§ 3.38 p.m.
§ Not amended (in the Standing Committee), considered.
§ Mr. Ronald Bell (Buckinghamshire, South)
I beg to move, That the Bill be now read the Third time.
I have to confess—I use the word in the light of what has been said—that this is a Bill the purpose of which is to allow Her Majesty's Government to ratify an international convention. I hope that this Bill will bring no sorrow to the mind of the hon. and learned Gentleman for Kettering (Mr. Mitchison). I confess to him that this is the second time that I have done this, although not actually in this Session of Parliament.
However, I would suggest to him that we ought not to accept too readily the assumption, which is assiduously encouraged by executive Governments these days, that the function of initiating legislation in Parliament somehow belongs especially to the Executive and that no Bill of any major significance ought to be introduced by a private Member. I think that is a dangerous heresy. Whether we should allow Governments to introduce Bills into the legislature at all, I do not know. It is a point that we 896 might consider one day, but I am sure that they ought not to have a monopoly.
This Bill was introduced in another place by my noble Friend Lord Mancroft, who piloted it through there with his usual skill, and in looking after its progress in this House I have found myself immersed in a subject of enormous complexity, a branch of the law in which I am happy to think that I am not normally called upon to offer opinions to anybody.
It is, however, a modest Bill in its scope, although the subject with which it deals is complicated. The law of international copyright is primarily regulated by two international conventions. The first is the extremely well-known Berne Convention of 1886, which forms the substratum of this subject but of which the United States was never a signatory. The second is the more recent Universal Copyright Convention of 1952, which provided a bridge between the United States and countries signatory to the Berne Convention.
But these conventions deal only with the rights of authors, an expression which for this purpose includes writers, composers of music, film makers and artists. But they do not include such people as performers, makers of gramophone records and broadcasting organisations. The copyright for these ancillary persons—performers—has not been adequately protected in the past by the two main copyright conventions.
In order to deal with this gap, a diplomatic convention was held in Rome in October, 1961, to draw up a new agreement upon the subject, and this resulted in the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations. That splended word "phonogram" is fortunately defined in Article III of the Convention as meaning…any exclusively aural fixation of sounds of a performance or of other sounds…which I am sure makes the whole thing extremely clear, and "producer of phonograms" means…person who or legal entity which first fixes the sound of a performance or other sound".This again carries the matter one stage further. The House will perhaps be relieved to know that in English law we have not found it necessary to use the expression "phonogram" at all, and that it does not appear in this Bill.
897 The scale of the Rome Convention is, therefore, fairly ample. It covers a considerable branch of the law. Hon. Members may wonder how we can fulfil our obligations under the Convention by so short and modest a Bill. The explanation is one which is rather satisfactory and pleasing to us. It is that the Convention very largely reflects the English law on the subject and that the English participants played a very considerable part in drawing it up.
Accordingly, while the other signatories—it was signed by 25 countries—may have substantial alterations to make in their domestic law in order to be able to ratify the Convention, we have to make only a very few marginal adjustments in our legal provisions.
We mainly rely on the Copyright Act, 1956, for the regulation of copyright, a system under which we give to the author or producer of a work of art a kind of industrial property in his production. Performers, as distinct from authors, are not protected in that way by the grant of a property right or copyright but by an Act known as the Dramatic and Musical Performers Protection Act, 1958, which makes it a criminal offence to record or broadcast a performance of a performer without his written consent.
The performer does not have a copy-right, but it is made a criminal offence to pirate his performance, and that, of course, puts him in a bargaining position in relation to broadcasting organisations or gramophone record makers so that he can strike his bargain by contract with them. Unless they get his consent by contract, they would be guilty of a criminal offence if they pirated his performance.
§ Mr. Bell
My experience of my colleagues on both sides of the House is that they are not terribly anxious to restrict the reproduction of any of their artistic efforts. However, I hope that my hon. Friend will not ask me any too difficult questions on this subject, because, although I shall do my best, in this highly specialised branch of the law, it would be best if I confined myself to an exposition of what the Con- 898 vention and the Bill do rather than why they do it.
That is a method of using the criminal law. The 1958 Act is a consolidation Act. It was in 1925 that the main provisions were introduced. They were amended in the 1950s and consolidated in 1958. The 1958 Act is the principal Act referred to in the Bill, whose provisions take the form of minor changes in the wording of the 1958 Act.
Perhaps I may refer to the Bill because it passed Second Reading on the nod and inevitably the Committee stage had to be rather formal, because one cannot amend in any material particular a Bill which is to enable one to ratify an international convention. In a way, therefore, this is the first chance which I have had to explain the Bill's purport to the House.
In Clause 1(1) the definition of the Dramatic and Musical Performers Protection Act, 1958, is extended. The principal Act refers to a performance of dramatic or musical work, but the Bill replaces that by references to theperformance of any actors, singers, musicians, dancers or other persons who act, sing deliver, declaim, play in or otherwise perform, literary, dramatic, musical or artistic works…The House will see that that is a wide definition.
§ Mr. Leslie Hale (Oldham, West)
Can the hon. Gentleman tell me whether this international convention is available in the Vote Office, because these words include everything? They include a weather report. They would apparently include the noble Lord, whose recent television appearance was the subject of some comment, in almost every possible capacity—declaiming and acting, drama and the theatre and everything. Is there anything left out? Is not every word ever said on the B.B.C. covered by it? Is there any reproduction, other than by Hertzian waves, which is not included in the definition?
§ Mr. Bell
If the hon. Member will listen to me, I was coming to Hertzian waves in a moment. I can reassure him because nearly all the words are common to the Bill and the Act. The material difference is that in the principal Act it is 899 "dramatic or musical work" and in the Bill it isliterary, dramatic, musical or artistic".All this business about singers or people who sing—an interesting distinction—and, even more damaging, actors or persons who act, with the slur which appears to be implied in those distinctions, is common both to the Bill and the Act, and at ten minutes to four on a Friday I do not think that we need to inquire further into them. There it is. It is the difference between dramatic or musical, and literary, dramatic, musical or artistic. That is Clause 1, to carry out the Rome Convention.
I turn now to Clause 2 which fills a small gap in our English law, which is covered by the Convention, because by English law it is only an offence to make a record without the written consent of the performer in this country. By this Clause it will be an offence to sell or distribute in this country a record made without the permission of the performer in some other country where it has been made in contravention of either the civil or criminal law of that country. That is the short point, and I hope that I need not amplify it.
I come next to the matter which is of particular interest to the hon. Member for Oldham, East (Mr. Hale), this question of Hertzian waves. Clause 3 extends the protection which at the moment applies only to broadcasts by Hertzian waves to cases where the pirating is carried out by line transmission. This does not apply to re-transmission by line of a broadcast performance, but to an original pirating by line transmission. I confess that it is difficult to imagine circumstances in which a performer's performance would be reproduced without his permission by line transmission without ever having been part of a broadcast first, but this is the sort of thing which the law has to cover.
§ Mr. Martin Maddan (Hitchin)
After the introduction of pay-T.V. it would be very applicable, and I think that the provision is most timely.
§ Mr. Bell
I do not want to get involved in a controversy about pay-television, but I see the point about the applicability of that to Clause 3.
900 Clause 4 is an Amendment added to the Bill in another place just to make doubly sure, though it is perhaps scarcely necessary, that if permission purports to be given by somebody who has no right to give it, and therefore purports, fraudulently, to give it, that is a criminal offence.
Those are the only four provisions in the Bill. They are modest provisions to enable this country to ratify an international Convention. The reason for this is that the other 24 countries who have to make the changes are basically adopting the English law on the subject. We have been pioneers in this sphere, and I think that we can derive some degree of satisfaction from this fact. It would be nothing more than an act of courtesy to the other countries who have ratified the Convention on that basis to take a legislative step which will enable us to ratify the Convention.
§ Mr. Eric Lubbock (Orpington)
Will the hon. Gentleman say whether the record made by "Private Eye" last year of the Prime Minister singing rock and roll would be within the law under this Bill?
§ 3.54 p.m.
§ Mr. Leslie Hale (Oldham, West)
I thought that the Parliamentary Secretary to the Board of Trade was going to rise to help the House with an explanation of the Bill. I waited for him to do that, because I do not understand this Measure.
The hon. Member for Buckinghamshire, South (Mr. Ronald Bell), who has introduced this interesting Bill, has been foremost among those who have demanded that on Fridays no Bill should be passed without adequate consideration. His action in taking14 minutes out of the 20 which were allotted for the discussion of this Bill places us in a difficulty. I regard it as a most worrying Measure, and I had hoped to hear the Minister speak before I did so, because I do not profess to understand the details of this Bill.
When the whole question of performing rights was discussed during the term of office of the Labour Government from 1945 to 1951, I am on record as saying that the Performing Right Society, which may be an estimable one, used to use the 901 heavy club of litigation very cruelly against people who played gramophones in public places, or who invited friends in to listen to the gramophone. These rights were enforced by the issue of writs in the Chancery Division, by the claim of a modest sum and very large costs.
This is a very arbitrary right, which can operate very severely, and in respect of which anyone transgressing has virtually no possibility of explanation or reply. When one receives a writ from the Chancery Division, claiming two guineas as a copyright fee for having transmitted a gramophone record in the bar of a public house, it is obvious that any solicitor whom one consults will say, "You may have a defence, but by the time that you have established it it will cost you a great deal more than this. You had perhaps better pay the money and be done with it."
Now we are asked to ratify an international convention which is not in the Vote Office—
§ Mr. Hale
That may be so, but it should be available for today. Those of us who do not take part in international meetings or conventions hear of these matters only when we arrive at Westminster on a Friday. The principal Act which was passed in 1958 itself seemed open to objection. I did not take part in the discussion on it.
§ Mr. Bell
I realise that there is little time, but it is my task to explain the Bill. I must point out that this is a Bill which gives the performer rights against the gramophone or broadcasting company. It does not affect the public. Members of the public have to get their permission to rebroadcast from the gramophone or wireless company. The Bill protects the performer as against the company.
§ Mr. Hale
It creates two criminal offences, one of which is a very surprising one, and it provides for an astonishing state of the law in the matter of the giving of written consent for a public performance. It also provides for the prosecution of a person who gives a public performance. I do not wish to obstruct the Bill, if there is adequate time to discuss it, but we have 902 reached a situation in which the Minister has not made any observations on behalf of the Government; my hon. and learned Friend the Member for Kettering (Mr. Mitchison) has not yet made any observations, and in which there are only two or three minutes left. I do not think that it is possible for the House to let this Measure go through today after this limited discussion, when we do not know what is the full significance of the Convention or of the implication of the use of these tremendously wide-ranging words.
I notice the word "declaim". Is that in the Act of 1958? I have never noticed the use of that word in previous legislation in respect of a limit upon the right of reproduction. The hon. Member said that we could not imagine line transmission of anything except through a broadcasting company, but every factory has line transmission and radio-communication—and most offices have. We can disseminate things over any form of radio-telephone. The hon. Member says that this applies only to gramophone companies.
I must be frank; I object to obstruction, and I am not obstructing, but this is too complex a Measure altogether. My hon. and learned Friend made the point, which is a fair one, that the use of Fridays for the ratification of international conventions, by way of Bills introduced by private Members on behalf of the Government, results in private Members who have their own Measures being deprived of their time and of a chance of having those Measures discussed. It is a method by which controversial Measures can be shelved and discussion can be shelved. I have assisted in the passage of two Measures today, one of which ratified an international convention, but I say sincerely that this Measure strikes me as being of very great complexity and as raising issues which need full discussion.
I submit that on another Friday we shall have the opportunity of discussing it. I will do no more, on any other Friday, than try to discover what are the implications of the Bill and how far it relates—
§ It being Four o'clock, the debate stood adjourned.
§ Debate to be resumed upon Monday next.