is not the same as his interest. He will therefore forgive me if I do not follow him in detail about matters relating to the exploitation of films and performing rights, about which he is an expert. My interest is that of an author. My first book was published 23 years ago, and since that time I have had dealings with many publishers and I have never had anything about which to complain. In this country a high standard of conduct obtains in relations between publishers and authors. Nevertheless, I was pleased that the hon. Member for Rossendale (Mr. Anthony Greenwood) emphasised the need for protecting the creator of a literary or other work as against the exploiter. I very much sympathise with that point of view.
When we recall the importance of the two Conventions which I hope will shortly be ratified by Her Majesty's Government, this seems to be a Measure which is considerably overdue, especially when we remember that the Brussels Convention, which is the latest version of the Berne Convention, was concluded in 1948 and the other Convention, sponsored by U.N.E.S.C.O. —the Universal Copyright Convention— was concluded in 1952, and that the Report of the Copyright Committee was issued in that year.
That Committee, to which welldeserved tribute for its work has been paid, recommended that the Copyright Act, 1911, should, as we have heard, be amended, primarily so that Her Majesty's Government could accede to those two important international Con- 762 ventions. That is an action which, entirely apart from its intellectual and cultural aspect as between nations, is bound to promote our export trade in books and increse our trade balance, particularly with dollar countries.
In the course of this interesting debate we have heard that copyright is a complex branch of the law. It is also one which has developed slowly. It did not, of course, assume any real importance until after the invention of printing. Nevertheless, I like to think that the first recorded action for an infringement of copyright took place in the sixth century in Ireland, where there was a high degree of civilisation and scholarship which has subsequently waxed and waned to a considerable extent.
§ Mr. Hyde
The action was between two monks who were subsequently canonised, St. Finian of Moville and St. Columba. St. Columba misappropriated a manuscript belonging to St. Finian, and copied it. St. Finian found out about it and appealed to the then King of Ireland, who gave judgment in favour of St. Finian at Tara in these very striking words:To every cow its calf and every book its copy.That was a wise and far-seeing judgment which is really the basis of the international law on the subject today. That first recorded action had the result that the unauthorised copy which was made by St. Columba was subsequently imported into Scotland, and I understand that that resulted in the conversion of the Scots to the Christian faith.
As the hon. Member for Islington, East very rightly said in the course of his learned speech, copyright is the creation of statute. In this country authors enjoyed virtually no protection for their works until the beginning of the eighteenth century. The first Copyright Act which gave protection was passed in the reign of Queen Anne, in 1709, and that gave maximum protection for only 28 years from publication.
That remained the law until 1814, when it was very slightly extended to the residue of the author's life on the expiry of that 28 years. From 1842 until 1911 the law was amended still further in favour of the author, the period of protection then being the life of the author plus 763 seven years, or 42 years from publication, whichever was the longer. Although that afforded authors increased protection, and most Victorian writers' books were dealt with under that Act, it had the highly inconvenient result that an author's individual copyrights fell into the public domain at different dates.
In 1911 came the Copyright Act about which we have heard. It was a great Act which codified the law. It says much for those who were responsible for its drafting that it has lasted for nearly half a century. It embodied the conception to which most, but not all civilised nations—all the Berne Convention countries—subscribe, that an author should obtain protection limited to his life plus 50 years, except in the case of works which are posthumously published and, of course, those which are unpublished at the time of his death, in which cases the period runs from publication. That Act also created the conception of performing rights, although at that time the gramophone and films were in their infancy and nothing had been heard of radio or television.
Arguments have been advanced—and they were put before the Board of Trade Copyright Committee—for a longer term of copyright protection and for a shorter term. My hon. Friend the Member for Southgate (Sir B. Baxter) has argued most persuasively, as is his custom, and I think convincingly, in favour of a very long term of copyright, perhaps copyright in perpetuity.
I should like to agree with him, if only in my own interests, but it is with some reluctance that I disagree. He is in good company, because one of the witnesses before the Board of Trade Copyright Committee in favour of copyright in perpetuity was Dr. Marie Stopes. I do not know whether she felt that she should have a perpetual copyright in the subject of her own writings, but she made a similar plea. However, I must agree with the Copyright Committee that the idea of perpetual copyright, or very long protection, is not in accord with the tendency of the times.
§ Sir B. Baxter
Let us take the case of a young writer of 20 years of age who is married to a girl of his own age. He may be a genius, perhaps a writer before his time. He writes a book which is 764 published and which sells a few copies. He struggles on and finally dies very young. His poor wife lives on. [Laughter.] The hon. Member for Carlton (Mr. Pickthorn) laughs. I see nothing facetious in this. The output of Cambridge finds great humour in a wife struggling on. He has his own sense of humour, and we cannot blame Cambridge for everything it produces.
§ Sir B. Baxter
That is fair.
The wife has a terrible time, and 50 years after the death of her husband she is still living. Suddenly the book becomes a great success. It is rediscovered, and publishers make fortunes from it, but she draws nothing whatsoever, as indeed she could draw nothing whatsoever at that stage.
§ Mr. Hyde
I follow my hon. Friend's point, and it is well known that hard cases make bad law but I think that he has advanced an exceptional case. The best answer I can give him is to read paragraph 17 of the Report of the Copyright Committee, which answers my hon. Friend's point completely. It says:The argument that a continuing right should subsist in property which is the product of the author's own brain is one which cannot fail to make an appeal, even if only for reasons of sentiment. It can be argued with force that property in the product of a man's brain deserves as much protection as property in the product of his hands and that, unprotected, it is more open to subsequent mutilation, with possible reactions on his reputation. Nevertheless, the principle of perpetual copyright in published works is one which has been foreign to our law for at least two hundred years, and it is quite contrary to the tendency of the times for the State to grant an unlimited right of the kind sought. The public at large has an overwhelming interest in the reproduction of literary, dramatic and musical works, and we are satisfied that it would be quite impossible to justify a right in perpetuity. It may be added that we are satisfied that the difficulties of establishing who is the true owner of a copyright work after a period of years are so substantial as to render the proposal impracticable, even if it were desirable in principle.In the case of the period of life plus 50 years, the term of 50 years is arbitrary, but that was the figure which was embodied in the 1911 Act, and it is that which it is proposed to re-enact in the present Bill. In addition—and this is of the greatest importance—it is the term to which the signatories to the latest version of the Berne Convention have sub- 765 scribed. That Convention is of tremendous importance to authors, composers and publishers, because each member country extends the protection of its own copyright law to the works of foreign nationals of other member countries.
I should like to say one other word about this Berne Convention—or perhaps I should call it the Brussels Convention. This arises out of what the hon. Member for Stechford (Mr. Roy Jenkins) and other hon. Members have said about the limitation of the copyright protection period accorded by our law whereby, for the last 25 years of the term, the copyright owner can be compelled to license the publication of the work in copyright upon payment by the publisher of a fee of 10 per cent. by way of royalty, calculated upon the retail price of the book.
I believe that that provision was inserted into the 1911 Act to give publishers an opportunity of being able to reprint cheaply the works of established authors. There are exceptions, of course —indeed, the hon. Member for Stechford mentioned one, namely, Kipling—but experience has shown that where the works of an author have been successful, that author is usually only too anxious for his works to be reprinted in a cheap edition long before he dies and certainly long before 25 years have elapsed after his death.
The reason why that part of the 1911 Act should not be re-enacted in the present Bill is that, although all the countries subscribing to the Berne Convention have agreed to a period of life plus 50 years, they cannot agree to make a change in their domestic legislation to permit of this 10 per cent. payment being incorporated. For that reason, therefore, I suppose it must be given up.
There are certain other points in which changes are made, for instance, in regard to joint authorship and anonymous publications, which have not been mentioned so far. Under our present law, where a work is the product of joint authors— and by that I do not mean such works as those of Gilbert and Sullivan, where the products of each collaborator are distinguishable, but where the work is really a joint work—the term of protection begins to run from the death of the first author. Under the Bill, and also under the terms of the Brussels Convention, the term runs from the death of 766 the last surviving author. Another point, not covered by the 1911 Act, concerns anonymous works, in regard to which it is laid down that, unless they are published under a pseudonym which is well known, copyright shall run from the date of publication.
I also want to say a few words about the Universal Copyright Convention, to which Her Majesty's Government will now be able to adhere when the Bill becomes law. That Convention is of the very greatest importance to us and our authors, composers and artists. That Convention was sponsored by U.N.E.S.C.O., and in 1952 was signed by over more than ninety States, including the Soviet Union and the United States of America—virtually every country in the world. It is very important that we should be able to ratify it because, although it affords rather less protection—life plus 25 years as against life plus 50 years in the case of the Berne Convention—the fact that the United States of America is a signatory and has ratified it means that the arrangements by which the works of British authors may be published in the United States in future will be greatly simplified.
The situation in the United States of America has never been very satisfactory for British authors. Until 1891, the works of our authors were quite unprotected in that country, as were those of all other foreign authors. Pirating of works took place upon an enormous scale. Occasionally, however, we were able to pirate American works. One case which comes to mind was that of Harriet Beecher Stowe's, "Uncle Tom's Cabin", which was published in 1852, long before the United States entered into a copyright understanding with us. Copies of that work were reproduced in very large numbers without any obligation on the part of publishers to pay royalties.
Generally speaking, however, the arrangement worked to the advantage of the United States because, after the first Berne Convention was concluded in 1886, the United States, although not adhering to that Convention, was able to obtain benefit by reason of the fact that it was laid down that any country which did not belong to the Union and had an author —
§ Mr, A. J. Irvine (Liverpool, Edge Hill)
On a point of order. Does this question arise out of the Bill?
§ Mr. Speaker
This is a Second Reading debate, and in such a debate the discussion is generally wide, covering matters which are either in the Bill or ought to be in the Bill, in the opinion of the hon. Member addressing the House.
§ Mr. Hyde
I am much obliged, Mr. Speaker. I do think that this point is of importance because I was trying to show how unsatisfactory the position was in regard to the works of British authors published in the U.S.A. up to the present. I was saying that the United States was able to take advantage of the Berne Convention by simultaneously publishing the works of its own authors in the country of a neighbour State—such as Canada— which belonged to the Convention—and obtaining the protection of the Convention, although in fact it did not itself belong to the Convention.
Also, the United States has required quite stringent formalities up to now. One is that works by foreign authors must be registered in the Library of Congress, and another is that, as stipulated in the American Act, they must be printed and "manufactured" in that country. British authors have, as a result, sometimes been put to a very great deal of trouble to secure protection for their work.
My hon. Friend the Member for Southgate referred to Oscar Wilde, and the position in regard to the Wilde copyrights. In 1911, in order to secure protection for the complete version of "De Profundis"—the work which Oscar Wilde wrote in prison—and to prevent unauthorised publication in the U.S.A., the executor of the Wilde estate had fifteen copies especially printed by an American printer and publisher, fourteen of which were distributed to his friends and, in order to satisfy the American copright law, the fifteenth was exhibited for sale. So as to prevent anyone buying it, the price of 2,500 dollars was put on the book, as it was thought that that would be prohibitive, but someone walked into the shop, put down 2,500 dollars and acquired it. There was a similar happening in the case of "The Mint" by T. E. Lawrence, where the price at which the books was offered was 500,000 dollars, but no one could produce that sum of money.
768 No wonder that President Eisenhower has said that he could not understand how authors and composers could get on without this Convention. As a result of our adherence to it and the adherence of the U.S.A. to it, these tiresome and difficult formalities of registration and manufacturing have now been dispensed with. All that is now necessary is for a simple symbol, the letter "c" with a circle round it, the date of publication and the name of the foreign author to appear on the title page, and automatically that obtains protection in the United States
. In this country we have been without the benefits of that protection for far too long. I welcome this Bill particularly because it will enable Her Majesty's Government to ratify the Universal Copyright Convention, and so result in very great advantage to British authors, artists, composers and publishers, as well as giving a much needed boost to our export trade in the commodities which those people provide for general instruction and entertainment.
There are only a few points in regard to the individual Clauses of the Bill on which I have anything further to say. In regard to Clause 4, of which we have heard a great deal, I must say that I agree that the position of a writer or journalist who is commissioned by a newspaper to contribute an article, or series of articles, is not really very satisfactory as the Clause is drafted, and I hope that it may be amended. An author or journalist, particularly an unknown or inexperienced journalist, who contributes a commissioned article in that way, frequently does not appreciate that the article can be syndicated all over the world in many newspapers without his knowledge, although under the arrangement with the newspaper he is liable to have it dealt with in that way.
Another small point concerns Clauses 7 and 40, which relate to libraries and archives and enable librarians to provide, by mechanical means—by photography, photostating or microfilms— students with copies of documents for the purpose of study, research, or even with a view to publication. The Board of Trade Copyright Report recommended that where a document or manuscript was more than a hundred years old and 769 the author or writer of it had been dead for more than fifty years, a person should be able to put an advertisement in the public Press saying that he wished to make use of that ancient manuscript for the purposes of his literary work, and if there was no objection on the part of the public, he should be entitled to do so. That recommendation does not find any place in either of those Clauses, and I wonder whether it is not a matter for consideration that something of that kind should be added.
Another small point relates to the copyright of the Crown, which is dealt with in Clause 38, which says in subsection (1):Where an original literary, dramatic, musical or artistic work is made by or under the direction or control of Her Majesty or a Government department,—I would he very grateful if, when the Parliamentary Secretary replies, he would throw a little light on that Clause. Does the expression
- (a) if apart from this section copyright would not subsist in the work, copyright shall subsist therein by virtue of this sub-section, and
- (b) in any case. the copyright in the work shall vest in the Crown."by or under the direction or control of Her Majesty or a Government departmentapply, for instance, to a petition addressed by a prisoner in one of Her Majesty's jails to the Home Secretary, or a letter written by a prisoner? Would that be held to be,under the direction or control of Her Majesty or a Government department"?The final point which I want to make concerns Ireland. I am very glad that the Act is to apply to Northern Ireland, as did the Act of 1911. In this connection it is laid down that the Section in 1911 Act—I think Section 15—which makes it obligatory for publishers to supply certain libraries, such as the British Museum, with copies of works which they publish is re-enacted. Amongst those librarles is that of Trinity College, Dublin. During the hearing of evidence by the Copyright Committee objection was taken to the proposed continuance of this obligation on the part of publishers to supply works to an authority or institution which is now part of a Republic which is outside the British Commonwealth.
In view of the very close ties of Trinity College, Dublin, with this country, its 770 great contribution to education and learning, and having regard to the fact that Trinity College, Dublin, has enjoyed this privilege for over a century-and-a-half, I believe it would be a great pity if it were to lose it now, and I am very pleased that it is not intended to deny to the College the continuance of this privilege and that the College will continue to receive these works if Section 15 of the 1911 Act is re-enacted, as is proposed in the Schedule.
Finally, apart from a few improvements which no doubt will be made in Committee, I regard this as a most desirable Measure. Speaking for myself, my only regret is that it was not introduced much sooner.
§ 6.31 p.m
§ Mr. A. J. Irvine (Liverpool, Edge Hill)
I agree with a good deal that the hon. Member for Belfast, North (Mr. Hyde) said in the course of his lively contribution to the debate. At one time, however, it seemed to me that he was treating this as the Measure by which the House was being asked to ratify the Universal Copyright Convention and the Brussels Convention of the Berne Union. I agree with him that undoubtedly very great advantages will accrue to this country from these Conventions; there is no doubt that it is very important that British authors should be protected in the United States, in particular, by the simple formalities proposed in a whole host of instances without there being any requirement that the work published over there will be manufactured with type set up in the United States.
I entirely agree with what the hon. Member said about both the Universal Copyright Convention and the Brussels Convention of the Berne Union, but I would regard it as unfortunate if this House, on Second Reading or in Committee, were to permit its welcome to these Conventions and its opinions about them to obscure the other issues which arise from the Bill. One point which I should like to have made clear is the extent to which the Government regard their treatment of the Bill in Committee as already largely determined by reason of the necessity, upon which we all agree, of this country adhering to the Brussels Convention and the Universal Copyright. Convention.
I hope that the Government, through the President, will pay special attention 771 to the very interesting fact that in the course of the debate, and from both sides of the House, there have come strong pleas to him about both Clause 4 and Clause 8. A striking feature of the debate has been the extent to which hon. Members on both sides of the House have agreed upon the very important issues which arise under these Clauses, and I want to ask him—because at the moment I do not know—whether there is anything in the Brussels Convention or the Universal Copyright Convention which in any way inhibits or affects the Government's decisions upon the matters that arise out of Clauses 4 and 8. I conceive the position to be that the decision of the House upon the matters arising under these two Clauses is not affected by anything in the Conventions, but it would be valuable to have that confirmed.
This is, of course, an extraordinarily important Bill, which is designed to bring the law of copyright up to date. As we all know, the last Copyright Act was as long ago as 1911, and the length of time that has passed since that Act is brought home to us by the emphasis which it places upon the perforated roll. That was at the time regarded as the most remarkable of the recently discovered contrivances for musical performances.
The period of time which has expired is considerable and the problems which have arisen as a result of technical discovery and invention since the 1911 Act are very great indeed. What I regard as a serious feature of the Bill is that as the inventions have increased in scope and importance and as the mechanical contrivances have become more significant and more powerful, so insistently, the relative status and importance of the creator of the original work in copyright law has been pushed back. I believe that to be a very serious thing. It is not unexpected that authors and artists should fail to combine together to protect their interests. They are the last people one supposes who would be able or perhaps willing to do so, just as they are the first people foolhardily to sign away their copyrights to a commissioning editor.
Be that as it may, it is to my mind a most important feature of the Bill that the author, as distinct from the producer of the mechanical contrivances and the records, as distinct also from the great corporations and companies which control 772 broadcasting, as distinct from these great forces whose powers are carefully safeguarded in the Bill, is pushed into the background. I believe that we must watch the interest of authors and artists in this respect very carefully indeed. I believe that the author and the artist is, ex hypothesi, if he is distinguished in that rôle, unlikely to be very alert to his business interests, and I say that with great respect to the hon. Member for Southgate (Sir B. Baxter), since there are exceptions to every rule.
The House has an opportunity in this instance of intervening on an important matter to protect the position of authors and artists. I believe that the principle which we should regard as central in this matter is that we want to preserve for the author or the artist, the creator of the work, the maximum protection of his property in his creation which is consistent with a wide circulation and diffusion of his work. As far as can be, the two things should be balanced together—the kind of balance which in some ways is reminiscent of what the President of the Board of Trade has been doing recently in dealing with restrictive trade practices.
I think the principle to which we should adhere in this matter is that of trying, as far as we can, to combine the maximum protection for the creator of an artistic or written work of the property in his work with the greatest possible circulation and diffusion of his work in the public interest. As far as the public interest is concerned, that can be very largely effected in my view by the fair dealings provisions. What is lacking in the Bill are provisions to protect the author's interests in particular. Clause 4 is a most striking example of that. It is new law, as I understand it, that an author commissioned to write an article does not have the copyright in the work that he writes. That is new law and it is quite clearly derogatory to the author's position in the law of copyright.
It is perfectly true, as has been said, that an author may over the telephone, or quite casually sign, away copyright by the statutory effects of this provision, and sign away something, in all likelihood, which may prove incomparably more valuable than he realises. One of the features of copyright is that at the time the written work is executed no one knows how valuable commercially the 773 property in it will prove to be. The author does not and the employing editor or publisher who is to publish the work does not know. It takes time to find out these things. That is a feature of the matter which, in my view, should always be in the minds of those considering the law of copyright.
1ndeed, I believe that the nature of this type of ownership is so distinctive in character that a very strong argument could be brought forward for having a special provision of the law, similar to the Hire Purchase Act in its endeavour to protect a particular class of contracting party, to protect the rights of authors in respect of their copyright and to enable them in certain circumstances, if events justify it, to adjust the contract or avoid its effect sooner than would ordinarily be practicable. One could do this, first, because the parties to the matter are so unlikely to be alert to their business interests, and, secondly, because of this peculiar feature to which I have ventured to draw attention, namely, the fact that when the property right accrues there is no one in the world in a position to know what its value will be commercially measured in the course of time.
This provision which is proposed, whereby an author can abandon his copyright for commissioned works under Clause 4, has to be considered, in my view, in the context that the Bill is taking away the restricted copyright which was provided for under Section 3 of the 1911 Act. That change, I understand, is a direct consequence of the need, which we all recognise, to adhere to the Brussels Convention. I am not arguing at the moment against that, but it is important to recognise that the taking away of that provision may often prove derogatory to the author.
The position under the existing law, as I understand it, is that where an author writes a work which proves in the event to be a good deal more valuable than it was thought to be by the author himself or the publisher, at the time when the copyright was assigned away, then at the end of 25 years there commences a period of restricted copyright. It then becomes open to any other publisher who gives the necessary notice and who pays the 10 per cent, royalty to publish the work, and the author's work published by that publisher will not be an infringing copy and will not 774 infringe the right of the assignee of the copyright. That is a most important advantage for an author in the particular case which I have described, where the value of the work proved to be much greater than was contemplated when the copyright first accrued.
It may be of great importance to an author, if he is to get the maximum out of his product, to have cheap editions of his work, and yet the publishing firm which is the assignee of the copyright may be reluctant to publish cheap editions. If the author is disadvantaged by that fact, then by the proviso of the 1911 Act it was open to other publishers to pay 10 per cent. to the author on the cheap editions of the work after his 25 years. I am not objecting to the change. I am only endeavouring to bring to the attention of the House that, at whichever point we look at this Bill, we find that it is the author, the original creator of the work, who is being shouldered and e1bowed out. I ask that Clause 4 should be considered in the light of that.
It is true, of course, that the Copyright Committee applied their minds to this point, and that it has stated that, in its experience and on the evidence which it received, the practical advantages to authors of the proviso under Section 3 of the 1911 Act had not proved of very great importance. The reason they give is that where it is desirable to have, at the end of 25 years or so, a cheap edition of a popular work and the assignee of the copyright is reluctant to publish a cheap edition, in practice the assignee is usually agreeable to allowing other publishers, by licence, to do so. The Committee has found, in practice, that this is not a matter which gives rise to very great difficulty. It seems to me to be a matter of some importance, however, and I ask the House and the Government to consider these encroachments on authors' rights in the light of considerations of that kind.
Clause 8 of the Bill is another glaring example of advantage being taken in practice—I do not say with deliberate unfairness—of the vulnerability of the creators of artistic works. As has been said—and I think that it bears mentioning again—the effect of Clause 8 is that a composer who has authorised another party to make a sound recording of his work thereby gives away all safeguards. which he possesses against the cheapening 775 and derogation of his work by a whole host of other competing reproducers. This is a very serious matter indeed. It is not, of course, at all met by the fact that a royalty has to be paid. It is quite wrong to assume that what is valuable in copyright is limited to the right to recover payment for the reproduction of a work.
There is another feature, namely, the extent to which the standard of reproduction of the work is safeguarded, and that is a feature, not of a commercial or pecuniary kind, to which many composers attach the greatest importance. Under the Bill, it is clear that if a composer has composed a work and gives to any producer of records the right to reproduce the work on a record, by that action he gives the right to everybody else to make a record for sale and his copyright in his work is not infringed by other producers who produce the work on discs, playing it perhaps by orchestras or bands of inferior quality and making a mockery of the whole thing.
It is true that the producer of the second and subsequent records of works for sale has to give notice to the composer, but he is to do so, I understand, by mentioning the matter in the London Gazette. The prospect of a distinguished composer reading the London Gazette at breakfast and learning in this fashion that his composition is to be reproduced by still another exploiter is farcical and unrealistic. In Clause 8, therefore, there is another example of the erosion, as it has been described in this connection in another place, of the rights of the originators of artistic works.
I would venture to mention only one other example. If I have the point wrong in any way, I hope that the right hon. Gentleman or the Parliamentary Secretary when he replies will put me right. The point which I desire to mention seems to me to be related to the points to which I have referred. The new copyright in television performances, it seems to me, is a new kind of right altogether. It is much more in its nature a performing right than a copyright.
A television performance, so it appears, gives rise to a property right although no tangible record of the performance is made. It does not go on to a disc; it may be in many instances improvised, so 776 that there is no preparatory script and the performance possesses no permanent form, but although it possesses no permanent form it gives rise to a property right in the nature of copyright. That is what I understand to be the effect of this novel departure.
It is to be observed that here again the original creators of the work are elbowed out because the people who perform have no rights conferred upon them. The property is all in the possession of the British Broadcasting Corporation or the Independent Television Authority. That seems to me to be quite wrong. It can be said that these performers or participants are agreeable enough to having all property rights arising out of the enterprise assigned to the employing authority, to the I.T.A. or the B.B.C., respectively. I wonder whether they realise how much they are giving away. It is an interesting feature to observe that where a new form of ownership of property in a television performance is created, it is handed by Statute to the Authoritles while the participants in the improvised performance which has been brought on to television, who are in any true sense the creators of the thing have no property rights in the matter at all.
Mainly, therefore, on the ground that authors and artists who create original works are not receiving the due protection to which they are entitled, I invite the House to watch with vigilance the provisions of the Bill.
§ 6.55 p.m
§ Mr. Graham Page (Crosby)
The hon. Member for Edge Hill (Mr. A. J. Irvine) opened and closed his remarks by indicating his approach to the Bill as being one of protection for the author, the artist and the creator, and in that he was repeating what has been said by other hon. Members from the Opposition benches. Let me at once assure the hon. Member that that approach to the Bill is not a monopoly of the benches opposite. As has been shown by speeches from this side, we too approach the Bill from the point of view of protecting the creator of a work in which a copyright can exist.
Like all other speakers today, I welcome and support the Bill, not only because it is an overdue implementation 777 of the Report of the Copyright Committee, not only because it enables us to ratify the Universal Copyright Convention, but because, after all these years from 1911, it is surely time that Parliament looked again at the copyright law under the modern conditions of publication and of reproduction, which have changed so much since 1911, and should look again to see whether, on the one hand, the author and creator is getting a fair and encouraging protection under modern conditions and whether, on the other hand, the public are getting a fair share of the creative talents of the nation.
I am not sure whether the Bill entirely takes modern conditions into account. There are certain ambiguities, for example, concerning the recent innovation of the advertising film for television. I find a little difficulty in construing such modern innovations as that. But such criticisms as I wish to make will, I hope, be constructive and in no way detract from my general support for the Bill.
It has been said how Clause 4, which has been mentioned again and again, cuts into the basic principle of the existing copyright law that the author is the owner of the copyright. Perhaps the House will forgive me if I give an illustration of that basic principle from personal experience. It is an instance which drove home that principle to me when I was a young articled clerk in a solicitor's office and I had to write some letters complaining about the conduct of a certain gentleman. He pinned those letters to his front garden gate. The client was a little upset at having his affairs exhibited to his neighbours. My principal was a little upset because he thought it was unfair advertising and he told me to do something about it. I could not tear down the letters from the gatepost for that would have been theft, because the property in the paper on which letters are written is vested in the addressee. So I took proceedings to obtain an injunction against the gentleman who had stuck the letters on the gatepost, to restrain him from publishing my literary efforts without authority. I succeeded in those proceedings to protect those rather poor literary efforts in letters that I had written.
I do not think this Bill would prevent such an action in future, but it makes an inroad into the rights of the original 778 author. As the law stands at present, there are only two exceptions to the rule that the author is the owner of the copyright. One exception, in the case of engravings and photographs, is that if they are commissioned the person who commissions them is the owner of the copyright. The only other exception is in the case of master and servant where the master is the owner of the copyright in something produced by his servant. I use the phrase "master and servant" deliberately, although one would perhaps better call them employer and employee.
Before complaining of how Clause 4 introduces further exceptions and restrictions on the author, may I say that I would have wished to see a reduction in the existing exceptions, for example with photographs. I can see a good reason why, if one commissions a portrait of oneself, the copyright should remain in oneself. I am sure that is merely expressing in law the obvious intention of the sitter and the photographer when the transaction is brought about. But I cannot see why, if one commissions a photograph of a landscape, or something of that nature, that should give one the copyright in that photograph. If a person commissions a painter to paint a landscape, that person does not obtain the copyright in that printing. But if a photographer is commissioned to photograph that landscape, the person commissioning him obtains the copyright.
I would have like to see that exception of the general rule that the author is the owner restricted to portrait photographs and not extended, as it is at present. to landscape photographs as well. Clause 4 (3) does not carry out the principle which I favour. It says:…where a person commissions the taking of a photograph, or the painting or drawing of a portrait"—there is some distinction between a photograph and the painting or drawing of a portrait—or the making of an engraving, and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, the person who so commissions the work shall be entitled to any copyright subsisting therein …So much for photographs.
Let me turn to the other exception of the master and servant. The copyright in anything produced by a servant in the course of his employment belongs to the 779 master. I had the privilege recently of moving in this House a Motion concerning suggestion schemes in industry, and as a result of that there were brought to my attention many examples of cases where employees had failed to co-operate with suggestion schemes because they were afraid that they had no property in the idea put forward. They feared that if they committed their idea to paper in a form which would have been capable of copyright, they would not get the benefit of it.
This applies particularly in patent law relating to inventions by employees, but it applies also in copyright law particularly in relation to the administrative clerk who devises a new form, and perhaps new wording on a form, which may save an enormous amount of money, particularly in Government Departments, for instance. The employee refuses to put forward the idea because he gets no copyright. His master has the copyright.
I would have liked to see this aspect of the law restricted by the alteration of the wordsin the course of the author's employmentto something like "which the author is employed to make." If he is employed to produce creative work, well and good; the master should receive the benefit of it. But if he is employed in a job where his boss says, "You are employed to work, not to think", the copyright in anything creative which he does produce should remain in the employee concerned.
Again, with regard to Clause 4, mention has been made of the position of the newspaper proprietor and the journalist. We have heard today from hon. Members who are professional journalists, but I think one point has not been mentioned in this connection which applies to the more humble Members who perhaps write an article now and then in the newspapers, and in this I must declare an interest.
Many hon. Members know the position. A Lobby correspondent comes along and says, "My editor would like an article from you on the charges for chiropody in the Health Service", and one is rather flattered and writes it. One receives, perhaps, a few guineas in payment, or nothing at all if the newspaper happens to be published in one's 780 constituency. Perhaps one strikes a streak of genius, and the article is sent to the syndicated Press.
But I think the more important point to those of us who write an article only infrequently is that if under this Bill the copyright in it is going to be vested in the newspaper proprietor, those happy phrases which we have used in it and which have prompted the newspaper proprietor to sell it to the syndicated Press we shall never be able to use again. We shall not be able to express our arguments in the same phraseology—and that may be very important in political life.
§ Sir B. Baxter
May I interrupt my hon. Friend, as this is a subject of which I have some close knowledge? I do not know any newspaper editor in this country who, if he commissioned an article such as my hon. Friend has described and was able to syndicate it abroad, would not share on an equal basis with the author. I believe that is universal.
§ Mr. Page
I am greatly reassured by my hon. Friend's remarks.
I was about to refer to the case which is not a simple transaction between the newspaper proprietor and the journalist but which is a three-party transaction between a newspaper proprietor, an advertising agency and a manufacturer of goods to be advertised. Again, in this connection I must declare an interest as a director of an advertising agency.
The advertising agency prepares an advertising campaign—the designs, layout, copy and so on. It prepares that for publication in a newspaper, and therefore it comes within the terms of this Clause. At present, the copyright in a campaign of that sort is vested in the advertising agency, but under this Clause it would become split between the newspaper proprietor and the salaried staff of 781 the advertising agency by reason of subsections (2) and (4) working together. Under the present law, therefore, the advertising agency owns the copyright in the advertising matter. By this Bill it will be divested of that. Half will go to the newspaper proprietor and half even to the salaried staff.
What the position is if under this subsection an advertising agent employs a free-lance artist I dread to think. The free-lance artist is preparing the work:in pursuance of a contract with another person—that is to say, the advertising agent. The advertising agent is preparing the campaign:in pursuance of a contract with another person—that is to say, the newspaper proprietor. I am afraid that under those circumstances subsection (2, b) is almost unintelligible.
I think that the position of the advertising agent and the whole transaction of newspaper advertising has not been given any consideration in the drafting of Clause 4 and will have to be thought about again in Committee. In fact, I believe that the position of the advertising agency has escaped the attention of the draftsman altogether. If one turns to Clause 13—the "Cinematograph Films Act Clause "—by subsection (4)…the maker of a cinematograph film shall be entitled to any copyright subsisting in the film by virtue of this section.But by subsection (9) the maker is said to be…the person by whom the arrangements necessary for the making of the film are undertaken;Then there is a proviso making an exception to that. It reads:Provided that, in the case of a cinematograph film which is made in pursuance of a contract between the maker of the film and another person, for the purpose of advertising the latter person's goods or services or for use in connection with those goods or services, the latter person, in the absence of any agreement to the contrary, shall be entitled, subject to the provisions of Part VI of this Act, to any copyright subsisting in the film …the "latter person "being the manufacturer of the goods to be advertised.
That is not the way, however, in which cinematograph films are produced for advertisement purposes. The contract is between the maker of the film and the advertising firm, not between the maker 782 of the film and the manufacturer of the goods to be advertised. In that case this proviso would not apply to the normal contract at all, and the result would be that the copyright of the film would remain with the maker of the film. I do not think that enough attention has been given to these advertising contracts when the Bill was drafted. Nevertheless, with those few words of criticism, I again express my welcome to and support for the Bill.
§ 7.15 p.m
§ Dr. Barnett Stross (Stoke-on-Trent, Central)
I must say that I was delighted to hear from the hon. Member for Crosby (Mr. Page) that he does at times write articles without fee. It makes one feel very reassured to be in reasonably good company, although I am reminded that there is art old phrase, first used in Babylon, 2,300 years ago, to the effect that the doctor who charges his patient nothing for his advice gives him advice worth what he charges.
So much has already been said on this Bill that there is not a great deal for me, with my limited knowledge, to say about it. I did notice, however, that both the President of the Board of Trade and my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) were able to make Second Reading speeches. I thought that my hon. Friend's was the better speech because it was fuller and more critical.
For someone like myself to make a Second Reading speech on this Measure is almost impossible. I am fortified by the fact that it was not found easy in another place, where it was noted that the whole of this Bill, which is so important and so very comprehensive, is, after all, a series of Committee points strung together. One, therefore, has not to apologise too much if one stresses a particular part of it.
By and large, of course, we welcome the Bill. The advantages have been pointed out and are very apparent. The President, at the very beginning of his speech, highlighted the fact that British copyright owners will be able to obtain protection in the United States without their work being set up in type, printed and bound—in other words, manufactured —over there.
In that respect the Bill means that the United States and this country stand on 783 equal terms for the first time, and I think that everybody will welcome that. It is not only the author who is to get some advantage. Our publishers in Britain will also, through the export of books, gain an advantage that in the past they tended not to have. I need hardly add that we might even gain a few extra dollars, which might not be a bad thing, particularly in this direction and by this means.
one part of the price we shall have to pay was mentioned by the President. He mane it clear that one of the qualifications of the 1911 Act must disappear, namely, that during the last 25 years of the copyright life of a published work it will no longer be possible to re-publish as of right, merely by payment of a statutory royalty of 10 per cent. That is part of the price we pay, but I did not hear either the President or anyone else— and as I was out of the Chamber for a little time I must here apologise—say that we lose another safeguard or qualification. The power of the Judicial Committee of the Privy Council, which today has power to over-ride any refusal of the copyright owner to permit republication of a work after the author's death, will disappear. I think I am right in saying that that, too, we must lose.
Generally speaking, I think that those two qualifications have to be given up. We are sorry about the first one in particular, for reasons given very clearly by hon. Members on both sides. It has been of advantage to the public that after 25 years a work that was wanted by the public could be obtained in a cheap edition. This we are now to lose, and it is a very great pity. None the less the advantages we get are such that I think we must accept the limitations with good grace.
The President touched also on the contents of Clauses 7 and 40. He said that research is not to be impeded as a result of copyright; that both our libraries and archives will receive, and be able to make copies of, articles to be used by students—although, of course, a reasonable limitation must be placed upon that facility. I note, too, that elsewhere in the Bill there will be no problem facing our schools or our education committees and that extracts from any kind 784 of work can be made for the use of students in schools.
May I ask the Parliamentary Secretary whether adult education will fall into this category, or will there be any special problem that has not been thought about that might impede the progress of adult classes? I have not noted it in the Bill, but perhaps the Parliamentary Secretary will give us his advice when he answers.
In another place there was considerable discussion about the attitude of the Musicians' Union to gramophone records. It is most understandable that musicians should try to protect their livelihood and say that where it is reasonably possible performances should be done by "live" performers. That is quite reasonable. I believe it is true that in the United States, where there is no protection whatsoever and the recording may be played anywhere, the practice became so obnoxious to living performers, the musicians, that there was a strike against the making of records of any kind that lasted for a considerable time. Therefore, I do not think it is reasonable to accuse musicians because they wish to protect their own means of livelihood.
Clause 4 has been under fire all day, and I certainly think that it Is a most obnoxious Clause. The hon. Member for Crosby spoke of the "masterservant" relationship. Of course, that is really what it deals with, and the dice seem to be loaded very heavily in favour of the master and not in favour of the servant, and the House must do what my hon. Friend the Member for Edge Hill (Mr. A. J. Irvine) said—protect especially people such as authors and artists because they have so little capacity for protecting their own personal business interests. 1f we here do not do it, no one anywhere else will.
It is worth while considering some of the provisions of Clause 4. I do not apologise for doing so, because everybody else has had a go at them, and I hope that the House will bear with me while I do also. I shall not say anything about subsection (2) because I do not know very much about newspaper men, and the subsection has been dealt with already. I was once asked by a great national newspaper to write an article, and I wrote one of great length, the usual 2,000 or 3,000 words, but that newspaper forgot to send me any money for 785 it. However, I shall now come to something more important than that.
Subsection (3) says:Subject to the last preceding subsection, where a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and pays or agrees to pay for it in money or money's worth, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.I think that this is in part puzzling and in part obnoxious. It is obnoxious because it takes away provisions of the 1911 Act.
I have been told more than once by painters, friends of mine, that automatically the copyright rests with them unless they specially assign it away on request, and that is a legal document. That is what I have been told. They have given me specific instances of photographs taken of their works without their permission, and they have been able to obtain money because they have held the copyright.
The Parliamentary Secretary seems in doubt about it, but I am telling him what they have told me, and they have been paid in such cases. One of them is now exhibiting in the Royal Academy. He is quite a good painter. He has told me that he has done very well out of this activity. So I hope that the Parliamentary Secretary will give this consideration. I think I am right in saying that under the 1911 Act, unless he assigns it away, the copyright belongs to the artist.
§ Mr. Walker-Smith
Not if he was commissioned specifically to do the portrait or painting in question. Some of the hon. Gentleman's eminent artistic friends may, of course, have been painting some of their subjects other than by commission.
§ Dr. Stross
Yes, that may be. The cases to which they were referring are those to which I am referring, to works purchased from the studio of the artist. The Parliamentary Secretary will agree with me that in that case the artist does hold the copyright, the portrait, if it be a portrait, not having been commissioned by the sitter. I see the difference.
Subsection (3) contains the words…photograph, or the painting or drawing of a portrait, or the making or an engraving….786 but does not say anything about sculptures or the making of a bust. In Clause 3 (1) "artistic work" is described as including "sculptures". It means…paintings, sculptures, drawings, engravings and photographs…,In Clause 4 there is no mention of sculptures. Does that mean that if the Parliamentary Secretary should wish to have his features, as it were, immortalised in bronze by sitting for a sculptor, and takes the bronze home—of course, originally the likeness would have been in a plastic material, in clay—he can reproduce it because he has the copyright?
That is the question I ask him. Suppose he wants to give to the members of the Cabinet, and to the other Parliamentary Secretaries, and to those who sit behind him, and, perhaps, to his constituents copies of the bronze of his delectable features, has he the right so to dilute the work of the eminent sculptor who makes it? I should like him to give this thought, because if by the Bill that is possible, I think it is quite wrong. It is a mistake, and we should not do it, and we must have safeguards against it.
I gather that I am right and that the Parliamentary Secretary agrees with me that by the Act of 1911, apart from commissioned portraits, automatically the copyright vests with the artist, other than the copyright in those things which are strictly commissioned. This right is now to be taken away, and this is what has been called the "erosion of the principle of copyright."
Artists, I assure the Parliamentary Secretary, do not always make a very good living, whether they be sculptors or painters. Indeed, it is very dubious whether there are more than a few hundred who make £750 a year gross. There are a few who do very well, but they are very few and can be counted upon the fingers of the two hands. In Clause 4 we take away a little more of their rights, and that is a mistake and we should not do it.
In France, it is recognised that artists, painters, sculptors need special protection, and they get it, but not individually. They get it in this way. It is recognised that paintings and pieces of sculpture sell not once only, but several times. That is to say, the first purchasers 787 sell them to others, and sometimes at very enhanced prices—sometimes.
In France, a portion of that enhanced price is taken away by a tax and is kept in a common pool and is used for young artists, to endow them with scholarships, and for older artists who fall into poverty, so that they may have some financial help. I think we might have considered something like that for artists, and authors, too, if necessary, rather than take away from them a right which possibly may have been of some financial assistance to them up to now, an assistance which should be kept in the future, since we are taking the right away.
Most of us on this side of the House feel very strongly that we must do everything we possibly can to see that those who have intrinsic copyright in their work, or those who create things out of their minds for the pleasure or education or assistance of mankind, should have from us in this House as much protection as possible. I know, therefore, that the Parliamentary Secretary will not be surprised if in Committee everything is done to try to see that Clause 4 is strengthened for that purpose.
§ 7.30 p.m.
§ Mr. F. P. Bishop (Harrow, Central)
I agree with those who have said that a Second Reading debate on a Bill like this is bound to be largely a succession of Committee points. I do not think that they should be developed at great length at this stage, though it is right that the Government should have an indication of the points with which they will be asked to deal in detail later on.
I feel that with that introduction I might be allowed to make my small contribution to discussion of Clause 4. It arises from what has been said about advertisements in newspapers. I have no interest in an advertising agency, but I am concerned as to what the position of the advertising agent may be under the Clause if it remains unamended.
Clause 4 (2) provides for the case of…a literary, dramatic or artistic work…made for the purpose of publication in a newspaper, magazine or similar periodical…in the course of the author's employment by another person under a contract of service…or in pursuance of a contract with another person providing specifically for the making of that work…788 The advertising that is prepared for publication in a newspaper is normally, if not almost invariably, prepared both in the course of the author's employment and also in pursuance of a contract with another, different person who has ordered the making of a work for the purpose of its publication in a newspaper. In that case who becomes the owner of the copyright? I do not know whether the Parliamentary Secretary can answer me now. I do not press him to do so, but I hope that he will provide a satisfactory answer in Committee.
I intervene in the debate, however, mainly because a great deal was said earlier about the provision of broadcast relay stations. I tried to follow the argument which was put forward for excluding the reference to broadcast relay stations in Clause 46. I have to declare an interest here. I am a director of a company which, among other things, operates some of these stations, both at home and abroad. This point was raised in another place but was not pressed there. I think that there was not a full debate, but I hope that the Government will resist pressure in the House or later in Committee to alter the position as now set out in the Bill.
I say that because I think that the argument put forward by hon. Members on both sides of the House is based upon a misunderstanding of what broadcast relay stations really are and what they do. The hon. Member for Rossendale (Mr. Anthony Greenwood) referred to broadcasting stations in Hong Kong and Malta in particular—and there are others— where programmes are put out to listeners in their homes. But that is not, as I understand it, the operation of a relay service. That is broadcasting by wire and in every case where these companies originate the programmes which they give over their wires to their subscribers they pay the copyright fees for the matter they originate, in exactly the same way as does the B.B.C. or the I.T.A. or anyone else.
In this country, however, relay stations originate nothing at all. They are not allowed to originate any programme under the terms of their licence from the Postmaster-General. The hon. Member for Islington, East (Mr. E. Fletcher) referred to that licence. I do not know whether he has ever seen one. I should imagine not, from the way he referred 789 to it. I assure him that it is a formidable document and leaves very little in the way of powers which the PostmasterGeneral may require to control the stations and, above all, to see that they do not originate any programme.
These companies are simply an alternative method of transmitting the established programmes of the B.B.C. arid, to a smaller extent, foreign programmes to subscribers who have a different piece of mechanism in their homes but who pay exactly the same licence fee as is paid by every listener to wireless broadcasts. My hon. Friend the Member for Hornsey (Sir D. Gammans) and the hon. Member for Islington, East drew a picture of a possible expansion and development of these services to something quite different from what they are now. If that happens, it can be dealt with by the same means of control as that which operates now. If it were thought desirable, for example, to restrict those companies which were relaying over the wires the television programme of the I.T.A. to a limited geographical area, there are ways of doing it, but it does not seem to me that the question of copyright enters into it at all.
To treat the reception of broadcast programmes in this country over the wire from a relayed service differently from reception by a wireless set is to put the two parties who are competing with each other for the listener's custom in a different position. I submit that that would be entirely wrong. It is illogical and it misunderstands the position of the relay services. I hope very much, therefore, that the Government will stick by the recommendation of the Copyright Committee which said that no change should be made in this respect.
§ 7.37 p.m.
§ Mr. William Wells (Walsall, North)
I must apologise to the House and particularly to my hon. Friend the Member for Rossendale (Mr. Anthony Greenwood) and the right hon. Gentleman the President of the Board of Trade for my inability to be here to hear their speeches. I never miss, as I am sure no other hon. Member does, a speech by my hon. Friend the Member for Rossendale unless I cannot possibly avoid it. As for the President of the Board of Trade, whilst I sometimes find myself differing 790 from him in politics, my gratitude and that of my profession for the efforts which he is making in the Restrictive Trade Practices Bill to put an end to what is described in the Press as a slump at the Bar, which are all too welcome to members of my profession, is too great for my own political feelings to enter into this matter. I seriously apologise to him for not having been able to hear what he said.
As many hon. Members have pointed out, the Bill is complicated, technical and difficult. It lends itself mainly to discussion of Committee points, but before we reach them there are certain points of approach and of philosophy which, as far as possible, we should try to make clear. In the first place, it is obvious and scarcely needs to be stated that a balance must be struck between the public interest and the interests of creative artists whether they be writers, painters or others, and the necessary business interests of those, who, like publishers, earn their living by dealing in the commodities which writers and artists create. All those interests have to be borne in mind and balanced one against the other.
The first question on which there has been any difference of philosophy between hon. Members during the debate has been that of the life of copyright. The hon. Member for Southgate (Sir B. Baxter) in particular appears to emerge as an advocate of perpetual copyright. On the other hand my hon. Friends the Members for Stechford (Mr. Roy Jenkins) and Stoke-on-Trent, Central (Dr. Stross) emerge amongst those who have fears that the present life of 50 years envisaged in the Bill is too long, that it represents a retrograde step in comparison with the provisions that obtain in the 1911 Act, which we are in course of repealing, and that the interests of the public in particular require a good deal of latitude in the second 25 years of the life of the copyright in respect of the production of cheap editions.
In my opinion the case for a perpetual copyright is a sentimental one. I say that with all respect. I do not think it is desirable on any ground to perpetuate long terms during which descendants may acquire large incomes merely because of the artistic merits of their great grandparents or great, great grandparents. It is opposed to the economic 791 doctrines for which my party stands. But apart from those, it would be impracticable in the case of copyright and would not serve the purpose which the hon. Member for Southgate had in mind. I feel that the effect of creating a perpetual copyright would be merely to stimulate a new branch of an existing form of dealing in the products of other people's brains and talents, and that the business men would soon step in to obtain for the benefit of themselves what this House might intend for the benefit of the artists' descendants.
For myself I am much more disposed to share the fears and view of my hon. Friends the Members for Stechford and Stoke-on-Trent, Central than I am on this issue to share the views of the hon. Member for Southgate. Subject to a general equity, and generally sensible arrangements being reached between the three sets of interested persons—the public, to whom we in this House owe a primary duty, the artistic producers and the business producers—the over-riding claim should be that international arrangements should be made on as uniform a basis as possible. I agree entirely with one hon. Member who pointed out that international uniformity was in the best interests of authors and artists.. Therefore I think that our second guiding principle should be the maximum measure of uniformity which it is possible to obtain internationally. So obviously we on this side of the House welcome the ratification of the 1952 convention.
Before passing to a few points of relative detail, I shall select one or two Clauses which are to be welcomed. The first is a small point in itself but it has been attacked in certain quarters, namely, the continuance of the obligation to send copies of new works to the libraries of deposit. It may be a small disadvantage to the trade to have to comply with this obligation, but I am sure that it is in the wider interests of learning and of the public that the practice should be continued.
I also agree with the point made by the hon. Member for Belfast, North (Mr. Hyde) in which he welcomed the fact that no exception was made in this respect for Trinity College, Dublin, in spite of the constitutional changes that took place in 1948. I am sure that this is in the interests of international comity and good 792 feeling between this country and Ireland, and I welcome it.
I can welcome generally too the provisions of Clauses 13 and 14 dealing with the copyright of films and in broadcasting. I listened with interest and attention to what was said by the hon. Gentleman the Member for Harrow, Central (Mr. Bishop) in relation to Clause 14. However, having heard what my hon. Friend the Member for Islington, East (Mr. E. Fletcher) said on this matter, I must confess that I feel this is a question which in Committee we shall have to investigate. If any Amendments are framed to put into a more specific form the points made by my hon. Friend, I am sure that my hon. and right hon. Friends will seriously consider supporting them.
Now, passing to more specifically legal provisions in the Bill, I welcome particularly subsection (4) of Clause 18 and also Clause 19. Clause 18 (4) makes is possible—I believe for the first time, though I do not speak as an expert—for exemplary damages to be obtained in a copyright action where there are particularly bad features in the infringement. Secondly, I feel sure that the counterbalancing provision in Clause 19, which limits the obligations of, so to speak, an innocent infringer to rendering an account of his profits, is also wise and just.
Finally, on this class of point, it seems to me that the general provisions for the shape and structure of the Performing Right Tribunal are sound. I believe that the point made by the hon. Gentleman the Member for Carlton (Mr. Pickthorn), that it might be helpful to introduce a more precise definition of the members who should serve, apart from the legal chairman, and that this might be as useful to the Board of Trade as to anybody else, is a sound one. I know that there are criticisms that various bodies have of the provisions in the Clauses dealing with the Performing Right Tribunal, but they seem to me eminently matters which could be more fruitfully pursued in Committee than at the present stage.
Passing to the Clauses which have been singled out for critical attention in the course of the debate, Clause 4 certainly stands high in the list of candidates for consideration. So many hon. 793 Members have singled it out for criticism that it would be difficult and not very profitable to select any of them by name. Generally speaking, the provisions of subsection (2) have been a target for a general attack. My right hon. Friend the Member for Deptford (Sir L. Plummer) represents, so to speak, the whole-hogging school of critics of the Clause. He said that the whole of the provisions of subsection (2) were wrong.
I would remind the House what the object of subsection (2) is. It will probably be more useful to read its words than to make any interpretation of my own. It says:Where a literary, dramatic or artistic work is made for the purpose of publication in a newspaper, magazine or similar periodical and is so made either (a) in the course of the author's employment by another person under a contract of service or apprenticeship, or (b) in pursuance of a contract with another person providing specifically for the making of that work for the purpose of its being so published, that other person shall be entitled to the copyright in the work in so far as the copyright relates to publication of the work in any newspaper, magazine or similar periodical, or to reproduction of the work for the purpose of its being so published; but in other respects the author shall be entitled to any copyright subsisting in the work by virtue of this Part of this Act.I think it is right at the outset to emphasise the last sub-sentence. Were we today in the happy position that we occupied in the middle of the nineteenth century, of having a great publication like the Edinburgh Review with contributors of the stature of Macaulay, when Macaulay published his contributions to the Edinburgh Review in the form of his Essays, it would not be the case that under the subsection as it stands he would be caught and the copyright would vest in the Edinburgh Review. As the Clause stands, the copyright would remain vested firmly in Macaulay. Therefore, whatever mischief there may be in the subsection, it is a limited one.
Speaking for myself, I feel that a sharp distinction exists between (a) and (b); that is to say, between the man who writes an article in the course of his employment and the man who writes an article because he is commissioned to do so. In the first place, it seems to me that if the sort of provision intended in relation to commissioned works is desirable which I doubt—it is highly illogical. What distinction exists between the man who writes a commissioned 794 article and the man who writes an article because he feels disposed to express his view in the Press for a particular purpose and sends in his article and has it published? But, under the Clause as it stands, the man who writes a commissioned article would be caught and the man who writes an article which is not commissioned would escape. I see no valid reason whatever for the distinction.
Passing from that rather narrow objection to the broader question, and taking into account what so many hon. Members from this side of the House have stressed, with which I entirely agree—that, while retaining this balance between the three parties, one wants primarily to encourage the production of worth while works in any sphere—I should have thought that there was no case for the copyright of a commissioned work—which may, for instance, include an article by an eminent scientist on some measure such as automation in which the author is in the article producing for the benefit of the public his knowledge of both science and its application—vesting in the person who owns the newspaper in which it appears. I very much hope that at a later stage the President of the Board of Trade will feel able to accept an Amendment to delete the provision.
As for the other class brought within the Clause—the man who normally writes articles in the course of his employment, who has as part of the resources on which he draws to find his material all the advantages in obtaining from his employers information and in securing payment of his expenses in himself obtaining information, I feel that we are on very much less strong ground in making any criticism. While, no doubt, any Amendments in this sense will have the sympathetic consideration of my right hon. and hon. Friends, I certainly would not feel justified in saying now that we should support them.
Clause 5 deals with infringements by importation, sale and other dealings. My hon. Friend the Member for Deptford dealt in some detail with the case against subsection (5), which deals with the copyright in a literary, dramatic or musical work being:…infringed by any person who permits a place of public entertainment to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in the work…795 That is fair enough, and none of us would object to it. However, there then comes this proviso:provided that this subsection shall not apply in a case where the person permitting the place to be so used—My hon. Friend's thunders were largely directed against paragraph (b) of that proviso. He thought it was very wrong that authors who had their works performed for charity, for example, should not be entitled to a fee from charities in which they might have no interest, or might even have the opposite of an interest.
- (a) was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright, or
- (b) gave the permission gratuitously, or for a consideration which was only nominal or (if more than nominal) did nat exceed a reasonable estimate of the expenses to be incurred by him in consequence of the use of the place for the performance"
There is a certain force in that, but I should regard paragraph (a) with even greater suspicion. The mere fact that the owner of the premises where the infringement takes place was not aware that the performance would be an infringement of the copyright is a very good reason for limiting his responsibility to accounting for his profits, but I cannot see why it is a reason for giving him complete and absolute immunity. In Committee the whole of the proviso will come up for a good deal of criticism and at least some rigorous examination.
Some criticism has been directed against Clause 6 (7) which deals with an assignment or licence which authorises a person to broadcast literary, dramatic or musical work where the reproduction takes the form of a record or cinematograph film and the record or the film is subsequently broadcast. Under that subsection the reproduction does not constitute an infringement unless the reproduction is used for any purpose other than that of broadcasting in accordance with the assignment or licence, or the reproduction is not destroyed before the end of a period of 28 days beginning with the day on which it is first used for broadcasting. That constitutes some inroad into the rights of authors and is another matter which will require examination in Committee.
796 We then had a great deal of criticism—probably second only to that on Clause 4—of Clause 8, which is sometimes referred to and which was sometimes referred in the debates in another place as providing for a compulsory licence. Where a musical work is reproduced once by way of a recording, it is no infringement under Clause 8 to reproduce it again, provided that the reproducer makes a certain payment of 6¼ per cent. of the purchase price.
I can see no reason why the composer of a musical work should not be at perfect liberty to make his own bargain. I do not see why he should be restricted, once he has allowed a record to be made, to a particular proportion. After all, with very few exceptions, composers of music are not particularly opulent persons. They are persons who deserve all encouragement, if the art of music is to flourish. Where a composer is fortunate enough to write a piece of music for which there is a demand for a recording, then he is entitled to be able to go into the market and make his own bargain with those who wish to exploit his production.
I especially ask the Parliamentary Secretary to say how far he finds Clause 8 consistent with Article 11 of the 1949 Brussels Convention. I put the same question about Clause 13 which deals with the copyright in films and which provides in effect that once a film has been produced the copyright is to last for 50 years in everything that makes up the film, whereas the film itself may consist of elements whose reproduction, but for the contract between the author and the producers of the film, would constitute a breach of copyright. That is a provision which clearly takes some element of protection from the author whose product is used in such a film. How does the Parliamentary Secretary reconcile Clause 13 with Article 14 of the Brussels Convention?
I have said that this is a complicated and difficult Bill. One can take a great deal of time in analysing its various Clauses and in the course of the debate there have been a great many very interesting and valuable criticisms of individual Clauses, all of which will require detailed and serious consideration in Committee. I have tried to outline a few of the more important points which 797 will have to form the subject of scrutiny in Committee.
In the meantime, I can only repeat what has been said by other speakers—that in general, on this side of the House, we welcome the Bill, particularly because it involves ratification of the international Brussels Convention, and all our efforts will be directed, particularly in the interests of authors and those in a similar position, towards improving the Bill, which we already regard as a good one.
§ 8.10 p.m.
§ The Parliamentary Secretary to the Board of Trade (Mr. Derek Walker-Smith)
I am not sure whether I am correct, but it is my impression that this is the first time that the House has had the pleasure of hearing the hon. and learned Member for Walsall, North (Mr. W. Wells) speaking at the Dispatch Box. If that be the case, I am sure that I express the unanimous view of the House in saying how pleased we were to hear him in what is a new but, I hope, will become an habitual rôle. I say that with particular pleasure, as one who has had the privilege of knowing him and admiring -his talents and qualities for nearly 30 years.
We have had a constructive, thoughtful, stimulating and wholly helpful discussion upon the subject of the Bill. It is certainly not a subject which has evoked passions or party controversy, and I very much appreciate the general welcome which has been given in generous terms to most of the things which the Bill seeks to do. I do not mean that no controversy exists in regard to its provisions. I had already realised, during the last six months or so, when it has been my duty to have regard to these matters, that controversy does exist—and it has been shown to exist in this House today.
Upon these matters of controversy opposing positions are strenuously and energetically maintained, but there is no general clash or conflict extending over the whole broad field of copyright. Opposing forces face each other not in formal array. like the warriors of the eighteenth century, but much more as in the isolated individual contests of Homeric days. It is not for the Government or, I should think, the House of Commons to participate in these individual contests; nor is it for us to be mere arbiters in these individual 798 disputes. It is true that we have a duty to listen to the representations of partisans and seek to take their views into account, but our duty goes beyond the mere seeking to resolve those conflicts.
As the hon. and learned Member so well expressed it, we have a primary duty to the public to see that this revision and restatement of our copyright law, undertaken after 45 years, is worthy of our great cultural heritage and future, to which we confidently look forward. It is not an easy task, because it will be clear to the House that there are difficult and intractable problems in this necessarily technical and complex subject. We obviously have some very difficult questions ahead of us in Committee, and I am grateful to the hon. and learned Member and also to the hon. Member for Rossendale (Mr. Anthony Greenwood) and other hon. Members who have given notice of the sort of points with which we shall there be faced.
Our labours there will be easier than they might have been, however, owing to the devoted and successful labours of another place, to which the hon. Member for Rossendale has already paid tribute. In those discussions many thorny problems reached agreed and, I might even say, acclaimed solutions. In those discussions the Government approached all these difficult problems in a receptive and reasonable way. We shall certainly consider carefully and sympathetically everything that has been said today by hon. Members on both sides of the House, and seek the co-operation of the Committee in the further improvement of the Bill.
With that introductory reference to our general attitude in these matters I shall now seek to deal with the specific points which have been raised in the course of our discussion today. As has been said, there have been some differences of philosophy. Some hon. Members advanced general propositions or defined general attitudes. Among those was my hon. Friend the Member for Southgate (Sir B. Baxter) who took up the attitude of what the hon. and learned Member called an advocate of perpetual copyright. He told the House not only sincerely, as he claimed, but with that customary felicity of phrase which we expect from him. of the disadvantageous position—as he sees it—of the descendants of literary artists as compared with 799 those of other creators of wealth, and in that view he was joined for a moment or two, in an uneasy alliance, by the hon. Member for Deptford (Sir L. Plummer), who also referred to the illogical treatment of the descendants of authors and artists.
In looking at this question one must have regard to one's primary duty to the public and the community. In his very clear and luminous speech the hon. Member for Rossendale put forward three antitheses, and made his election in each. He said that in the case of the composer as against the gramophone company, he was on the side of the composer; in the case of the journalist as against the newspaper proprietor, he was for the journalist; and in the case of the script writer as opposed to the film company, he was on the side of the script writer.
Over and above those antitheses, however, we have the duty to be on the side of the public community, not only as it exists today but as represented hereafter by posterity. Therefore, in answer to the general point, I must respectfully echo to my hon. Friend what was so well pointed out by my right hon. Friend earlier this afternoon, namely, that we have to take into account the interest of posterity in having the freest and fullest access to literary works created by those who have gone before them.
Certain matters in copyright are fairly well established. It has always been recognised that there should be a limit to copyright protection, and that there must come a time when those creative works come into what is called the public domain. We are legislating for life plus 50 years which is the broad international requirement as defined by the Berne Convention. It is inevitable that it may work more hardly for some than for others. My hon. Friend mentioned, very sympathetically, the case of Oscar Wilde. It is true that there we had an author who combined a very prolific output with an unfortunately early death, and that life plus 50 years tends to militate against him. But if Oscar Wilde had lived as long as Bernard Shaw this problem would not have arisen. I am afraid that in this department of life, as in any other, we cannot entirely iron out the inconsistencles between individual cases.
800 As the hon. and learned Member said, in antithesis to the points put by my hon. Friend the Member for Southgate—and at one point by the hon. Member for Deptford—we have the point of view of the hon. Member for Stechford (Mr. Roy Jenkins), who expressed regret at the passing of the provision contained in Section 3 of the Copyright Act, 1911, which enabled another publisher, upon payment of a 10 per cent. royalty, to publish the work of a deceased author 25 years after his death, a1beit the full period of copyright protection of 50 years had not expired.
The hon. Member canvassed the merits of this argument with his customary skill and persuasiveness, and invited me to follow suit. I must ask to be excused canvassing the merits of this case, however, because—as has been pointed out by my hon. Friend the Member for Belfast, North (Mr. Hyde) and also, I believe, by the hon. Member for Stokeon-Trent, Central (Dr. Stross)—we are bound by the Brussels revision of the Berne Convention.
If the hon. Member wants to pursue that matter a little more closely, if he would look at the document on the Convention which was published by the Board of Trade in 1949, he will see that on page 12 it says:The deletion of paragraph (2) of the Rome text"—that is the previous revision of 1928—makes it necessary for all countries of the Union to give a minimum period of protection of 50 years after the death of an author, except in the case of works mentioned in the new paragraph (3), in which cinematographic works and works of applied art have been included. It involves the repeal of the proviso to Section 3, and of Section 4 of the Copyright Act, 1911.I am afraid that we are bound by that and are not really free in this matter to canvass merits one way or the other. I think it has been universally agreed, as was said by the hon. Member for Stoke-onTrent, Central, that the price we have had to pay in the amending of our law to secure a continued agreement with the Berne Convention is very small indeed.
The hon. Member did in fact draw attention to the only other amendment which I think we have had to make, which is the revocation of the Privy Council procedure in Section 4 of the old Copyright Act, 1911. He indicated he did not think that was of very great importance. 801 I am happy to be able to tell him and the House that so far as we can trace that procedure has never been set in motion.
§ Mr. Roy Jenkins
I follow the hon. and learned Gentleman in the argument about the Berne Convention, but could he tell us to what extent we have to be retrospective in this matter in order to fit in with the terms of the Berne Convention? Am I right in assuming that we shall not have to go back and say that authors who have full copyright will have to come in so that cheap publications might come in? Will he also indicate whether during the Committee stage there will be an opportunity for compromise under the Berne Convention which will limit the protection of authors who die after the Convention comes into operation?
§ Mr. Walker-Smith
I think the hon. Gentleman is right on the first point. As to the second point, I think that we are limited as to the position at which the Act comes into force, but I will certainly look into that matter further with a view to informing the hon. Member during the Committee stage.
I will now deal with the points made by my hon. Friend the Member for Carlton (Mr. Pickthorn). He referred to some aspects of the Bill outside those Clauses which were the cause of main comment. He raised three points; firstly in regard to the libraries provisions in Clause 7, secondly in regard to the application of subsection (4) of Clause 4 to university professors and, thirdly, in regard to the question of the lay members of the Performing Right Tribunal.
On the libraries provisions, my hon. Friend asked for an assurance as to consultation with the libraries, and that I can give him most readily. He will appreciate that under this Clause it is for the Board of Trade to make regulations as to the class of libraries concerned and conditions. I can certainly give my hon. Friend and the House an assurance that before making these regulations we shall consult the societies and organisations concerned—such as the Royal Society, the Libraries Association and anyone else my hon. Friend thinks we should consult.
I shall be coming back to the generality of Clause 4 a little later, but in regard to its application to university professors 802 there is no change in this Bill from the position as it exists now under the 1911 Act. Each case, I think, actually turns on the particular facts of the individual case, but there is certainly no change in the position.
The third point my hon. Friend was good enough to make was in regard to the lay members of the Tribunal and that was also referred to by the hon. and learned Member for Walsall. I am not sure whether in the case of this Tribunal a statutory definition as to the qualities of these gentlemen would necessarily be helpful. It is true that we have got that for the Restrictive Practices Court in our other Bill, but of course the functions are widely different and I think it may be better to leave this matter at large. As to the sort of qualities and experience required, I need not say that we would appreciate the views of hon. Members as to what they should be.
At this point, may I deal with another individual question raised by the hon. Member for Gateshead, West (Mr. Randall) in regard to the use of radio in workers' staff retiring rooms. We have had some correspondence about this matter. The hon. Member referred to part of a letter which I wrote to him on 23rd April. I appreciate that he wished to save the time of the House, but the rest of the letter was perhaps a little less bald and unhelpful than the part he quoted might possibly have seemed to have been. This is a difficult matter, as are all matters which depend on legal interpretation.
The hon. Member suggested that we might assimilate the provisions of subsection (7, b) of Clause 12 dealing with gramophone records to the case of these radio performances. Having looked at that subsection, I am not at all sure that those words would cover that case if they were so applied. Apart from that, the hon. Member will appreciate that Clause 12 deals simply with the performing right in the gramophone record. The difficulty in this case arises from the composer's performing right—the Performing Right Society right—in which all sorts of complications of the Convention and so on arise. I shall certainly have another look at the matter and see if we can do anything more to help, but, as he will understand, the position is a little difficult.
803 Perhaps I may group together those matters which have been the subject of main discussion in connection with particular Clauses. The first concerns the period of copyright, with particular reference to photographs, mentioned by the hon. Member for Rossendale and my hon. Friend the Member for St. Ives (Mr. G. R. Howard), who I know has great skill in this field and who puts forward very sympathetically the point of view of photographers. The position, quite shortly, is that the Copyright Committee recommended the institution of a 25-year period of copyright for what it called quasi-mechanical or quasi-industrial subjects. The Committee chose that period as being part-way between the 50-year period of full copyright protection and the 16-year period which is the period of copyright in the case of patents for industrial subjects.
In another place an Amendment was accepted to increase film copyright to 50 years, but the other periods remain at 25 years. In most cases those concerned seem to have acquiesced in that position, although there is this claim that photographs should be placed on all fours with films and given a period of protection of 50 years.
I do not say for one moment that there is no artistic contribution in a photograph. I know better than to do that in the presence of my hon. Friend the Member for St. Ives. No doubt there is an artistic contribution, but what we have to determine is whether there is an artistic contribution equivalent in length and scope to the film director's creative and co-ordinating function in a film which may run for a couple of hours in public performance. I am bound to say that, on the realities of the matter, I do not think there is a comparable artistic contribution in the two cases, and I think that photographs probably fall more properly into the other category than into the category of films.
The hon. Member for Rossendale said that we differentiated against photographs, but of course we are not differentiating against photographs here. A photograph is different in that respect from a film and it is different from a portrait and an engraving, because one is in essence a mechanical process, albeit 804 not without artistic contribution, and the others are done by hand.
The House will appreciate that on Report in another place the position in regard to photographs was improved from both points of view—from the point of view of both the private person and the commercial photographer. Certain benefits flow from the fact that the Bill now provides that copyright in photographs will run not from the date of taking them but from the date of publication. That has two results. First, unpublished photographs enjoy an indefinite protection instead of the protection of only 25 years laid down before the Amendment. That assimilates the position of private unpublished photographs to the position of private letters or diaries which have not been published. In some of the cases which the hon. Member for Rossendale put forward, he overlooked the fact that unless one publishes a photograph one has an indefinite copyright protection in the Bill as it stands.
Secondly, the Amendment benefits in a proper case the commercial photographer, because where he takes his photograph but does not publish it for some time—because it is not topical or for some other reason and later it is properly published, then his commercial exploitation of that photograph dates, as it should, from the date of publication.
My hon. Friend the Member for Crosby (Mr. Page) said he would like to differentiate between photographs of people, where he thought the copyright should go to the commissioner, and photographs of landscapes, where he thought it should rest with the author. I will certainly look at that, as at all his constructive and informed suggestions, but I am not optimistic enough to think that any change in the position concerning photographs will necessarily win universal acquiescence in all quarters.
The hon. Member for Stoke-on-Trent, Central referred to the position of sculptures. The position of sculptures is different but simple; the copyright in a sculpture belongs to the sculptor, whether it is commissioned or not, and there is no difference between the position under the Bill and that under the 1911 Act. Perhaps, while referring to this, I may take out of its proper place his query about adult education and Clause 39. Under that Clause—Clause 39 (1, a)—one can 805 copy for adult education, but the position is different in respect of the performing rights, records and so on, because of the difficulty of finding a definition in that connection.
The next point of main controversy concerned gramophone records, and in this connection three points have been raised. The first concerns these ephemeral recordings. I say at once that I have no copyright in the use of the word "ephemeral" to describe something which seems to apply to 28 days. This point was raised by the hon. and learned Member for Walsall, North and my hon. Friend the Member for Hornsey (Sir D. Gammans), who has had such experience in this field. Under Clause 6 (7), a person who holds a copyright licence to broadcast may also make a record on two conditions—first of all, that it is used solely for the broadcast and, secondly, that it is destroyed within 28 days.
This is, as the House will appreciate, a most useful provision both to the B.B.C. and to individual busy performers who may not be available to go on a live show. It does mean, of course, as has been pointed out, that only one fee will now become payable, the performing right fee, and that, in my view, is appropriate because there is in fact only a broadcast performance. I appreciate that there are two fees payable now—the performing right fee and the mechanical right fee—but I think that is largely fortuitous, and I cannot accept that there is a case in equity for the payment of a double fee for copyright for what, in essence, is a single performance.
My hon. Friend the Member for Hornsey expressed the fear that the wording of the Clause might allow the making of further records from the initial records within a period of 28 days. It is not our intention that the Clause should allow that to be done. I assure my hon. Friend that I will examine the draft to make sure that that is not possible and if it does seem to be possible we will amend it, if necessary, in the Committee stage.
The next point with regard to gramophone records is the matter of compulsory licensing, which was again raised by the hon. Gentleman the Member for Rossendale, and my hon. Friend the Member for Hornsey and other hon. Members. Here, the Bill continues the 806 principle of Section 19 of the 1911 Act. That is to say, if the copyright owner of an original musical work agrees to the manufacture of records for sale, other manufacturers are entitled to make similar records on two conditions—that notice of intention is given and that an appropriate royalty is paid.
The royalty will be fixed at 6¼ per cent. under the Bill. After one year, the Bill provides for a Board of Trade inquiry into the rates, with a view to fixing them for five years, and the Order fixing these rates will require an affirmative Resolution of the House. This continuance of the 1911 Act has been criticised today because of the technical developments which are said to have arisen in recent times, which make it more difficult for a composer to safeguard the quality of his performance. I appreciate the force of that point. As hon. Members who have read the proceedings in another place will know, very careful consideration has been given to try to meet it in two ways. Firstly, by seeking to differentiate the position between serious and non-serious music, and, secondly, by seeking to differentiate the position between long-playing and short-playing records. On examination, it was found that neither of these forms of differentiation was practicable or free from anomaly. Therefore, as my right hon. Friend said earlier this afternoon, we are faced with a straight and clear issue here all or nothing—whether to do away with the compulsory licensing provision altogether or not.
I must remind the House that, of course, in essence the compulsory licensing provision is an anti-monopoly provision. It is a provision to extend the scope of recording. After all that has been said in another discussion during the current Session of Parliament, I do not think that my right hon. Friend and I should be asked to introduce into this Bill a provision to go back on an antimonopoly provision which has stood the test of time for 45 years. On that basic question I think our answer must be clear. At the same time, I should like the House to know that we are still seeking ways of improving the position in the matter of fixing the rates and so forth.
§ Sir D. Gammans
Does my hon. and learned Friend realise that there is every inducement on the part of the composer to have as many gramophone records as 807 possible reproducing his works? All the composer wants to be assured of is that these firms are reputable and will do justice to his works.
§ Mr. Walker-Smith
I appreciate that point, but it is covered by what I have already said; that it has not been found possible to differentiate in the way my hon. Friend would wish but, as he will see by looking at the Bill, it is possible to fix different rates in respect of different recordings. Anything that can be done within that general framework, without sacrificing the basic provision, which, as I say, has been the law of the country for 45 years, my hon. Friend may rest assured will be done, and we shall look forward to his practical assistance in this regard in Committee.
§ Sir D. Gammans
Would my hon. and learned Friend agree. therefore. that to use the monopoly argument does not really fit this case at all? The whole inducement on the part of the composer is to have as wide a selection, for his own benefit, of people reproducing his works as possible. I suggest that to rule this out on the grounds of monopoly does not quite fit the case.
§ Mr. Walker-Smith
I did not say that it was solely on that ground but was telling the House what was the original principle that animated Parliament, so far as one can tell, to include this in the 1911 Act. If my hon. Friend is able between now and the Committee stage to put forward any constructive suggestions, he knows how happy we will be to consider them.
The third main point about records was this matter of records first coming from the United States. As I understand it, the problem arises because a large proportion of the repertoire of the British companies is derived from American recordings. We appreciate the importance of this point, and also that it is impracticable to achieve simultaneous publication, in all cases, in the United States and in the United Kingdom.
What we cannot do is to allow subsequent publication in the United Kingdom to supersede first publication as the test to be applied. That is for the very good and basic reason that during the interval between publication in the United States and publication in the United Kingdom 808 the record is in the public domain in this country and can be made or imported without copyright infringement. That being so, it is impracticable—and so far as I know unprecedented—to put into the private domain something which has already been in the public domain.
I think there is, however, a practical solution to this problem. It is probable that the provisions of Clause 12 relating to gramophone records will be applied by Order in Council under Clause 31 to Canada or extended under Clause 30 to Colonies such as the Bahamas which, I understand, form part of the common market with the United States in this regard. If one has a gramophone record published in Canada or such Colonies as are part of the common market within 30 days of the publication in the United States which, I understand, would be the ordinary course, it would be all right for copyright purposes.
The next point with which I wish to deal is this difficult technical question of the broadcast relays, raised again by the bon. Members for Rossendale and Islington, East (Mr. E. Fletcher), and my hon. Friends the Members for Hornsey and Harrow, Central (Mr. Bishop). It is quite true that this Bill does not give copyright protection to works which are piped by the operation of broadcast relay stations. That is clear from Clause 2 (5) and Clause 46 (3) (a).
The position was not quite clear under the old law, but now it is clear under this Bill. As I understand it, from what hon. Members have said, there is no particular difficulty in the way that the matter has worked in this country up to now, by reason of the fact that the copyright owners receive their fees from the B.B.C. based on the inclusion of the relay audiences. These audiences are taken into account because the relay companies require Post Office licences, and the B.B.C. pays the Performing Right Society on the basis of all holders of Post Office licences.
I appreciate that although there is nothing particularly wrong in the present operation, there are certain apprehensions. There is the apprehension with regard to television which was voiced by various hon. Members. There is the position in the Colonies, and in particular in Hong Kong and Malta, to 809 which reference has been made today, and I suppose there is also the position concerning foreign broadcasts which are picked up and piped in this country.
We should like to meet those apprehensions so far as we fairly can without infringing any of the principles of copyright law. We have been thinking about it and we are continuing to try to find appropriate solutions. My right hon. Friend the Postmaster-General is going to discuss the matter with the representatives of the relay companies, and I hope that by the time we get to the Committee stage I shall be able to be more clear and comprehensive in what I have to suggest on this point.
May I now come to the difficult questions which have been raised on Clause 4 relating to the ownership of copyright in commissioned works, and contracts of service. These questions have been raised by my hon. Friend the Member for Hornsey and the hon. Members for Rossendale. Deptford, Stoke-on-Trent, Central and Edge Hill (Mr. A. J. Irvine) who has informed me that unfortunately he is not able to be here at the moment.
The question is where copyright should lie in respect of articles written by journalists, whether commissioned or whether written under a contract of service. I should like to make this reference to some earlier exchanges. The hon. Member for Deptford entered into some badinage about what he called my frolic in Fleet Street ten or eleven years ago. The newspaper which he was then managing was not the only national newspaper for which I have been privileged to write. I am sure that in all cases I was paid more than the articles were worth, and I certainly have no sense of grievance against any of the newspapers. My relations were at all times most amicable.
I personally do not look at this problem merely as a dry or academic problem, because that experience gave me a little knowledge and many friendships both on the managerial and proprietorial sides and amongst working journalists themselves; and although I have long ago lost the writing connections, I have been happy to have preserved the friendships that arose from them. I have listened most carefully to everything that has been said by hon. 810 Members about this situation. The main criticism, probably, is that the newspaper proprietors are put in what is claimed to be an unreasonably preferential position in regard to the syndication of articles.
Under the Bill as at present drafted, the splitting of the copyright puts the staff man—I prefer the phrase "staff man" to the phrase used by one of my hon. Friends, "a working journalist", because, presumably, they all work—in a better position than he was under the 1911 Act whereas the commissioned article man is placed in a worse position than he was under the 1911 Act. Of course, it is quite true that one might argue that those who want a different procedure can contract differently from what the Clause provides, but I think there is a lot of force in what has been said that that tends to be rather an academic type of argument.
Without entering into any commitment about those matters, our present thinking is that there is a strong case for making an alteration in favour of the commissioned article man, and we will certainly consider the propriety and possibility of introducing an Amendment to that end on the Committee stage. I do not thereby exclude the case of the staff man under a contract of service, but it is, of course, as has been proclaimed by two speakers on the Front Bench opposite, a very different case. Indeed, that differentiation is, I think, made by most of the members of the Joint Copyright Council. Therefore, if we can leave the position in that way at present, we will certainly listen on the Committee stage to anything further that is said in regard to assimilating the position of the staff journalist to that of the commissioned journalist, but the House is mindful of the difference in the two positions.
This has necessarily been a long debate. It has covered a lot of ground and I have tried to deal at any rate with most of the points that have been raised. We shall, of course, have further opportunities to consider the detail of the Bill in Committee and on Report. Meanwhile, we are very grateful to the House for what I apprehend will be a unanimous assent to the Second Reading and look forward to further co-operation so that we can pursue together the task of making the Copyright Bill of 1956 a worthy successor to its great forerunner 811 and worthy of the culture which it is designed to serve and to protect.
Question put and agreed to.
Bill accordingly read a Second time.
Bill committed to a Standing Committee pursuant to Standing Order No. 38 (Committal of Bills).