Clause 11.—(FILMS USING OLD MATERIAL.) (Hansard, 26 January 1960)

§ Mrs. White
I beg to move, in page 7, line 30, to leave out "sound or both" and to insert: or sound when combined with visual images". I have been refreshing my memory of the proceedings on this matter in Committee. This is one of the few points which we did not discuss adequately. The discussions on several of the points we took up may have seemed, perhaps, a little protracted, but this particular matter in Clause 11 of adding a reference to sound was, I am afraid, dealt with in a very perfunctory way by both sides of the Committee. Consequently, we have landed ourselves in considerable difficulties.
What appeared to be a sensible and simple addition to the Bill, that, in dealing with old films parts of which were then used in a new film, one should include sound as well as pictures. is, in fact, very far from simple. On the face of it, it is only ordinary justice that, if one is trying to protect one form of production, namely, pictures, one should at the same time extend the protection to sound; but, no sooner had the trade discovered what we were doing than we were bombarded with protests, as, no doubt, the Board of Trade was, too, saying that we were cutting across common practice in the trade. Where sound is concerned, a certain proportion, at least, of the sound track is very frequently 89 derived from old material, and perfectly properly so derived. In other words, it is much more general, and regarded as perfectly good production practice, to use library material for one's sound than it is to use such material for one's pictures.
It was put to us that the makers of short films in particular would be almost driven out of business if the Clause were left in its proposed form and that even long films might be adversely affected if people were told that, in order to rank as British films, not more than 10 per cent. of old sound material could be used.
I have a letter here from a person well known in the film word. After mentioning some of the possible difficulties facing the makers of short films, he says: As far as long films are concerned, I can see all sorts of difficulties in establishing the exact percentage of library material included in the track". He is, of course, referring to the sound track only. He mentions a film involving pictures of the sea and says: As this is a story of the sea and involves a tremendous amount of model work"— that is to say, the ship would be a model only— I can foresee that in the final re-recording the background sea noise alone might account for considerably more than 10 per cent. of the sound track of the film. Furthermore, the sea noises track might be a combination of more than one track mixed to give an overall effect. For example, the dubbing editor would make up a loop of, say, approximately 40 ft. of actual sea noises and repeat these ad infinitum according to the requirements of the picture and to that at suitable points add other loops covering wind noises, creaking noises, seagull noises, etc.". He then points out that there are other circumstances in which a very considerable amount of library sound material might be required. He suggests, for example, that, if one is making a period picture out of doors on location, modern noises might intrude upon a scene nominally taking place before the advent of the motor car or train and, therefore, one could not just take the sound as one went along. One might be obliged to use library material for the sound track.
Similarly, my correspondent suggests that, on most location shooting, the intrusion of noises which are not really sympathetic with the effect one is trying to reach means that, frequently, as much 90 as 50 per cent. of the recording made has to be scrapped later on.
It seems, therefore, that, in our rather casual acceptance of the notion that one could deal with sound on the same footing as pictures, we were misleading ourselves. It is quite clear that, by including sound, we should raise difficulties which would be quite outside the intenion behind the Bill and quite impossible to deal with in practice.
How is one to deal with the matter? There has been correspondence between the Board of Trade and the interests concerned and, again, we have seen a letter which puts an interpretation upon the Clause which, most emphatically, is not obvious from a reading of the Clause itself. As I understand it, the interpretation which has been put by the officials of the Board of Trade to the film interests suggests that we need not be concerned about the inclusion of sound in this Clause because we are dealing with films, and by definition in Clause 3 of the Bill a film must include visual images. Therefore, any sound on a track which did not include visual images is not covered by the words of the Clause.
I submit that for anybody reading the Clause it is really quite impossible to follow that interpretation. The Clause seems quite clearly to refer to the possibility of sound being on its own. Yet we are told that that is not so; sound must be combined with visual images if it is to be included in our interpretation of the Clause. If that is so, surely it is to the advantage of everyone that it should be stated in so many words. I cannot believe that anyone could unaided possibly reach the conclusion that "sound" in the Clause as drafted could possibly mean only sound in combination with visual images. Whether or not that is the most desirable way of dealing with it is another matter.
My hon. Friend the Member for Govan and my hon. Friend the Member for Newcastle-under-Lyme (Mr. Swingler) have tried to suggest that one could do it in a slightly different way, by saying "but excluding sound effects", in other words, by excluding the sort of material to which I have referred, seagull noises, creaking noises, sea noises, and so forth. I think however, that we might land ourselves in difficulties in defining "sound effects". One 91 might say, "anything other than the human voice", but then one might have crowd scenes, the crowds crying, "Rhubarb", or whatever it is they are told to shout, and that might legitimately be a sound effect in certain circumstances although it included the human voice.
Therefore, I am inclined to think that the definition of "sound effect" would make it difficult to deal with the matter in that way. That is why we suggest that, if what is really intended is only that the part of the sound track which is one with a series of visual images is all we are dealing with, we should say so. I recognise that it is not easy in some circumstances to reach a form of words to cover exactly what is intended, but it is not satisfactory to let the Bill leave the House in a form in which no one, on a normal interpretation of English, could possibly find the meaning which has been put upon the words in what has been said to the film industry.
I hope, therefore, that we can clarify this point and that we shall not let the Clause go without making quite plain to the industry in words in the Bill, lest there should ever be a question of interpretation before the courts, what it is that we propose to do.

§ Mr. Rankin
I beg to second the Amendment.

§ Mr. Deputy-Speaker
I think that, with this Amendment, it will be convenient to discuss the Amendment in the name of the hon. Member for Glasgow, Govan (Mr. Rankin) and his hon. Friend the Member for Newcastle-under-Lyme (Mr. Swingler), in page 7, line 30, at end insert "but excluding sound effects".

§ Mr. Rankin
Thank you, Mr. Deputy-Speaker. I shall not help to prolong the proceedings unnecessarily, but I wish to ask a question. That is my principal reason for taking advantage of the opportunity to second the Amendment.
The whole difficulty about this Clause and what has really provoked the Amendments which have been tabled arises from the use which has to be made of library material, as my hon. Friend the Member for Flint, East (Mrs. White) explained. There is also the feeling that the Clause 92 is not quite as innocuous as it might appear. As Clause 3 defines it, a film is any record, however made, of a sequence of visual images". So that if a piece of tape does not include visual images, it is not a film for the purposes of Clause 3. We are clear so far. It is unfortunate that in Clauses 7 and 11, there is, and there will be, so much dubiety as to the interpretation which can be placed upon these words in the Clause.
In view of what I have said, I should like to ask, therefore, whether a film maker can use what library material he likes for a sound track provided he takes it from a sound track which does not include visual images.

§ Mr. Shepherd
I should like to say a word to my hon. and learned Friend the Solicitor-General and to my hon. Friend the Parliamentary Secretary to the Board of Trade about the Clause. The hon. Lady the Member for Flint, East (Mrs. White) was, I think, right in saying that it does not—immediately, at least—convey the impression which we understand it to be intended to convey. That, however, is a feat which lawyers achieve on many occasions and we should not, perhaps, display too much concern about it.
What I want to say to my hon. Friends on the Front Bench is somewhat more far-reaching. Is the Clause really necessary at all? I cannot conceive of circumstances, and I am sure that my hon. Friends cannot—

§ Mr. Deputy-Speaker
The hon. Member seems to be going wide of the Amendment. The Question is not, "That the Clause stand part of the Bill". We are discussing an Amendment to the Clause.

§ Mr. Shepherd
Perhaps, Mr. Deputy-Speaker, I may postpone my remarks until we reach the Motion, "That the Clause stand part of the Bill".

§ Mr. Deputy-Speaker
That does not arise on Report.

§ Mr. Shepherd
I am, therefore, in difficulty. I have to abbreviate what were intended to be my brief remarks by asking my hon. Friends on the Front Bench to look at the Clause to see 93 whether some more drastic Amendment cannot be conceived for consideration in another place.

§ Mr. Deputy-Speaker
We cannot discuss any other Amendments except those on the Notice Paper.

§ The Solicitor-General
Although we can discuss only the Amendment, I assure my hon. Friend the Member for Cheadle (Mr. Shepherd) that we have looked carefully at the Clause, both in Committee and subsequently. To deal with the Amendment, I should remind the House of the genesis of the words in brackets which it is now sought to amend. They arose from an Amendment which I moved to give effect to an Amendment put down by an hon. Member opposite, I think by the hon. Member for Newcastle-under-Lyme (Mr. Swingler). The purpose was to make it clear, as, we thought, was already clear, that sound was included, that if the visual images were accompanied by a sound track they would be caught by the Clause.
I said that where part of a new film contains sound recordings taken from an old film that part is derived from the old film. That was the point of moving the Amendment. The hon. Lady the Member for Flint, East (Mrs. White) said: We are perfectly happy with that explanation of course. Our purpose was to reassure some of those in the industry, including some musicians, that this Clause was intended to include sound."—[OFFICIAL REPORT, Standing Committee B, 26th November, 1959; c. 141–2.] It is clear from that that the hon. Lady has since changed her mind. She is entitled to do that. In the first place, it is her prerogative as an hon. lady Member of the House to change her mind. Secondly, she has today produced cogent arguments in favour of the fact that, at least, the sound unaccompanied by visual image ought not to be caught. That was the view put forward by the hon. Member for Glasgow, Govan (Mr. Rankin), who asked whether a film maker can take from a library a sound track and use it provided that it does not include visual images. There is no doubt that the answer is "Yes".
6.15 p.m.
Our view of the Clause is that which was put forward in the letter which the hon. Lady read. In other words, a film 94 is a succession of visual images. It is so defined in Clause 3, although it is fair to say that in Clause 3 it is only so defined for the purpose of that Clause. In any case, however, the common sense of the matter is that a film is a succession of visual images. Since the material must be derived from a film, it is our view that sound unaccompanied by visual image would not be caught by the Clause.
Having said that, I see the force, nevertheless, of the point made by the hon. Lady that the matter is not entirely clear. Part of our argument refers back to a definition in Clause 3 which, it is true, is only for the purpose of that Clause. On the other hand, the alternatives that are now put forward on the Amendment Paper do not seem to me to be very satisfactory.
The Amendment of the hon. Member for Govan in line 30 would make the Clause read: Where parts of a film to be registered as a British film are derived (whether as regards photographs, sound or both but excluding sound effects) from— That clearly draws a distinction between sound and sound effects. I do not believe that that is at all what the hon. Member intends, nor do I think that it is a distinction that could be drawn.

§ Mr. Rankin
I hope the Solicitor-General will appreciate that I was doing my best. When a back bencher tries to put forward an Amendment for the kind of problem dealt with in the Clause, he is faced with a great many difficulties. That was the best form of words I could produce.

§ The Solicitor-General
I hope the hon. Member will not think I am criticising him. It has been the experience of all of us when trying to draw Amendments that they do not measure up to the standard that the draftsman, with his resources and experience, contributes in these days. That, however, would be the effect of the Amendment. In other words, although I understand clearly what the hon. Member intends, it would produce great difficulties in interpretation.
The hon. Lady's Amendment also seems to me to be technically defective. It is important to get the drafting right 95 if we can, because, as I said in Committee, it is intended that the Bill should lead to consolidation of the law relating to cinematograph films. The trouble with the hon. Lady's Amendment is that it would make the Clause read: as regards photographs or sound when combined with visual images. That would produce a false antithesis which we do not wish to have in the Clause. What we are concerned with here is excluding sound. Therefore, from a purely drafting viewpoint it is not very satisfactory to mention sound.
I was not clear what the purpose of the Amendment was when it was put down, because, as I ventured to point out, it is the direct contrary to the view expressed in Committee by the hon. Lady the Member for Flint, East. If I and my hon. Friend had appreciated it in time, we would have tabled an Amendment to meet the point of the hon. Lady and hon. Gentleman.
I have, however, prepared a manuscript Amendment which, Mr. Speaker, you might be willing to allow to be put to the House even at this stage, provided the hon. Lady withdraws her Amendment. Perhaps I may read it so that the House can see whether it meets the point. It is, in page 7, line 30, to leave out from "derived" to the end of the line and to insert as regards the photographs comprised therein The Clause would then read: Where parts of a film to be registered as a British film are derived as regards the photographs comprised therein from (a) a registered film; or (b) any film … and so on. I think that that would meet completely the point which the hon. Lady and hon. Member have in mind. It would be preferable from our point of view as a matter of drafting. If the hon. Lady would withdraw her Amendment and you, Sir, would accept the manuscript Amendment, I hope that we might agree on this matter.

§ Mrs. White
Is the hon. and learned Member saying that this form of words omits any reference whatsoever to sound and that he does not stand by what he said originally?

§ The Solicitor-General
We are not referring to sound at all in words. Of 96 course, we are concerned with sound if it accompanies the visual image, but we are concerned about the photograph. If the photograph has a sound track attached to it, it will be caught by the Clause, but the sound track alone is not caught and we do not find it necessary to mention it.

§ Mr. Rankin
The question which I put and to which the hon. and learned Gentleman gave an affirmative answer has now become almost unnecessary.

§ Mrs. White
In the circumstances, I beg to ask leave to withdraw the Amendment.

§ The Solicitor-General
I beg to move, in page 7, line 38, to leave out from "Council" to the end of line 40.
This is a consequential Amendment on an Amendment which was made in Committee. In Committee, we added paragraph 19 to Part II of the Second Schedule. Paragraph 19 amends Section 3 (6) of the Cinematograph Films Act, 1948, so that any British film which is not registered as an exhibitor's quota film must be disregarded for the purposes of subsections (2) and (3) of Section 1 of the 1948 Act. In other words, it has precisely the same effect in a more general way than the words which it is proposed to leave out from Clause 11.