DRAMATIC AND MUSICAL PERFORMERS' PROTECTION BILL. (Hansard, 13 July 1925)

THE EARL OF SHAFTESBURY
My Lords, this Bill is designed to give a measure of protection to quite a large number of persons whose livelihood is in the main dependent upon giving dramatic and musical performances. As your Lordships are well aware, during recent years there has grown up in this country quite a big and potential industry in the making of gramophones and of gramophone records, and performers and artists look for a considerable part of their incomes to sums from the manufacturers of records, and the fees payable for performing for mechanical reproduction to these artists are of quite a substantial character.
Now a new situation has arisen—one of the many situations that are constantly cropping up in these days, owing to the 19 rapid progress of science and of mechanical invention. The position is that broadcasting can be used by any person who is in possession of a receiving set and a loud speaker, for purposes which were certainly never intended by the Broadcasting Company—namely, the illicit mechanical reproduction of a performance transmitted by the Broadcasting Company. If you and I were the happy possessors of a recording instrument and also of a wireless set with a loud speaker, by placing the recording instrument in close proximity to the loud speaker we could get a record of any performance, and we could make that record into quite a number of gramophone records. This has been quite clearly demonstrated by the Gramophone Company. Last year His Majesty's speech at the opening of the British Empire Exhibition at Wembley was recorded by the Gramophone Company from their loud speaker, and that record was made use of also for demonstration purposes the same evening by the Broadcasting Company for the transmitting of that speech to the public.
How does that situation affect artists? It affects them in this way. Artists are becoming apprehensive, and increasingly apprehensive, of performing for the Broadcasting Company, for, in so doing, there is a large danger of their earning capacity in performing for manufacturers of records being lost. If the record is illicitly made by the process which I have described, and if that record proves, when made, to be as saleable an article as a record made by the manufacturer of records—who pays the performer—then the artist's prospect of obtaining further employment from the manufacturer of records will be jeopardised, and, in fact, it may altogether cease. Again, there is another side to it from the artist's point, of view. Supposing that record which has been illicitly produced is proved to be of an inferior quality, then it is the artist's reputation that will suffer, and will suffer to a serious degree.
A considerable part of the remuneration of artists in these days is derived from the sale of gramophone records of their voices or of their instrumental playing, and if there is no law against the listener-in who makes a record and multiplies it, as I have described, by the usual processes, and offers it for sale to the public, artists are hound to suffer. 20 The listener-in having no cost of remuneration to the artist and having nothing to pay for rehearsals or for accompaniments, the cost of production to him is infinitely lower than it would be to the gramophone company, which is making similar records. And if his costs of production are lower, then he is certainly able to offer the record on sale to the public at a considerably lower price than the manufacturer of records. Therefore it follows that the gramophone company can no longer afford to pay the fees to the artists that they are now earning, and this source of their income must immediately cease and be closed to them.
There is one more point, and I think your Lordships will appreciate it. There is really a great feeling amongst artists that the recording of their voices and their instrumental playing for posterity is a matter that should be done with great precision and great skill. For this reason they are thrown, for the continuation and perpetuation, for perpetuation it must be, of their art on to one or other of the gramophone companies. The gramophone companies and the Broadcasting Company are equally affected by this situation and are most desirous to see this measure placed upon the Statute Book.
This Bill endeavours to deal with this new situation. Clause 1 makes it an offence to make records for the purposes of sale without the consent of the performer and it inflicts a penalty for so doing, upon summary conviction. The other clauses of the Bill merely amplify the principle laid down in Clause 1. The Bill has been thoroughly considered in another place and it comes before your Lordships having been properly hammered into shape and thoroughly digested, and I hope it will meet with the general approval of this House, especially of His Majesty's Government, of noble Lords who sit on the Benches opposite, and noble Lords who sit above the gangway. There is only one other point that I wish to make. During the discussion on the Third Reading of the Bill in another place, two points were raised, both in the form of technical objections. One was that this situation should have been dealt with under the copyright law and the other was that it would be preferable to deal with an offence by a civil action through means of an injunction with damages, 21 rather than under criminal procedure. I do not want to detain your Lordships upon these points. I merely say that if they find their counterpart in your Lordships' House I am prepared to deal with them at length. I beg to move.

§ VISCOUNT HALDANE
My Lords, I think this is a Bill which ought to pass. Somebody with a beautiful voice gives a performance, perhaps lives by giving such performances, and as things now stand a gramophone record can be made perhaps indirectly and then reproduced and published, with the result that the people do not go to the performances a great many of them, at any rate, are content with the record and what it reproduces. I think that is very wrong. It has been suggested that this might be dealt with under the Copyright Act. I had the privilege of piloting the Copyright. Act through your Lordships' House. It was a gigantic Act and to put in such as would require to be put in to cover this would be to make it still more gigantic. I much prefer to deal with this simple case in a simple way. And I do not think there is any hardship in it, because at then end of Clause 1 there are these words:— Provided that it shall he a defence to any proceedings in respect of an alleged offence under the foregoing paragraph (a) if the defendant proves that the record in respect of which the offence is alleged was not made for purposes of trade. If the thing is done innocently or harmlessly there can be no offence committed under the Act. If it is done, as it is generally done, for the purpose of enabling people to put money into their pockets by stealing the talents of their neighbour it is an offence. I think this is a harmless Bill and I think it is right that it should proceed by way of a criminal law. I see no reason why there should not be a special Bill on the subject, and so far as I am concerned I shall support the Second Reading.

§ THE FIRST COMMISSIONER OF WORKS (VISCOUNT PEEL)
My Lords, I ought perhaps, to say one word on this Bill from the point of view of the Board of Trade. The point raised by my noble friend Lord Shaftesbury is a very interest- 22 ing one as showing, as he said, the development of the gramophone industry That development leads to new methods. I will not say illicit methods because they are not at the present time condemned by Parliament. But the records made by gramophone manufacturers already enjoy of course, as the noble Earl knows, copyright as musical works under Section 19 (1) of the Copyright Act. Under that subsection it would be a breach of copyright for any person to make a record from a performance broadcast from the manufacturers' records.
I understand that at the same time the artist may desire to give the same performance for the purpose of broadcasting If from that broadcasting some ingenious person takes a record, obviously that would compete very seriously with the record of the performance which the artist has already sold to the manufacturers. I understand that this Bill is to the advantage both of the record makers and the artists, because, obviously, the manufacturer has a depreciated article in his hands if another and competitive record is made. At any rate, the artist is not likely to get such a good price from the record manufacturer if that record manufacturer finds that in return for the contract he has a depreciated article. Therefore it seems to me to be certainly to the advantage of both those sets of people. It appears also to the Board of Trade equitable from the point of view of the general public, which is of course the point of view I am specially representing here. Therefore, from that point of view, the Government not only do not offer any opposition, but are ready to give support to the Bill.
There is only one other point to which I might allude, and that is the question of making this a criminal rather than a civil liability. The matter was raised, of course, in another place, and it was raised by the Solicitor-General to the late Labour Government, but after hearing the authoritative statement of the noble and learned Viscount on this point I presume I may consider that the objection, anyhow of the Solicitor-General in his own Government, has been overruled, and, therefore, I refer to it no further.

§ VISCOUNT HALDANE
I have not read it.

§ VISCOUNT PEEL
Then the noble and learned Viscount unconsciously overruled the Solicitor-General in his own Government.

§ VISCOUNT HALDANE
Unconsciously.

§ VISCOUNT PEEL
I do not think the noble and learned Viscount mentioned the point that under the Copyright. Act certain breaches of copyright, if committed for the purposes of trade or profit, are the subject of summary proceedings. The noble and learned Viscount has pointed out that if it is done merely for private purposes it does not come within the ambit of this Bill. Therefore, from the point of view of the Government I have no opposition to offer.