HC Deb 25 July 1988 vol 138 cc177-84
Mr. Fisher

I beg to move amendment No. 11, in page 32, leave out lines 8 and 9.

I believe that the Government have recognised, and the Minister has recognised in his remarks, that in Committee we had been staunch supporters of moral rights. Amendment No. 11 seeks to assert the moral rights for journalists. It is a pair with our amendments Nos. 4 and 3 that we discussed earlier, and, sadly, we were not able to persuade the Government to change their mind on that occasion. However, it is important that we should go on record as saying that the journalists, having lost their effective economic copyrights because the Government refused to accept amendment No. 3, should retain at least their moral rights. Sadly, clause 78(3)(a) removes even their moral rights. It is a black evening for journalists when the rights that they enjoyed under the 1956 Act are not only being taken away in economic copyright, but when, at last, other classes and sectors of copyright owners are being granted moral rights. We applaud the Government for granting those rights but do not agree that the journalists, as employed authors, should be excluded.

The Government have not had a good night in protecting the rights of journalists, but if they accepted amendment No. 11 it would be some sop to the journalists that their moral rights—their integrity tied up with their intellectual copyright—would be acknowledged. If the Minister does not accept this amendment, he will compound the felony of the Government's economic copyrights with the ending of their moral copyrights even before they have begun.

Mr. Rowlands

Subsection (3) is the most obnoxious part of the Bill. It says that anyone who is an employee does not have moral rights over what he writes. It is a simple point, but it is the reason why we seek to delete it.

I shall remind the House of what moral rights are. They are the rights of a person who writes or produces something to prevent distortion of his work by the owners—in this case by the owner of a newspaper or a magazine. Apparently, we give those rights to individuals who write on a freelance basis up to a point, but we do not give it to anyone who is employed. The notion that an employee has no moral rights over what he writes is one of the most obnoxious features of the clause.

On various occasions it has been said that moral rights could not be given, because a person is writing for a newspaper on a daily basis, events are moving and there is a need to edit copy, and therefore what was actually printed was often a collective work. In some ways, I can understand the practical arguments of daily journalism, but when the removal of those rights is considered with subsection (6)(b)—which actually removes the moral rights of anyone who writes for a newspaper, magazine or a similar periodical—one finds that if one wrote an in-depth article as an employee of a quarterly magazine, which would have nothing to do with the instant nature of daily journalism, one would still not have moral rights over that work. It would still be possible for the editor of a quarterly magazine to distort, edit and change the whole nature and character of that in-depth article. If one takes 3(a) and subsection (6) together, that is the effect of the provisions of the clause.

We should object strongly and press the Minister again to explain why all employees are not entitled to moral rights. Many newspapers, magazines and periodicals will carry reflective pieces which require the sort of research that should attract moral rights.

I did not find the Minister at all convincing in Committee about subsection 3(a) or subsection (6). He got in a terrible tangle about what a periodical and a magazine are. We believe that an employee of a newspaper, magazine or periodical is perfectly entitled to moral rights over what he writes.

1.30 am
Mr. Doran

The 1981 Green Paper introduced the idea of moral rights. It was fairly specific about what a moral right was to be. It emphasised that it was to be quite separate from the economic right which attaches to copyright.

There was no mention of any restriction of the moral right. The White Paper of 1986 used the same terms and said: the Government proposes to legislate for moral rights as follows:

  1. (a)authors will be given the right to claim authorship and to object to distortion, but not to modification of a work to which they could not reasonably refuse consent;
  2. (b)these moral rights will be independent of the economic rights, and will be exercisable only by the author."
It then explained what would happen after the death of the author. There is no restriction to the right there. A moral right seems to fill the gap left by the Government's removal of copyright from journalists. I wonder what the Government find so objectionable about the author of a work, regardless of whether he has any economic rights on the basis of being the author, having such a right.

We had a long debate in Committee about the impact of the law of defamation in this area. The Government are being disingenuous. I do not understand why such employees should be excluded from having a moral right. It is a concept I welcome.

Mr. Butcher

As the hon. Member for Merthyr Tydfil and Rhymney (Mr. Rowlands) said, the issue has been debated at length. I am sorry that he did not find what I said in Committee convincing. The situation with regard to the paternity right now is not too dissimiliar from that which is proposed in the Bill.

Local and national newspapers are not littered with bylines by right in the exercise of moral rights of authors over every piece that appears, and I have not heard Opposition Members argue that that should be the case. Their difficulty has been to find amendments that would not impose new conditions, not to say restrictions, on how newspapers have traditionally been put together.

The question before us is whether we should unravel one of the basic principles of the Bill—the distinction we have made between the rights of employed authors and those of freelance authors. We have tried to produce a formula which recognises the needs of the market place and which defers, as it should at the appropriate moments, to the Berne convention. That is the basis of our approach. I feel that I can ask the House to resist the amendment, but I shall come back to that point in a moment.

Mr. Fisher

Before the Minister leaves this point, will he widen his remarks? Once again, as in Committee, he has confined his examples to the newspaper industry, with some of the pressures of time and the difficulties that my hon. Friends have already referred to. We all acknowledge that there are genuine difficulties there, although we believe that they are not as great as the Government make out. Will the Minister accept that the way in which clause 76 is worded covers a range wider than just the newspaper industry?

The curator of an art museum or gallery, for instance, might write the foreword of the catalogue for an exhibition, which will be a work of great scholarship, perhaps distilling a lifetime's work and understanding of a particular artist or period of furniture. However, because that person would be an employed author, employed by the gallery, he or she would have absolutely no rights to be acknowledged at the beginning of the catalogue. Such work is as important as a PhD thesis, a doctorate or any other sort of learned treatise, but because the curator would be employed, he or she would not have any moral rights. Surely that cannot be what the Government intend. Will the Minister address the point that this issue goes far wider and has many more serious implications than for just the newspaper industry?

Mr. Butcher

I was going on to address that point, but the hon. Gentleman began his remarks with a statement of fairly fundamental belief to his side of the House; and I was simply responding in like manner.

To come to the point at issue and the broader implications, the Bill provides that where copyright vests in the employer of an author or a film director the paternity rights will not apply. Opposition Members appear to agree with us on film directors because their amendment leaves the position of directors unchanged, but not that of authors. I can see no justification for this distinction as I believe that exactly the same principles apply in each case.

The House has accepted the general rule that the employer should own the copyright in a work created by his employee—in other words, the employer should be able to obtain the financial reward from the work and use it in any way that he likes. However, although economic and moral rights are separate, it is clear that the requirement to identify authors might well interfere with the freedom of the employer to use the work in the way he thinks best. A company issuing its annual report is making a corporate statement and it would not be appropriate to identify the author of that work in the manner that is required by clause 76. It is probable that the report is an amalgam of works of many different contributors. Even if the separate works could be identified, it would not be appropriate to list all the individuals concerned.

In some situations, the provisions for assertion and waiver of paternity right could offer a way round the problem, but we do not think it would be appropriate to have to rely on these provisions in the employer-employee context. Apart from the matter of principle that I have mentioned, administering moral rights would create an extra burden on employers. Details of assertions and waivers would need to be kept up to date and associated with particular works. That in itself would be a complex task since the paternity right can be asserted or waived generally or in relation to any specified act or description of acts. Extra staff might be needed to cope with it.

Mr. Rowlands

The Minister is resting his case on principles and clear distinctions between what he described earlier as employed and freelance writers—at least, that is what I thought he said. Will he confirm that a freelance writer making a contribution to a periodical, encyclopaedia or any collective work also loses his moral rights?

Mr. Butcher

I shall be glad to deal with that and with the point about a curator. For the moment I shall continue my response to the hon. Gentleman, who is moving away from his amendment. Instead of using his paternity right to achieve greater public recognition, an employee might agree to waive his identification right only in return for extra money or improved conditions. This economic use of the right would be no more justifiable than the exercise of copyright by employees. An employer should not have to buy the right to use a work for which he has already paid, nor should he be forced to choose between identifying the author or not using the work at all. That would happen if the employee refused to waive his paternity right.

The only common-sense approach to avoid such problems is to disapply the paternity right for employees. As Opposition Members will know, it is for that reason that I must resist the amendment just as I resisted their blandishments, no matter how elegantly argued, in Committee. The nub of the matter is that the principle goes right through the Bill and is absolute. If a curator is an employee, no matter how learned, he would be caught by the moral rights provision in the Bill. I cannot give the hon. Member for Stoke-on-Trent, Central (Mr. Fisher) the assurance that he seeks. The curator is an employee and as such has the advantages that I have listed in earlier debates. It is for him to deal with the matter when he accepts the normal conditions of employment.

Mr. Rowlands

The Minister said that he would answer my question but he has made the distinction between an employee and a freelance. Am I right in thinking that a freelance writer for any periodical, dictionary, encyclopaedia or collective book of reference would not have moral rights?

Mr. Butcher

The freelance writer has moral rights unless, as I said earlier, he decided in his contractual arrangements to waive them or if he enters into any other sort of waiver arrangement. We have made the distinction throughout the Bill between freelance and employed authors. With the exceptions that we discussed in Committee, moral rights apply to the freelance author. The hon. Gentleman will remember those exceptions, one of which was for the purposes of reporting current events. In general, we have not moved our position since Committee stage. The hon. Member for Merthyr Tydfil and Rhymney asked about work written for a newspaper or other periodical or for a collective work of reference. That does not enjoy the moral rights provided in subsection (6) of the clause and in clause 80(4).

Mr. Fisher

The Minister has said several times that this is a matter of principle running throughout the Bill. Will he clarify that it is the intention of the Government, where possible, to stick by the Berne convention? Am I right in thinking that article 6 bis of that convention makes moral rights, the rights of paternity, absolute and does not make the exemptions that the Minister is making? Once we start breaking up the absolute integrity of moral rights, we lead ourselves into the difficulties with which the Minister is struggling.

Mr. Butcher

Of course we defer to the Berne convention to the extent that we need to sign it in order to get appropriate protection for our works and our intellectual and industrial property rights in other countries. A convention is a convention and it is for national Governments to decide how far they go in slavish adherence to its provisions and in observing its spirit and practicalities.

Earlier in the debate it became fairly clear that we have a duty to say to those who draft Berne convention provisions that our copyright reforms on matters such as music and time shifting and the levy are compatible with that which Berne seeks to achieve. The question of moral rights has first been raised in the Bill. We have brought that forward because Berne invites us to do so. However, I cannot say that we shall accept lock, stock and barrel the argument that the hon. Gentleman's interpretation of Berne should be applied universally. He will find that in different nation states there are different routes to achieving the protection of the Berne convention.

1.45 am
Mr. Fisher

We are deeply dissatisfied and unhappy with the debate and with the Minister's response. He will recall that we have gone to some lengths—with great sincerity—to pay tribute to his handling of the Bill in Committee, which was conducted with great sensitivity, tact and perseverance through the varied and difficult briefs with which he had to deal. Our compliments to him have been absolutely sincere. On this occasion, however, he has let his high standards slip considerably, and we are most unhappy with his response.

It is simply not good enough for the Government to say that although they stand by Berne they propose completely to disregard the spirit of article 6 bis, which is that moral rights are absolute rights for the author. We have acknowledged that there are difficulties in getting the right balance in economic copyright between the interests of industry, investors, consumers and users. We are all well aware that there are no right answers on that because the balance varies from industry to industry and from one set of circumstances to another.

Moral rights are a simpler matter. Both on Second Reading and in Committee we welcomed the fact that the Government were introducing the concept of moral rights. Now, however, they are undermining and undercutting their good intentions by removing a person's moral rights simply because he is employed, so that he does not have the right to have his work acknowledged as the work of his intellect and as his intellectual property. That cannot be a principled view for the Government to take, and it is not to the credit of the Government or the Minister.

Amendment negatived.

Mr. Michael Morris (Northampton, South)

I beg to move amendment No. 276, in page 32, line 29, at end insert 'or to any work created for the purposes of advertising'.

Mr. Deputy Speaker

With this it will be convenient to take amendment No. 277, in clause 80, page 34, line 16, at end insert 'or to any work created for the purposes of advertising'.

Mr. Morris

The amendments deal with advertising. The first deals with the moral rights of the creator of an advertisement in relation to the identification in clause 76 and the exceptions to it in clause 78 and the second with the integrity of a piece of work, mentioned in clause 79, and the exceptions to it provided in clause 80, to which the amendment refers.

I think that the House knows of my deep involvement with the world of advertising, which has lasted in a general sense for some 25 years. As someone who has tried to keep track of the Bill's proceedings—a task made all the more difficult by the fact that I was chairing another Committee—I venture to suggest that the reality of the world of advertising is a factor on which Ministers have not really had time to reflect.

Some of us would maintain that the central issue of ownership of copyright on commercially produced material should rest with person paying the bill and not with the artist, photographer, copywriter, visualiser or anyone else. In industry there is absolutely no difference between the role of the creator of advertising and that of reseach chemists, market researchers, production engineers, packaging people or anyone involved in the marketing of a product.

The involvement of the creator of an advertisement is transitory, whereas a manufacture is far from transitory. Some of our great brands have been nurtured by generations of marketeers who have seen the gaps in a market, and identified opportunities arising from changes in taste or attitude—opportunities that have then been taken and backed by the resources of the company.

The issue before us is even more tightly drawn. Amendment No. 276 deals with identification of credit. Exemption has been given to newspapers on the grounds that one cannot have a whole newspaper full of by-lines. I ask the Minister how on earth one can have a list of credits for a piece of packaging. How on earth, on a 15-second commercial, is one to list the producer, director, film company, dubbing studio, visualiser, copywriter, creative group head, sound studio, agency and others—all of whom are in some respects authors of the advertisement? By definition they should all have credit, but, frankly, that is unworkable and unreasonable. The idea is also unrealistic as regards press advertisements, many of which are worked on and created within a short deadline.

In a previous incarnation I used to handle some of the Central Office of Information work, particularly in the role of standby agency. During the three-day week I remember that we produced layouts in the morning, got them approved by lunchtime and were running the advertisement the same night. On occasion I even used to write some of the copy out of sheer necessity. Who will get the credit in such a situation? In reality it should be absolutely no one.

My other amendment refers to integrity of work. I accept the importance of that to a creative person. The advertising world has, as near as possible, a perfect market—a willing seller and a willing buyer. The creation of an advertisement is dependent on a good brief from the client or the agent; it is they who determine the boundaries of the product proposition, the media in which it will appear and the message that is to be conveyed. The advertisements for Guinness, for example, have changed dramatically over the years from the Toucan of the early years to the situation advertisements and so on. A brand also undergoes subtle changes and I do not believe that any advertiser can afford a creative prima donna to prevent the development of a brand.

If the reporting of current events argument is to be accepted, it is clear that, on grounds of practicality, common sense and the need to ensure that our marketeers are unfettered, my amendment should be accepted.

Mr. Butcher

The amendments propose to add to the list of exceptions to the paternity and integrity rights found in clauses 78 and 80. They would disapply moral rights to all works made for the purpose of advertising, and my hon. Friend the Member for Northampton, South (Mr. Morris) put his arguments well.

Moral rights are being introduced to give authors and film directors the means to protect their artistic reputation and integrity. That is particularly important if they have transferrred their economic rights, as is likely to be the case in works commissioned by an advertising agency. Careful consideration has been given to the provisions to try to give authors and directors a worthwhile level of protection while, at the same time, ensuring that moral rights do not create unnecessary burdens on users of copyright material.

As far as the advertising industry is concerned, we feel that the Bill already provides acceptable safeguards. To begin with, the rights do not arise in relation to works created by employees. Moral rights will therefore arise only where works are made by freelance authors and directors, and then the paternity right has to be asserted before it can be effective, and this must be done in writing by the individual concerned. Further, clause 86 provides for the waiver of the rights and I believe that there is sufficient scope for mutually acceptable arrangements to be agreed.

As we shall discuss shortly, special exceptions have been made for reporting current events and for newspapers and magazines. We felt that the need for news reporting to be unhampered by moral rights and the very tight deadlines that newspapers have to work within, merited specific exceptions. We do not believe that the same considerations apply in advertising. I accept that it will frequently be inappropriate for the advertisement itself to identify the authors concerned, but authors are just as aware of this as the agencies which commission them, and in the real world I do not believe that they would make life difficult for themselves by unreasonably asserting their rights. After all, they have a living to earn and could find that agencies will simply refuse to employ authors who make that kind of assertion.

On the other hand, however, there are other ways in which advertisements may come to public attention. For example, awards are made for advertising excellence and it would be entirely reasonable for an author to require that his contribution to a prize-winning advertisement should be acknowledged when the results are published in the trade press.

For these reasons, I do not accept that the Bill as drafted will cause difficulties. I hope that, in view of what I have said, my hon. Friend will feel able to withdraw the amendment. I have mentioned waivers, the need to assert and the issue of employees. Within that mix, and the workings of those who wish to continue to freelance into an agency, there is a formula that would protect my hon. Friend's colleagues and ex-colleagues in the advertising world from the sort of difficulties that they may fear.

Mr. Michael Morris

I am grateful to my hon. Friend, especially for the point about the waiver of rights.

There is a misunderstanding in the Department. The vast majority of work is put out. There is very little employee-related work. I still foresee difficulties, particularly with commercials, but I accept what my hon. Friend has said. We shall have to wait and see what happens; I think that at some later date there will be a need to amend this provision.

Amendment negatived.

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