§ Mr. Deputy Speaker
With this it will be convenient to consider amendment No. 330, in clause 103, page 43, line 37, at end insert—'(3) Where in an action under subsection (1) above the court finds that the plantiff's right under section 79 has been infringed but that the treatment complained of was not unjust in all the circumstances, it shall award to the defendant the costs of the action subject to taxation on the indemnity basis.'.
§ Mr. Bowis
In Committee I sought to protect the right to justified criticism. These amendments—they are either or; I do not seek to have them both accepted—try to take that one little stage further. I ask my hon. Friend to consider them.
I have in mind the problem of a hostile review which tries to show up inconsistencies of argument in an author's work and, to that end, juxtaposes extracts or quotations from it. Such extracts would, by definition, be incomplete. Equally, in a hostile review, they would necessarily be prejudicial to the reputation of an author.
However, I submit that no distortion or mutilation is involved. Under the Bill, such a review, it would seem, could be actionable. I have tried to compare the Berne convention and the Bill. The convention does not make distortion an alternative to prejudicing an author's reputation: it makes it a prerequisite. In Committee, my hon. Friend kindly said he would look further into this matter and wrote me a letter which he arranged to be placed in the Library. He said:In our view, it is difficult to conceive of a distortion or mutilation of a work which would not be prejudicial to honour or reputation.I do not disagree with that. My point is the other way around: something can certainly be prejudicial to an author without involving distortion or mutilation. The wording of clause 79(2)(b) is:the treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.In the Berne convention, that "or" is "and".
To overcome this problem, I have submitted two solutions. I hope my hon. Friend will consider at least one of them. Amendment 329 is the simpler of the two. It suggests inserting the word "unjustly" after "otherwise". Then there would be no doubt—if a review was unjustly prejudicial, it would be actionable. If it was not, it would not. Amendment No. 330 seeks to protect the position of people who are sued for derogatory treatment which the plaintiff may have deserved. That is a more complicated way of achieving what I propose. The word "unjustly" would, however, be simpler than legal retribution and indemnity. I hope my hon. Friend will consider such a simple amendment with favour.
§ Mr. Butcher
The issue is familiar, but my hon. Friend's amendments are fairly recent. In the time that we have had to consider the two amendments, we have concluded that they would limit the scope of the integrity right to an unacceptable extent and would undermine the principle on which it is based. Clause 79 confers the integrity right: it is the right of the author or film director not to have his or 186 her work subjected to derogatory treatment. The treatment of a work is derogatory if it amounts to distortion or mutilation of the work or is otherwise prejudicial to the honour or reputation of the author or director.
Amendment No. 329 would limit this by providing that the treatment would have to be "unjustly" prejudicial to honour or reputation. Following on from this, amendment No. 330 provides that in an action for infringement where the court finds that the integrity right has been infringed, but that the treatment was not unjust, the defendant would have to pay the costs.
We are already introducing quite a complex provision, and it will not always be easy to tell whether the modification of a work amounts to derogatory treatment. It would be difficult, if not impossible, then to decide whether the treatment was justly or unjustly prejudicial to the author or film director's reputation.
The whole point of moral rights is to protect the author's artistic reputation, and if we allowed users, in modifying works, to prejudice the author's honour and reputation, there would be no point in having the integrity right. The amendment raises the question whether it is possible to have prejudice that is not unjust—surely all prejudice is unjust. Furthermore, the draconian measure suggested in amendment No. 330 would deter authors and film directors from suing for infringement, because, even if their integrity right was found to be infringed, they might end up having to pay the costs of the case.
We have already gone a long way towards meeting the legitimate concerns about moral rights of those who use copyright works. We have employee exceptions, and current events and newspaper exceptions. Those, together with the waiver provisions, give plenty of scope for mutually acceptable arrangements on moral rights to be reached. For those reasons, I must resist my hon. Friend's amendments.
My hon. Friend mentioned hostile reviews. The Bill prevents no one from expressing hostile opinions about a copyright work or from quoting extracts from it to support the argument. The work itself is not being distorted or mutilated in those circumstances. For that to be the case, the extracts chosen would have to be distorted so that they did not express what the author wrote.
§ Amendment, by leave, withdrawn