§ Order of the Day for the Second Reading, read.
§ LORD WESTBURY
, in moving that the Bill be now read the second time said, that the operation of the Act of 1862—the latest statute on the subject—had been unsatisfactory. A representation had consequently been made by the Council of the Society of Arts, and a conference of nearly the whole of the artistic world had taken place, as the result of which he (Lord Westbury) introduced his Consolidation Bill last Session—not with the intention of proceeding with it at once, but of eliciting criticism and suggestions. The measure had received general approval, and a Petition in its favour had been intrusted to him for presentation, signed by thirty Royal Academicians, twenty-two Associates, and 120 other artists and persons interested in the subject. The necessity for legislation was due to the confused and defective state of the existing law, 1937 to the imperfect protection it afforded to the authors of works of fine art, and to Conventions having been entered into under the International Copyright Act with most of the Continental Powers, engaging to give to the artists of those countries a protection reciprocal and correspondent to that which British artists enjoyed in them. He was sure their Lordships would concur with him in holding that there was no better criterion of the progress of a nation in civilization and intellectual culture than the respect and protection afforded by its laws to works of literature and art—works which were the noblest possible addition to the wealth of a country, but the production of which was greatly dependent—in modern times at least—on the protection given to men of genius. Such works, moreover, as possessing the essential attributes of property, ought surely to enjoy the protection extended to other species of property—he could indeed imagine nothing which had a more complete title to be considered property than works of imagination, for they were the pure creation of mind. Now, he was sorry to say that, if laws were taken as a proof, these creations of mind were more valued and respected in other countries than in England; for, whereas in this country works of art of a particular class enjoyed protection for twenty-eight years, with a contingent extension of another seven years, that protection extended in France to fifty; in Germany to thirty; in Belgium to twenty, and in Spain to twenty-five years in excess of the author's life: while in Italy it lasted forty years, with a contingent extension of forty years longer. In England literature and art were protected in the most imperfect and grudging manner. No attempt was made in England to give, or rather create, copyright until 1714, nor as regarded works of art until 1735. In 1714, literary copyright for fourteen years was established; this was afterwards extended to twenty-eight years, or for the life of the author, and in 1842, thanks to Mr. Justice Talfourd and a noble Earl now present (Earl Stanhope) to forty-two years or to seven years beyond the author's life, whichever happened to be the longer period. In 1735 the Legislature first turned its attention to protecting works of art, and copyright for fifteen years was given to such works; but the Act—which was commonly known as Hogarth's 1938 Act, the passing of it being entirely due to his exertions—was unfortunately so worded as to protect only engravings in which there was an original design—so that an engraving made from another work of art received no protection. This was probably attributable to Hogarth being in the habit of composing as he engraved. This restriction was afterwards removed and the term was extended to twenty-eight years. In sculpture no attempt was made to give protection until 1798; and even now, though sculpture and engraving were commonly supposed to stand on the same footing, the former enjoyed a copyright for only fourteen years, with a further term of fourteen years contingent on the artist's life, while the latter had an absolute copyright for twenty-eight years. In 1862, protection was given to paintings, engravings, and photographs for the author's life, and a period of seven years afterwards. The difference between English and Continental law was by no means creditable to us, and although the Conventions professed to be based on the principle of reciprocity we only gave a French artist protection for his life and seven years afterwards; whereas France offered the British artist protection for fifty years after his death. The Engraving Acts, moreover, extended only to the United Kingdom—so that piratical copies might be imported with impunity from abroad, or oven from the Channel Islands; and the result was that valuable engravings were copied there and brought over to this country, and there was no power to prevent their admission. By the Convention with France Her Majesty engaged that laws should, if possible, be passed, conferring on French artists advantages corresponding to those which Franco conferred on British artists, and one of the articles promised the seizure and destruction of piratical works—a stipulation which our existing laws did not permit to be carried into effect. The honour of the country required that this state of things should continue no longer. We had nine or ten different statutes on the law of copyright; and these statutes ought to be gathered together, made consistent with each other, and embodied in one consolidated Act. And this had been his object in the preparation of that Bill, which he had now the honour of asking their Lordships to read a second time. Dealing with a sub- 1939 ject full of difficulty and which the Common Law did not touch, he did not pretend that his Bill was perfect, and he was quite willing to have it referred to a Select Committee, that it might be thoroughly sifted and its language carefully weighed. After giving the requisite definitions, the Bill proposed that authors of original works of fine art hereafter made or sold should have a copyright for the term of their natural lives, and for thirty years subsequently. This period was not so long as that existing in France, but it was the duration, assigned in Germany, and rather longer than the Belgian term. Then there were provisions as to the transfer of copyright, it being laid down that no such contract should authorize the author to make any repetition of the work unless the right shall have been expressly stipulated for at the time of sale. The Bill also allowed an artist to retain his property in unfinished sketches and studies made for and previously to the execution of his registered work, without prejudice to any copyright which may be subsisting therein at the time of the sale; and it provided that sketches, studies, and unfinished works to the value of £15 should not be subject to seizure in the event of the artist's bankruptcy, or of his suffering distraint for debt. The 5th clause confirmed a decision which had been deemed of questionable authority, exempting engravings published as parts of a book, in which there shall be a subsisting copyright, from the provisions of the Engravings Acts. Of engravings published separately, a proof must be deposited at the British Museum. The 6th clause defined how copyright might be assigned, the Schedule containing some short forms of instruments for that purpose; and the 7th clause provided that, in any contract disposing of a copyright, it should be implied that the work was the original design of the author, which implied contract was to run with the copyright. The 8th laid down that no action should be maintainable by the proprietor of a copyright until after registration—the registered proprietor, under any license, being nevertheless able to sue, or be sued, in his own name in any matter arising out of such contract, and the omission to register not affecting the copyright or license, but only the right to sue or proceed. Next came the penal- 1940 ties, which, except one or two additions, were taken from the Act of 1862; and then followed provisions directed against the common fraud of affixing names, initials, or monograms, purporting to be those of persons who did not really execute the work, as also against the disposal of works of art under false representations. There was also a provision against a very ingenious mode of fraud which was sometimes resorted to—that of altering any work of art, and then offering it for sale as an unaltered work of the author. The next provision was directed at the fraudulent practice of publishing an engraving with the stipulation that the number of proof impressions or copies should be limited, and then of printing a much larger number; and the following provisions prohibited the sale of impressions from a plate re-touched, or wrought afresh, as proof impressions or copies of such engraving. The 1lth clause prohibited the importation of piratical copies of copyright works, and the 12th extended to works of art the protection already given at the Custom House to works of literature. He could see no reason why a provision, which had been so beneficial in the one case, should not be applied to the other. Inferior artists abroad were systematically employed in making copies of valuable works for the English market, and to check this the 13th clause applied to the importers of these pirated copies the machinery of the Mercantile Marks Act, obliging them to reveal the names of the persons from whom they were obtained. The succeeding clauses empowered justices to grant search warrants for piratical copies, and also empowered the seizure of piratical copies in the possession of hawkers. The necessity of these provisions had been shown by the recent statement of an eminent London publisher that, by the aid of a powerful glass, he saw, from an adjoining building, persons employed in making copies of his most valuable engravings, which were afterwards hawked about at a few shillings per copy. Then there were provisions as to registration and as to legal proceedings instituted under the Act, with the view of giving a cheap and easy remedy. The Bill was by no means one-sided, for it not only gave pratection to artists, but to the public against artists. A practice had prevailed among some artists of selling a picture 1941 to a purchaser, and afterwards making a replica four or five times over of the same picture, each succeeding purchaser not being aware that it had been already the subject of sale. This would be checked by the 3rd clause, and various frauds to which the public had been subjected would be repressed, while dealings between artists and purchasers would be facilitated, and proper protection would be given to the authors of original works. He believed the Bill, after consideration by a Select Committee, would succeed in gathering up the loose and uncertain enactments already in existence, and in combining them into one harmonious measure.
§ Moved, "That the Bill be now read 2a."—(The Lord Westbury.)
§ EARL STANHOPE
said, he was glad that this subject had been taken up by the noble and learned Lord, whose legal eminence and taste for art combined to fit him for the task. An assimilation of the law respecting the fine arts to the law of literary copyright would be a great improvement, and it was gratifying to learn that the Bill had received support and encouragement from the great body of artists. But, although the general principle was readily admitted, the difficulty of dealing with the details was very great, and the propriety of considering these details very carefully in a Select Committee was apparent from the fact that the noble and learned Lord has found it expedient to withdraw the first Bill on the subject which he introduced early in the present Session. He (Earl Stanhope) desired first, to notice the provision in the 3rd clause, that copyright shall be granted, not only to any British subject, but to any foreigner residing at the time in the British dominions. Yet in many of the foreign countries, and above all in the United States, nothing at all of the kind was granted our subjects there residing. He (Earl Stanhope) most readily agreed that we should return the advantages given to British artists on the Continent, but surely it was open to question whether we should! offer great advantages to artists living | in countries which gave us nothing in return. International copyright was more important in the case of works of art than of books, for differences of language limited the appreciation of literary productions, whereas works of 1942 art encountered no such impediment. He thought, then, that in works of art, and still more in the case of books, this privilege should be revived. While he should rejoice at the extension of copyright to foreign artists, he doubted the fairness of such an extension in the absence of reciprocity. Their Lordships would remember that Mr. Motley, who had lately been appointed United States Minister to this country, had derived great advantage from obtaining copyright for his works in England; and he (Earl Stanhope) could not refrain from mentioning the high honour in which that gentleman was held by literary men in England, and their sincere desire that he would display a fairness and justice in diplomatic negotiations equal to his great ability as an historian. He (Earl Stanhope) would suggest that, both as regard literary and fine art copyright, power should be reserved to Her Majesty in Council to grant privileges of copyright to foreign nations which were willing to concede similar privileges in return. With regard to the definitions, he thought some of those in the Bill were open to objection. The noble and learned Lord had defined an author to be "he who has designed or made any original work of design;" but where the merit of an engraving of a celebrated work was very great, and a, large sum had been ex-pended on it, it was not fair that it should be re-produced by photographs. There might be no copyright in the original picture; but protection should be given to a valuable engraving of it in the same way as if it were an original design. [Lord WESTBURY said, he thought the Bill as it stood would provide for such a case.] It did not seem to him that this was in any manner, or at any place, provided for in the Bill. The subject was rather intricate, and perhaps he had not sufficiently explained it, but a particular instance would make his meaning clear. Take that magnificent picture of Raphael, the Madonna di San Sisto, in the gallery at Dresden. Of that picture one engraving was by M. Müller, an engraving of exquisite skill—the very finest engraving, according to some connoisseurs, ever yet produced. A proof of it could not be purchased at this moment for less than £80 or £90. Now the picture itself was, he presumed, publici juris. Anyone was 1943 free to take a photograph from it. But if M. Müller were still alive, and had an interest in his engraving, no one ought to be free to take a photograph from that without his permission. On the whole, he (Earl Stanhope) would say that he anticipated great benefit from a comprehensive Act on this subject, which was especially opportune now that the spread of photography threatened a decline in the best class of engravings; and from the noble and learned Lord's readiness to consider any Amendments, he felt confident that the Bill would be brought to a satisfactory issue.
THE EARL OF KIMBERLEY
also thanked his noble and learned Friend for taking up so difficult and complicated a subject, and quite concurred with him in thinking that it was a most judicious course, to refer the Bill, after the second reading, to a Select Committee. He could scarcely take so decided a view of the rights of property in works of fine art as his noble and learned Friend had done—with every desire to uphold that right to the utmost, he thought his noble and learned Friend had placed it too high—for whereas the property of an ordinary article rested in the possessor for the time being, the peculiar privilege of preventing the possessors of works of art from making the use of them which they otherwise might be disposed to do, was not so much an inherent right attaching to property as a special right created for the purpose of encouraging such productions. Within certain limits it was desirable as a matter of public policy that encouragement should be given, not only to works of literature but also to works of fine art, and he also thought that the present law was in such a confused and unsatisfactory state that it required to be consolidated and amended; but the House, while securing to really fine productions their due pecuniary encouragement, should beware of passing indiscriminate enactments, such as would confer rights on undeserving works, seriously interfere with the general enjoyment of the public, and lead to much litigation and embarrassment. The first great difficulty arising in the consideration of this question was the definitions contained in the Bill. Great difficulty always attached to definitions. The noble and learned Lord, for example, had defined sculpture in these terms—"Every original work, 1944 either in the round, in relief, or intaglio, made in any material, and by any process." Such a definition would include a variety of designs which would more properly come under the Copyright of Designs Act, which gave a protection of four or five years. The next portion of the Bill demanding serious consideration was the length of period for which the rights of property in those valuable works would be protected. At present the periods vary; for example, in the case of painting and drawing the period was seven years; whereas in that of sculpture it was twenty-eight years. In the case of painting and drawing the Bill proposed to give a protection for the life of the author and thirty years after; but, as by an Act brought in by the noble and learned Lord photographs were put on the same footing as painting and drawing, he thought it was worthy of consideration whether it was desirable to give so long a protection to photographs. There never was a time when better prices were given for works of art in this country; and he doubted whether any considerable extension of the period during which copyright was now enjoyed was essentially necessary. By the Bill copyright was extended to the whole of the dominions of the Queen; and he wished to point out that in respect to a great many of the colonies there really existed no power on the part of this country to enforce such a Bill as the present. The Bill, therefore, would remain a dead letter as far as many of the colonies were concerned. The Bill seemed to be conceived in the interest of engravers to a great extent, rather than in the interest of authors or of the fine arts generally. By a previous Act of Parliament—the Act of 1852—it was provided that whenever no precise stipulation was made between the author and the buyer of a work of art, then the copyright should exist in the work. The present Bill, however, declared that the copyright should, exist in the work, whether there were any stipulation or not between the author and the buyer. He thought the existing provision of the law was preferable. He thought that his noble and learned Friend had not given sufficient consideration to some of the details of his Bill—for example, there was a clause authorizing the issue of a search warrant to enter a house suspected of harbouring such works, to 1945 search for them, and, if found, to seize them and destroy them. He could not assent to the granting of any such power. It was not for the public interests that these copyrights should be created, and he thought it better to leave the law as it stood. There was one extraordinary clause in the Bill, to the effect that in all cases where any person should sell a work of fine art there should be a distinctly implied contract, on the part of the person selling, that it was an original work. Considering how difficult it was to decide what were and what were not original works, he thought such a clause would operate harshly on sellers. The Bill required careful consideration, and he trusted that the Select Committee would examine the details with the utmost caution.
§ Motion agreed to; Bill read 2a accordingly and referred to a Select Committee.
§ And, on Monday, May 3, the Lords following were named of the Committee:—
|Ld. Privy Seal.||L. Portman.|
|E. Stanhope.||L. Overstone|
|E. Carnarvon.||L. Lyveden.|
|E. Sommers.||L. Westbury.|
|V. Hardinge.||L. Houghton.|
|L. Bp. Oxford.||L. Romilly.|
§ And, on Tuesday, May 4, the Duke of Saint Albans, the Viscount Stratford de Redcliffe, and the Lord De L'Isle and Dudley added.