PRESUMPTIONS RELEVANT TO SOUND RECORDINGS AND FILMS (Hansard, 25 July 1988)

§ Mr. Page
I beg to move amendment No. 269, in page 44, line 33, leave out 'to the public' and insert 'either to the public, or as issued for purposes of performance in public or being broadcast or included in a cable programme service,'.

§ Mr. Deputy Speaker
With this it will be convenient to discuss the following amendments: No. 270, in page 44, line 34, leave out 'author or director of and insert 'owner of copyright in'.

§ Mr. Page
The amendments in the name of my hon. Friend the Member for Beaconsfield (Mr. Smith) are designed to strengthen the presumption of copyright ownership in relation to films. If I understand the Bill 189 correctly, it establishes certain presumptions with respect to sound recordings and films. The clause provides that a person named as the author or director on copies of a film issued to the public shall be presumed to be the author or director until the contrary is proved.
It also provides that, where copies bear the statement that the film was first published in a specified year or in a specified country, the statement shall be presumed to be correct until the contrary is proved. The statutory provisions go some way towards assisting copyright owners to bring film piracy cases to court by saving them the time and expense of proving the name of the author, the date of publication and the country of publication. Sometimes these three facts are not enough in themselves. Without proof, a piracy case will fail.
There are three gaps in the clause as it relates to films. The purpose of the amendments is to plug them, and thereby to ensure that the clause applies to every case of film piracy. The first gap is where the clause applies only when copies of films are issued to the public. That terminology includes the sale of video cassettes to the public, but it does not attach to copies of a film that are issued to cinemas for purposes of theatrical exhibition, which is how most feature films are first released. Nor does it attach to copies issued for showing on broadcast or cable television.
The second deficiency in the clause as it relates to films is that it establishes only a presumption of authorship at the date of issue. The second amendment overcomes that problem by substituting the term "owner of copyright", as used in the presumption relating to sound recording, in place of the phrase "author or director." The effect of the amendment is to place films in exactly the same position as sound recordings.
The third defect is that, while the presumption of publication in a specified year and country is usually sufficient to establish the subsistence of copyright in a published work, it is not sufficient in the case of an unpublished work. Therefore, the effect of the amendment will be to put unpublished films on precisely the same basis as published films. and sound recordings, both of which are entitled to a presumption of copyright subsistence under the clause as drafted, so long as they have been correctly issued.
The four amendments plug the three gaps. I shall be most interested to hear whether my hon. Friend the Minister is prepared to accept these amendments, which would make the prosecution of piracy cases very much easier.

§ Mr. Butcher
There has been much debate over the presumptions that should apply in civil proceedings for copyright infringement. We recognised that the Bill as introduced in another place went too far in providing that the court should presume generally that the plaintiff was the owner of copyright and that copyright subsisted in the work in question until evidence was produced to the contrary. We therefore dropped that clause from the Bill.
Those who have urged us to restore it have tended to brush aside the fact that the old clause tended to put the onus on the defendant to prove his absence of liability rather than on the plaintiff to establish his case. They have also tended to overlook the fact that clauses 104 and 105 make provision for evidence in copyright cases, which will greatly assist the copyright owner in establishing the critical questions of subsistence and ownership.
190 My hon. Friend the Member for Hertfordshire, South-West (Mr. Page) has spoken about the presumptions that apply. I readily concede that clause 105 needs to go further in order to assist in the fight against piracy. That is what motivated my amendments Nos. 280, 281 and 282. I believe there is common ground between us and I hope that he will feel able to withdraw his amendments in favour of those standing in the name of my right hon. and learned Friend.
The first deficiency in the existing presumptions is identified by my hon. Friend in amendment No. 269. In many cases, films remain unpublished, since copies are not issued to the public. Even in cases where copies are issued to the public in the form of videograms, this usually comes some time after cinema release and it is during the period before the issue of legitimate videos that the market for pirate videos is most bouyant. But if a pirate is caught, the existing presumption in clause 105 will not help. I believe the answer to this problem is as set out in amendment No. 282 rather than as in amendment No. 269.
I must also resist amendment No. 271. I do not think the courts should be asked to rely on a statement as to the subsistence or otherwise of copyright under a foreign law. We have rejected a presumption that United Kingdom copyright subsists in the film in question; it would be curious if we were to presume on the existence of foreign copyright, about which we can know little. In any event, such a presumption would rarely be relevant in a British court. Nevertheless, I believe my amendments will give my hon. Friend what he wants and I hope he can accept them.
As for amendment No. 64, we have come to recognise that the presumptions in clause 104 may not be ideally suited to computer programs. These are literary works, but their mode of exploitation is very different from books. The name of the author will normally appear on a book, but this is not normal practice in the case of a program. What is likely to appear is the name of the software house or company which owns copyright in the program and in this respect programs are more akin to sound recordings and films than they are to literary works.
Amendment No. 64 will provide the owners of copyright in computer programs with presumptions that are analogous to those which are applicable to records and videos. I believe that the various amendments we have tabled will be of considerable assistance, both to the rights owners in prosecution of cases against pirates and in reducing the burden on the courts.

§ Mr. Page
I thank my hon. Friend for his reply. As he correctly said, his amendments are fully superior to the ones that I have been advocating this evening, and go a long way to solving the problems that I have outlined. I beg to ask leave to withdraw the amendment.