§ The Minister for Science and Technology (Mr. Ian Taylor)
I beg to move,
That the draft Duration of Copyright and Rights in Performances Regulations 1995, which were laid before this House on 20th November, be approved.
The regulations amend the Copyright, Design and Patents Act 1988 in order to implement all the main provisions of Council directive 93/98, which harmonises the term of protection of copyright and related rights to the European Union.
The directive became due for implementation on 1 July this year, and we very much regret that the complexities of the regulations have meant that we have been unable to complete the preparation in time to meet that date. Indeed, work still remains to be done on legislation to implement article 4 of the directive, which requires the introduction of a new form of protection for unpublished works in which copyright has expired. That article is therefore not covered by the present regulations. We intend, however, to deal with that remaining aspect as soon as possible.
The 1988 Act already complies with one of the main requirements of the directive, which is a 50-year period of protection for copyright in sound recordings and broadcasts and for the rights of performing artists. The directive should be of significant benefit in bringing the duration of those rights in the rest of the European Union to the same level as those in the UK, particularly in relation to the UK sound recording industry. That is an area of considerable economic importance to the UK and, up to now, the terms of protection have been much shorter in several other member states, including Germany.
The directive means, however, that the 1988 Act has to be amended to increase the basic term of copyright in literary, dramatic, musical and artistic works. It will increase from the present life of the author plus 50 years after his death to life plus 70 years. Although that term previously applied only in one member state—Germany—two other member states also had terms longer than those in the United Kingdom: in Spain the term was life plus 60 years and in France it was life plus 70 years in the case of musical works.
Harmonisation at life plus 50 years would therefore have been difficult because it would have meant protection reductions in three member states. The directive was, moreover, subject to qualified majority voting, and it became clear that most other member states were willing to accept harmonisation at life plus 70 years.
In those circumstances, the UK agreed, albeit reluctantly, to accept the increased term, although I know that there has been quite a lot of debate and controversy about that. It follows, however, that there will also be an increase in most other member states, and the United Kingdom's authors, composers and artists should benefit at least as much as those from other EU countries.
The directive also means that the duration of copyright in films, which is currently 50 years from the making or release of a film, is changed by the regulations and put on a similar footing to the terms for literary and like works. Copyright in films will now last for 70 years from the death of the last to die of the principal director, the authors of the screenplay and dialogue and the composer of any music made specifically for the film.
§ Sir Jerry Wiggin (Weston-super-Mare)
As I have an interest in this matter, I hope to say a few words if I have the privilege to catch your eye later, Mr. Deputy Speaker. There is a differentiation between moving photographs and still photographs. If the Government are prepared to allow the special extension for films, why do they not extend it to still photographs? What is the difference between the two?
§ Mr. Taylor
My hon. Friend makes an important point, but the categorisation of "film" in the sense of video film was accepted as the basic definition for this purpose. If photography as such were to be considered an art form, that might bring it under aspects of copyright other than the particular element of video or visual presentations, which are generically called "films". I shall certainly consider what my hon. Friend has said in case there is a distinction that may have eluded me.
Copyright in films will now last for 70 years from the death of the last to die of the group of people consisting of the principal director, the authors of the screenplay and dialogue and the composer of any music made specifically for the film. The underlying reason for the change in approach is that several other member states already protect films on a life-plus basis rather than for a fixed period.
I should also like to explain that the directive requires that the increased copyright terms that it sets will apply not only to future works but to existing ones. That means that the copyright of works currently in protection in the United Kingdom will be extended. Revival of copyright will also occur in the case of works which, although in the public domain in the United Kingdom, are still protected elsewhere in the European Union. However, the terms set by the directive apply essentially only to works from the EU. Those from outside the EU will receive the term granted in the country of origin which, in most cases, will be less than the European Union term.
A number of the regulations relate to transitional provisions in relation to extended and revived copyrights. The Government are well aware of the difficulties that revival could cause, but without this approach there would be no effective harmonisation for a considerable time and UK sound recordings and performances would suffer from remaining out of protection in several other member states.
Moreover, we have tried to do as much possible to ensure that there are adequate safeguards to protect users who would otherwise be adversely affected by revival of copyright. Clearly, it would be wrong if anything done before the regulations came into force and copyrights revived were retrospectively to constitute an infringement of revived rights. That will not be the case, but, necessarily, the safeguards go much further. For example, where arrangements for exploitation of a work in which copyright will revive have been made before 1 January 1995, nothing done in pursuance of those arrangements after the regulations come into force will infringe the revived rights. That means, for example, that if a publisher has entered into commitments to produce an edition of an affected work before the date that I have announced, he will be able to fulfil his commitments without incurring any liability to copyright owners.
We have also had to establish who is to own extended or revived rights. That is not dealt with by the directive but has to be resolved, since otherwise it would be unclear 1256 who is entitled to authorise particular works or to benefit from them, with the result that future use of works could be inhibited. On that aspect, we have tried to take an approach which is both fair and produces the greatest legal certainty. In essence, we have concluded that those objectives are best met by providing that the current owner of copyright will own the rights extended by the regulations and that the last owner of the original copyright will own revived rights.
The House will realise from this introduction that the directive raises difficult questions of balance between competing interests, which have to be addressed in the regulations. We have consulted widely on the legislation—first, through a consultation paper on the issues of ownership of rights and safeguards for users and, secondly, through a consultative draft of the regulations. In all, more than 200 different representative bodies, firms and individuals were consulted. I have also had many representations from colleagues who have taken a particular interest in the matter, and I am grateful to them for the cases that they have made—personally and on behalf of the organisations that they have introduced to me.
We are grateful for the detailed and helpful responses. Frankly, this is not an easy matter. Ultimately, it requires that a balance be struck. We have carefully considered all the points raised. I am confident that we have arrived at conclusions which are both fair and workable.
There is one further matter on which I should comment—the date on which the regulations are due to come into force: 1 January 1996. I am aware that there is concern among interested parties about whether that means that copyrights due to expire on 31 December are extended, as opposed to being revived. I assure the House that the effect of the regulations is that those copyrights will continue in force and be extended. The concept of time being continuous is very relevant. I assure the House that I have taken the most detailed instructions from my officials, whom I have cross-questioned on the matter, and they have satisfied me that the law—and the text—says exactly what it should say. I present the regulations for the attention of the House.
§ Mr. Geoffrey Hoon (Ashfield)
I thank the Minister for his presence—and for his brevity, something that has sadly characterised too much of the Government's public contribution to this debate. As the Minister said, the regulations concern a complex and difficult area of law. Too often, the law relating to copyright is seen as a specialist subject of concern and significance to a particular and—possibly—rather narrow group of legal practitioners. Perhaps that feeling is reflected by the modest attendance in the House. Yet its importance underlies the entire provision of information and entertainment in this country. Without effective copyright laws, here and across the world, it is impossible to imagine how books could be commercially published, how music could be distributed and how films could be shown in cinemas.
Moreover, as the revolution in information technology gathers pace, copyright will become still more significant. As we move from mass media to the availability of films and music on-line and transmitted digitally into the home, effective copyright law around the world will be crucial. Copyright law will therefore be at the centre of a series 1257 of commercial relationships, vital to the country's trading and financial interests, and vital to those who create, develop and distribute new ideas and information.
Although the Labour party will not be voting against the implementation of the draft regulations, Labour Members believe that there are significant problems with their content and, perhaps more significantly, with the timetable that has been followed. We have a series of concerns about the extent to which the draft regulations reflect the European directive on which they are supposed to be based and the fact that they are part of a comprehensive redefinition of the law of copyright in this country and at European level, to which I hope that the Minister will be able to respond.
I shall first deal with the timetable for the legislation. The draft regulations implement the European Union's duration directive, harmonising the term of copyright, which, if approved today, will come into force in this country on 1 January 1996, as the Minister said. The regulations are, as the Minister conceded, already six months late. Since the regulations are not amendable at this stage, we are left with the uncomfortable position of having to accept their general thrust—which we do—while not being able to make the necessary detailed amendments. In the interests of the greater good served by the regulations, we are at this stage prepared to accept them.
Having said that, it is important to place on record our reservations. In particular, why has it taken the Minister so long to lay the draft regulations before the House? He referred repeatedly to complexity, but a careful study of the timetable would be useful to Members. The regulations are based on a directive that was published on 29 October 1993. It took more than a year—13 months—for the Department of Trade and Industry to produce a consultation paper. That was produced on 5 December 1994. It was not the most sophisticated of documents, although I recognise that it was necessary to address certain questions.
The consultation paper, which as I said took 13 months to produce, simply asked a series of questions. It did not provide the answers—although it provided some guidance—yet it asked questions of those who were consulted. The consultation period went on for a further 12 months. The regulations were published on 6 December 1995. In my experience, draft regulations normally contain the precise date of publication. It is curious that in this case—Members will observe it if they look at the regulations—the regulations are somewhat coy about when they were published. It says that they were published in 1995. They were in fact published on 6 December 1995. I suspect that the reason why the precise date is absent is that the Government are embarrassed about taking so long to produce the regulations.
What that means to the House is that although the Department had some 13 months to issue its consultation paper—a series of questions without any particular answers—and then took a further 12 months to produce thè regulations, it has given the House eight working days to consider what the Minister has described as a complex series of proposals. Indeed, before the proposals come into law on 1 January 1996, the House has precisely 10 days in which to consider their complexity, debate them and reach a conclusion.
I would be perfectly willing to give way to the Minister if he wished to explain whether the reason for that was simply Government incompetence or a deliberate and 1258 calculated snub to the House. That is a serious question, given that we have to consider these matters, complex as the Minister acknowledges, in eight working days, and have not been given the opportunity that his own Department was given to consider them over years. I shall gladly give way.
§ Mr. Ian Taylor
I reassure the hon. Gentleman and the House that no snub was intended, nor was there incompetence. There was, as I saw for myself, a whole series of very complex attempts at drafting the regulations, since their concept is not easy to express in succinct form in legislation. That is therefore what has taken so long—as well as my insistence that there was the widest possible consultation.
§ Mr. Hoon
I am grateful to the Minister for his observations. I am sure that the House appreciates the difficulty that he has had with the complexity of this matter. However, individual Members also have to wrestle with that complexity in reaching their views, which cannot be done satisfactorily in a short time.
I invite the Minister's comment on another subject. He mentioned the consultation repeatedly. That consultation has gone on for 12 months. The Minister told us that some 200 responses were received by the Department. Of course, none of those responses is available to Members. They are available only to the Minister, and therefore no one else knows what balance of representation was contained in those responses.
Would it not have helped the Minister's case enormously if, when he was explaining the rather short time that Members have to consider the regulations, the results of the consultation had been made available in the Library? Then, we could have seen how the argument had developed in the same way that he and his colleagues could. That would have meant that we would have had some idea how the different arguments developed in the preparation of the regulations.
The Minister candidly conceded that certain aspects of the directive were not covered by the regulations. Practitioners and others in this area are concerned that, notwithstanding that the terms of the directive have been available for more than two years, we still do not have a comprehensive enactment of those terms. Can the Minister say clearly when the entire directive will be implemented, including article 4, and when the other aspects of the directive not mentioned in the regulations will be laid before the House?
I hope that the Minister will answer that question because, as he has repeatedly reminded the House, the point of the legislation is the need for European harmonisation. As one of the Ministers most enthusiastic about Europe, he knows that the purpose of harmonisation is to ensure that we do not have different levels of protection in the legal systems of different member states. That was the reason for enacting the duration directive, yet the Government, after more than two years, are able to enact only part of that directive. I hope that the Minister will clarify the timetable for other aspects of the directive.
The Minister properly made reference to some criticisms that have been made of the implementation date. A number of organisations concerned about copyright, notably the British Copyright Council, have expressed their anxieties about the date on which the regulations will come into force. The Minister failed to explain why 1 January 1996 had been chosen. 1259 The criticism made was that 31 December 1995 would have been preferable. That date would have allowed a new, longer period of copyright to apply to the United Kingdom works whose copyright protection will expire under the present law on 31 December 1995. Although such works will clearly be governed by the regulations, there is concern that they will be subject to the regime governing revived copyright. Had the directive been implemented by the due date of 1 July 1995, they would have enjoyed the additional protection conferred by extended copyright.
I am sure that all the organisations concerned will be pleased by the Minister's assertion that the change of date will not change the legal position. However, I should be grateful if he could explain precisely why 1 January was chosen rather than 31 December. In giving that explanation, the Minister would be able to reassure those affected by the regulations that his and his advisers' understanding of the position is correct.
There has been some concern that certain United Kingdom works—previously in the public domain, but now returning to copyright protection under the regulations—will qualify under United States legislation for the restoration of copyright protection, in the USA, to certain foreign works that had lost it for largely technical reasons. One of the principal, qualifying factors affecting that restoration is that the work in question must be in copyright in its home state on 1 January 1996. I hope that the Minister can reassure the British Copyright Council and all those whom it represents on that point.
On the essential question of duration, the importance of harmonising the laws across the European Union is clear. The Minister has made the case very well. However, it is equally important that that issue is considered in the context not simply of European law, but across the world. Now that we have achieved a degree of standardisation in the European Union, can the Minister explain what efforts the European Union will make to ensure that its new, longer period of duration is consistent with the law of copyright elsewhere in the world? Clearly, it is not sufficient simply to ensure that there is standardisation in the European Union when countries such as the United States may be heading in a different direction on duration.
Article 6 establishes that the duration of copyright in a sound recording remains unchanged at 50 years. I am worried that some difficulties may arise—from the difference between 50 and 70 years—that will affect sound recordings used in films. Copyright in films is an especially difficult subject, and the Minister touched upon it. Although many people talk rather glibly about film being a director's medium, directors are given only what are described as moral rights in a film under UK law, because of the way in which UK law has historically viewed rights in films.
The approach in this country is to grant copyright to the person undertaking arrangements for the making of the film. In practice, that has meant the producer or his production company. He makes a series of contractual relationships with writers, composers, directors and performers, with the result that the producer owns the film in a legal sense. Therefore, the common law solution to a series of distinct copyright problems in the complex business of making a film has been based on contractual 1260 arrangements agreed between the different parties. However, the person who bears the financial risk—the producer—is placed in receipt of the ultimate financial reward, and therefore the copyright protection.
That approach, as the Minister knows, is in stark contrast to the continental approach, because other legal systems subscribe to a different philosophical view. Those systems consider the rights of authors as central to the definition of who bears the risk and receives the benefit in the creation of a film. Copyright in a film, therefore, is held jointly by the artistic elements in the film, and copyright law recognises the artistic contribution of a number of collaborators.
Most importantly, the directors benefit from that approach in continental law in negotiations with producers over contracts, for example in the assignment of rights and the length of time for which they are hired to make the film. The directors are in a much stronger position, and that inevitably means that those rights are reflected in the price paid for their services.
The European directive on duration provides that the principal director of a cinematographic or audio-visual work shall be considered as its author or one of its authors. Member states shall be free to designate other co-authors. As I understand it, it would be necessary to amend section 9 of the Copyright, Designs and Patents Act 1988 to implement that proposal in the United Kingdom. Unless I missed it, the regulations do not appear to do that, so notwithstanding the idea that the directive seeks to harmonise European law, it will simply create the considerable legal discrepancy that I have described. That is a significant problem with the regulations.
Under the directive, member states are free to designate further co-authors of films. Can the Minister tell us whether the United Kingdom intends to do that as well? It seems likely that other countries will designate as co-authors others such as writers, so surely that will multiply the differences in copyright law between different member states. The draft regulations touch upon that problem in the provision on the death of an author, which refers to the period of time after the death of named individuals who participate in the making of a film. If we are to establish a consistent principle across the European Union, it is important that we should act consistently on the rights of authors.
It is important to consider the implications of revived copyright. The change in the duration of copyright means that copyright will be revived for a number of different works currently in the public domain, and thus are no longer subject to copyright. I have seen various lists of the copyright holders who will benefit from that change—for example, those who hold the copyright on the work of James Joyce, John Buchan, Thomas Hardy and Rudyard Kipling. The list also includes Sir Edward Elgar and D. H. Lawrence, who once lived in what is now my constituency. All of the rights holders to those people's work will enjoy a benefit as a result of the implementation of the draft regulations. On a more serious note, the House should be aware that Adolf Hitler died on 30 April 1945, so any rights on "Mein Kampf' will be revived by the regulations.
Copyright protection will be restored to authors who died between 1925 and 1945. As the Minister said, the issue is who should benefit from the restoration of those 1261 rights. The Writers Guild of Great Britain has consistently argued, perhaps not surprisingly in the circumstances, that revived copyright should vest in the author's estate rather than with the last copyright owner where there has been an assignment.
In a sense, revived copyright is a windfall—perhaps unlooked for when negotiations on assignment were conducted. It might be possible that revived copyright was anticipated when an assignment contract was made, but it is difficult to accept that argument. It is therefore at least arguable that the beneficiary of the windfall should be an author's descendants, because it could not have been imagined at the time of assignment that an extra 20 years of rights would subsequently become available. The Department of Trade and Industry has obviously considered that issue, and I would be grateful if the Minister could tell us in more detail than he spelt out in his opening speech why it decided that the benefit should go to those to whom the rights had been assigned rather than the beneficiaries under any will.
The revival of copyright has important implications for British heritage. It has been stressed to me that, in particular, the copyright on many works by British composers who died between 1925 and 1945 will be revived. The list includes not only Elgar, but Delius and Holst. In most cases, their estates are charitable trusts whose royalty income is spent on stimulating musical activity and the continuing development of British cultural life. With the anticipated rise in disputes and references to the Copyright Tribunal, as set out in the regulations, such income is likely to be depleted. That might also mean that proportionate income is not available to support and encourage today's composers and performers. The use of revived copyright works or arrangements could, however, pay for any loss suffered by those charitable trusts as a result of such legal disputes and legal costs. The extra income made available by revived copyright could therefore benefit the United Kingdom's cultural community, but that would not be possible by simply transferring rights to assignees.
At this stage, it might not be appropriate to study in great detail the detailed provisions governing rights in respect of revived copyright. The Minister must bear in mind, however, that the particular timetable he has chosen, which does not allow the House the time that it might normally expect to consider such regulations, means that we have not had an opportunity to table amendments—assuming the regulations to be substantive legislation—or to encourage the Minister to think again about certain aspects of the draft regulations.
The statutory licence regime has been subject to as much criticism as any of the other proposals contained in the regulations. That regime will reduce copyright in the circumstances anticipated to the right to remuneration as set by the tribunal, if not agreed upon. That is the cause of some concern because that regime appears to place the United Kingdom in a different position from Germany, for example, which offers a guaranteed right for the full 70-year period. I would be grateful if the Minister could provide us with more detail about the statutory licence regime, because the regulations revive a system that previous copyright legislation had abolished.
As I understand it, the regulations originally included a proposal that would have preserved the ability of composers and performers to object to recordings of their work and to prevent their performance. The Government 1262 had given a formal undertaking that that right to object would be retained, but it does not appear in the regulations. The compulsory copyright licence system means that as long as a royalty is paid, the composer or performer of the original work will no longer be able to object to its further use. That is a matter of concern and it is unfortunate that the Government appear to have changed their mind in that respect. I am grateful that the Minister said that, in time, article 4 will be considered, and I hope that he will be able to tell us when that will happen.
We can expect to consider a number of items of legislation concerning the implementation of the European Union directive on copyright. It was always assumed that the directive would be implemented along with the rental and related rights directive. If the Minister and his Department have experienced difficulties with the relatively modest copyright directive, I anticipate that they will have still more difficulties with the rental and related rights directive. Can the Minister explain why those directives have been separated, and when we can expect the introduction of the rights and rental directive? Can he tell us whether, on that occasion, the House will have more time to consider its implications rather than the eight working days that we have been given to look at the copyright directive?
I am grateful to the Minister for his remarks, and I hope that the House accepts that, while a series of detailed criticisms can be made of the draft regulations, in general the proposal to extend the period of copyright to 70 years from the 50 years that have been standard in this country for many years, is appropriate. On that basis, Labour will not vote against the draft regulations.
§ Mrs. Edwina Currie (South Derbyshire)
I declare a financial interest in the subject. Indeed, I am glad to say, it is a very substantial financial interest, as I have an income from writing, broadcasting and audio tapes. I should also put on record my thanks to the Minister for the fairness and courtesy with which he has dealt with this fiendishly complicated issue and the regulations which stem from it. I am particularly grateful to my hon. Friend for the way in which he met a delegation from the Writers Guild and others, which I organised on 18 July. All concerned were grateful to him, because he listened carefully to what they had to say.
Everyone I have spoken to on this matter is pleased to see the regulations, and nobody wants to delay them. I am glad to see that they are in print, and I have been asked to express appreciation to the Minister for his efforts. The matter has taken a little longer than we would have liked. Nevertheless, no one wants to delay it any longer.
Copyright is too often seen as an unreasonable cost or as a restraint on trade—in much the same way as product licensing and patents in, for example, the pharmaceutical industry and elsewhere. Legislation is frequently written from the producers' point of view, and that tends to be particularly true in the EU. In this case, the producer would be the publishers, and the publishing houses also have their views on the matter.
If there were no copyright, or if it were to be seriously damaged, it would be the creators who would be disadvantaged—the writers, photographers and scriptwriters. It is our duty to protect these people and their interests, and not necessarily always those with the 1263 hefty contracts, such as one or two Members of this House and of the other place. We must protect the small earners who earn their living by doing such work. It is important that this House endeavours to protect those people.
A large number of points were made by the hon. Member for Ashfield (Mr. Hoon), but I wish to mention three main points. Some matters have been raised by the British Copyright Council, and I have passed those to the Minister. These are supported by the Writers Guild, and also by A. P. Watt, the oldest literary agents in the world, who happen to be my agents as well.
The three issues are: the date of implementation; what is meant by "arrangement"; and the missing six months from 1 July to 31 December 1995. On the first issue, the question of the date is very important. I heard what the Minister said, and I appreciate his assurances. Nevertheless, there is no good reason why 31 December should not have been chosen.
If the date were 31 December, rather than 1 January 1996, there would be two benefits. First, any author who died in 1945t—he hon. Member for Ashfield mentioned several such authors—would have the benefit of extended rather than revived copyright. Another reason—which is probably more important to living writers—is that the United States is restoring copyright in certain works which have fallen into the public domain in America under what is called "Restoration of Certain Berne and WTO works". This applies as from 1 January 1996 to works which are in copyright in the country of origin at that date, and some doubts have been raised as to whether there would be continuous copyright for works in which copyright has been revived on that very date.
I can well understand that the Department of Trade and Industry thinks that there will be no problems, but the fact is that certain lawyers who are active in this area and certain literary agents disagree strongly. The point has been made by my agent—why take the risk? Why chose a date which causes problems and concerns? If it is possible to get the date changed, that would be worth doing. I hope that when future directives and regulations on this issue are considered, we will get the date right. I dread to think what the costs could be for the Department of Trade and Industry if it gets the date wrong. Authors who lose a lot of money in the United States might decide to hold the Minister responsible.
The second issue concerns arrangements versus agreement. Under regulation 23, it will be permissible to continue to make use of works which are no longer in the public domain provided the
arrangements for the exploitation of the work in questionwere made before 1 January 1995. The previous draft of this statutory instrument referred specifically to the need for the existence of "an agreement" in those circumstances.
The point is strongly made on this matter again by A. P. Watt. Linda Shaughnessy, the rights director of the agency, says:
It would be wonderful if somehow 'arrangements' can be clarified, especially for Clause 23(3) which relates to derivative works (someone making a film, for example, or quoting from a revived work in a biography of an author).That happens very frequently.
At the moment they are only defined as 'arrangements for the exploitation of the work', which is open to wide interpretation. A plan to do something with a work but where no money (or an 1264 insubstantial amount) has been expended should not count as an arrangement. Nor should a speculative venture where for example someone has spent time producing a screenplay without any commission.This sometimes happens without any permission, either.
However, if a signed contract was in place by 1 July 1995—to write a screenplay, for example, or to write a biography—then to produce the film or quote from the work of the revived author in the biography should not be an infringement. If a substantial amount of money had been expended—perhaps expressed as a substantial amount of the total monies for that project—that might also count as an arrangement. Anyone claiming arrangements to have been made should be prepared fully to disclose documentation proving this.The opportunities for litigation in such cases are legion, and it is important that this matter should be cleared up. The previous wording seemed to be acceptable to all concerned, while the current wording seems to raise doubts.
The third issue is the question of the lost six months, which is regarded as an omission in the statutory instrument. Copies of a revived work which were printed before 1 July 1995 are not considered an infringement, but copies printed after the commencement date may be published as part of the statutory licence. What happens to works printed on or after 1 July 1995 but before the commencement date?
A sensible interpretation would be to say that copies sold before the commencement date would not be an infringement, but copies sold after would be considered as licensed by right and subject to the reasonable royalty, provided notice has been given to the copyright owner of the revived material. This, however, is probably something that the Association of Authors' Agents and the Publishers Association could decide amicably themselves. It may well be that the Minister wants to express his view on this matter, and he should certainly be aware that the lost six months could cause difficulties.
That is all that I want to say, except to reiterate my gratitude to the Minister for the careful and delicate way in which he has stepped through this extraordinary minefield.
I wish him well for all of the material which has yet to come on the issue.
§ 6.7 pm
§ Mr. Austin Mitchell (Great Grimsby)
I do not claim the literary skills of the hon. Member for South Derbyshire, (Mrs. Currie), nor the legal skills of my hon. Friend the Member for Ashfield (Mr. Hoon). Therefore, for both those reasons, I can be briefer than usual. I wish to raise a few points that have been put to me by the British Copyright Council, as advised by lawyers, and the British Photographers Liaison Committee.
I have no interest to declare, except that I am an enthusiastic amateur photographer who, with more pictures in the House of Commons photographic club exhibition than the hon. Member for Weston-super-Mare (Sir J. Wiggin), can claim greater expertise in this area. The implications of what the Minister said about the day that the regulations are to come into force were not clear. The problem is that the date affects works whose copyright protection expires under the present law on 31 December 1995. What exactly is the Minister telling us? The copyright of such works will presumably be extended, rather than revived. Am I correct in saying that?
§ Mr. Taylor
As several colleagues have raised the point, I shall read out exactly what my legal brief says. I do not apologise for reading a legal brief because, ultimately, it is the lawyers who will have a field day with the regulations. The brief says:
"The increased copyright terms set by the Regulations will apply on 1 January 1996, that is on commencement to 'existing copyright works', that is to works in which copyright subsisted immediately before that date. Time is a continuum, and therefore there is no break between the point immediately before commencement and commencement itself. Consequently, I am able to reassure the House that the Regulations will maintain in existence, on and after 1 January 1996, those copyrights which subsisted on 31 December 1995 but would otherwise have expired at the end of that day. These copyrights will be thereby extended, and revival is not relevant to them."
§ Mr. Mitchell
I am grateful for that intervention although the Minister baffled me as much as Einstein's theory of relativity, on which he seemed to touch at times. The point is important because the rights of revived copyright owners are much weaker than those of extended copyright owners. The provision affects only a comparatively small number of people. Let us consider the author of a work or a photographer whose work was written or whose photographs were taken in 1945 and who died in 1945. My point is important for such cases.
If the United Kingdom had, as my hon. Friend the Member for Ashfield pointed out, complied with its obligation to implement the provisions by 1 July 1995, which we should have done, the problem would not have arisen. The people whom I mentioned would have been protected and the copyright would have been extended rather than revived. That point is important to a small number of people.
A further point is that the owner of a revived copyright will normally be the person who owned the copyright before it expired. In the case of photographers, the owner of the copyright could be a company. As defined under the Copyright Act 1911, the owner was the person who owned the photographs at the time the photograph was taken—in other words, the person who effectively employed the photographer. If the owner was a company that has ceased to exist, the problem is who owns the revived copyright.
That problem does not arise with film because the regulations give the revived copyright in those circumstances to the principal director or his personal representative. Why could the copyright for photographs not be given to the photographer and his or her personal representatives? All that would be required would be an amendment to paragraph 10 of schedule 1 to the Copyright, Designs and Patents Act 1988 to make the question of who was the author of a photograph determinable for copyright purposes. There is a difference between the treatment of photographers and the treatment of the directors of films. Perhaps the Minister will explain whether there is protection for photographers who were employed when they took the photograph by a company that has ceased to exist. Provisions of the directive remain to be implemented. The directive requires the principal director of a film to be named as the author or co-author. Why has that provision not been implemented for photographers? What will happen to that provision?
Although providing for the copyright period for films to be calculated in accordance with the directive, the regulations are silent on the relationship between that and 1266 the current law, which provides for the copyright of a film to belong to the producer. The producer is not mentioned in the list of persons in regulation 6. Again, that point is relevant to photographers.
The directive requires the introduction of a 25-year term of protection for previously unpublished works that were first communicated to the public after the expiry of copyright. Clearly, that will be a source of controversy, as it was in the consultation period. Why has nothing been done about that?
The British Copyright Council has made the point, which I must put to the Minister, that the rental and lending directive and the cable and satellite directive have not yet been implemented. As those directives are relevant to the regulations, it would be useful to know what the Government's timetable is for those regulations, which are now 18 months overdue.
I am grateful for the opportunity to put those points, which are made in a spirit of questioning so that the Minister can give further explanation about the regulations, rather than in a spirit of hostility. My hon. Friend the Member for Ashfield said that he supported the regulations. I always defer to what my Front-Bench colleagues say in all matters and especially when there is a speaker who is as articulate as my hon. Friend. I support the regulations, but I believe that my questions need to be answered.
§ Sir Jerry Wiggin (Weston-super-Mare)
I immediately acknowledge that, as the hon. Member for Great Grimsby (Mr. Mitchell) said, I am chairman of the all-party photographic group. I am also a member of the council of the Royal Photographic Society of Great Britain and I submit a number of my photographs to an agency in the hope that one day, somebody will buy one. I am remunerated for none of those interests, so they are not declared, but I feel that these days, I should mention them before proceeding.
Both my foxes have been shot. My hon. Friend the Minister made a clear declaration that the difference between revived and extended copyright would not be affected by the date of implementation. However, we heard a fairly sorry story of the progress of consultation on the directive from the hon. Member for Ashfield (Mr. Hoon). I am conscious of the difficulties of consulting and I believe that one of the problems when one consults a large number of people is that if one does not take their advice, they naturally feel affronted and feel that they would like a second bite at the cherry. That is especially true of photographers; I am speaking primarily with an interest in photography. They feel that their views were ignored while the film industry was dealt with graciously, as were, to a large extent, the authors.
After I made an intervention in my hon. Friend the Minister's speech, he got on to the extremely delicate point of whether photography is art. If we got into that debate tonight, the HMSO debate would go on to the early hours of tomorrow morning. I will not follow my hon. Friend down that line, but I ask him to take on board the fact that many people earn their living from taking and selling photographs, sometimes for many years, and depend on copyright laws and protection not only for their livelihood, but for their pension and for their families' wealth in the future. It is, therefore, extremely important 1267 that the photographic side of the matter is got right, especially in a day and age when more and more images are being demanded by CD-ROM, by television and by all the other agencies of moving images. This matter will become more important, not less.
My second fox was shot to some extent by the hon. Member for Great Grimsby, who has read the same brief as I have; I shall not repeat word for word what he said. However, when dealing with corporate authors, will my hon. Friend the Minister answer the question why the director of a film should be able to pass on the rights in copyright, whereas a photographer who has worked for a company that has ceased to exist does not have a similar right? I have put the question simply although I know that none of those matters is simple.
I should say to my hon. Friend the Member for South Derbyshire (Mrs. Currie) that this is a serious matter. If she believes that if the Government have got it wrong, a united band of authors will be able to seek restitution in the courts, I must disabuse her of the idea. If the regulations go through—and they will, I suspect, because, in general terms, we do not want to throw out the baby with the bathwater—they will become law. The law of the land will be interpreted by the courts. It will be no good saying that we have got the date wrong; her author friends will have had it.
§ Mrs. Currie
People like me have the opportunity of a perfect revenge, because if the Minister gets it badly wrong, I can put him into one of my future novels.
§ Sir Jerry Wiggin
Having read my hon. Friend's novel, I think that it would depend upon which part of the novel he was put into. He might become famous. My hon. Friend once attributed the start of her career as an author to my interest in her affairs. I am glad to hear that she is doing so well out of it because I am not making any money out of photography.
This is an important matter to many people. I hope that lessons will be learned from the way in which the Government have treated the directive. The questions asked by the hon. Member for Ashfield about the sections that will be attached to it are equally important. I hope that my hon. Friend the Minister will take careful note of that, because so many livelihoods depend on the matter.
§ Mr. Robert Maclennan (Caithness and Sutherland)
I must begin by declaring that, as an occasional author, I might have some interest in this matter. Candidly, I am not entirely sure what the effect of the order will be as I have come late to the subject and am not an expert.
I echo what was said by the hon. Member for Ashfield (Mr. Hoon) about the way in which the matter has been handled. It is extraordinary to have nearly two years of consultation with as many as 200 people and organisations and then to leave the House of Commons so little time to consider it on a take-it-or-leave-it basis. That is not a rational way in which to legislate.
This is a complex area of law which could clearly have a widespread impact. The debate illustrates some of the general points about how not to amend the law of the land that were made last week in a debate, which I initiated, 1268 on the legislative process. Unfortunately, we cannot go through the regulations one by one, deleting those that are unacceptable and accepting those that have not raised adverse comment. That is pretty close to disgraceful.
The fact that copyright is an arcane subject that interests directly only a relatively small number of hon. Members is no excuse for legislating in this fashion. If the Minister had been able to say that, following the consultations, a broad consensus had been reached and that the difficulties had been ironed out, we would perhaps have been able to nod the measure through with a greater sense that we were not being derelict in our duty. Alas, there is clearly discontent and dissatisfaction. Although the hon. Member for South Derbyshire (Mrs. Currie) is doubtless right that people want the law to be amended in broadly the direction of the directive, the uncertainties have given rise to criticism.
I have been asked to draw attention to the concerns of the Composers Estates Group and the Alliance of Composer Organisations. They fear that hardship will be caused, especially to the original authors and their heirs, by the proposed extension of the 20-year period of copyright. As I understand it, under the proposed regulations, ownership of the extra 20-year period would belong to whoever owned it immediately before the implementation date, 1 July 1995 or, in the case of revived works, the owner immediately before the copyright expired. In many cases, that would be the publisher, rather than the creator, of the work.
In the case of extended copyright, the creator's heirs will remain bound by what are in some cases out-of-date publishing agreements, often made several decades ago. The draft regulations do not allow them to be renegotiated or updated. In the case of revived copyrights, there is no obligation whatsoever on the publisher to pay royalties or to abide by any pre-existing contract.
The original European directive, which was published on 29 October 1993, was specific about the exploitation of works which were in the public domain under the old regulations but which became copyright under the new ones. It was intended that
persons who undertook in good faith the exploitationof a work when it was in the public domain should not have to make royalty payments when the copyright in such work was revived. It is clear that that was not intended to apply to those who exploited works in bad faith.
The regulations ignore the reference to "good faith" and extend the immunity from paying royalties to anyone who is
in pursuance of arrangements made before 1st January 1995according to draft regulation 23.
I have been informed by a lawyer who represents the Composers Estates Group that, "in pursuance of arrangements" is not a legal term of art and has no real meaning. It is sufficiently vague to have allowed anyone who exploited a copyright work after the publication of directive and before 1 January 1995—a period of 14 months—to go without paying a single penny in royalties. Such a lack of clarity is a loophole ready and waiting to be used by the unscrupulous to avoid paying royalties. Activities such as stockpiling may have been legally possible with no point of redress for the copyright owner and the potential loss of huge royalties. In this case, ignorance is a defence. 1269 Dispensation from royalties should be granted solely to activities relating to revived works which were carried out before publication of the directive. Anyone exploiting, or arranging to exploit, a revived copyright work after the publication of the directive ought to be legally bound to have known that copyright was to be revived and that, therefore, royalties should be paid.
Draft regulation 24 states that the exploitation of revived copyright is to be subject to a compulsory licence. In practice, that seems to mean that someone who wishes to exploit a revived copyright needs only to give notice to the copyright owner of his intentions and he is then automatically licensed. He is required to agree with the copyright owner the payment of a reasonable royalty, but that does not have to be agreed in advance of the copyright being exploited. Draft regulation 24(4) states:
If he does give such notice, his acts shall be treated as licensed and a reasonable royalty or other remuneration shall be payable in respect of them despite the fact that its amount is not agreed or determined until later.If the exploiter and the copyright owner cannot come to an agreement, the case has to go to the Copyright Tribunal. That can be cumbersome, time consuming and expensive. While that process is going on, the exploiter can enjoy the legal right provided by the regulations and the copyright owner is in no legal position to stop him. In essence, that means that the copyright owner no longer has an exclusive right to his property and is unable to refuse an application to exploit it, even if he considers the use inappropriate for whatever reason or if no agreement has been reached on the amount of royalties payable.
The Composers Estates Group has asserted that the United Kingdom will be the only member state with compulsory licensing. In other words, this is not an obligation that has been imposed on us by European law or for other such reasons. It is worth bearing in mind the faith that compulsory licensing was abolished in this country by the Copyright, Designs and Patents Act 1988.
I am also informed that someone may exploit a copyright in this country by informing the copyright owner under the compulsory licence rules. People are legally entitled to do so even if the copyright owner has not agreed to its exploitation, but that would be illegal in another member state, so someone trying to export a product that exploits copyright in that way could, theoretically, have the export blocked by another member state, which would directly contravene the treaty of Rome.
Those are serious objections to the regulations. If it were left to me to decide these matters, I would oppose them. I have no opportunity to move amendments to deal with those complaints, and the House has expressed a consensus that the greater good lies in not opposing the regulations. I am not even in a position to make that evaluation satisfactorily. Moreover, I recognise that strength of numbers is not likely to be with me on this occasion, which is not an entirely unfamiliar experience. I therefore reluctantly acquiesce on this matter, which is an example of how not to legislate.
§ Mr. Ian Taylor
As I suspected, this has been a technical debate about what I admitted in my opening remarks are complicated regulations.
I reassure the hon. Member for Caithness and Sutherland (Mr. Maclennan) that, although the consultation period threw up one or two positions that 1270 were difficult to reconcile, by and large the responses from the many groups that have lobbied me over the past year have shown a broad consensus in favour of the regulations. Points of detail will always have to be worked out and some issues will have to be tested by the courts.
We were not happy with some points because this measure was effectively achieved by qualified majority voting in the European Union. It was agreed that a timetable would be harmonised, but no detailed instructions were issued in the draft directive on how some measures needed to be carried out. Differences will therefore occur between member states, as have occurred in several different areas in this category.
§ Mr. Taylor
With great respect to the hon. Gentleman, who is normally a great expert on such matters, that is not what I meant at all. I meant that, when a measure is agreed by qualified majority voting, one must take an element of rough with the smooth because we considered the overall purpose to be beneficial to this country, particularly in the area of sound broadcasting. Furthermore, the directive is not so intrusive that it goes into every area on which every member country must regulate. In those circumstances, different member countries have gone down a slightly different route in applying the regulations.
I admit that we are late in applying the regulations—I apologise to the House for that—but we are not at the tail of the pack. Other countries are still wrestling with the problems and are having difficulties, as we had attempting to put the directive into proper UK regulations. It is my job not to second-guess other countries but to try to lay a comprehensive group of regulations before the House, which is what I have attempted to do.
I would test the patience of the House if I went through in detail all the questions that have been asked of me, but I shall attempt to deal with some of them. The hon. Member for Ashfield (Mr. Hoon) and my hon. Friend the Member for South Derbyshire (Mrs. Currie) asked about United States law. We cannot definitively interpret US law, but we understand that the restoration of copyrights provided for by US legislation to implement the trade-related aspects of the intellectual property rights agreement under the general agreement on tariffs and trade depends on eligible works being protected in their source country on 1 January 1996. We believe that our legislation will be in force on that date and UK copyright owners should be able to obtain any restorations of copyright in the US to which they are entitled. I have asked our team to be certain about that, and I am assured that it is.
Other aspects of the directive, such as article 4, need to be implemented and we shall return to that as soon as possible in the new year.
The hon. Member for Ashfield asked about ownership of revived rights. That is inevitably a complex area and a decision had to be made. Authors will benefit from the increased term in the case of future works by virtue of being the first copyright owners. We had to identify exactly who, in all simplicity, should receive revived rights and we decided that it should be the last owner of those rights. 1271 I was asked about musicians' estates. By any reading of the regulations, if an original composer or author does not benefit, it is because at some stage they or their estate transacted those rights to someone else. They are not being denied their rights; we have gone for simplicity and determined that that is the way to proceed. Those who will benefit from the revived rights should be the last owners.
§ Mr. Hoon
Is the Minister entirely happy that the revived rights payment system is consistent with legislation enacted elsewhere in the European Union and, moreover, with the general principle applied in Germany, for example, where exclusive rights are guaranteed for a 70-year period? After all, that period was chosen because Germany gave greater rights than other countries in the European Union. The system for revived rights set out in the regulations does not give copyright holders exclusive rights for 70 years but simply provides a system of remuneration, subject ultimately to the Copyright Tribunal, for an extended period of 20 years.
§ Mr. Deputy Speaker (Sir Geoffrey Lofthouse)
Order. That is a long intervention. It is more like a second speech. I call Mr. Ian Taylor.
§ Mr. Taylor
I was beginning to worry about that myself, Mr. Deputy Speaker.
I cannot second-guess the German position. As the hon. Gentleman said, there is no such thing as revived rights in that context in Germany because of the 70-year period. The Copyright Tribunal must tackle certain questions. The hon. Member for Caithness and Sutherland remarked on the tribunal. Although it may not be perfect, it is a tried and tested way of proceeding. It is not for the Government to second-guess what a reasonable payment might be in those circumstances. It would be extremely dangerous for us to go on to that ground, which is why the tribunal pronounces on such matters.
We have never proposed a right to object to the use of a work. Our consultative document included a licence of right, as do the regulations that have been laid before Parliament. If my memory serves me right, that assumption applies to any arrangement entered into before 1 January 1995.
The issue of film authorship has been raised more than once. We are deferring the implementation of that provision until 1 January 1997. We intend to introduce the change when the so-called "rental" directive is implemented, which we aim to do in the near future. We also intend that the producer of a film will remain one of its authors in the United Kingdom. We do not intend to go further, and the directive does not oblige us to do so. The Commission did not say that total harmonisation of film authorship should be achieved between member states, and the directive does not proscribe that.
My hon. Friend the Member for South Derbyshire asked about arrangements for timing. Regulation 23(2)(a) provides for acts done in pursuance of arrangements made before 1 January 1995 to be carried out without infringing revived copyright. We believe that it is only right that people who have made arrangements before that date should he allowed to carry out acts consequent on them without liability to ownership of revived rights.
1272 A wide variety of circumstances may occur and the wording of the regulations must, of necessity, be fairly general. We do not consider it possible to define precisely the kinds of acts that will be permitted. When a dispute occurs, it will be for the courts to determine whether what has been done is genuinely in pursuance of the arrangements made before the specified date. The terminology concerned has been used in copyright legislation before—in transitional provisions in the 1988 Act, for example.
If necessary, my hon. Friend the Member for South Derbyshire might read section 57(1), section 180(3) and schedule 1(6) of the Copyright, Designs and Patents Act 1988. I say that because I know that lawyers will involve themselves in that matter anyway, and they might as well do so now.
The hon. Member for Great Grimsby (Mr. Mitchell) and my hon. Friend the Member for Weston-super-Mare (Sir J. Wiggin) mentioned the vexed question of photographers. In no way was I attempting, nor shall I now attempt in any sense, to become involved in the difficulties of trying to define photography. It is both a profession and an art form and the two co-exist happily, but that is not the question.
The question is whether a photographer is an author in relation to the regulations. I am assured that, in that context, author does mean author as defined in section 9(1) of the 1988 Act, and that that includes photographers. I hope that the photographers in question are happy with that.
§ Mr. Austin Mitchell
Photography is, of course, an art form as practised by myself and the hon. Member for Weston-super-Mare, but it is also—which is more important—a living. The question therefore arises, what happens when the owner of the copyright is a company that has gone bust? Why does not the copyright revert to the photographer or his legatees or whatever, in the same way as it does for the director of a film?
§ Mr. Taylor
The hon. Gentleman asks a question that I am unable to answer because I am unable to second-guess the legal position. Presumably there are circumstances in which such a right might revert to the previous owner, such as when the contract made to pass on the right to the company that went bust has fallen into desuetude. In those circumstances, it will be a question for the courts to test. I must stick to that position otherwise I should be making up law on the Floor of the House, which is a dangerous thing to do.
In my opinion, the main questions that have been asked show how difficult the regulations are. Far from wasting time, we have used our time constructively to obtain a wide range of reactions from various groups.
I admit that, in the end, Ministers and Departments must make a decision. We have made a decision, and we have laid the regulations before the House. I am delighted that the matter was chosen for debate on the Floor of the House.
I am grateful to my hon. Friend the Member for South Derbyshire for her encouragement and for the compliments that she paid on behalf of the Writers' Guild of Great Britain, of which she is an esteemed and honourable member—[Interruption.] Well, she is not a member, but she is a writer. I am slightly concerned that, 1273 as a result of the debate, I am to feature in some position or other in her next novel. Before I get myself into further difficulty, I shall commend the regulations to the House.
§ Question put and agreed to.
§ That the draft Duration of Copyright and Rights in Performances Regulations 1995, which were laid before this House on 20th November, be approved.