IMPERIAL COPYRIGHT.

HL Deb 14 November 1911 vol 10 cc113-66

Rights.

1.—(1) Subject to the provisions of this Act, copyright shall subsist throughout the parts of His Majesty's dominions to which this Act extends for the term hereinafter mentioned in every original literary, dramatic, musical and artistic work, if—

1. (a) in the case of a published work, the work was first published within such parts of His Majesty's dominions as aforesaid; and
2. (b) in the case of an unpublished work, the author was at the date of the making of the work a British subject or resident within such parts of His Majesty's dominions as aforesaid;

but in no other works, except so far as the protection conferred by this Act is extended by Orders in Council thereunder relating to self-governing dominions to which this Act does not extend and to foreign countries.

(2) For the purposes of this Act "copyright" means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatsoever and in any language; to perform, or in the case of a lecture to deliver, the work or any substantial part thereof in public; if the work is unpublished, to publish the work; and shall include the sole right—

1. (a) in the case of a dramatic work, to convert it into a novel or other non-dramatic work;
2. (b) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise;
3. (c) in the case of a literary, dramatic, or musical work, to make any record, perforated roll, cinematograph film, or other contrivance by means of which the work may be mechanically performed or delivered,

and to authorise any such acts as aforesaid.

(3) For the purposes of this Act publication, in relation to any work, means the issue of copies of the work to the public, and does not include the performance in public, of a dramatic or musical work, the delivery in public of a lecture, the exhibition in public of an artistic work, or the construction of an architectural work of art; but for the purposes of this provision the issue of photographs and engravings of works of sculpture and architectural works of art shall not be deemed to be publication of such works.

THE SECRETARY OF STATE FOR WAR (VISCOUNT HALDANE)

The first two Amendments are purely drafting. Their purpose is to make clear what is already laid down in the Bill, that copyright includes the right to perform and publish translations.

Amendments moved—

Page 1, line 25, and page 2, line 1, leave out (" and in any language ")

Page 2, line 3, after ("work ") insert ("or any substantial part thereof").—(Viscount Haldane.)

On Question, Amendments agreed to.

VISCOUNT HALDANE

The next Amendment is merely consequential.

Amendment moved— Page 2, line 4, after ("right") insert ("(a) to produce, reproduce, perform or publish any translation of the work ").—(Viscount Haldane.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Infringement of Copyright.

2.—(1) Copyright in a work shall be deemed to be infringed by any person who, without the consent of the owner of the copyright, does anything the sole right, to do which is by this Act conferred on the owner of the copyright; Provided that the following acts shall not, constitute an infringement of copyright:—

1. (i) Any fair dealing with any work for the purposes of private study, research, criticism, review, or newspaper summary:
2. (ii) Where the author of an artistic work is not the owner of the copyright therein, the use by the author of any mould, cast, sketch, plan, model, or study made by him for the purpose of the work, provided that he does not thereby repeat or imitate the main design of that work:
3. (iii) The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art, or the making or publishing of photographs, of paintings, drawings, or engravings the copyright in which is not private property and which are situate in a public place or building the maintenance of which depends wholly or in part on public funds:
4. (iv) The publication in a collection, mainly composed of non-copyright matter, bond fide intended for the use of schools, and so described in the title and in any 115 advertisements issued by the publisher, of short passages from published literary works in which copyright subsists: Provided that not more than two of such passages from works by the same author are published by the same publisher within five years, and that the source from which such passages are taken is acknowledged:
5. (v) The publication in a newspaper of a report of a lecture delivered in public, unless the report is prohibited by conspicuous written or printed notice affixed before and maintained during the lecture at or about the main entrance of the building in which the lecture is given, and, except whilst the building is being used for public: worship, in a position near the lecturer; but nothing in this paragraph shall affect the provisions in paragraph (i) as to newspaper summaries:
6. (vi) The reading or recitation in public by one person of any reasonable extract from any published work.

(2) Copyright in a work shall also be deemed to be infringed by any person who sells or lets for hire, or by way of trade exposes or offers for sale or hire, or distributes either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright, or by way of trade exhibits in public, or imports for sale or hire into any part of His Majesty's dominions to which this Act extends, any work which to his knowledge infringes copyright or would infringe copyright if it had been made within the part of His Majesty's dominions in or into which the sale or hiring, exposure, offering for sale or hire or importation took place.

(3) Copyright in a work shall also be deemed to be infringed by any person who for his private profit permits a theatre or other place of entertainment to be used for the performance in public of the work without the consent of the owner of the copyright, unless he was not aware, and had no reasonable ground for suspecting, that the performance would be an infringement of copyright.

THE EARL OF MALMESBURY moved to amend proviso (i) by inserting the words "literary or dramatic" after the word "work." The noble Earl said: This Amendment is not moved in any spirit hostile to the general provisions of this Bill, but it is felt that there are a certain class of persons who derive benefits under the Bill whose interests are not sufficiently safeguarded. I refer to the artistic class, whose interests cannot be defined in the same way as those of the literary or dramatic class. My Amendment will not in any way alter the spirit of the Bill, but will only except the operation of this proviso so far as the artistic class of people are concerned. People of artistic temperament are invariably bad people at business, and the words which I propose to insert will save them a considerable amount of trouble and litigation. There are two classes of artistic persons who will derive benefit from this Amendment. There is, first of all, the distinguished artist, who is more capable of defending himself; and, secondly, that larger class of struggling artists who may find that, having made a reputation with one of their works, the result of their labour is pirated, and that the fees derived from such reproduction are being enjoyed by others. A picture is an entirely different class of subject from a play or a book. In the case of a long play or book, a paragraph, or a few paragraphs, or even a few pages, of the work do not necessarily give the whole story, whereas the person reproducing a picture would desire to take all the principal features of the picture, without which his reproduction would be valueless. It is for that reason that I ask your Lordships to exclude from the operation of this proviso the artistic class, as it is particularly difficult to define in the case of artists where fair dealing ends and unfair dealing begins.

Amendment moved— Page 2, line 29, after ("work ") insert ("literary or dramatic ").—(The Earl of Malmesbury.)

VISCOUNT HALDANE

The noble Earl's Amendment ought, I think, to have come in before the word "work," so that it would have read "any literary or dramatic work," but he has raised the point quite sufficiently for discussion. The point of the Amendment is to confine to literary and dramatic works the doctrine of fair dealing which has been laid down by the Courts, and not to extend it to pictures. That is founded on the hypothesis, first, that there ought not to be that right of fair criticism and fair dealing extended to pictures which has been extended to the other two; and, secondly, that the law is in a somewhat different position as regards literary and dramatic works from what it is as regards pictures. But the doctrine of fair dealing has not been specially confined by the Courts to literary and dramatic works. The Courts have never said that they refuse to extend the principle to pictures. The question has never arisen in regard to pictures in the same way as it has with regard to literary and dramatic works. The Courts have decided that in the case of literary and dramatic work it is not an infringement of copyright if, for example, you quote extracts in a review or in a book or essay, and it does not appear in principle that there ought to be any difference between that case and the case of a picture. Supposing somebody is writing about pictures and wishes to give a sketch of a particular picture. It does not seem proper that he should be restrained from doing, in the case of a picture, that which undoubtedly by law he is entitled to do in the case of other works. I do not think that it follows that there is really and in substance any difference between the two cases. The law of fair criticism and reproduction for the purposes of fair criticism is the work of the Courts, and I believe to-day it applies to pictures quite as much as to literary and dramatic works. All we propose to do is to declare that for the future the principle of fair dealing which the Courts have established is to be the law of the Code. We apply it to all works of this kind, including artistic works, first of all because we believe it to be the law at the. present time, and, secondly, because there is no reason in principle for distinguishing one from the other. I think if we were to try to make this distinction we should be introducing a new principle into the law and one which would not operate very justly. Therefore I hope the noble Earl will not press his Amendment.

THE EARL OF MALMESBURY

The object of my Amendment was to secure to artists the advantages which others might acquire by reproduction of the artists' works, and I am not altogether satisfied that artists are protected in this matter by the Bill.

VISCOUNT HALDANE

They are protected by the law as it now is. The principle of fair dealing is a principle which the Courts have applied with the greatest care. Infringement of copyright cannot be allowed under disguise. All that is done here is to make a plain declaration of what the law is and to put all copyright works under the same wording.

THE EARL OF MALMESBURY

I am quite willing to withdraw the Amendment at the present stage, subject to reconsideration as to whether it is necessary to bring it up again on Report.

Amendment, by leave, withdrawn.

^*LORD REDESDALE moved to insert the words "the copyright in which is not private property" after the word "craftsmanship" in proviso (iii), for the purpose of limiting the application of the provision to works the copyright in which is not private property.

The noble Lord said: I represent the Imperial Arts League, which is composed of all the principal artists in the kingdom. They view with something like dismay the provisions of this Bill as it stands at present, which would certainly deprive them of a considerable proportion of their means of livelihood. More especially is this the case with sculptors. British art at the present moment certainly is not in a flourishing condition, and if this Bill passes as it is now the condition of artists, especially of sculptors, will be worse than it was before. Sculptors stand in an extremely bad position, because not only is there a less demand for their work, but their expenses are very high. Whereas the painter has his studio, his palette, his paints, and his paint brushes to provide, the sculptor has to buy marble, which sometimes turns out to be defective, and the work has to be done all over again; or he has to cast his work in bronze, and that, again, is a great expense. He has to pay heavy wages to his assistants, and altogether the sculptor stands in more need of the consideration of Parliament than any other craftsman an in the kingdom. If the noble Viscount would accept the Amendment which stands in my name it would go a long way towards removing the disabilities under which sculptors would be placed. I venture very humbly to ask the noble Viscount to consider my Amendment. It is one which would satisfy the artist, and I do not think it would bear hardly upon any other class. In France sculptors' rights are protected with regard to copyright. In Germany, I believe, the law is the same. The amount of gain that is made by reproducing the work of sculptors is something enormous. It has been reckoned that if the copyright of the great Memorial in the Mall were to be sold it would realise many thousands of pounds, and I heard one sculptor say that he would gladly give £10,000 for the copyright in order to reproduce postcards and other mementoes of this great Memorial, which has not only an artistic but an historic and sentimental value. The amount of money that has been made abroad in this way is enormous. The money made by reproduction, for instance, of the great Bismarck Memorial in Hamburg reached to thousands of pounds. British sculptors feel that they would have just cause for grievance if their position with regard to copyright were made worse than that of their confréres abroad.

Amendment moved— Page 2, line 40, after ("craftsmanship") insert (" the copyright in which is not private property ").—(Lord Redesdale.)

VISCOUNT HALDANE

The Amendment of the noble Lord proposes to give an entirely new right. To this extent the Bill sympathises with it, that in Clause 1, with which we have just dealt, a new right is given up to a certain point. At present the law is that there is no copyright in reproductions in what is called the "flat" from works that are in the "round"—that is to say, you can take a photograph or make a painting of a statue. That is the law at present. What is proposed by the Bill is to extend the right of the sculptor to that extent. For instance, a man may have made a sculpture and may have it in a private place, and we think that he should have the fruits of his design; but it is necessary that there should be some limitations upon that. There may be, for instance, a very beautiful design in a public place—in Trafalgar Square, for instance—which belongs to the nation, and you do not want it to be an infringement of copyright for anybody to make a sketch of that. Therefore we tried in framing the Bill to hit upon a just limitation of the general right that is introduced for the first time, giving copyright in reproductions in the "round" as against the, original creation in the "flat." Your Lordships will see. the way it is done by a reference to paragraph (iii) of Clause 2. It is there provided that the following acts shall not constitute an infringement of copyright: The making or publishing of paintings, drawings, engravings, or photographs of a work of sculpture or artistic craftsmanship, if permanently situate in a public place or building, or the making or publishing of paintings, drawings, engravings, or photographs (which are not in the nature of architectural drawings or plans) of any architectural work of art, or the making or publishing of photographs, of paintings, drawings, or engravings the copyright in which is not private property and which are situate in a public place or building the maintenance of which depends wholly or in part on public funds. We think that where these works are in public places it would not be right to make a great extension of the present law which would deprive people of the power to sketch these things. That it may be so on the Continent is no reason why we should make a new law here giving these entirely new rights in such an extensive fashion. We can meet the noble Earl, however, to this extent. There is an Amendment on the Paper in the name of the noble Earl opposite, Lord Derby, which I am prepared to accept, which will go some way to meet the noble Lord's point. But I think it would be going a great deal too far to take away from the public the right which they now have to sketch, for instance, a statue in Trafalgar Square.

LORD REDESDALE

I wish to thank the noble Viscount for his courteous answer. I was well aware of what the noble Viscount said in regard to photographs and drawings in the "flat." That was considered by the Royal Commission of 1878, and a clause was drawn up in accordance with their Report which ran as follows— If any work the subject of copyright under this Act forms part of any scene, the copying of such work, merely as forming part of such scene, shall not be deemed to be an infringement, of the copyright in such work, unless the special purpose for which the scene is represented is the copying of such work. If any provision of that sort could be inserted in the Bill by the noble Viscount, it would largely meet the objections of those for whom I am speaking to-day.

VISCOUNT HALDANE

The Bill carries the protection under the law far further than it exists at the present time. To-day you may make a sketch of a statue or public building as freely as you please. The Bill does give protection, and the only question is what are the restrictions which are necessary in the public interest. We have drawn the line at buildings and public places, subject to the qualification which I am prepared to accept as to places kept up mainly or in part by public funds.

THE EARL OF PLYMOUTH

This really is a very serious point. The noble Viscount has told us what the state of the law is at present, and I admit that the Bill does give some small protection to sculptors beyond what they enjoy under the present law; but surely we ought to consider the position that sculptors are in with reference to other persons who find protection under this Bill. If under certain circumstances reproductions by photograph or in other ways are made of large sculptural monuments in public places, and if large profits are made by those who take advantage of the new processes of reproduction, is it not fair to consider whether sculptors ought to be placed in this position, that the work of their brains is to be turned into money by other people, and that they should suffer certainly more than other artists who produce their work in a different manner. I do not wish to suggest that it is easy to frame a Bill which is perfectly fair to everyone, but I do think my noble friend has raised a serious point, and that it is, not quite fair to imagine that those representing the great art of sculpture in stone, marble, and bronze can be satisfied to remain in a position where the work of their brains can be turned into money by persons who reproduce their work.

VISCOUNT HALDANE

The noble Earl has put one hard ease for which the present law makes no provision. Let me take another. I will instance the Queen Victoria Memorial. I should think that hundreds of photographs have been reproduced in the Daily Graphic, the Daily Mirror, the Daily Mail, and other newspapers, of that Memorial, and also in the Colonial and provincial papers. If we were to do what the noble Earl wishes, every one of those reproductions would be an infringement of copyright. I submit that it would not be in the public interest that a new law should be passed making every case of that sort impossible.

Amendment, by leave, withdrawn.

THE EARL OF DERBY moved to omit from paragraph (iii) the words "or the making or publishing of photographs, of paintings, drawings, or engravings the copyright in which is not private property and which are situate in a public place or building the maintenance of which depends wholly or in part on public funds." The noble Earl said: I understand that the noble Viscount in charge of the Bill is prepared to accept my Amendment.

Amendment moved— Page 3, line 4, leave out from ("art") to the end of paragraph (iii),—(The Earl of Derby.)

VISCOUNT HALDANE

The Amendment is a reasonable one, and we accept it.

On Question, Amendment agreed to.

^*LORD GORELL moved, after the word "works" ["of short passages from published literary works"] in paragraph (iv), to insert "not themselves published for the use of schools." The noble and learned Lord said: The paragraph to which this Amendment relates provides that— The publication in a collection, mainly composed of non-copyright matter, bona fide intended for the use of schools, and so described in the title and in any advertisements issued by the publisher, of short passages from published literary works in which copyright subsists, shall not constitute an infringement of copyright. I suggest that after the words "literary works" the words "not themselves published for the use of schools" should be inserted. The object of this Amendment is to prevent a work which is at the same time literary and yet is intended for the use of schools from having the plums taken out of it for the use of other school books—in other words, to prevent one set of school works pilfering from another. It is not intended, of course, that the author of the first school book taking a piece of literary work could dispute the right of any one else to publish a school work containing a similar passage, but the Amendment would prevent one set of publishers taking from books published under that section for the use of schools matters which amounted really to copying works which had already been published.

Amendment moved— Page 3, line 14, after ("works") insert ("not themselves published for the use of schools").—(Lord Gorell.)

VTSCOUNT HALDANE

I think there is a good deal in what my noble and learned friend says. One can conceive a case of a book written for the use of schools from which somebody else who desired to write a book for schools might purloin many material extracts. There is always a good. deal to be said on both sides in these matters, and there is a good deal to be said probably for inserting the words which my noble and learned friend suggests. It is not a matter on which I have any strong opinion. If your Lordships are disposed to my noble and learned friend's view, I am prepared to leave it to the sense of the House. The Amendment seems to me on the whole a sensible one.

On Question, Amendment agreed to.

LORD COURTNEY OF PENWITH

The first Amendment which stands in my name deals with a matter of some practical importance, and it has been suggested to me that it is desirable that this new paragraph should be adopted for the convenience of all persons concerned. The new paragraph which I move to insert provides that the performance in public of any musical or dramatic work, except when the, right of public performance has been reserved by a notice on the title page of every copy of such work published, shall not constitute an infringement of copyright. This is the law at present, and has come to be so because of the extreme convenience of this provision, which my Amendment suggests should continue to be the law. Not so long ago copyright did not at all, under any circumstances, prevent the singing of a song which had been published, and when that copyright was granted many people naturally went on singing the song without knowing that they were doing wrong. Consequently persons who, at a penny reading or village entertainment, sang the song or played the piece of music which they had honestly purchased at the music shop found themselves, much to their surprise, exposed to very unpleasant proceedings. A system of blackmail sprang up, taxing innocent performers and worrying them a great deal, until at last the expedient was resorted to of requiring that the prohibition of reproduction should appear on the title page, after which any one who bought the piece of music was fully warned in the matter. The provision which I propose to insert simply requires that this prohibition of reproduction should be maintained in future by a notice being printed on the title page of the piece of music or song. I am aware that in the later clauses of the Bill it is provided that where any person innocently does that which I have been describing the owner of the copyright should only be entitled to an injunction or interdict. That allows the equity of protecting the innocent performer. But I would submit to your Lordships that that provision is not very convenient in practice. It is not convenient because it leaves the performer, although not subject to the payment of damages, open to the unpleasant discovery that he has been innocently committing an offence and may be liable to be sued for an injunction to restrain him in the future. The clause is also an insufficient protection for the owner of the copyright, who can obtain no damages and has to assert his right by commencing proceedings. Therefore in the interests of the owner of the copyright as well as in the interests of the public at large, I submit that it would be more convenient to insert the provision contained in my Amendment.

Amendment moved— Page 3, line 29, after paragraph (v) insert the following new paragraph: (vi) The performance in public of any musical or dramatic work, except when the right of public performance has been reserved by a notice on the title page of every copy of such work published.—(Lord Courtney of Penwith.)

VISCOUNT HALDANE

My noble friend has referred to what used to be a real grievance, but I hope to be able to show your Lordships that the grievance has largely ceased to exist, and that the remedy conferred for it by the Bill is more effective than the one which my noble friend proposes. He wishes to make it necessary that a notice should be placed on the title page of every copy of a musical or dramatic work if it is desired to retain the right of public performance. At one time it was very necessary to do something to save the position of people who, for instance, sang songs at penny readings in the country. There was an ingenious gentleman about the year 1870 who made a living—some people said a very handsome living—by buying up copyrights for very little indeed, and taking proceedings, and he was always safe because as the law then stood he recovered at least 40s. penalty and his costs, and he did very well. Eventually the Legislature interfered, and put in the clause to which my noble friend refers. That was in the Act of 1882. But, unfortunately, it did not do very much good, because it turned out that the composers of songs have very little to do with the details of printing and publishing, and sometimes the notice was put on and sometimes not, and consequently the unfortunate author found himself at times without any protection. Therefore the. Legislature took another course, and in 1888 did away with the minimum penalty of 40s. and costs, and left the owner of the copyright, in this case the gentleman who had bought it up, to get what he could out of the Courts, which, of course, looked more narrowly at the moral aspect of his claim. That has reduced the evil to a minimum. We propose to put that beyond doubt by subsection (2) of Clause 6, which provides that the costs of all parties in any proceedings in respect of infringement of copyright shall be in the absolute discretion of the Court, so that if any one brings these actions the Court will be very quick to deprive him of all his Costs, and I can conceive cases in which they might possibly make him pay costs. The Copyright Committee over which my noble and learned friend Lord Gorell presided, after very careful consideration of the matter, recommended the abolition of notice on the title page on the ground that it had occasioned more hardship than it gave advantage. The requirement of notice in the case of plays is entirely inconsistent with the International Convention on which this Bill is founded, which makes it a condition of mutual extension of benefits that this kind of formality should be done away with in our law of copyright. In the case of music the requirement is consistent with the old Berne Convention, but is inconsistent with the revised Convention at Berlin in 1908, and would necessitate reservation from the benefits of the Berlin Convention which we are little desirous of making. More than that, the requirement is rather ridiculous looked at from the international point of view. Suppose, for instance, that a foreign song or play comes over here and gets copyright, as it may do. If the notice were in French probably most people could read it, but there are other languages which people here may not be able to read; and the fact that we are extending copyright to foreign countries in exchange for benefits we receive from them makes the provision even more nugatory than it used to be. This requirement has never existed in most countries, and in most cases where it has existed it has been abolished. I think the real protection which my noble friend desires is the complete discretion over costs which is conferred by subsection (2) of Clause 6.

LORD GORELL

This question was very fully considered by the Committee over which I presided. The Article of the Code which was under consideration provides that in order to enjoy the protection of the Article authors shall not be bound in publishing their works to forbid the public representation or performance thereof. A great body of evidence was taken on this point, and the Committee came to the conclusion that the weight of the evidence was in favour of adopting the third paragraph of the Article and of abolishing the necessity of notice. The Committee felt it was important that there should be uniformity amongst the countries of the Union on this point, and if Great Britain were to dissent from this Article considerable difficulties would arise in relation to foreign composers who might in their own country not be compelled to put any notice on the songs or music published by them. I have thought it right to put before your Lordships the conclusion to which the Committee came on this point. The other points of objection to the Amendment have been so fully summarised by the noble Viscount in charge of the Bill that I will not venture to repeat them.

LORD COURTNEY OF PENWITH

In view of what has been said by my noble and learned friend on the Cross Benches and by the noble Viscount below me I will not press the Amendment; but I am assured by authorities well acquainted with the circumstances of this branch of the subject that the adoption of my proposal would really be in the interests of the public and in the interests of the owners of the copyright as well as of those who innocently infringe the copyright.

Amendment, by leave, withdrawn.

VISCOUNT HALDANE

The first four Amendments standing in my name are purely drafting, and are merely designed to divide the paragraphs under heads (a), (b), (c), and (d), in order to make the Bill more convenient to read. There is a fifth Amendment, line 42, to insert after the word "hire." the words "distribution, exhibition," in order to make the enumeration of acts given here correspond with the enumeration of acts in the early part.

Amendments moved—

Page 3, line 33, after ("who") insert ("(a)")

Page 3, line 34, after the third (" or") insert ("(b)")

Page 3, line 36, after ("or") insert ("(c)")

Page 3, line 37, after the first ("or") insert("(d)")

Page 3, line 42, after ("hire") insert ("distribution, exhibition ").—(Viscount Haldane.)

On Question, Amendments agreed to.

Clause 2, as amended, agreed to.

Clause 3:

Term of Copyright.

3. The term for which copyright shall subsist shall, except as otherwise expressly provided by this Act, be the life of the author and a period of fifty years after his death, unless previously determined by first publication elsewhere than in the parts of His Majesty's dominions to which this Act extends.

Provided that at any time after the expiration of twenty-five years, or in the case of a work in which copyright subsists at the. passing of this Act thirty years, from the death of the author of a published work copyright in the work shall not be deemed to be infringed by the reproduction of the work for sale if the person reproducing the work proves that he has given the prescribed notice in writing of his intention to reproduce the work, and that he has paid in the prescribed manner to, or for the benefit of, the owner of the copyright royalties in respect of all copies of the work sold by him calculated at the rate of ten per cent, on the price at which he publishes the work; and for the purposes of this proviso the Board of Trade may make regulations prescribing the mode in which notices are to be given, and the particulars to be given in such notices, and the mode, time, and frequency of the payment of royalties, including (if they think fit) regulations requiring payment in advance or otherwise securing the payment of royalties.

^*LORD COURTNEY OF PENWITH moved as an Amendment that the term of copyright should be "forty-two years, or the life of the author and seven years, whichever period be the longer."

The noble Lord said: The question I have now to submit to your Lordships' notice is one of very much greater importance than that with which I troubled you just now. Your Lordships are aware that under the existing law copyright is for a period of forty-two years or the life of the author and seven years after, whichever period be the longer. Instead of that, this Bill now proposes that copyright shall run for the life of the author and for fifty years after. That is a considerable change. I venture to submit that the burden of proof rather lies on those who advocate this change than upon those who support the law as it stands, and with great respect I would say that the arguments which were produced by the noble Viscount on the Second Reading when I raised this question appeared to me to be insufficient to support the conclusion at which he had arrived. He rested his case for an alteration of the law on the hardship which the present law imposes on authors who do not command the ear of the public when they first write and do not get a reward for what they have written until, perhaps, late in life, or, indeed, not then, and on the fact that those who come after them and who might have derived benefit fail to do so because the copyright expired seven years after the authors death.

I spoke at some length on the Second Reading of this Bill in supporting the law as it stands and in pointing out the extreme inconvenience to which the reading public of the future would be exposed if the change recommended by the Bill is introduced. The reading public of the future would be unable to find that access to literature which we and our fathers before us have enjoyed until a much longer period has elapsed. As illustrations of that I ventured, on the Second Reading, to point out that the works of Wordsworth, which went out of copyright soon after his death, and were published in a very fine edition by the noble Viscount the Leader of the House some twenty odd years ago, could not have been published until the year 1900 if the term of copyright in this Bill had been law. The works of Carlyle, which have been published and republished in many forms and editions, with valuable notes by different editors, could not have been published under the law as now proposed until 1931, fifty years after Carlyle's death. All the great works of these authors would be kept away from popular use for very long periods.

The present law gives authors ample and sufficient return. The great authors of real literature rarely get repaid, and rarely will get repaid in money for what they publish; but I think the balance of convenience has been reached by the limits which now exist. One case occurs to my memory. My late friend Mr. Herbert Spencer at one time was on the point of suspending the publication of his books because he found no public sufficient to buy them to repay him the cost to which he was exposed in producing them, and if it had not been for the assistance of some friends, mainly from America, who rallied to him, the publication of his works would have been suspended. That suspension, of course, would not have been met by the present Bill, but Mr. Spencer illustrates in his career the non-necessity of the extension given by this Bill, because in later years his work obtained an ample circulation, and he was in very easy circumstances in consequence of the copyright he received from them. The effect of this Bill in the case of the works of Mr. Spencer would be that the copyright would remain unexhausted until the year 1951—some forty years yet to run. I cannot pretend, with all respect to my friend, that it is desirable in the interests of philosophy, in the interests of culture, in the interests of education, that that copyright should be maintained as long as that. It is not desirable that books of that kind should remain locked up in one edition. Yet under this Bill the works of Mr. Spencer, for instance, would be locked up for forty years yet to come.

There has been no real complaint on the part of authors. Except a theoretical complaint that copyright should not be restricted at all, I have never heard from authors any complaint of the limit as to copyright imposed by the present law; and in the interest of the diffusion of literature and of the popularity of books, it is not desirable that the copyright should be locked up for the period proposed in this clause. I therefore suggest falling back on the law as it now stands. The matter is one of the greatest importance. It has not, as far as I know, received adequate consideration in another place, and if your Lordships refuse to consider it here it may truly be said that this change. in the law will have been made without any consideration whatever.

Amendment moved— Page 4, line 9, leave out from ("be") to ("unless") in line 10, and insert (" forty-two years or the life of the author and seven years, whichever period be the longer ").—(Lord Courtney of Penwith.)

VISCOUNT HALDANE

My noble friend proposes to treat authors in a different way from that in which the law treats other people in respect of their property. The principle of our law in this country is that if you take a man's property for the public you compensate him for it, and one does not see why that should not apply to works of genius just as much as to other forms of property. At all events I do not think your Lordships will be disposed to take this opportunity of making a somewhat dubious extension of any practice which may be alleged to exist in regard to other ' forms of property. A mail's copyrights may become, and often do become, of value just in the closing Years of his life. I have in mind one distinguished novelist whose works only became of value towards the end of his life, and it is obvious that forty-two years not only may be, but often has been, too short a lime in which to enable a man to reap the fruits of his genius. Seven years after his death is equally too short. My noble friend says that this matter was not adequately considered in another place, but I can assure him that the most minute consideration was given to this question, and the term in the Bill | was arrived at only after a great deal of discussion and negotiation.

My noble friend proposes to apply to all works to which copyright extends the term for which copyright is now given under the existing law in respect of books. The terms of copyright are very various. They arise under different Statutes. For example, in the case of paintings, drawings, and photographs the term is not the same as it is in the case of books, and what has been sought is to find a uniform system. In practically every other country the term is the life of the author and a number of years which varies. Sometimes the term is over fifty years and sometimes it is under fifty years. But in all cases the term is more than we give; and in the view of His Majesty's Government the time has come when the author should be given a proper period in which to reap what is just as much his property as a holding in Consols—the fruits of his brain. Everybody, I think, without exception who has given attention to copyright reform has advised a reform in the law in the direction in which this Bill proceeds. Indeed, in this matter my noble friend is Athanasius contra mundum.

The proposal of my noble friend is that we should adhere to the term of the existing law with regard to books. The effect of that, to tike one minor point, would be to perpetuate one great system of confusion which exists at the present time. Suppose a man has published a number of successive editions with material alterations. They all fall out of copyright under the existing law at different times, whereas under the change proposed to be made by this Bill they would all fall out of copyright at the same time. That is very desirable, because there have been notorious cases of persons republishing the earlier and imperfect editions of the works of distinguished authors who were unable to restrain them. For instance, there was a cheap edition of Darwin's "Origin of Species" foisted on the public as his work, whereas he had brought out a later and revised edition in respect of which alone he had power of restraint. The answer to my noble friend is that the International Convention of Berlin in 1908, after much discussion, thought life and fifty years was the best period, and that period is adopted by the majority of the members of the Union. We are not tied by that, but if the majority of the members of the Union take that term and are willing to give us that term, then it is desirable that we should extend the benefits so far as they are concerned. The only other material alternative put was life and thirty years, but that was open to the objection that in a considerable proportion of cases it may be shorter than the period of forty-two years already given.

My noble friend says that life and fifty years is a long time, and that books may be withheld from the public. My answer is that they will not be withheld from the public. People are, on the whole, anxious to publish their works and get as much as they can for them, and they will bring them into publication as soon as they can. But, suppose there was an attempt to keep up the price at a monopoly figure, the Bill removes any danger by providing for the case of twenty-five years having expired from the author's death. After that period under a clause which comes later in the Bill, anybody may publish subject to paying a royalty—that is to say, the absolute protection is only given for life and twenty-five years, and after that there is a Tight to a royalty for the remaining twenty-five years. Again, under Clause 4, if there were any improper withholding of a book from the public after the author's death there, is a power to apply to the Judicial Committee of the Privy Council, which can authorise publication under proper conditions as to royalties, &c. Again, to prevent improper withholding by the publisher the Bill provides that the author cannot effectively part to a publisher with his right for more than twenty-five years after his death.

Then it has been said that photographs and gramophone records ought not to have such a long period. They have not. Under the Bill it is confined to fifty years after the time of publication. Words-worth's works became popular after his death, or shortly before his death. What advantage to him would have been the period of forty-two years or seven years after death? The same is true of many authors. The Bill proceeds upon the footing that the term of life and fifty years is shown by the experience, not only of ourselves but of other nations, to be the fair term to give, and the Bill proceeds on the further footing of safeguarding any attempt to set up monopolies under cover of the right which it is proposed to confer.

LORD GORELL

The point raised in this Amendment formed the subject of anxious consideration by the Committee who inquired into this matter. The reason for inquiring into it with great care was that in Article 7 of the Convention, the, ratification of which is being looked forward to, there is this provision— The term of protection granted by the present Convention shall include the life of the author and fifty years after his death, Then follow provisions in case that term should not be uniformly adopted, and also provisions about photographs and other works. On that, of course, the question arose, What should be recommended by the Committee so far as England was concerned? And a great deal of evidence was taken upon the subject, an epitome of which will be found set out in the Committee's Report. After hearing all the evidence we came to this conclusion— We do not think that it would be prejudicial to the public interest to adopt the proposed term. and we think that it would tend to beneficial assistance in the development and progress of literature and art. Evidence was given before us that the existence of copyright does not at the present day interfere with the publication of books in cheap editions when there is sufficient demand by the public for such editions. Therefore we came to the conclusion to recommend the adoption of this period. It cannot be doubted that uniformity throughout the nations would be of great advantage in this question of the duration of copyright. An instance is mentioned in some of the papers of persons who may move their publishing works to a country where life and fifty years can be obtained, if they belong to a country in which no such length is forthcoming. Uniformity would avoid any attempts of that kind. Many countries had adopted this term before the Convention, and I understand from the evidence that Germany would, be ready to fall into line if England agreed upon this length of copyright. It undoubtedly was established before us that it would be an advantage if all the works of an author fell out of copyright and into the public domain at the same time. Moreover, fixing this length of period obviates early editions falling out of copyright and being copied while the later, revised, and more carefully considered edition by the same author is still within copyright, and may be prejudiced by the fact that copies have been issued of the earlier editions which are out of copyright. It is said that this length of period will militate against the ready publication of cheap books. At the present day authors have realised that they can appeal to an immense public if they publish a cheap edition, and they are only too glad to circulate that large edition and obtain the profits from it—a state of things which was not so possible when the reading public was extremely limited; whereas with good books it is a long time before any real substantial profit is made in certain cases by the author, whose work may be heavy and learned and not readily and easily distributable. I venture to suggest that the period in the Bill, a period which has been arrived at after considerable discussion and which would, if it did not produce uniformity among the nations, have a tendency in that direction, is one which should be adhered to.

LORD COURTNEY OF PENWITH

I am sorry to appear persistent, but I would remind the noble Viscount that Athanasius was generally supposed to be right in his controversy. It is no reproach to him, after all, that he was single-handed. I submit that the balance of argument is infavour of the position I have taken. As to the question whether this matter has been sufficiently debated I would point out with great respect to the noble and learned Lord on the Cross Benches, that the evidence which his Committee received naturally and necessarily largely came from publishers and persons concerned with the propagation of books. The reading public, the public at large, cannot be summoned to defend their own interests in this matter, whereas authors and publishers are always on the spot to press their claim. The discussion of this matter in the other House took place under conditions not favourable to public consideration. The Bill was taken in Grand Committee, and we know very little of what happened. As to the question of getting rid of diverse terms of copyright, I suggest that you are extending the period of copyright unnecessarily far. The proposition to which my noble and learned friend below me (Lord Haldane) referred would have been a much fairer compromise. It is convenient, of course, that copyright should expire at the same tune. It is inadvisable that the first edit on of, say, the "Origin of Species" should be out of copyright while the later edition should be in copyright, and that the first edition should be published in popular form whilst the second and revised and corrected edition is not so accessible.

I submit that it would have been sufficient if the copyright had been for the lifetime of the author and thirty years afterwards. In the great majority of cases that would be a considerable enlargement of the existing copyright, and would avoid the difficulty of copyrights running out at different periods. But I stand by the principle that there has really been no case made out for departing from the present term. My noble and learned friend said that publishers have learnt that it pays to issue cheap editions of books, but they have not learnt it as much as they might have done. My noble and learned friend will find that these cheap editions come out when the period of copyright is beginning to expire, and if you lengthen the period of copyright to fifty years after the death of the author the cheap editions will be deferred and the higher priced editions will still be maintained. I cannot help referring to the case of Wordsworth once more. My noble friend said that Wordsworth's popularity came after his death. I remember that Lord Macaulay said that had Wordsworth died in 1830 instead of 1850 there would have been collected at Cambridge alone as much money in support of a testimonial in honour of his memory as there was in the whole of England when he did die twenty years later; so that Wordsworth did achieve a large measure of popularity before his death. I will not press the Amendment at this stage, but I would urge upon my noble and learned friend in charge of the Bill the propriety of considering whether the period of fifty years should be reduced to thirty.

Amendment, by leave, withdrawn.

LORD GORELL

My next Amendment of a purely drafting character.

Amendment moved— Page 1, line 10, leave out from ("death") to "Provided") in line 13).£(Lord Gorell.)

VISCOUNT HALDANE

I accept the Amendment.

On Question, Amendment agreed to.

Clause 3, as amended, agreed to.

Clause 4:

Compulsory licences.

4. If at any time after the death of the author of a literary, dramatic, or musical work which has been published or performed in public a complaint is made to the Judicial Committee of the Privy Council that the owner of the copyright in the work has refused to republish or to allow the republication of the work or the performance in public of the work, and that by reason of such refusal the work is withheld from the public, the owner of the copyright may be ordered to grant a licence to reproduce the work or perform the work in public on such terms and subject to such conditions as the Judicial Committee may think fit.

VISCOUNT HALDANE

The Amendments standing in my name to this clause are purely drafting Amendments.

Amendments moved—

Page 1, line 35, after ("or") insert ("has refused to allow ")

Page 1, line 38, after (" public ") insert (''as the case maybe")—(Viscount Haldane.)

On Question, Amendments agreed to.

Clause 4, as amended, agreed to.

Clause 3:

Ownership of Copyright, etc.

5. (1) Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein: Provided that—

1. (a) where in the case of an engraving, photograph, or portrait the plate or oilier original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright; and
2. (b) where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright.

(2) The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular country, and either for the whole term of the copyright or for any part thereof, and may grant any interest in the right by licence, but no such assignment or grant shall be valid unless it is in writing signed by the owner of the right in respect of which the assignment or grant is made, or by his duly authorised agent.

Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him otherwise than by will after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years from the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work as part of a collective work.

(3) Where under any partial assignment of copy right the assignee becomes entitled to any right comprised in copyright, the assignee as respects the right so assigned, and the assignor as respects the rights not assigned, shall be treated for the purposes of this Act as the owner of the copyright, and the provisions of this Act shall have effect accordingly.

THE EARL OF MALMESBURY moved to amend proviso (6) by inserting the word "salaried" before ''service or apprenticeship." The noble Earl said: I move this Amendment on behalf of artists, who, perhaps, are over-sensitive. There is a feeling amongst them that if this section is left as it stands the author may lose the advantage conferred in the earlier part of the Bill. As the subsection stands it may be interpreted as giving the copyright to the person who instructs the artist to paint the picture, whereas that is not the intention of the Bill. This subsection as it stands is, I believe, drawn up to prevent a sculptor from being sued for copyright by an assistant, or to prevent, the special artist of a newspaper from disposing to other newspapers of the work done for the particular paper. But there is a strong feeling among artists that the word "salaried" should be inserted in order to meet their case.

Amendment moved— Page 5, line 13, after ("of") insert (" salaried ").—(The Earl of Malmesbury.)

VISCOUNT ST. ALDWYN

Before the noble Viscount states the attitude of His Majesty's Government upon this Amendment I should like to put a point which occurs to me on this clause. As I understand it, the Bill gives a copyright in architectural drawings or designs for any building. Now supposing a municipal authority or an individual landowner employs an architect to build a house or some other building, perhaps a cottage, for which the architect is paid according, of course, to the percentage scale on the cost of the work, would the copyright in that design belong to the employer of the architect or to the architect himself? If it belongs to the employer of the architect, that is all I want. But if it belongs to the architect himself, would it be an infringement of the architect's copyright for the employer of the architect to build other cottages, for example, upon precisely the same design for which he has already paid; or would he have to pay further sums for that copyright? If he would have to pay further sums I must say that it is extremely hard on the employer of the architect, and I can hardly think it is intended by the Bill. Of course, the words "under a contract of service or apprenticeship" would not apply to an architect so employed.

LORD MONTAGU OF BEAULIEU

I should like to ask what effect the word "salaried," if it is inserted, would have with regard to newspaper work. A newspaper correspondent sent to a distant country is probably paid, not a salary, but a lump sum for his work. If that work is not to be the copyright of the newspaper it would be very hard on that newspaper.

VISCOUNT HALDANE

This discussion shows the difficulties, and perhaps I had better first state what we conceive to be the law on the subject. The principle of the clause is that the author retains his copyright unless he has agreed to part with it, subject to certain exceptional cases. Subsection (b) of Clause 5 says that— where the author was in the employment of some other person under a contract of service or apprenticeship and the work was made in the course of his employment by that person, the person by whom the author was employed shall, in the absence of any agreement to the contrary, be the first owner of the copyright. Unless there is an agreement to the contrary the author retains the copyright subject to this, that certain exceptional cases have to be provided for. The ordinary case of service is clear enough. It is where there is a contract of service and what the man does is for his employer. The fruits of the work belong to the employer. A man employs somebody regularly to make designs for him. or employs him in particular work to give his time to making designs. That is a relationship of master and servant, and in that case the design belongs to the employer. The case which the noble Lord opposite (Lord Montagu) has put is the case of the writer of an article for a newspaper. Where the writer is in the regular employment of the journal and has written the article for the journal, then the article, of course, belongs to the journal for which he has written it. If, on the other hand, somebody takes an article to a newspaper and asks whether they will accept it, and they say "Yes, we will give you five guineas for it," then unless the proprietor stipulates for the copyright he does not get it. I think that is pretty clear.

As to Lord Malmesbury's Amendment, I think it is very doubtful whether it is expedient to put in the word "salaried." A man may be employed in what is a strict contract; of service but for a lump sum. There it would be very wrong to restrict the case by the word "salaried." The noble Viscount opposite has put that very case. I am not prepared to answer off-hand whether the relation of employer and employed would arise in every case which he has put. If the owner of a property were to employ an architect on the terms that the architect was entering into a contract to fulfil an employment for him in preparing designs for an estate, and if the contract was that the relation was to be that of employer and employed, then the design would belong to the employer, and the employer would be entitled to use it as he thought fit for building other cottages subsequently. But I can conceive a great many cases in which that is not the true relationship. Some one goes to an eminent architect and asks him for a design, which he gets and for which he pays a fee. The, copyright in that case rests with the designer unless he has chosen to part with it on express terms to the person for whom he has made it. I think that is the line of demarcation. This Bill proposes to clear up what has been a rather obscure state of the law. The noble and learned Earl who sits opposite, I dare say, remembers the controversy that arose in the Courts over the case where somebody wrote a memoir of Lord Beaconsfield for The Times and that paper claimed the copyright and did not get it. There was another case in which reporters were employed for the Law Journal to report cases in the Law Courts and were paid fees for their work. It was there held that there was a contract of service and that the copyright had passed to the Law Journal. It is impossible to lay down in a definition clause anything which will cover all cases.

What the Bill does is to lay down a very simple principle: first of all, that when a man produces anything that can be the subject of copyright he is to get the copyright unless he expressly parts with it. To that principle an exception is made when the true relationship between him and the person for whom he has produced it is one of service; when that relationship exists he does not get the copyright. Of course, when one has one's photograph taken one does not intend that the photographer should place it in all his windows. The copyright remains with the person who commissioned the photographer to produce the photograph. But subject to the case of service the broad principle is that the author retains the copyright unless he has expressly parted with it. I have answered the questions put to me to the best of my ability. I would only repeat that it is not possible to lay down anything which will cover all cases that may be put until and unless you know the exact facts of those cases, and whether the relation of employer and employed has arisen in them. The introduction of the word "salaried" is not a true test of whether that relationship exists.

THE EARL OF CAMPERDOWN

The noble Viscount has made a very instructive speech, but I could not quite see that he answered the point which was put to him by the noble Viscount on the Front Opposition Bench. Lord St. Aldwyn's point was this. If an architect is employed for the purpose of building a cottage, would the person who employed him be able to build more cottages of that sort? The architect having gone and the original matter having terminated, would he be able to build more cottages of that sort without infringing the copyright of the architect?

VISCOUNT HALDANE

I said I doubted it. I think the case which the noble Earl has put is one where no contract of service exists, and where, in order to get the right referred to, the employer would have to say, "I want this design for myself so that I can reproduce it."

VISCOUNT ST. ALDWYN

Surely a contract of service could not be interpreted to exist between the employer of an architect and the architect. where the architect is a salaried servant of the employer, then, of course, there would be a contract of service; but I would impress on the noble Viscount that it would not be fair that there should remain to the architect in such a case as I have put a copyright in his plans. Take this case. A municipality may want to build a large number of houses of a certain plan, and perhaps may desire to erect a few to begin with to see how they work out, and it may be some time before they proceed with the erection of similar houses. Yet for all that time the architect whom they had employed on one occasion only would have a copyright against them on designs for which they had paid every penny to which the architect was entitled. He had been employed in the work, had received his percentage on the cost, and yet he would retain this hold on the plans. It is like what is sometimes attempted by house agents in London and elsewhere. When they have introduced a lessee to a landlord they, of course, receive their commission on the first lease, and some of them will occasionally attempt to charge a commission if that lease is renewed. This is on all fours with such a proceeding as that; it is evidently unfair. I would suggest that the word "employment" should be inserted, so that it would read "contract of employment, service, or apprenticeship," and then, unless there was an agreement to the contrary, the copyright would be with the employer.

VISCOUNT HALDANE

What the noble Viscount says is true in such a case. Copyright is given to architects here and to a great many other people who have not got it now. The result will be that everybody in dealing with these cases will write a letter and say, "I want you to give me a design to be my design, the copyright to be mine to use as I please." That is undoubtedly what will be done in these cases. It is true that before this is thoroughly understood people who are negligent will get themselves into trouble by neglecting that precaution, but I do not think it will happen often. But it is better to leave them to take the precaution than to give up the immense advantage which the Bill confers of bringing architectural designs under the law of copyright. To my mind it would he a great evil to deprive the designs of architects of the protection which the Bill gives to the work of other authors. The word "employment," which the noble Viscount proposes, does not, as far as I can see, carry the matter any further. The whole point is to get the relation of employer and employed, and I doubt very much whether you do get that relation if you employ an architect for a fee to furnish you with a design. It, docs not create the relation of the one person doing the work for the other as his agent that is required to bring the exception into operation, and I doubt very much whether, unless the word "employment" were to be construed as to include every case in which a man paid another to do a piece of work, it would really help matters.

THE MARQUESS OF LANSDOWNE

If the noble Viscount does not see much difference between the value of the two words "employment" and "service" I rather hope he will accept the word "employment," because it seems to us the wider word of the two. Is it not possible to conceive a case—a case such, for example, as that suggested by Lord St. Aldwyn—where the person who prepared a design might be in your employment but could scarcely be said to be in your service?

VISCOUNT HALDANE

Let me put the other side. Take the case of a journalist, who writes, perhaps, a rather brilliant article. He is habitually employed, we will say, by one of the great papers. They say, "We should like an article on such and such a subject," and he says, "Yes, I will write it for you." He is in the popular sense employed to write that article, but if this Amendment were inserted he would lose the copyright. That is just what we do not want him to do. The noble Marquess will see the difficulty. I think the better course will be this, that I should undertake between now and the Report stage to have this very carefully looked into to see whether something wider than the word "service" can be used or whether the word "employment" can be safely inserted. But, of course, I cannot give any indication of what my frame of mind will then be.

VISCOUNT ST. ALDWYN

After what the noble Viscount has said I should be quite willing that the course he has suggested should be taken, but I think it might be better, to avoid complications with other provisions, that there should be a subsection (c) relating to architectural drawings only, just as there is a subsection (a) dealing with engravings and photographs, &c.

THE MARQUESS OF LANSDOWNE

I quite followed the argument of the noble Viscount opposite and the illustration which he gave of the case of a journalist, but that point, the importance of which we quite realise, is dealt with in an Amendment which will be moved shortly by my noble friend Lord Midleton, and which would, I think, entirely cover the case mentioned by the noble Viscount.

THE EARL OF MALMESBURY

I think the difficulty has arisen through the different classes being dealt with together. As the noble Viscount has promised to give the matter his consideration I am quite willing to withdraw my Amendment for the present, with that assurance.

Amendment, by leave, withdrawn.

^*LORD GORELL moved to amend paragraph (b). after the word "person" ["and the work was made in the course of his employment by that person"], by inserting the words "or where a work was ordered by some other person and made for valuable consideration in pursuance of that order." The noble and learned Lord said: The object of this Amendment is to deal with cases where a work is ordered and valuable consideration is given for it—that is to say, to deal with other than cases of mere service or apprenticeship. Several cases can be suggested which bear upon this point. The first proviso in this clause enacts that where in the case of an engraving, photograph, or portrait the plate or other original was ordered by some other person and was made for valuable consideration in pursuance of that order, then, in the absence of any agreement, to the contrary, the person by whom such plate or other original was ordered shall be the first owner of the copyright. There are many cases, it seems to me, where it would not be right to describe what has taken place as work done under a contract, of service or employment, and yet it is work which is, in fact, bought and paid for, and is analogous to some of the exceptions mentioned in proviso (a). For instance, proviso (a) deals with a portrait, but does not deal with a bust. A person may order a bust and pay value for it. Yet the clause as at present worded would leave the copyright with the artist unless there was an agreement to the contrary. This would apply to other kinds of work, such as the painting of your house or your horse, where the artist is employed on commission. Then there is the case of a book of an educational character where the materials are provided more or less by the person who orders the work, which is simply done on commission and paid for. Those would be at present outside the. scope of these two provisos. If your Lordships will look at the proviso in subsection (2), which proviso I understand Lord Courtney proposes to move to omit, you will see that it provides that the author of a work who is the first owner of the copyright is unable to dispose of his copyright in the work beyond the expiration of twenty-five years after his death. The last twenty-five years, as I understand this proviso, can only be disposed of by will. A person who would acquire a copyright in the way this Amendment would effect would not necessarily be in that position. The Amendment would have the effect, in cases where a person really bought and paid for some thing done on his own order, of providing that that person should obtain the benefit of the copyright to its full extent. There fore I venture to suggest that this Amendment is deserving of consideration, and that its object would be beneficial to authors because it would enlarge the exceptions in the proviso and enable them to have a better power of disposition if they were employed and paid by the order than they would have under this Bill.

Amendment moved— Page 5, line 15, after the first ("person") insert ("or where a work was ordered by some other person and made for valuable consideration in pursuance of that order").—(Lord Gorell.)

VISCOUNT HALDANE

I do not know that the argument of my noble and learned friend at the conclusion of his speech will commend this Amendment to your Lordships. The proviso to which he referred says that where the author of a work is the first owner of the copyright, which he has for his life and fifty years afterwards, ho cannot assign it to another person for more than twenty-live years after his death, and then the copyright reverts to his legal personal representatives. As a rule in practice he can get just as much for life and twenty-five years as for life and fifty years. But my noble and learned friend's Amendment would relieve the author from the protection which it is sought to give him. And for whose benefit? For the benefit of his employer, who has not put any literary skill or artistic gift into the production which is protected. If anybody is deserving of attention here it is the author himself, and it anybody is open to the criticisms of my noble friend who sits behind me (Lord Courtney) it is the person who is not the author at all but who, by becoming the first owner under Lord Gorell's Amendment, has bean able to make an extension of the power to assign the copyright beyond what the law allows in the person of the author. Therefore I think my noble and learned friend has disclosed a serious morass into which his Amendment would lead us if we followed his guidance.

What my noble and learned friend proposes to do is to put literary work on the same footing as photographs, for instance. The scheme of the Bill is to divide works which acquire copyright into different classes. In the case of the author we protect him by saying, "You are generally rather weakly fenced round when you are dealing with a skilled man of business, and therefore unless you part with the copyright expressly the copyright shall be yours. My noble, friend proposes to repeal that, and to say that wherever anybody is employed by some other person and paid for the work then the copyright is to be in the person with whom he entered into that contract. That seems to me to be extremely hard upon a. great many people. It is very hard, for instance, on the author of a play who has been commissioned to write it for the purpose, say, of a particular theatre, and for a particular run, with no thought of parting with his dramatic copyright. It is very hard in the ease of numerous people who are not in the regular service of newspapers, and who are commissioned to produce articles because they possess great skill in doing so, but who, by this Amendment, would be prevented afterwards from re-publishing them in a volume. It seems to me that the balance of advantage is all against the Amendment of my noble and learned friend if the principle is to be that the author keeps his copyright in literary work unless he has expressly parted with it.

LORD GORELL

After what has been said by the noble and learned Viscount I will not press the Amendment.

Amendment, by leave, withdrawn.

VISCOUNT MIDLETON moved to add at the end of the clause the following proviso— Nothing in this section shall be held to deprive the author of any rights in respect of the re-publication of his contributions to a newspaper, magazine, or similar periodical in a book or in any other from distinct from such newspaper, magazine, or similar periodical.

The noble Viscount said: My Lords, I hope I may be a little more successful than some noble Lords have been in appealing to the noble Viscount to reconsider the position which has been taken up on this point. The noble Viscount a few moments ago said that an effort was made by this Bill to clear up the law on a point on which it had been doubtful, and he more especially, I think, alluded to the point which I venture to bring forward. I believe that the clearing up of the law in the sense in which the noble Viscount proposes to clear it up will cause astonishment and almost consternation among a very large body of journalists. The question of the working of this clause has been carefully considered by the Institute of Journalists, which, as the noble Viscount probably knows, is a corporate body representing between 2,000 and 3,000 men in the journalistic profession.

I do not wish to put the point too high. I do not say that this clause changes the law as it at present exists. If I did so, I should probably be met by those who have much higher legal experience than I have and be told that the law has always been that the proprietor rather than the journalist, the contributor, is the owner of the copyright. I believe that I shall be correct in saying that even that contention is open to some modification. I came across a statement in regard to this put forward in Shortt's work, "The Law relating to Works of Literature and Art" [2nd Edition, 1881]. That work cites a statement by Mr. Justice Maule, in which, with some reservation, he states that— where a man employs another to write an article, or to do anything else for him, unless there is something in the surrounding circumstances or in the course of dealing between the parties to require. a different construction, in the absence of a special agreement to the contrary … the copyright therein shall belong to the employer— But Mr. Justice Maule went on to say— subject, of course, to the limitation pointed out in the I8th section of this Act. The Act referred to is the Copyright Law Amendment Act, 1812. Section 18 contains one very remarkable exception. It execpts the case of essays, articles or portions first published in reviews, magazines or other periodical works after a term of twenty-eight years, and enacts that the right of publishing the same in a separate form is to revert to the author. Therefore although for the moment it gives the right apparently to the proprietor the Act; does, after a period of years, reserve to the author and not to the proprietor the right of republication. Then, again, there is another proviso that— nothing herein contained shall alter or affect the right of any person Who shall have been or who shall be so employed as aforesaid to publish any such his composition in a separate form who by any contract express or implied may have reserved or may hereafter reserve to himself such right. The words "express or implied" would, I suppose, even refer to a conversation, or to something at all events far less definite than a covenant or contract such as is contemplated by this Bill. All I desire to establish from that is that this question of republishing rights in con- tributions Certainly has been in the past very different from the elementary law as between master and servant, and practically the elementary law as between master and servant is that which is established by the clause we have now under discussion.

I would venture to put two arguments to the noble Viscount on that. First, that if the law has been on the side of the proprietor in the past the undoubted practice has been that the proprietor should in all cases consult the author before republication. So much is that believed to be the case that even in such an authoritative work as Chambers' Encyclopædia I find this statement— The copyright of articles contributed for and included in encyclopædias, magazines, reviews, or other periodical works … being paid for and assigned, belongs to the publisher, but ho cannot publish them separately without the consent of the author. I do not say that that contention has the force of law, but it is obvious that that has been the belief founded on practice, which practice must now become a nullity so far as the law is concerned if this clause passes in its present form.

The case for asking for more consideration for journalists in this matter is greater now than it has ever been before. Whereas thirty or forty years ago articles of great importance were usually published in quarterly, and subsequently in monthly, and more recently, perhaps, in weekly periodicals, now articles of real sustained merit appear in daily newspapers; and the change would surely argue that we ought to consider those articles which are now published in what have hitherto been considered ephemeral journals as carefully at least as our predecessors considered those which were published in reviews and on which a bargain could more easily be made. The noble Viscount in charge of the Bill will no doubt say that all this is governed by the contract which may be made between the proprietor and the author, and which would safeguard entirely the contributor. But, in point of fact, is that a good argument? Everybody knows, especially in these days when so many newspapers are controlled by one hand, what the budding contributor feels when he approaches the editor and endeavours to obtain work from him.

While formerly, or at all events thirty years ago, most of these articles were independently contributed by men unconnected with the paper, they are now written by men under contract of service, the majority of whom would, therefore, come under the operation of the clause if my Amendment is not accepted. As a rule the minority who would escape are those who do not require the protection given, and the majority included within the meshes of the clause are those who do. The better men, the men whom the editor desires to attach to his standard permanently, are the men who are hit by this clause, and are the men who perhaps would not see at the outset what they were doing in not asking for a contract. This is deeply felt by a large number of persons who are quite unable to protect themselves, and whose representatives were certainly under the impression that their case, having been represented to the Government, would have been dealt with by the Government in Grand Committee. Unfortunately the very strong views legitimately held by the proprietors have prevailed, and at present these gentlemen, in whose interests I am moving this Amendment, so numerous and so hardworking, are practically left without protection. I hope that the subsection which I now venture to move will be accepted by the noble Viscount.

Amendment moved— Page 6, line 6, after (" accordingly") insert ("Nothing in this section shall be held to deprive the author of any rights in respect of the re-publication of his contributions to a newspaper, magazine, or similar periodical in a book or in any other form distinct from such newspaper, magazine, or similar periodical").—(Viscount Midleton.)

LORD MONTAGU OF BEAULIEU

My Lords, as one possessing practical knowledge of the way in which this might work, perhaps I may be permitted to say a few words upon the Amendment. I speak to-day not in the capacity of a newspaper proprietor, or editor, or contributor to newspapers. I can look at the matter from the three points of view, and am in a position to speak impartially. I cannot say that I can support the Amendment. I think personally that the plan proposed by the Government is the better. May I recount to the House the usual procedure in these matters? Supposing that I contribute an article to The Times; they pay me for that article, and it is understood that I do not send the article to any other newspaper and do not publish it in a monthly magazine without their permission. That is an understood custom. Tint if the noble Viscount's Amendment were accepted it would be possible for me to write an article for The Times on Thursday, sell it again to the Spectator on Saturday, and republish it in the Strand Magazine the following week. That would upset the whole custom of the trade, and would obviously be to the disadvantage, not only of the editor and the proprietor, but of the journalist himself.

Then take the case of a serial. The House knows that a great many distinguished novelists now write serial stories for newspapers and reserve the right to republish in book form. In that case the payment is nothing like so great as if the author had not reserved the right of republication in book form. Personally I do not think the noble Viscount's Amendment would add to the rights or the remuneration of journalists. On the other hand, it might work out to the disadvantage of the. smaller newspapers in the case of syndicated work. Some very distinguished journalist contributes an article which goes the round of several newspapers. It is well known that that article is published in various weekly newspapers all over the country, and he is paid at so much per article in each of those newspapers. That is all arranged. But if the Amendment of the noble Viscount is passed, he might extend it indefinitely and bring the whole thing to a state of chaos. I think that the Government's plan in the Bill is the better. From a practical point of view, these difficulties are always solved by means of contracts between the employer and the writer. I may remind the House that it is the present practice of newspapers to print on the back of the cheque by which the contributor is paid words to this effect, "A. B. hereby acknowledges payment for the publication of such and such an article the copyright of which is reserved," or, in the case of pictures, "the reproduction of which is reserved." That is the under stood custom of the trade, and after the matter has been discussed I hope the noble Viscount will see that there is a very strong case against his Amendment, and that it would, if accepted, disturb the whole custom of the trade which at present works very fairly and satisfactorily to all parties.

VISCOUNT HALDANE

My Lords, the speech to which we have just listened shows the enormous difficulties of this subject, and perhaps throws light on why the clause is framed as it stands in the Bill. I think we all agree with the noble Viscount that the contributor as the weaker party wants protection in this case, and therefore we ought to lay down as much protection for him. as we fairly can. But, on the other hand, you must not give him the right to take away other people's property. Let us take an instance which is analogous to one of those already put forward, of a war correspondent sent out at immense expense by a great journal to the theatre of war and who telegraphs back his article; day by day to that newspaper. Is it conceivable that he is the, next afternoon in the evening papers to have the right to republish those articles which cost the journal that seat him out thousands of pounds to obtain? That is only one out of thousands of examples I could instance.

Take another case. There are articles published now in the great papers in what are called their supplements where special subjects are investigated at the expense of the newspaper. These supplements are sometimes commercial, sometimes they deal with technical industries, and sometimes with literary matters. The newspaper gets together at considerable expense a large body of material, and employs journalists of skill and experience to produce the articles for it on these special subjects. Is the journalist to have the right at once to republish those articles in a weekly paper, appearing, perhaps, the next day, notwithstanding that he has already been very highly paid for his services by the journal to which he belongs? These might be some of the outrageous eases which the Amendment would permit.

Let us see if the author is protected by the Bill as it stands. In the clause as it is drawn there is a provision which entirely sweeps away that vagueness of the law which the noble Viscount instanced by quoting the words of Mr. Justice Maule. Under the old law, whether there was an agreement or not between the journalist and the newspaper for which he wrote under which the copyright was reserved to the journalist, it was a question of what was the agreement to be spelled out of the transaction between the parties. But the Bill puts that on a safe footing; it provides that in the absence of an agreement to the contrary the journalist is the first owner of the copyright, and there is an exception made to that only in the case of a contract of service—an exception which would certainly cover the case of the war correspondent to which I have referred. Now I ask your Lordships would it be just or fair, when articles have been written under a contract of service for a newspaper at great expense, that the journalist should have the right to reproduce those articles?

The noble Viscount quoted the Talfourd Act of 1842, and said, truly enough, that by Section 18 there was a provision analogous to his Amendment. I know that section well, and I can assure the noble Viscount that nobody has ever been able to construe it. But one thing is clear, that the journalist had no right to republish the article. until twenty-eight years had elapsed. That is a very safe right to give to anybody. In the case of the war correspondent the war articles would not be of much value if published twenty-eight years alter. But the noble Viscount proposes that the war correspondent should be entitled to republish his articles immediately after they have appeared in the newspaper for which they have been written. My Lords, I am far from saying that these things are easy. They are not easy; we are all trying to protect people's rights, and particularly to protect those who most require protection; but we must. consider the publisher or the employer for whom the article is written as well as the author, and I submit to your Lordships that in eases such as I have put, and in many other cases also where vast outlay has been incurred by the newspaper in making possible the writing of the article, it would be very serious indeed to alter the law in another sense, and I therefore hope that the noble Viscount will not press his Amendment.

THE MARQUESS OF LANSDOWNE

My Lords, I am sorry that the noble Viscount did not see his way to accord a rather more favourable reception to my noble friend's Amendment, and I cannot help thinking that he does not quite correctly apprehend my noble friend's intentions or the scope of his proposal. I do not gather that my noble friend desires to confer new rights upon these gentlemen who con- tribute to journals or other publications. I understand that what he desires to do is to guard an existing right—

VISCOUNT MIDLETON

Practice.

THE MARQUESS oF LANSDOWNE

A practice which has received, I believe, a considerable amount of legal sanction.

VISCOUNT HALDANE

The word is "rights."

THE MARQUESS OF LANSDOWNE

I will not quarrel with the formula so long as the noble Viscount can meet the substance of my noble friend's requirement. Let me, to begin with, take note of what. I thought was an important admission made a moment ago by the noble Viscount. He was at great pains to distinguish between the case of literary work and work of a different kind. We are now considering the case of the author and the publisher, who may be conveniently described as the contributor and the employer. No one questions the right of the employer to republish the articles contributed in the same form as they were originally published. There is no doubt as to that. But a question does arise when these same articles are at a future period published in a different form—in the form of a book, or in some form different from that in which they were originally published—and by either party. Unless I am mistaken-the noble Viscount will correct me if I am wrong—when this Bill first made its appearance it contained a clause, Clause 21 of the original draft, which, to some extent at any rate, dealt with the point raised by my noble friend, but as the Bill now stands, so far as I can understand it, the point is not dealt with. Two questions seem to me to arise. Does the contributor of these articles in the absence of a special agreement part absolutely and finally with his right?

VISCOUNT HALDANE

No: not unless he is under a contract of service. If he is not under a contract of service he keeps the copyright unless he has made an express agreement to part with it.

THE MARQUESS OP LANSDOWNE

Take a case where there is no express agreement to part with it.

VISCOUNT HALDANE

Then he keeps the copyright. We have protected him. If the noble Marquess will refer to the last line but one of subsection (b) he will see that the author, in the absence of any agreement to the contrary, is to be the first owner of the copyright. That means unless you can prove an agreement that he has parted with the copyright to the person for whom he has written the article he retains the copyright. That is the advance we have made on the old state of the law.

THE MARQUESS OF LANSDOWNE

Am I to understand that the clause as it now stands actually strengthens the position of the person who originally contributed the articles?

VISCOUNT HALDANE

Yes, immensely. Under the old law it used to be a spelling out by the Judges as to what was the intention, and sometimes the decisions turned one way and sometimes the other. Now an agreement has to be proved.

THE MARQUESS OF LANSDOWNE

Supposing the contributor of the article is not in a position to drive a hard bargain and contributes without any precautionary measures, and desires afterwards to collect his articles, on which he may have bestowed an infinite amount of pains, in order to publish them in book form. Is the noble Viscount quite sure in that case that the author of the original articles would be within his rights in so publishing them?

VISCOUNT HALDANE

Assuming he is not under a contract of service it is quite clear that he retains the copyright and can publish the articles in book form.

THE MARQUESS OF LANSDOWNE

May I turn to the actual wording of the clause. As we read the Bill, subsection (b) of Clause 5 gives the copyright, in the absence of any agreement to the contrary, to the person by whom the author was employed.

VISCOUNT HALDANE

You must look at the initial words of the clause to see how it reads—"Subject to the provisions of this Act, the author of a work shall be the first owner of the copyright therein" That makes him clearly the first owner, and the provisos are in the case of engravings, photographs, &c., which are put on a special footing; and, secondly, in the Case of special service, where, if you establish a contract of service, the copyright is prima facie in the employer.

THE MARQUESS OF LANSDOWNE

The noble Viscount clearly knows his Bill better than I do, and if he is satisfied on that point I am quite content to take it from him. But I confess I read the section in a different way.

VISCOUNT HALDANE

I will examine the clause closely before the Report stage; but at present I am bound to say I have not a shadow of a doubt about it, and I know how careful we have been to get the words right.

THE EARL OF CAMPERDOWN

Might I point out to the noble Viscount who moved this Amendment that I think he will find it necessary, if he presses his Amendment, to alter the terms of it, because he says, "Nothing in this section shall be held to deprive the author of any rights" The noble Viscount, of course, means legal rights, but he himself argued that at present the right is in the employer. It is merely a question of drafting, but it seems to me t hat as the words stand they would not effect his object.

VISCOUNT MIDLETON

I do not think we can quite leave the matter where the noble Viscount has left it. His contention, as I understand it, is that the position of the author is rather improved than otherwise by the Bill. My contention is exactly the reverse. I contend, first, that practice is opposed to the provision in subsection (b); secondly, that the old law gave the author the reversion which is now taken away from him; and, thirdly, that you lay the necessity of making a contract, on the weaker party instead of on the stronger. All that fell from my noble friend Lord Montagu is, of course, entirely cut away by the fact that the proprietor has it in his power at, any moment by a single word to bind the author not to republish without his consent; he has absolute power to make that contract at any time.

LORD MONTAGU OF BEAULIEU

He has no power to do that in some cases, especially if he is dealing with a correspondent out in a far-distant country. He cannot go into the matter with hint until he comes home; and if the Amendment of the noble Viscount is accepted the articles that that correspondent sends home could be published in the evening papers, and the daily journal which sent him out and paid all the expenses would get nothing further out of it.

VISCOUNT MIDLETON

Anybody may make a contract to bar the right of copyright, and my contention is that the stronger power is the one on whom the burden ought to be laid of making the contract. That, I think, the noble Viscount did not entirely dispute. I think my noble friend behind me and the noble Viscount have given the Amendment a much wider scope than it. was intended to have, or that it actually has, and if it is desired to meet me there is not the smallest difficulty in merely reserving the right of the author to republication in a book, or similar publication, rather than to run any of the risks of republication in other magazines at short date as anticipated by my noble friend Lord Montagu. I hardly like to assume, after the case that has been made out for it, that the noble Viscount does not propose to endeavour to meet this suggestion, and I should like to hear from him, before we decide whether we are going to divide on the Amendment or not, that some such limitation of the Amendment as is in our minds—of republication entirely apart from ordinary journalistic work; that is to say, in a book, or some permanent record—would have support from His Majestys Government.

VISCOUNT HALDANE

I should very much like to see what the new clause would be before expressing any opinion. The Amendment as it stands would enable an author to break his contract in cold Wood, and that is a thing which I am sure would not be even contemplated and is not often proposed in this House. The author may have entered into a most solemn bargain to go out as war correspondent and produce exclusive articles for the journal which sent him out. Yet under the subsection of the noble Viscount it is contemplated that lie should be at liberty to republish those articles a very short time afterwards. There is great force in the criticism of the noble Earl opposite (Lord Camperdown) that the Amendment as drawn would not really have that effect, because it only proposes to reserve "any rights" I do not know what that means, and obviously the noble Viscount would have to put the wording in a much more precise form before we could consider it. But I want to repeat this. The Bill in the clearest form vests the copyright in the author of the article in all ordinary cases, and he retains it unless he chooses to give it up by agreement. If he enters into a contract of service, or makes an agreement to part with the copyright, is it right that he should be allowed to break his contract? He has contracted not to republish his articles, and I really do not see why he should be freed from the ordinary consequences of his contract.

VISCOUNT MIDLETON

I cannot argue the matter further if the noble Viscount does not see his way to accept the Amendment. But I wish to put it on record that the decision of the Government really amounts to this, that if a man has been paid only three or four hundred a year on a contract of service and produces articles so valuable that they can be reproduced by his proprietor in a book which realises a profit of ten thousand pounds, he does not get a single sixpence for the use of his brains beyond the three or four hundred a year for which lie was originally employed. I do not think the noble Viscount can consider that that is an equitable result. After what has been said I will not press the Amendment at this moment, but I should like to consider before Report what has been said.

Amendment, by leave, withdrawn.

LORD GOHELL

The Amendment standing in my name is really a drafting Amendment in subsection (2) of Clause 5. It struck me on reading the subsection that the words, "The owner of the copyright in any work may assign the right, either wholly or partially, and either generally or subject to limitations to any particular country," left the matter somewhat vague. I am not certain what would be treated as a separate country—whether or not one of our Colonies would be treated as a separate country. I therefore suggest that the words "any particular country" be left out, and that the words "the United Kingdom or any self-governing Dominion or other part of His Majesty's Dominions to which this Act extends" be inserted.

Amendment moved— Page 5, line 21, leave out ("any particular country") and insert ("the United Kingdom or any self-governing Dominion or other part of His Majesty's Dominions to which this Act extends").—(Lord Gorell.)

On Question, Amendment agreed to.

^*LORD COURTNEY OF PENWITH moved to delete from subsection (2) the following proviso— Provided that where the author of a work is the first owner of the copyright therein, no assignment of the copyright, and no grant of any interest therein, made by him otherwise than by will after the passing of this Act, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of twenty-five years front the death of the author, and the reversionary interest in the copyright expectant on the termination of that period shall on the death of the author, notwithstanding any agreement to the contrary, devolve on his legal personal representatives as part of his estate, and any agreement entered into by him as to the disposition of such reversionary interest shall be null and void, but nothing in this proviso shall be construed as applying to the assignment of the copyright in a collective work or a licence to publish a work as part of a collective work

The noble Lord said: I have not been very successful in the suggestions I have made, but I hope in this case that my noble friend will be kinder to me. If he is not, I confess I shall be filled with dismay. We are not embarrassed in this case, I think, with any reference to practice or to agreement with other countries. There is no convention at all leading up to the proposal in the Bill which I wish to remove. The proposal in the Bill is this: the copyright having been extended to the life of the author and fifty years after, the author is to be disabled from assigning that copyright for the last twenty-five years of the term. He can assign the copyright for his life and the first twenty-five years after his death, but he cannot assign for the second twenty-five years after his death. That is so far inalienable. He may by his will dispose of this residue of his copyright, and in any case it becomes part of his personal estate at his death and becomes liable to administration and devolves on his legal representatives as part of his estate, but he is disabled from entering into any agreement dealing with the copyright for the second twenty-five years after his death. I do not know how the proposal originated, and I do not know that it is found in the system of laws of any other country. We therefore approach this question free from any embarrassment as to the laws of other countries; it is an entirely novel proposition to secure apparently to authors by a new species of entail, for which there is no parallel elsewhere, an inalienable copyright in their works after a period of twenty-five years from their death. That is, indeed, putting authors in leading strings, and treating them as persons who cannot take care of their own interests and who must be protected in this very unusual fashion.

I do not know in whose interests this extraordinary proposal has been conceived, or how it will work, and I beg your Lordships to consider for a moment the effect it will have upon the printing and publishing of books. A man writes a book and gets a publisher to publish it for as long as he has power over it—that is for his life and twenty-five years after. The twenty-live years subsequent he cannot deal with. It is like a man having a lease for 100 years which he wishes to dispose of, and being able to sell for the first fifty years and not the second fifty. What advantage does the assignee in the ease of a house, for example, get by the possession of the first half if he is not able to acquire the second half? He is not able to develop the property properly, because he has always got the approach of a term which will put an end to his interest. And so in this case if you assign the copyright of a book for twenty-five years after your death the publisher has got waiting upon him, not an extinction of the copyright, but a copyright in some other person over whom he has no power and with whom lie has entered into no business relations. The proposal seems to me to be quite injurious to the circulation of the book as a matter of literature, injurious to the trade, and injurious to the author; and yet this extraordinary legislation is said to be for the protection of those who are able, I suppose, to look after their own interests as well as any other of His Majesty's subjects. My noble and learned friend on the Cross Benches (Lord Gorell), I do not know that I am entitled to say sought to get out of it, but he made a proposition seeking to modify the proposal in respect of the publication of certain collected works, and I invite him to join with me in getting rid altogether of this proviso.

Amendment moved— Page 5, lines 26 to 11, leave out from ("agent") to the end of subsection (2).—(Lord Courtney of Penwith)

VISCOUNT HALDANE

My noble friend is, I think, in rather a difficult case. He has been reproaching us up to a few moments ago for making the term of copyright too long, and now he is reproaching us for putting limitations upon it and strictures with regard to the shutting out of the public. He says the author is able to take care of himself, and asks why he should not be allowed to deal with the publisher himself. The proviso to Clause 3 of the Bill says that at any time after the expiration of twenty-five years from the death of the author anybody may republish the work on giving notice in writing of his intention to do so and on paving royalties at the rate of 10 per cent. Therefore an absolute copyright is only given for life and twenty-five years after death. After that, so far as publication is concerned, the only thing that remains is a right to receive royalties, and the only question my noble friend is discussing is whether that right to receive royalties should go to the publisher or to the author and with every respect to the publisher we think he has enough when he has an absolute right for life and twenty-five years after the author's death. It is the author's descendants we are trying to help. While we do not allow them to shut out the public for the last twenty-fire years of the fifty we secure to them that they shall have at least 10 per cent. royalties, and the meaning of this proviso which my noble friend wishes to strike out is simply that the author is not to be allowed to contract himself out of what we think a fair standard of rights, but that for the last twenty-five years, in the shape either of the copyright itself or of royalties from those who republish the book, the benefit is to be secured to his family. He may assign to his publisher for life and twenty-five years, and after that his right in the copyright returns to his descendants, and they can part with it again, or it can be dealt with in any other way as the subject of royalties. Tile framework of the Bill was the result of very careful discussion in another place. The effect of the extension of the copyright to life and fifty I years after death was fully considered, and this proviso was put in to safeguard the interest of the public in that regard while allowing something for the author's family. We have, we think, taken a sensible and practical course in that respect, and I trust my nobile friend will not press his Amendment.

Loan COURTNEY OF PENWITH

I shall certainly not withdraw the Amendment, as I think the principle involved is a bad one.

On Question, Amendment negatived.

LORD GORELL

My Amendment to add the words "or a work of joint authorship" at the end of subsection (2) is an attempt, it may be not a correct one but. I hope it will be considered so, to get rid of what seems to me to be a very formidable difficulty. The noble and learned Viscount has explained fully the operation of this proviso, but in the case of joint authorship, referred to in another section later on where the length of copyright in cases of joint authors' works is dealt with, I confess that it seems to me a very great difficulty will arise in the operation of this proviso unless the words which I propose are added at the end of it. I fail to see how this proviso works out in the case of a joint authorship, because its scheme is to deal with the ownership in one person of a work. The first owner of a copyright cannot assign for the last twenty-five years of the period of fifty years after his death. On the termination of that period the copyright is to devolve on his legal personal representative. I do not think, with deference, that this clause copes with the difficulties which will arise in the case of a work of joint authorship, and it seems to me that the only way to get rid of the complication is to add to the end of this proviso the words which I propose. You will then eliminate from the proviso the case where the work was a work of joint authorship, and get rid of this difficulty which seems to me to be almost insuperable in the clause as it stands.

Amendment moved— Page 5, line 41, after the second ("work") insert ("or a work of joint authorship")— (Lord Gorell)

VISCOUNT HALDANE

My noble and learned friend has pointed to a very substantial difficulty, and I am afraid a difficulty which is unavoidable. Joint authorship is dealt with in Clause 16, and there the provisions with regard to joint authorship will be found. My noble friend says truly that the application of the proviso as it stands will create considerable complication in the case of joint authorship, but it affords an illustration of how you have to choose between disadvantages. If my noble friend's Amendment is accepted, the proviso would become nugatory, because all you would have to do would be to put in a nominal joint author, and then you are removed from the operation of the proviso. We have considered this very carefully, and on the whole, as at present advised, I would ask my noble and learned friend not to press the Amendment. I think the balance of disadvantages is heavily against it. But I will consider the matter further between now and Report, and see if we can devise any means of meeting the difficulty.

Amendment, by leave, withdrawn.

Clause 5, as amended, agreed to.

Clause 6:

Civil Remedies.

6—(1) Where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction or interdict, damages, accounts, and otherwise, as may be conferred by law.

(2) The costs of all parties in any proceedings in respect of the infringement of copyright shall be in the absolute discretion of the Court.

(3) In any action for infringement of copyright in any work, the work shall be presumed to be a work in which copyright subsists and the plaintiff shall be presumed to be the owner of the copyright, unless the defendant puts in issue the existence of the copyright, or, as the case may be, the title of the plaintiff, and where any such question is in issue, then—

1. (a) if a name purporting to be that of the author of the work is printed or otherwise indicated thereon in the usual manner the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the author of the work;
2. (b) if no name is so printed or indicated, or if the name so printed or indicated is not the author's true name or the name by which he is commonly known, and a name purporting to be that of the publisher of the work is printed or otherwise indicated thereon ht the usual manner, the person whose name is so printed or indicated shall, unless the contrary is proved, be presumed to be the owner of the copyright in the work for the purposes of proceedings in respect of the infringement of copyright therein.

LORD GORELL

I understand that the noble and learned Viscount accepts my two Amendments to this clause. They are really only drafting, to make it clear, the second Amendment being to add a few words at the end of subsection (1) with regard to infringement.

Amendments moved—

Page 6, line 11, after ("as") insert ("are or")

Page 6, line 12, after ("law") insert ("for the infringement of a right")—(Lord Gorell.)

VISCOUNT HALDANE

I accept the Amendments.

On Question, Amendments agreed to.

VISCOUNT HALDANE

The Amendment standing in my name to Clause 6 is drafting also. There are certain cases of books in trade catalogues to which there is no author's name attached, and we propose to put in the words "or proprietor" to cover those cases.

Amendment moved— Page 6, line 30, after ("publisher") insert ("or proprietor")— (Viscount Haldane)

On Question, Amendment agreed to.

Clause 6, as amended, agreed to.

Clause 7 agreed to.

Clause 8:

Exemption of innocent infringer from liability to pay damages, &c.

8. Where proceedings are taken in respect of the infringement of the copyright in any work and the defendant in his defence alleges that he was not aware of the existence of the copyright in the work, the plaintiff shall not be entitled to any remedy other than an injunction or interdict in respect of the infringement if the defendant proves that at the date of the infringement he was not aware and had not reasonable means of making himself aware that copyright subsisted in the work.

LORD GORELL

My Amendment to this clause is a small one, and it is introduced with the idea of strengthening the latter part of the clause. The clause deals with the exemption of innocent infringers from liability to pay damages if the defendant proves that at the date of the infringement he was not aware, and had not reasonable means of making himself aware, that copyright subsisted in the work. The suggestion is put forward that it would strengthen the clause if a defendant had to prove that he had no reasonable ground for suspecting the existence of copyright. No reasonable means of making himself aware would involve probably a mere defence that he could not communicate with anybody, and so forth, whereas all the time he might perfectly well be suspecting that a copyright was being dealt with; and I suggest that it is not unreasonable to put upon a person who is infringing, although he may be innocent, the proof that he had no reasonable ground for suspecting.

Amendment moved— Page 7, line 9, leave out from ("had") to ("that") in line 10, and insert ("no reasonable ground for suspecting")— (Lord Gorell.)

VISCOUNT HALDANE

I think that this is an improvement in the drafting. It strengthens the clause, and does something towards getting over the difficulty to which the noble Lord, Lord Tennyson, calls attention in a subsequent Amendment, and I accept it.

On Question, Amendment agreed to.

^*LORD TENNYSON moved to leave out Clause 8 and to insert the new clause standing in his name. The noble Lord said: Authors are much concerned about this Clause 8. They fear that the publishers may avoid all responsibility for the deliberate wrongdoings of their piratical authors. The Society of Authors, for instance, say— It is of the very utmost importance that the persons in such a case who print a work or cause it to be printed should be answerable to the same extent as the author who compiles it. If the publisher or infringer can take up the attitude, 'I am innocent, and had no knowledge of the source from which the book was derived; your remedy, if any, must be against the author,' then in nine cases out of ten it would be impossible to get any satisfaction in respect of the damage caused by the infringer.

It is apparent in Clause 8 that the draftsman has, probably inadvertently, had only in contemplation the case of a defendant who is himself the compiler of an infringing work. As a matter of fact—and this is the gist of the matter—he majority of copyright actions are brought against the persons who print and publish the books of infringing authors, and for such persons the words of the clause appear to me inappropriate, and therefore I move that my amended clause be substituted for Clause 8.

Amendment moved—

Leave out Clause 8 and insert:

Where proceedings are taken in respect of the infringement of the copyright in any work and the defendant alleges in his pleadings, and proves that the author of the infringement believed and had reasonable grounds for believing that the work was in the public domain, and that the defendant at the date of the infringement was not aware that an infringement was being committed, the plaintiff shall not be entitled to any relief other than an injunction or interdict and costs in respect of the infringement.—(Lord Tennyson.)

VISCOUNT HALDANE

I am afraid that this suggested new clause would be very difficult to work, either as it is drafted or with any amendment which carried out its principle. The difficulty is this. It proceeds on the hypothesis that the real defendant is the person who has made the infringing copies. But he is generally not so. The real defendant is generally the unfortunate publisher who publishes a book brought to him by somebody who has pirated it. The publisher cannot tell that it has been pirated; he cannot compare it with all copyrighted works. He has to take it on trust from the author, and the only defence he could successfully set up if this proposed clause was to pass would be if the author had reasonable grounds for believing that the infringed work was in the public domain. He would have to prove the innocence of the infringer, and it might be that the infringer was a person who could not easily he brought forward to give evidence. In that event the case of the publisher would be a very hard one. I think a much more real protection for the publisher is the clause giving a complete discretion over costs and damages in the case of an innocent infringer. It is better, particularly after the strengthening words which have just been added by my noble and learned friend Lord Cored, to leave the law as the Bill proposes to constitute it, than to enter upon this somewhat complicated instrument of defence.

LORD TENNYSON

I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 8, as amended, agreed to.

Clauses 9 and 10 agreed to.

Clause 11:

Summary Remedies.

11—(1) If any person knowingly—

1. (a) makes for sale or hire any infringing copy of a work in which copyright subsists; or
2. (b) sells or lets for hire, or by way of trade exposes or offers for sale or hire any infringing copy of any such work; or
3. (c) distributes infringing copies of any such work either for the purposes of trade or to such an extent as to affect prejudicially the owner of the copyright; or
4. (d)by way of trade exhibits in public any infringing copy of any such work; or
5. (e) imports for sale or hire into the United Kingdom any infringing copy of any such work;

he shall be guilty of an offence under this Act and be liable on summary conviction to a line not exceeding forty shillings for every copy dealt with in contravention of this section, but not exceeding fifty pounds in respect of the same transaction; or in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months:

(2) if any person makes or has in his possession any plate for the purpose of making infringing copies of any work in which copyright subsists, or knowingly and for his private profit causes any such work to be performed in public without the consent of the owner of the copyright, he shall be guilty of an offence under this Act, and be liable on summary conviction to a line not exceeding fifty pounds, or, in the case of a second or subsequent offence, either to such fine or to imprisonment with or without hard labour for a term not exceeding two months.

(3) The court before which any such proceedings are taken may, whether the alleged offender is convicted or not, order that all copies of the work or all plates in the possession of the alleged offender, which appear to it to be infringing copies or plates for the purpose of making infringing copies be destroyed or delivered up to the owner of the copyright or otherwise dealt with as the court may think fit.

(4) Nothing in this section shall, as respects musical works, affect the provisions of the Musical (Summary Proceedings) Copyright Act, 1002, or the Musical Copyright Act, 1906, but the last-mentioned Act shall have effect as if for the reference therein to registration under the Acts therein mentioned there were substituted a refer-mice to registration under this Act.

^*LORD GORELL: I move to omit from subsection (4) the words "but the last-mentioned Act shall have effect as if for the reference therein to registration under the Acts therein mentioned there were substituted a reference to registration under this Act". This is a drafting Amendment consequent upon changes which have been made in the Bill since it was first introduced. I think, as registration has gone, that those words should go too.

Amendment moved— Page 8, line 23, leave out from ("1906") to the end of the clause.—(Lord Garell.)

On Question, Amendment agreed to.

Clause 11, as amended, agreed to.

House resumed, and to be again in Committee To-morrow.