HL Deb 04 May 1888 vol 325 cc1327-32

House in Committee (according to order).

Clause 1 (Provision as to damage).


said, he moved to omit this clause, which proposed to alter the laws relating to dramatic literary property by limiting the penalty or damages to be awarded upon any action or proceedings in respect of an unauthorized representation of any musical composition to such sum less than 40s. as should in the discretion of the Court be reasonable. By the law as it stood at present, if a man composed a song, he had the exclusive right of representation as regarded it. That was a right which the composer could sell, and which was frequently sold for hard cash. This Bill proposed to take away that existing right from those who had composed songs, and from those who had purchased the right of representation, and—let there be no mistake about it—the Bill proposed to do that without giving any compensation whatever to the persons so to be deprived of their rights. He challenged the noble and learned Lord the late Lord Chancellor (Lord Herschell) to deny the truth of that statement. The noble and learned Lord had read the names of a number of distinguished persons—his own among them not being the least distinguished—who recommended the alteration in the law which the Bill proposed to effect, and the noble and learned Lord asked whether anyone would sup- pose that such distinguished persons would recommend such an attack as this clause was described to be upon property being made. For his own part, he should not have supposed that the noble and learned Lord himself would have recommended such an attack as this being made upon property; but the fact was that the noble and learned Lord, and the other distinguished persons, had done so, and therefore there was no supposition about the matter, because it was a fact. He (Lord Bramwell) had not said that this was a serious attack upon property, as his noble and learned Friend imputed to him—it was the precedent which it was now proposed to make, which might by-and-by be relied upon as a justification for more serious attacks upon property. A paltry piece of spoliation like this ought to be equally resisted with a more substantial one. If a man picked his pocket of a pocket handerchief he was a low thief, but he ought to be punished, as well as the man who effected a more substantial robbery. Then there was his noble—he would not say his learned—Friend, because a man appeared to cease to be "learned" when he became a statesman—the Colonial Secretary, whose proposals savoured more of the statesman than of the lawyer—rather of a love of popularity than of law and right. His noble Friend had referred to the case of a Mr. Wall, who, he said, had charged a dear little girl of 13 years of age, £2 for singing a copyright song at a concert for charitable purposes.


said, that he had not made the statement, which had been made by another noble and—probably the noble and learned Lord opposite would admit—learned Lord.


said, that he had made the statement the noble and learned Lord referred to.


said, that he would finish with the noble Lord the Secretary of State for the Colonies before he proceeded to anything else. The noble and learned Lord said that Sir Arthur Sullivan and Messrs. Boosey approved of this clause. No one could speak without respect of Sir Arthur Sullivan; but he would venture to say that Sir Arthur Sullivan approved of this measure because he knew nothing about it. Messrs. Boosey were very respectable people, but they did not oppose this clause because they were musical publishers, and the more songs were sung the more copies of them they sold. Doubtless, Messrs. Boosey, therefore, would sooner pay a person £2 for singing a song than charge him £2 for his singing. The evidence of Messrs. Boosey, therefore, respectable though they no doubt were, was worthless as regarded the present matter. He challenged the noble Lord the Secretary for the Colonies to deny that this clause proposed to take away a right without giving any compensation for it. With regard to the dear little girl of 13 who sung a song for charity, he wondered whether she had sung for charity, or for the pleasure of hearing her own voice, or to contribute to the pleasure of her parents and friends, which had no doubt much more to do with the matter than charitable motives. Still, if he had been the proprietor of the song, and he had been told that it had been sung for charity, he was not at all sure that he should have asked for the £2. He said that he was not at all sure that he should have done so advisedly, because if a man permitted his songs to be sung for charity without demanding payment, he might part with all the value of his property. On the other hand, however, if he had been the father of this dear little girl, and he had heard that a demand had been made for the payment of this £2, he should have paid what, after all, was only a just debt. The noble and learned Earl near him seemed to approve of the Bill, and as he had challenged others, he challenged the noble and learned Earl to deny that this clause proposed to take away a right without any compensation being given in respect of it. This was not a question of alteration of procedure alone; it was taking away a substantial right. No doubt it was a small matter; but a bad precedent was established by the Bill, and would be applied in other cases. He should not deal with the provisions of the Bill in detail; but he would submit to their Lordships that the Bill took away a right without pretending to give an equivalent for it, and he would challenge the noble and learned Lord the late Lord Chancellor, the noble Lord the Secretary of State for the Colonies, or the noble and learned Earl beside him, to contradict the description he had given of the measure.

Moved,"To omit Clause 1."—(The Lord Bramwell.)


said, that as the noble and learned Lord had good-humouredly challenged him to reply, he would state shortly the reasons which induced him to disagree with his noble and learned Friend on this matter. In saying that a right of property was taken away without an equivalent being given, what did his noble and learned Friend mean by "a right of property?" What he called "a right of property" was clearly the claim given by the Statute to any person proceeding for the infringement of a song to minimum damages of 40s. If that were what the noble and learned Lord called "a right of property," it was a very peculiar description to apply to a mere regulation by Parliament interfering with the legitimate function of a jury to assess damages that the minimum damages for the infringement of the Act should be 40s. The same Statute also gave the plaintiff a right to double costs in all cases, which would be a much more valuable right, in a pecuniary sense, than 40s. damages. But this the noble and learned Lord justly regarded as a matter not of property, hut of procedure; and he was willing that it should be taken away. He (the Earl of Selborne) thought the same principle applicable both to damages and to costs. He objected to the present practice under the Statute, and should support the clause.


said, he wished to express his concurrence with the views of the noble and learned Earl. His noble and learned Friend had observed that neither Sir Arthur Sullivan nor Messrs. Boosey knew anything about this question. In this case those who wrote the music, those who wrote the words, and those who dealt in both, agreed in seeing nothing to object to in this Bill. Only one solitary individual objected. In his opinion, this Bill did not take away any right of property. The right of property given by the Statute was the right of exclusive representation of the song—that no person was to be at liberty with impunity to perform it. But not every remedy given by the Statute was part of the right of property. This Bill did not take away the right to sue for infringement of copyright; it only abolished the right to minimum damages, and left the whole question of damages to the decision of the Court. Was the Legislature, because it had once fixed a minimum of damages, to be bound for all time to continue that measure of damages? Was the Legislature bound to hold to that measure of damages when it was shown that it worked injustice, and that the best course was to leave the measure of damages to the tribunal? He believed that this Bill took away no right of property.


said, he agreed that there was some slight doubt whether they were not confusing things with words. What was called a right of property, no doubt, was incapable of exact definition, and yet everybody well knew what it meant. One incident of a right of property was that its possessor could enforce it, and thus make it of some value to himself. The particular thing with which their Lordships were dealing was the right of exclusive representation, and it was to be observed that that right which was thought to be fenced round by the Legislature was the right of representation on each particular occasion. The general right of copyright or the right to multiply copies was sufficiently protected by law already. But, doubtless, the Legislature, in passing the Act which it was now sought to repeal, foresaw that it would probably be impossible for a person to give evidence applicable to the particular injury done to him on a particular occasion. The right with which they were now dealing was the right of single representation, and a jury would probably say they could not assess the damage done in respect of each representation. The Legislature, in order to get rid of that difficulty, thought it right to fix the minimum amount of damages in order to prevent these representations being made without the sanction of the author. As it was competent for the Legislature to pass that Act, so they might now amend it; but he thought it desirable that those who insisted on the alteration should show their lordships why the owners of this kind of property should be left without protection. He would suggest that the Judge should have a discretion in awarding costs, and that the amount of the penalty should remain as at present. Deep as was his respect for the Commission, he must vote for the noble and learned Lord if he brought this matter to a Division.


remarked, that the lawyers did not all give them the same advice, and therefore he should prefer to look at this question from the point of view of a common juryman. If, as the noble and learned Lord said, the Judge would be able to assess the amount of costs, he did not see why the jury should not be able to assess the amount of damages.


pointed out that in the evidence given before the Commission it was stated by a music publisher, who was well qualified to judge, that he did not believe any living composer had derived sixpence profit from the performance of his songs. That was the kind of property which the noble Lord said would be taken away by this Bill—property which had never been worth sixpence to its owner. The way in which the cumulative penalty worked this great hardship was best illustrated by the evidence of another music publisher. An agent said—"I understand that you have purchased the copyright of a song." It was not a classical production, but the song was popular. It was called "Tommy, make room for your uncle." The agent went on to say—"Do not attempt to recover penalties for one or two performances, but wait till the pantomimes are in full swing, and you will then have an opportunity to recover numerous penalties and to put £200 into your pocket." The object of the Bill was to prevent such an abuse as that.

Amendment negatived.

Clause agreed to.

Remaining Clauses agreed to, with Amendments: the Report thereof to be received on Friday next; and Bill to be printed as amended. (No. 92.)