HC Deb 25 October 1956 vol 558 cc911-9
Dr. Stress

I beg to move, in page 74, line 14, after "made", to insert "and used".

There was some discussion about this in Committee when the Parliamentary Secretary explained what he had in mind and what was the meaning of this Schedule. It is apparent that we are here referring to the Dramatic and Musical Performers' Protection Act, 1925, and also to Clause 43 of this Bill. The Act of 1925 made clandestine recording an offence and Clause 43 added broadcasting. The point made by the Parliamentary Secretary in Committee was that in the 1925 Act consent in writing had to be obtained either from all the performers or by a person who as manager or otherwise made arrangements for performances on behalf of performers.

He went on to say : Turning to the proposed new Section 3A, it is provided that the making of a record, film or broadcast of a performance is not an offence if it is made for the purpose of reporting current events or is incidental to the main purpose of the record, film or broadcast. The Committee will appreciate that that is obviously a necessary requirement in this time and age, for example to protect the B.B.C. in its television broadcasts of outside spectacles. It is not called fair dealing but it is very similar to the fair dealing provisions in Clauses 6 and 9."—[OFFICIAL REPORT, Standing Committee B, 31st July, 1956 ; c. 611.] I should like to bring to the notice of the House that at present it is the 1925 Act and only that Act which gives protection to performers against secret or illicit recording and exploitation of their work. I know that the Parliamentary Secretary has had discussions on this matter and is much better informed than I am, but I think that it is true that he suggested to representatives of the performers' unions that perhaps an appropriate clause in their contracts with the makers would safeguard them.

They are not certain about this. In fact, they do not agree. They put the point in this way and I voice it on their behalf almost in their own words. They ask, "Suppose that the recording is made, not by the employer, but by a third party?" To whom would they go for redress? If this is answered satisfactorily, they make another point. What will prevent a record made by an employer from passing to a third party? May it not then be used outside the terms of any contract that they may have made? That, I consider, a very strong point.

It is possible, surely—I put this to the Parliamentary Secretary—that a record may be made for test purposes only, and then be exploited by selling it for another and different purpose. A specific example again may be given in this way. Everyone knows that films are often made for the purpose of television and to be used only for television—at least, that may be the impression. These are sometimes sold to third parties and the third parties then will show them in cinemas, usually small cinemas.

One must ask oneself, to whom, then, will the performer turn for redress? The original employer may not be in business, or he may have no assets, or the business as such may no longer exist. The argument I now put is one which cannot be controverted ; that the new owner will be a person against whom the performer can have no rights whatsoever.

The Amendment simply asks to insert the words "and used." That seems to me simple and helpful as an Amendment, because the making of a thing, of itself, does not mean anything at all. A thing may be made and never used. It is only the use of a thing when it is made in which we can have any interest, and which we, as legislators, must consider. If one looks at the drafting of this sentence as it stands, it reads as follows, in paragraph (a) : that the record, cinematograph film or broadcast to which the proceedings relate was made only for the purpose of reporting current events.

If the two words are added, I submit that it would be most helpful to the performers and give them a great deal of protection. If the words are not added, I wish to suggest that the record, film or broadcast made, as it is said, only for the purpose of reporting current events, could subsequently be used for other purposes without the consent of the performer. That is what this Amendment tries to avoid by the insertion of these words.

I think it the considered view of Equity in particular that this would be a very helpful Amendment. It may be that I am bringing forward this Amendment very late in this stage of our discussions. I think that the Parliamentary Secretary will agree, however, that this Clause came also very late, at the end of our discussions in the Committee, and I plead that my lateness finds in that other feature some extenuation. It may be, too, that there are difficulties ; that there are implications in these two words which I ask may be inserted that I have not fully understood myself.

It may be that the Parliamentary Secretary has reservations. But it is never too late to do something better than a backbencher can do, and even though there may not be much time, I hope that in his answer, the Parliamentary Secretary will see to it that I am served a little better than I have been throughout the Committee stage, when everything for which I pleaded fell, unfortunately, by the wayside.

Performers are rather concerned at the accusations which have been broadcast about them : that they are "Luddites", not facing up to the modern world. The truth of it is that they are faced with serious problems as a result of the technological developments occurring all round us, and I think it a good and proper thing for us to consider very sympathetically the difficulties this presents to us.

Sir Leslie Plummer (Deptford)

I beg formally to second the Amendment.

7.45 p.m.

Mr. Walker-Smith

If what the hon. Gentleman has said is right, that his Amendments did not produce much effect during the Committee stage discussions, I am sure that the House will appreciate it was not due to any lack of persuasiveness on his part ; and I hope that it was not due to obduracy on my part.

The hon. Gentleman has explained clearly and sympathetically why it is that he wants this Amendment made. In this Schedule we are concerned with the incorporation of new sections into the Dramatic and Musical Performers' Protection Act, 1925, and this subsection 3A incorporated in the Schedule and to which his Amendment relates is the one which provides a special defence to anybody who is charged with clandestine recording or broadcasting. That special defence is that it was made only for the purpose of recording current events.

I should like the hon. Gentleman to appreciate that we are here on a narrow point, and I do not think that there are many ways in which the fears which it is true that Equity has had could be realised. I find some difficulty in seeing how a film made for the reporting of current events could be used outside the ambit of the special defence provision, except, perhaps, in the sort of scrapbook series that we occasionally get. But I think that the scope for confusion here is, fortunately. very small.

I am in a difficulty in accepting the hon. Gentleman's Amendment, because the whole structure of this provision is to make the test of whether or not there is an offence lie in the intention of the person at the time of the making ; and I cannot, therefore, incorporate the further test of use, because that comes at a later stage, and we cannot apply that retrospectively when the test is the intention at the time of making.

At this stage, I cannot either accept the Amendment or adapt it, because we have very nearly finished with this Bill, and the hon. Gentleman put down his Amendment only yesterday. I would say this for his comfort, additional to what I have said before, that I think some of the instances he has mentioned would be unlikely to pass the test of the intention at the time of making. Of course, where that is so the Clause as now drafted would be satisfactory to the point of view of Equity, and the fears which have been felt would not be realised.

Mr. Harold Lever (Manchester, Cheetham)

Perhaps the hon. and learned Gentleman would care to enlighten one of the ignorant. I gather that he is in the same spirit as my hon. Friend and hopes that the subsection will work in a manner which will not give specific justification for the words of the Amendment moved by my hon. Friend. Why not remove any fear by the simple expedient of inserting the words in the Amendment?

The intention is to protect people who make films only for the purpose of recording current events. What possible objection can the Minister have to ensuring that the alarms and fears—which he seems to think unjustified—of the people concerned should not have any material ground simply by removing the ambiguity of the Clause by inserting the innocuous, helpful and reasonable words suggested by my hon. Friend?

Is it the Minister's intention, in other words, that the exemption shall protect later use of this production and that the defendant may rely on the somewhat specious argument, difficult to disprove, that though the film is being used much later than the event concerned it was originally made with the intention of using it currently? If such specious arguments were used it would not be open to my hon. Friend's Amendment to exempt them because the exemption would simply exist to allow people to make films recording topical events and use them topically and the original protection intended by the subsection would not be left.

Mr. Walker-Smith

I sought to explain the reason. If the hon. Member for Cheetham (Mr. H. Lever), who is a barrister, will look at the framework and the structure of the Act of 1925, and the new provisions incorporated into it by the Schedule, he will see that my difficulty is the test as to intention at the time of making. I cannot write in another test which is inconsistent with it.

What I said, and repeat, is that the subsequent use might well be material evidence as to the intention. If it was a long time after, then, of course, it might well be that there is a bonâ fide defence.

Mr. Lever

Why is this provision necessary?

Mr. Walker-Smith

I have sought to show why it was necessary. To incorporate the words "and used" means that we might have a film originally made with a bonâ fide intention rendered retrospectively unlawful by subsequent user by a different party. I am sure that the hon. Gentleman will realise that that is not consistent with our normal legal approach to these things.

I ask the House to believe that this is a very thin point—I do not say it disrespectfully—which can only arise in a very limited class of case. As an example, I suggested the scrapbook case, where I cannot see much harm arising in practice to the acting profession.

Mr. W. Wells

This is a difficult little point. Its main importance arises in its being symptomatic of a great deal of disquiet in professional and trade union circles about the operation of the Sixth Schedule. The Parliamentary Secretary has dealt with the argument in a reasonable way. I must admit that I am impressed by the argument he adduces as to the general test applied under the 1925 Act and the difficulty of introducing tests of use into the Bill as tests of intention. I rather doubt whether the words proposed by the Amendment would have just the effect desired, but I may be wrong about that.

In view of all the arguments that have been deployed, this appears to be a point which my hon. Friend would be well advised not to press. He has done great service in raising it and I wish that we could wholeheartedly support it. The difficulties to which the Parliamentary Secretary has drawn attention are real and it would not be right to press the matter further at this stage.

Dr. Stross

In view of the answer which has been given, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Mr. Ronald Russell (Wembley, South)

I beg to move, in page 74, line 26, to leave out from "he" to "and" in line 27, and to insert : as manager or otherwise made the arrangements for the performance on behalf of the performers. As the Schedule stands, it would appear that the manager of any living entertainment who wanted to arrange for a broadcast, film or record of the performance, would have to seek the content of every individual performer. That places an impossible burden on him, especially when he might have to make arrangements some way ahead and might not know the performers who would take part. That would be a ridiculous burden upon him.

Surely the best way of dealing with this matter would be for the manager to obtain from every performer he engages permission in a general way in the contract.

Mr. G. B. Drayson (Skipton)

I beg to second the Amendment.

Mr. Walker-Smith

The sub-paragraph with which the Amendment is concerned is the other special defence to that with which we were concerned in the previous Amendment. I am obliged to my hon. Friend the Member for Wembley, South (Mr. Russell) for putting his point so clearly and concisely. I realise the considerations he has in mind and I hope to be able to satisfy him that what we are doing here is the best and most practical approach.

The effect of the special defence in sub-paragraphs (a) and (b) is to provide a defence for the making of a recording, and so on, by proving that the person acted with the consent in writing of a person who represented that he was authorised by the performers to give consent on their behalf, provided always that he had no reasonable grounds for believing that the person who gave that representation was not so authorised. We evolved that in the Committee as the best solution, having regard to the interests of the broadcasting authority, managers, impresarios and performers. The Amendment would replace in the Bill the words which were in the first draft and were rejected by the Committee in favour of the present wording, after very careful consideration. Moreover, my hon. Friend's Amendment is defective in its drafting, which would make it more difficult of acceptance as we get nearer to the end of the proceedings on the Bill.

The main point is one of principle. I am sure the House will agree that there are two main principles. The first is that performers should not find that their performance goes on the air without their knowledge or consent, and the second is that the broadcasting authority should not, on pain of committing a criminal offence, have to get individual consent in writing from each and every member of a large chorus or orchestra. Those are the two principles and we have tried to evolve the highest common factor which satisfied those principles.

8.0 p.m.

I fear that the Amendment fails to implement the principle in regard to the interests of the performers. That is why we altered it in Standing Committee because, of course, the interests of the manager might in some cases conflict with those of the performers and the person arranging the broadcast performance might leave the performers he had engaged in ignorance of his consent. That is what we sought to avoid.

I would add for the comfort of my hon. Friend and theatre managers and the like who may have apprehensions about this, that I see no reason why it should be difficult for them in practice. It is true that in some cases they have to make agreements to broadcast a particular show before they have engaged the cast. In that case it is quite open to them to obtain the consent of the cast to the broadcast after they have engaged the performers. It is quite enough to be within this special defence if they tell the B.B.C. at any time before the show is actually broadcast that the performers' consent is authorised to be given.

In those circumstances, I think it will work out well in practice and it has met the principles we have considered important. I hope, therefore, that my hon. Friend—having very properly and clearly ventilated the matter—will not wish to persist further with the' Amendment.

Mr. Russell

In view of the explanation of my hon. and learned Friend, I beg to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.