HC Deb 25 July 1988 vol 138 cc105-12

'.—(1) A sound recording of a performance of a song may be made, for the purpose of including it in an archive maintained by a designated body, without infringing any copyright in the words as a literary work or in the accompanying musical work, provided the conditions in subsection (2) below are met.

(2) The conditions are that—

  1. (a) the words are unpublished and of unknown authorship at the time the recording is made,
  2. (b) the marking of the recording does not infringe any other copyright, and
  3. (c) its making is not prohibited by any performer.

(3) Copies of a sound recording made in reliance on subsection (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing copyright in the recording or the works included in it.

(4) The prescribed conditions shall include the following—

  1. (a) that copies are only supplied to persons satisfying the archivist that they require them for purposes of research or private study and will not use them for any other purpose, and
  2. (b) that no person is furnished with more than one copy of the same recording.

(5) In this section—

  1. (a) "designated" means designated for the purposes of this section by order of the Secretary of State, who shall not designate a body unless satisfied that it is not established or conducted for profit,
  2. (b) "prescribed" means prescribed for the purposes of this section by order of the Secretary of State, and
  3. (c) references to the archivist include a person acting on his behalf.

(6) An order under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.—[Mr. Butcher.]

Brought up, and read the First time.

8.30 pm
Mr. Norman Buchan (Paisley, South)

I beg to move, That the clause be read a Second time.

Mr. Deputy Speaker

With this it will be convenient to take the following: New clause 21—Parody in folk material— The publishing of a song in print or a sound recording does not infringe any copyright, where the words of the song are totally or substantially different from the original, the authorship is unknown, and the publishing is in connection with the study or dissemination of contemporary folk-lore.'.

Amendment No. 252, in page 152, line 1, at end insert—

'Recordings of folksongs

6A.—(1) A recording of a performance of a song may be made for the purpose of including it in an archive maintained by a designated body without infringing any of the rights conferred by Part II, provided the conditions in sub-paragraph (2) below are met.

(2) The conditions are that—

  1. (a) the words are unpublished and of unknown authorship at the time the recording is made.
  2. (b) the making of the recording does not infringe any copyright, and
  3. (c) its making is not prohibited by any performer.

(3) Copies of a recording made in reliance on sub-paragraph (1) and included in an archive maintained by a designated body may, if the prescribed conditions are met, be made and supplied by the archivist without infringing any of the rights conferred by Part II.

(4) In this paragraph—

and other expressions used in this paragraph have the same meaning as in that section.'.

Mr. Buchan

I owe a debt of gratitude to the Department of Trade and Industry. I apologise for not being involved in the Bill at an earlier stage—to some extent I should have been. The response that I received from the Department of Trade and Industry did not go as far as I should have liked, but if the new clause is accepted it will create a modus vivendi for those concerned with copyright.

I support the case for the individual artist's remuneration and moral rights, whether he be a writer or a musician but we are dealing with material that is or should be in the public domain and which, if it is unamended, may create difficulties if the copyright laws are applied too strictly. I am seeking to create not a loophole but a modus vivendi for serious researchers, serious collectors and, where possible, for the dissemination of information and material to interested and involved people.

It might be useful to describe the material that will be affected. All folk material is derivative and imitative. Bronson printed 200 tunes for "Barbara Allen". They are all recognisable as Barbara Allen tunes but different variants are equally recognisable as separate variants. No one copyrighted "Barbara Allen" material: it was mentioned as long ago as the 1660s when Pepys heard what he called the "little Scotch ballad of Barbara Allen".

The problem facing the contemporary collector of such material, or someone who wishes to write about it. as I have, is that since the time of Pepys and all the early collectors—Bishop Percy and others—copyright has been developed. If a man hears a tune now, learns it and writes other words to it, as I and others have done, he faces a problem if the tune is copyrighted. Sometimes the material is such that the dissemination of it, if it were disseminated let alone collected, would not cause the composer much fear. A sea-song from the last war goes as follows: My job is to clean a naval latrine, I'm the man with the plan for the pan that everyone uses. Hon. Members might guess that is the beginning of the tune, Beguine the Begin. I do not think that Cole Porter or whoever wrote it would be worried that the tune has been published in a book of seamen's songs, some of which are serious and some funny.

Doctor Ian Russell of the Folk Song Journal, in a paper called "Parody and Performance", found that he would be charged quite a lot of money for a publication that would not raise much. He intended to print the tune with a parody of "Show Me the Way to Go Home" but, because the tune was copyright, he was to be charged.

How do we cope with the problem of making parodies of tunes that are copyrighted? We argue that parodies are a part of the public domain and of our contemporary heritage. Some of them are funny and some are bawdy, but nevertheless they are a means of repeating what people said. I was reminded of Hamlet talking to the players, when he said: let them be well used; for they are the abstracts and brief chronicles of the time: after your death you were better have had a bad epitaph than their ill report while you live. I remember an incident not long ago, which hon. Members may also remember, in which one of the verses went: For there was a Tory and a Ryebuck Red, Fighting out the Cold War in Christine's bed. Some hon. Members may recall the incident that it described.

Parodies are used to comment because it is important to know what people are commenting about. Hon. Members will be aware of the well-known children's song: Now the war is over, Hitler he is dead, He went to Heaven with a pain in his head. The Lord said, 'No, you'll have to go below— There's only room for Elvis and his wee banjo.' Another parody says: Now the war is over, Vaseline's dead. I puzzled for some time as to what was meant by vaseline. Of course, Hitler is remembered, but Mussolini is completely forgotten.

We had to seek means by which material could be disseminated because of the greater consciousness of copyright as a result of this Bill, and the greater importance of the moral rights of the person who does not want his material to be used, and even has the ability to intervene to prevent matters being commented on by its use in another way.

I suspect that new clause 21 will be opposed. I talked to the copyright bodies and said that as the clause was imperfect I expected that it would be opposed. It sets out what we should like to establish in one form or another so that we can publish a song, whether it be a children's song or a seaman's; where the words of a song are substantially or totally different from the original, when the authorship is unknown and the publication is in connection with the study or dissemination or contemporary folklore.

I do not think that new clause 21 will be accepted. I recognise that the inclusion of the word "dissemination" will worry the copyright bodies. I hope that they will recognise that when a work such as "Grey Funnel Lines" is published it should become part of the public understanding and within public view.

I am reminded of an older song, which says: Hark the herald angels sing, Mrs. Simpson's pinched our King. I move the new clauses and amendment so that such material can be preserved, remembered and pass into our history.

Mr. Andrew F. Bennett (Denton and Reddish)

I join my hon. Friend the Member for Paisley, South (Mr. Buchan) in supporting the new clauses and the amendment. I apologise to the House for coming rather late to the debate. I was made aware by my wife, who is a member of the Folklore Society, of the concerns about the recording and copyrighting of material.

I am concerned not only with the folksong and the parody, but with the song, the dance, the folk tale, the traditional play, the urban legend and matters such as herbal remedies, children's rhymes, Xerox jokes that are printed on many copying machines and even graffiti. That is all traditional material, but it belongs to people rather than the individual. The first concern is how far one individual can secure copyright for material simply because he records it.

Traditional material feeds on what is clearly copyright material. Songs are parodied. A most obvious example is the way in which children use jingles from television advertisements and put new words to them. I suspect that none of the television companies or advertisers would mind in the slightest, although sometimes the jingle becomes fairly derogatory to their product.

The worry is that, if somebody parodies or uses material in some new form, he may become liable to a charge under copyright law. Because material is in the public domain, it is difficult for anyone to demand a fee for its use. No one will accuse a group of children singing a song in a street of taking the tune for their song from a television jingle, and it is unlikely that anyone will raid a public house where folk singers are performing a song for which they have taken the turn from recently published copyright material and put a parody to it. It is not worth anyone pursuing them at that point, even if the folk singers are being paid a small sum or are taking a collection.

The problem arises when someone records the material in some form. An example is to be found at party conferences—for Labour it is the Red Review, but I am not sure what the Tory review is called. Those reviews almost always use popular songs and send up various political figures to their tunes. I do not suppose that anyone would chase for the copyright of a tune at that point, but an excerpt may then be shown on television or recorded in some form. It is at that point that people may start to pursue a royalty on the material.

The importance of the new clause is that it makes it absolutely clear that if people record material either in written or in taped form, they should not be liable; they are the people who would be pursued for a royalty.

There is a slight question mark in my mind about whether, if there is an academic study, and material is recorded, its nature is changed. That is my reservation.

I look forward to hearing what the Government have to say. I hope that they will assure use that the Bill will not make it easier for an individual to steal a copyright on material that is in general circulation and that, when people take material in the general public domain, adapt and alter it, and do not normally make any money from it, there will not be restrictions and difficulties for those who wish to record the material either in taped or written form.

Mr. Butcher

I am pleased to say that the Government are able to go some of the way towards meeting the worries expressed by the hon. Members for Paisley, South (Mr. Buchan) and for Denton and Reddish (Mr. Bennett).

It appears to be de rigeur to think of a piece of material that may be relevant here. I can only commend an alternative version of the Rubáiyát of Omar Khayyám to this gathering. I especially commend it to parliamentary draftsmen who once every two decades come forward with a Copyright, Designs and Patents Bill. It goes something like this: The moving finger writes and having writ, moves on and writes another bit. The difficulty is that in the House we appear to be writing more and more bits with greater and greater frequency, but in this case I believe that our boulder in the avalanche of legislation which some say afflicts the House is important.

One can argue that, infrequent as these Bills are, we should get them right. It is with that objective in mind that I hope that Opposition Members will confirm that this has been as close as one can get to an exercise in open government by way of open doors, open to ideas, close relationships and advice from officials in the Department of Trade and Industry and hon. Members of all parties. This trio of new clauses and amendments comes into that category, and I believe that, although I can accept two, and have to resist one, they benefit from a free and open exchange of views.

In this country we have always celebrated events of both national and personal importance in song. From the balladeer of the medieval court to the songs heard today at a rugby match, folk music provides a lively guide to our social development. However, many of our modern folk songs consist of new words being fitted to existing copyright music and that can cause problems for those who want to research and collect folk music.

I do not think that these problems are as severe as the hon. Member suggested. The Bill already allows fair dealing with musical works for the purposes of research, private study, criticism or review. However, we accept that there is a difficulty in relation to the making of sound recordings of performances of the folk versions of the copyright music.

8.45 pm

New clause 20 provides a way round this difficulty. It is a new exception to copyright which, together with amendment No. 252, its corresponding exception in schedule 2, I am happy to accept. The clause will allow recordings of performances of songs to be made for the purpose of inclusion in an archive maintained by a designated body without infringing the copyright in the words or music. This is, however, subject to several conditions which will safeguard the interests of composers, lyricists and performers. The practical effect is that only the copyright in the music is overriden and for a very limited purpose.

Subsequently, anyone requiring a copy of the recording for the purpose of research and private study will be able to obtain it from the archivist. I believe this is a reasonable exception to copyright that will result in an archive providing a useful insight into our social history.

Unfortunately, I cannot be so accommodating about new clause 21.

Mr. Wigley

There is obviously some inspiration behind the wording of new clause 20. Am I right to say that, although the title is "Recordings of folksongs" the definition of folk songs is broad? The new clause relates not only to folk songs, but to anything that falls within the definitions that we have here.

Secondly, will the Minister confirm that the designated bodies will be wide-ranging enough to take in the bodies that exist in Scotland, Wales and Ireland, as well as in England, that involve themselves in those activities?

Mr. Butcher

I am 90 per cent. sure at this stage that the answer to the hon. Gentleman's second question is yes. I will do my best to discharge an obligation to reply to the hon. Gentleman's first point before I resume my seat. In the interim, I will continue with my observations on new clause 21.

Mr. Andrew F. Bennett

I understand that suggestions have been made to the Minister about who the designated bodies will be. My only slight reservation is that several of the designated bodies have put together collections which were made by individuals. Those designated bodies would not have such good collections but for the work of individuals in the past. The slight reservation is that there are private individuals who have put together a collection which, in the future, will become a valuable archive. It appears that they are excluded from new clause 20, which is being accepted. Has the Minister any observations on that?

Mr. Butcher

Again, I will attempt to give the hon. Gentleman satisfaction before we complete this debate. There are several examples of individual collections being incorporated in national archives. That is a trend which we all want to be consolidated and enhanced. I hope that my reply supports what is the universal objective of the House.

New clause 21 goes far beyond the archival exception that I have just explained. It could seriously affect the legitimate interests of copyright owners. It would allow the publication of books and records of any song, providing that the words were different from the original. There are safeguards, but I do not think that they are adequate. The clause says that the author of the words must be unknown and that the publishing has to be in connection with the study or dissemination of contemporary folklore. That would, however, open the way for the commercial exploitation of music without any control by, or payment to, the owner of copyright in the music. A record company could, for example, claim that it was merely disseminating folklore if it were to become aware of an anonymous set of words having been put to some already popular music, and were to issue a professionally produced sound recording of that version. It would clearly be quite wrong to deny the writer of the original music any say in that.

While I realise that new clause 21 is motivated by a genuine concern to allow the research and dissemination of folklore, it would take away the basic rights of the copyright owner to an unacceptable degree and would be incompatible with our obligations under the Berne convention.

New clause 20 and the existing provisions ensure that those genuinely involved in folk music research can collect and maintain archives of such music and can report the results of their research without infringing copyright. To take the exception any further would undermine the legitimate interests of composers and, at this late stage, I regret that I must ask hon. Members not to press new clause 21.

As regards the definition of "folk song", which was the issue raised by the hon. Member for Caernarfon (Mr. Wigley), there is no definition, because it covers any unpublished anonymous words set to copyright music whether or not it would be called folk song. Therefore there is no need to refer to "folk song" in the clause, because it would not add anything to the identification of what is covered. However, it is useful to refer to folk song as a shorthand in the title of the clause. That title will have no legal effect. It is merely a signpost.

I hope that hon. Members are satisfied, but I should point out to the whole House that there is a tradition which was established in Committee that hon. Gentlemen who wish to have a question answered immediately are obliged to stand up and make a not-too-lengthy intervention while the answer is prepared.

Mr. Buchan

In that case, I shall try to oblige the Minister and to give the House a little help. First, I congratulate whoever suddenly produced the definition of folk song as not being amenable to definition. That is absolutely right. My shelves are full of definitions, none of which can totally agree because they all become restrictive. It is rather like the story of Attlee replying to an organisation set up in, of all unlikely folk bodies, the Labour party—which if hon. Members recall, should not set up other organisations. Nobody could define what was meant by an organisation, so he said, "Well, we cannot define an elephant but we can recognise it when it comes through the door." In reply Zilliacus then told the famous story of the plague of rabbits in the Ukraine. All the rabbits poured over the border into Poland and the Polish rabbits said, "What are you running away from?" The other rabbits said, "They have declared a purge on all camels." The Polish rabbits said, "But you are rabbits". The other rabbits replied "Have you tried proving that to the OGPU?" That shows that what is available is always amenable to one's own definition.

I should like to make two points. First, the Minister has been slightly over-restrictive, which was unfortunate. We have no intention of opening any loopholes, and I do not believe that the new clause would do that. I can understand that, as with the definition of folk song, this definition might seem to open up a loophole, but that is most unlikely. Even in dissemination, if the song had been printed in a particular book about the man who cleaned the latrines, it would not have given Cole Porter a sleepless night. There can be a modus vivendi and the best thing that we can do is to have a chat with the copyright bodies—I intend to do that—to see what will happen.

Secondly, nothing more pleases some people who write songs than to write a song and then find, as I found recently, that it is being sung as traditional. Although that deprived me of my copyright fees, I was pleased that it passed as traditional—once in a learned book and then on a disc, so in the end I was quite pleased that it happened.

The classic case is that of a song of the last war, "Those D-day dodgers"—we now know who wrote it—which then became in every other way a folk song. I was in the 8th Army and we all knew the song long before I met the man who wrote it, Hamish Anderson. It contained some beautiful lines about Nancy Astor: Dear Lady Astor …

England's sweetheart and her pride,

We think your mouth's too bloody wide. That was from the D-Day Dodgers way out in Italy.

I should now like to make a serious point because I think that the Minister will have collected his thoughts by now. I want to talk about private collectors and their collections in relation to organisations. I hope that we can put our heads together about the organisations, including obviously, the School of Scottish Studies, Cecil Sharp house and the institute in Sheffield. In addition to those bodies, many academic bodies, including most polytechnics and universities, have cultural curricula and institutions of some kind. I hope that all those fall within the scope of the provisions.

The individual collector and the individual singer is almost always involved. For a long period I could hardly exist because of young people knocking at my door, looking for words and tunes, when the folk song revival was taking place. Similarly, almost all people connected with this would want to involve themselves with those bodies. All that we need to do is to help those wishing to sing or learn such material to associate with one of the bodies.

The final point I should like to make—unless the Minister is now ready to reply before I come back to withdraw my amendment—

Mr. Butcher

The position on private collections is that we cannot legislate retrospectively to make those collections legal if they are not legal at the time the recordings were made. However, in many cases, copyright owners will give permission for their music to be dealt with in that way. For the future, private individuals will be able to make recordings without seeking permission in order to put the recordings in an archive. I hope that that answer is helpful to the House.

I heard what the hon. Gentleman said about future negotiations and about seeking clarification. However, I hope that for the time being the House will be satisfied if I repeat that I am perfectly happy to endorse and support new clause 20 and amendment No. 252. Unfortunately, for the reasons I have given, I cannot support new clause 21. I believe that the House has found a more or less agreeable modus vivendi.

Mr. Buchan

I will, of course, withdraw new clause 21 partly because I would lose it in any case, but partly because it is imperfect. I hope that, when thanking me for withdrawing it, the Minister will say that he would find it useful if we discussed it with the copyright bodies, and that he might go so far as to say that he hopes that the copyright bodies will have equally open minds when we discuss the kind of modus vivendi. It would help me if the Minister would say so.

Mr. Butcher

Yes, that would be perfectly feasible. I hope that I have recorded the thanks of the House and my Department for the hon. Gentleman's work. A major constituency has an interest in these issues and if my earlier remarks were not interpreted as an appropriate acknowledgment of the hon. Gentleman's work I apologise to him because it is most certainly acknowledged.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

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