§ 2.46 p.m.
§ LORD LUCAS OF CHILWORTH rose to ask Her Majesty's Government what action they propose to take following the report of the Copyright Committee (Cmd. 8662) with particular reference to the recommendations affecting the broadcasting of television programmes; and to move for Papers. The noble Lord said: My Lords, although the Motion standing in my name on the Order Paper covers the whole Report of the Committee set up to inquire into the Copyright Act and any desirable amendment of it, I do not propose to trouble your Lordships with matters which are important in themselves but which I think could better be dealt with in conversations between Her Majesty's Government and interested parties before legislation is proposed. It is my intention to draw your Lordships' attention to one or two subjects which I think affect the public interest to a great degree.
§ I hope that your Lordships will agree with me that the whole Report deserves to receive the close attention of Parliament. The subject of copyright is a highly technical one. It is steeped in law. I am 1146 not a lawyer. My interest in this subject was born when I had the privilege of piloting through your Lordships' House an equally technical Bill which sought to reform and bring up to date patent law. The courtesy, the consideration and the help which I then received from noble and learned Lords who now sit opposite and especially, if I may name one noble Lord, from the noble Viscount, Lord Swinton, the Deputy Leader of the House, will always be among my happiest memories.
§ It was during the time in which I had the honour to be spokesman for the Board of Trade in your Lordships' House that the then Government decided that when the patent law had been revised they would set up a Committee to inquire into the copyright law, with a view to that also being brought up to date. The pleasant task fell to me of persuading the noble Marquess, Lord Reading, to take over the onerous duties of Chairman of that Committee. If it had not been for a catastrophe which befell this country in the latter months of 1951, the noble Marquess would have been able to complete his duties, to the great benefit of the Committee and the Report; but the noble Marques was transferred to greater responsibilities in the Foreign Office. What was the gain of the Foreign Office was undoubtedly the Committee's loss. He had to leave this Committee in the middle of their deliberations and the duties of chairman fell upon Sir Henry Gregory. But I feel that even at this stage we should express our very deep appreciation of the work of the noble Marquess, Lord Reading, in sifting the evidence, which was in abundance, and also to the members of the Committee in producing this Report—although it is rather discursive, and if your Lordships really wish to do a mental exercise for many days I would recommend you to read it.
§ I would start by saying to your Lordships that a copyright is the grant of a monopoly to an author or a composer to protect his work against copying and piracy. That, in essence, in quite simple language, describes a copyright: there are various extenuations, but that is the basis of copyright. It has held public opinion to its good for many years. It protected the author's and composer's livelihood in a satisfactory manner (and it went along, I think I may say, swimmingly) 1147 until the early days of the present century, when someone invented the recording of sound and the phonograph which brought about the first complications. In 1909 a Committee was set up under the chairmanship of the late Lord Gorell to inquire into the working of the Copyright Act. It was represented to that Committee by the manufacturers of gramophone records that, as there was an artistic merit in a gramophone disc, they should be afforded the safeguard of copyright, and that a copyright should be given in respect of a record produced by the record manufacturers, to prevent copying and against piracy. That is all the manufacturers asked for. In point of fact, in the evidence, clearly set out in this Report, they were asked specifically whether they agreed that once a person had purchased a gramophone record it was his to do with as he pleased, to play it in private or to play it in public; and their answer was, "Yes." The Copyright Act, 1911, is based on the Committee's Report of 1909. It was decided to create a copyright, ancillary to the copyright held by the author and/or the composer and vest it in the gramophone record manufacturer to protect him from piracy or copying.
§ In 1933, twenty-two years later, by some method which I have not yet discovered, it was thought that the relevant section, Section 19 of the Copyright Act, 1911, gave an additional right to the gramophone record manufacturers to control the use to which a gramophone record was put, in spite of the fact, which I think is apparent, that it was never intended by Parliament that such should be the case; and this additional right, which could be called a performing right, came into the Act, as it were, by a side wind. But in the courts it was decided that there was this performing right, and from that legal decision serious repercussions have sprung. To acquaint your Lordships fully of this point, I feel that I should turn to what are known as the collecting societies, and how the fees for the use of copyright music are collected. The fees are collected by these collecting societies. The first is the Performing Right Society, which looks after the interests of composers, lyric writers and publishers. The Performing Right Society was formed in 1914, and I think it is generally accepted that it has done a very good job of work. The Society issues licences to promoters of 1148 public entertainment so that copyright music may be played or sung in halls, hotels, theatres, or anywhere where public performance is being given, whether it is paid for by entrance fee or not.
§ Although there have been some complaints made before the Committee as to the tariff that is charged—and a tariff is charged, varying according to the size of the establishment and the purpose for which that establishment is run—there has never been any complaint against the Performing Right Society for its refusal to issue a licence. Why should there be? An author, a lyric writer or a composer has to earn his livelihood by the public performance of his works, and it is the desire of the Performing Right Society to issue as many licences as possible. I believe that the system has worked remarkably well. The Society then shares the proceeds amongst all its members on a certain scale. I think I am right in saying that the number of the composers, lyric writers, and so on, who have vested their performing rights in the Performing Right Society to-day amounts to about 90,000.
§ There now comes another collecting society, Phonographic Performance, Limited. This company was formed in 1934 for the purpose of exploiting the right which, as I have explained to your Lordships, came into the 1911 Act by a side wind. This Society has undoubtedly exercised in a somewhat arbitrary manner this right to control, by the issue of licences, the playing of gramophone records in public. It has refused licences, and has withdrawn licences, in spite of the fact that the promoters of entertainment have been willing to pay for them. I think I am right in saying that the practices of this organisation in this direction were condemned by nearly everybody who gave evidence before the Committee. The defence of Phonographic Performance, Limited, is that they restrict the playing of gramophone records in public to protect the employment of live musicians. The livelihood, the wages and the employment of live musicians should be protected, but it is open to doubt as to whether it should be done by an Act which is supposed to be a Copyright Act.
I would put this point to your Lordships. The original conception of the
Copyright Act was to protect the livelihood of the composer or the author. If gramophone records are controlled as to their use, then, automatically, the livelihood of the author, the composer and the lyric writer, is also controlled, which is diametrically opposed to the original intention of copyright. In the Report, on page 52, paragraph 149, the Committee set down the terms of the licence which is issued by Phonograph Performance, Limited, to anyone who wants to play a gramophone record in public. It says:
This licence is issued subject to the following conditions inserted at the request of the Musicians' Union …
I will not read the terms to your Lordships, as they are rather lengthy, but if your Lordships read the passage for yourselves you will see that it really says that a gramophone record cannot be played in any establishment which has, or could house, a live musician. The argument is that the more records are played, in public, the greater will he the effect upon the employment of live musicians. It is interesting to note, however, that very eminent bodies who gave evidence before the Committee (the Incorporated Society of Musicians, I think, was one of them) gave evidence to the contrary. They said that it is a fact that the more records played, the greater is the demand for live orchestras and bands. That view has substance, I suggest to your Lordships, because I think we shall all agree that the revival of interest in this country in good and classical music, and the higher attendances at concerts of symphonic music, are wholly and solely due to the efforts of the B.B.C. in broadcasting such music over the air. Therefore I think these factors have to be taken into consideration.
On that point I do not intend to say anything more, except this. Before this right (which, as I have said, I think Parliament never intended, and which came in as a side wind in the 1911 Act) is consolidated, I think Parliament will have to give it very careful consideration. If your Lordships will turn to paragraph 185 on page 66, you will see that the Committee use these words:
… although some of us feel that the granting of a performing right in records has had the regrettable effect of projecting questions of copyright into the turmoil of industrial disputes, where they have been used as
handy weapons for purposes entirely removed from the original intention of the Act.
Speaking in front of the Chairman of the Committee, I do not want to exaggerate, but I think I should be right in saying that, in spite of the wholesale condemnation of this practice by themselves, the Committee recommend that this right shall be consolidated, and, what is more, it is the main basis of their proposals for the regulation of the public performance of television programmes in the future. The Committee recommend that the broadcasting authority (that is the term they use) shall be given a copyright in a television programme, and that if that copyright is given it shall carry with it this ancillary performing right, so enabling the broadcasting authority to control who shall and who shall not exhibit television programmes for public entertainment.
§ That is the essence of the proposal, and if your Lordships want to see it in the Committee's own words, paragraph 192 (a), (b) and (c), on page 69, sets it out in precise language. So the Committee rely upon Section 19 of the Copyright Act, 1911, which has all the doubtful features that I have explained to your Lordships, to support what really is—and I do not think I am now exaggerating—a means of providing a broadcasting authority (and since the B.B.C. is the only broadcasting authority in this country it must refer to the B.B.C.) with a sufficient income, and thereby sufficient funds to meet the demands of the sporting promoters to televise sporting events. Although I use the term "sporting events," it would, of course, include all outside events. I think that point requires serious consideration. It is quite apparent that the public expect the televising of our national sporting events. I think I would go so far as to say, loosely, that the public have a right to expect it. But I would not go so far as to say that the public have an enforceable right, because, first of all, we have to look at the problem in three sections. The public at the present time have invested considerable money in television sets. I do not think that the public are going to be satisfied for very long to confine themselves to watching the antics of Muffin the Mule. I am told by television viewers who are enthusiasts that by far the best programmes are the outside television broadcasts. Unless this problem is resolved, I think we shall find, or it may be that we shall find, a 1151 diminution of public interest in television, which would affect not only the B.B.C. but also the whole industry throughout the country.
§ Then we come to the sporting promoter. Let me make it perfectly clear—and I think the noble Earl who is to reply will agree with me on this point—that there is no friction in this matter between the B.B.C. and the sporting promoters—none whatsoever.
§ LORD LUCAS OF CHILWORTH
The reason why these sporting events are not appearing on the television screen is not the greed of the sporting promoters. They have rights. Whether we like it or not, national sport in this country to-day is big business, with huge capital investment, and they have these interests to look after. As my noble friend Lord Morrison said, when he made what, if I may say so, was a very good speech on this subject, while the televising of a first-class football match in London would not, perhaps, detract one penny from the "gate" of that particular football match, it might spell financial disaster for the many minor football matches around London and other big centres. I ask your Lordships: if on a filthy afternoon at some future date—and it will not be far ahead—you could sit in one of London's luxurious cinemas and watch a first-class football match, whether Association or Rugby, for half-a-crown, would you go and stand in pouring rain for the best part of two hours to look at it?
At the present time the position is affected only in so far as the private viewer is concerned, but the private viewer's impact on this matter is great. What is going to happen when public performance arrives I hesitate to say. Take the case of the Rugby Union. Your Lordships will be aware that, like the Amateur Athletic Association, the Rugby Union relies on the money from gates for the carrying on of its good work. The Rugby Union assist to finance struggling junior Rugby clubs throughout the country in the purchase of their grounds. The A.A.A. do tremendously good work in coaching—I feel that perhaps our relatively good showing at Helsinski this year was due very largely to the coaching system originated by the 1152 A.A.A. They get their money from two or three events held in London and from generous public subscriptions. Anything that detracts from the gate receipts of such events is bound to have a very serious public effect.
Now take the third factor to be considered—that is the broadcaster. At the present time the B.B.C. has not the money to be able to pay a reasonable sum to these sporting promoters—certainly not enough to enable them to recompense all those who are entitled to be recompensed if they are to avoid loss. So we come to this, in essence: that there will have to be a voluntary arrangement, a business arrangement, between the B.B.C. and the sports promoters—for I cannot imagine Parliament ever agreeing to give any televising authority the right to break into private property for the purpose of televising an event held there: that would be out of the question. There must be, therefore, voluntary agreement between the two. If that voluntary agreement is not arrived at, the whole matter ends. Let us assume the validity of the Committee's argument, that if you take all the revenue from licences that will be issued for the public performance of television it will provide the B.B.C. with enough money. To give your Lordships some idea of what the figures may be I may tell you that the Performing Right Society issue 52,000 licences in a year for the performance of copyright music. Now, there may be 50,000 to 60,000 of the large hotels, cinemas, local hotels, boarding-houses and working men's clubs, that will show television programmes of sporting events, which will come under the heading of "public performances." They will be issued with licences in return for fees. The B.B.C. is the only broadcasting authority to-day. It will hold the copyright or the monopoly right as well as the performing right and become the collecting society, to collect a scale of fees about which I need not go into detail. That, according to the Committee's argument, will put into the pocket of the B.B.C. sufficient money to justify the legitimate demands of sporting promoters.
I put this question to your Lordships. All through the Committee's Report, quite rightly, they use the description "broadcasting authority"; and while the B.B.C. hold a monopoly I am quite prepared to say that they would carry on at the same 1153 high level and with the same sense of public duty that they have shown all the time they have been responsible for broadcasting in this country. But once the Government implement what I regard as the ill-conceived conception of sponsored television, what is going to happen? If the market place, which in some things knows no morality, is going to settle this matter of finance, the B.B.C. will be out-bidden: and then there may well be an end both in programme and development of the B.B.C., for I do not know where they will find the money to enable them to compete with all the advertising interests, who will be able to bid and go on bidding for the big sporting events which would attract millions of viewers.
This, my Lords, is the crucial part of the whole matter, because the Committee, in an attempt to solve some of these problems, have suggested a tribunal to say whether the collecting societies are charging too much for licences or withholding them unduly. But it is no good a tribunal saying, "You have got to give a licence" when industrial pressure is put on, if one is granted. What is the good of saying to anybody, "You shall have a licence for the public performance of television" when the B.B.C. cannot be a party to a satisfactory agreement with the sports promoters that will allow of the licence being granted? I respectfully suggest that the Committee, knowing these things, allow their Report to tail off, so to speak, into thin air and make no concrete recommendations in the end regarding the jurisdiction of the tribunal. I think the Postmaster-General will agree with me that it is time something was done. This problem is here with us now. I understand that one or two of the big cinemas in the largest towns in this country will be wired up to give direct television viewing of the Coronation. It will not be many months before they are in a position to do the same with these big sporting events; and unless the difficulty is resolved, unless this matter is arranged in some way or another, the private viewer will, in the last analysis, be affected, because television will lose its appeal. After Parliament has given consideration to the matter, it may be that it will be right to adopt the Committee's recommendation. I am not going to be dogmatic on this, but I do suggest—and perhaps the Postmaster General will give me his attention for one moment, because I 1154 am now coming to the most important part of my speech—that it may be that the Committee's suggestion is right, but I ask the Government seriously to consider whether or not it is right to build the future of television upon an Act, or upon a section of an Act (if I may use a loose term) which is of doubtful validity or which at least has been brought into question by practically everyone who gave evidence before this Committee.
There is a second proposal I have to make to the noble Earl—he can take his choice. I should like him to consider seriously introducing separate legislation that would give the B.B.C. the monopoly of television, set them up as a licensing authority and let them issue licences as a collecting society for public exhibition. This would provide them with funds and enable them to negotiate direct with the sporting promoters. It would do everything that this Committee wish to do, but it would leave outside of the whole arrangement at the present time the question of copyright until the various Departments of Her Majesty's Government have been able to give this matter serious consideration. As a third suggestion, if the noble Earl will forgive my saying so, perhaps he should consider that even a Postmaster General must not think that life is all pleasure, and he should do the job himself. At the present time, he issues all the licences for private viewing; he collects all the, fees, and it is his responsibility to police it to see that the law is honoured in this regard. Why cannot he take over the responsibility of issuing licences, or appoint the B.B.C. as his agent so to do?
I have taken some time, but I wanted to put this position to your Lordships because, in my view, it is very serious, and there should not be any delay in dealing with it. I want to see that the British public have the best possible viewing. I make no secret of the fact that I am diametrically opposed to sponsored television. It is going to be chaos—and really you have only to give this matter one moment's consideration to realise that. There will be, perhaps, twenty or thirty different organisations, with the whole of the advertising revenue behind them, bargaining and bidding for the televising of these sporting events. The B.B.C., which has done such a splendid job of research and development and which we, as a country, have 1155 to consider in the future public interest, will be here for ever, but the others are "here to-day and gone tomorrow." That is the problem. I pose it without coming down definitely in favour of any one of the proposals I have made. The only thing I am definite about is that something will have to be done in the immediate future.
Before the noble Lord leaves the Box, there is one point in his argument that I could not quite follow. If there is no copyright, how can anybody collect any money for the re-diffusion?
§ LORD LUCAS OF CHILWORTH
I suggest legislation to give the B.B.C. a monopoly of televising sporting events and also the right not to allow anybody publicly to perform those television programmes without a licence from them; it would be a public performance by licence. In other words, the legislation would create a collecting society.
May I ask the noble Lord a question? In the matter of the licensing powers which he proposes to give to the B.B.C., are those powers to be of an arbitrary nature over the sporting promoters?
§ LORD LUCAS OF CHILWORTH
No. Let me make it clear. There can be no arbitrary power over a sporting promoter. If a sporting promoter says: "No, I am not going to allow this spectacle of mine"—whether it is the Cup Final, a Test Match, Wimbledon, the Derby, or anything else—"to be televised," I can conceive of no one who can force him so to do. My Lords, I beg to move for Papers.
§ 3.27 p.m.
§ LORD BURDEN
My Lords, I am sure that we are all exceedingly grateful to my noble friend Lord Lucas for introducing this subject, and for the comprehensive survey he has made of the problem. I do not intend to attempt to cover the wide field that my noble friend has covered this afternoon; I shall limit my remarks to one aspect of the problem, to which my noble friend referred and which he described as the arbitrary action of Phonographic Performance, Limited, and the Musicians' Union. In order to have it on record, and to illustrate the way in which this matter works in practice, per- 1156 haps I may quote from the correspondence which has passed respecting a particular incident. If your Lordships will forgive me, I will try to summarise this correspondence as an illustration of the arbitrary manner in which this monopoly is exercised. The correspondence begins in this way:July, 1951. We have lately established an old time dance club…. This club is strictly private, and non-profit-making. Our meetings commence on the 21st September, 1951, and continue weekly for two and a half hours every Friday evening during the winter months, a total probably of about thirty meetings.The letter goes on to say that the club hopeto provide instruction and practice in old-time dancing…but that, as the membership is small,it is absolutely out of the question to engage professional musicians for these weekly meetings, although we shall do so for the one or two long balls which we hope to organise. Thus we must use a record player and records …The letter continues:We have booked the local town hall at a specially reduced fee, with full council permission, but we now find that the hall is not legally covered to play records, and they inform us that they leave the matter to us.That letter was addressed to Phonographic Performance, Limited, who replied saying that they had the monopoly and thatNo other Association, Society or Company is authorised to grant such licences on behalf of the manufacturers whom we represent.They asked for a form to be filled up, and so on. That was done, and this was the reply received:We acknowledge receipt of form of application dated 3rd instant, and regret that in view of our arrangement with the Musicians' Union and as to our knowledge bands are normally employed at dances held in the town hall, the requisite licence to authorise the use of our members' records at this hall will not be obtainable.That was the reply from Phonographic Performance, Limited. The correspondence was continued, but with no success.
An appeal was then made to the proprietor of one of the most famous old-time dance bands in this country. This is just a part of the reply:Recently I had a meeting with one of the directors of E.M.I. and this matter is being taken up where it is felt that clubs are suffering a hardship or, shall we say, where it is 1157 not practical to employ an orchestra. In this connection I am preparing a case to be put before Phonographic Performance, Limited. There are many cases like yourself where we feel the present rule of Phonographic is creating difficulties which will be detrimental not only to the Musicians' Union hut particularly to old-time dancing.Nothing transpired, and the matter was referred to the Member of Parliament for the area. Unfortunately, I have riot been able to contact that Member—he happens to sit on the opposite side of the House—but I am sure that I should get his permission to read part of his letter. This is what he told the people concerned:The points at issue have been submitted to some of my legal friends, who advise me that they do not think there is anything which can be done in the matter, since this; society is somewhat of a law unto itself and it has the law behind it.So that is that!
My Lords, full and ample confirmation of that attitude can be found in what my noble friend Lord Lucas has said, in referring to paragraph 149, but at the end of paragraph 151, on page 55 of the Report, there are these few words:In effect, what we believe to be the case is that the stringency of the control, of which so many complaints have been made, owes its origin to no question directly related to copyright, but springs from the relations which exist between the gramophone companies and the Musicians' Union.The Musicians' Union is, of course a trade union. Perhaps I may be acquitted of any prejudice against trade unionism if, in passing, I mention that I joined my trade union nearly fifty years ago and have tried to do a little towards building up trade unionism in this country. But I would respectfully submit that this agreement between the gramophone companies and the Musicians' Union—or rather, shall I say, between Phonographic Performance, Limited, and the Musicians' Union—is a travesty of trade unionism. I measure my words when I say, that whilst it may be legal, in my opinion it is a legalised racket. The Union and Phonographic Performance, Limited, by this agreement denying the use of gramophone records, hit at the workers in the gramophone industry. It deprives composers or authors of any royalties which might accrue if the gramophone records were used. Further, it denies opportunities for innocent recreational or cultural activities, except on terms prescribed by 1158 the Musicians' Union. This is not trade unionism; it is syndicalism of the most vicious kind.
I have here some notes of an address that was delivered many years ago by Sir Walford Davies, from which I should like to quote a few sentences. He said:Suppose that you were studying architecture, and during your lesson your teacher touched a lever and a perfect model of St. Peter's, Rome, with its towers and dome rose up before you, so that you were able to compare its proportions with those of St. Paul's Cathedral. Suppose that on another evening you were able to see St. Mark's, Venice, or some other beautiful church. That is what can happen in music when I touch this gramophone lever….The Settlement must buy a gramophone, and a few keen spirits must gather round to hear Kreisler play. Thus you will be able to escape at will front the tired life and sordid necessities into free joys. You will be able to keep company with the heavenly mind of Beethoven, the Shakespeare of music.My Lords, if Sir Walford were speaking or writing to-day he would be compelled to add, "You may buy your gramophone records, you may hire your hall, but you play your records at your peril, unless you first get the permission of Phonographic Performance, Limited, or the Musicians' Union." This is not a fanciful picture. The Workers' Educational Association complains strongly of the manner in which the activities of Phonographic Performance, Limited, and the Musicians' Union are hampering its educational work. May I add that the National Council of Social Service gave most valuable evidence before the Committee as to the harmful effects of the present situation?
We have to deal with this problem, because it is a very real one. I put to Her Majesty's Government this question: Will they have the matter most carefully looked into, with a view to bringing this pernicious monopoly to an end? I suppose it cannot be argued that the agreement between the two bodies, Phonographic Performance, Limited, and the Musicians' Union, is illegal because it is in restraint of trade; but I am sure that the resources of civilisation are not exhausted, and, given the and resolve, this problem could be solved. May I put it to Her Majesty's Government that, if they apply their minds to it, they can in this particular instance "set the people free "from the effects of the very cunning exploitation of this virtual monopoly?
§ 3.39 p.m.
My Lords, I intervene only for a moment or two. The noble Lord, Lord Lucas, has pointed out this problem in all its horrors, and it is a monster which is rising in our midst. The fact is that televising major sports spectacles means the virtual eclipse, at all events on those days, of all the minor sporting events. The noble Lord had a possible remedy to suggest but, on the whole, I prefer the one which I understand the Committee recommend—namely, that there should be some form of copyright existing in the production of a spectacle, and that preferably the copyright should be in the hands of the person who transmits that spectacle. Quite clearly, something has got to be saleable in the marketplace, and I cannot see how one can get round the fact that there must be a copyright of some kind to be saleable.
But when one considers this question of trying to compensate, if it be possible, all the minor sporting promoters for their losses, due to the transmission of a major sporting event, one gets into very deep questions as to how this copyright is going to be saleable at the maximum possible price. It seems clear that unless it is saleable at a very high price there can be no hope of compensation for the minor sports producers. I imagine that it is correct to say that this is not calculable, and if the pool were to rely purely on amounts made available by the B.B.C. from its licence revenue it would patently, I should say, be quite insufficient. I hope that, with cinemas being wired and fitted up for this process, there will be an entirely new source of money. But it will be a new pool of which no one can estimate the financial depth. What revenue can be expected from the cinemas and other reproducing agencies? Will that compensate in any degree for all these outside promoters' losses? It may be that it will. On the other hand, if it does not it seems to me quite obvious that, as Lord Lucas suggested, the broadcasting of the major sporting events will fall into the hands of those people whose revenue is reinforced from outside—in other words, the advertisers. I do not regard that situation in the least with horror, because I think they will probably do at least as well as, if not better than, the B.B.C. It is merely a question of getting money out of the pockets of the public. The public 1160 have discovered a cheap way of looking at spectacles: somehow or other the cost has got to be met. Whether it can be done one way or whether it has got to come indirectly out of their pockets through advertising, I do not know. Quite clearly, I think, there has got to be a copyright, and clearly also, I think, there must be no monopoly.
§ 3.43 p.m.
§ EARL JOWITT
My Lords, I believe that this has been a useful debate. I must say that I think my noble friend Lord Lucas has shown a vast knowledge of copyright law—which, in some obscure way, he derives from his study of the patent law—which does him great credit. I never practised in this branch, and I do not pretend to have any knowledge of it, but I do say that I have read at any rate the bulk of this Report. I also venture most humbly to suggest that it would have been a much better Report if it had been about half its present length. It is a mass of words, and one finds it very difficult to make out what it is all about. Speaking for myself, and bringing, if I may say so, a relatively fresh mind to bear on these problems of copyright, if it is possible, having regard to the conventions of the law, I should have thought that there was much to be said for the proposition that when you buy an article such as a gramophone record, or, indeed, a picture, you buy with it all the rights which flow from it. After all, the seller of the article can protect himself, if he so desires, by charging a higher price. It came as a surprise to me to learn the position in this connection.
I happen to be the chairman of one of the great picture galleries in London. I had not realised that if we reproduced coloured photographs in postcard form or on Christmas cards, or what you will, of a picture which we own, we were liable to pay copyright fees to the artist who had painted the picture. I, in my ignorance, had thought that if you bought a picture and had possession of that picture in one of our great public galleries for quite a number of years, you were entitled to reproduce that picture in your catalogues and in postcard form. Indeed, we sell very large numbers of such things. However it seems to be the fact—the Treasury solicitor so advises us—that I unless when you buy a picture you say 1161 to the artist or to those who can represent the artist: "Will you also sell me your copyright in the picture?" you are not entitled to reproduce the picture without his consent. If that be so—and unless we are protected by some kind of convention or something of that sort—I should venture to say that I think Her Majesty's Government might consider in due course whether we have not gone a little too far in these matters It seems to me that if the matter can still he treated as if it were res integra, there is much to be said for the view that if you buy a gramophone record at a price which you agree with the maker, you should have the right to use that record, just as if you buy a picture you should have the right to use that picture; and if the artist or the gramophone company want to stipulate or maintain rights, the most appropriate way for them to do so is by charging a higher price for that which you buy.
I respectfully agree with the observations made by Lord Burden and by Lord Lucas before him. I think this matter clearly needs looking into. This Report is a long and difficult Report. It came out, if I remember correctly, only in October of last year. It would be ridiculous to expect the Postmaster General at the present time to have a completely cut-and-dried scheme so that he can tell us exactly what he proposes to do. It would not he reasonable to expect him to do any such thing, and I do not expect it. On the other hand, I think he will probably agree that it was useful to have this debate, because I venture to think that this is one of those problems which is exceedingly difficult and which is not going to get easier. Indeed, I believe that, as month follows month, the prospects are that it is going to get much more difficult. I am one of those who think that probably we are just on the verge of great discoveries in television. I anticipate that in a year or two's time we shall be able to go to the cinema and see on the screen a reproduction of some sporting event which is actually taking place. I think that is probable.
Here, again. I speak with little knowledge, but I would venture most humbly to say that I think the sporting proprietors are making a great mistake when they hold up their hands in horror at the idea of what is going to happen from a 1162 financial point of view. After all, Cup Finals do not take place every other week. There is a Cup Final once a year. And Rugby international matches are not particularly common. I venture to think that there is much to be said for the point of view that if you can get a larger circle of people interested in your particular form of sport—be it Rugby football, Association football or what you will—by seeing it on television, the number of people becoming interested will do you more good than harm. As regards cricket matches, I do not for one moment think that if we have the Australians coming over here this year the televising of the matches will do cricket any harm. I think it will make people go away and play their village cricket, their county cricket, or whatever it may be, with greater zest, and will bring larger numbers of people to watch cricket matches.
If I understand Lord Lucas aright, it should be plainly understood that he does not contemplate that there should be any measure of force applied to the sporting promoters, to put them under obligation to make arrangements for the televising of their sporting events. That must remain a matter at the discretion and will of the sporting promoter. What I understand he wants to do is to devise some scheme to enable the B.B.C.—they are to-day the sole people who deal with television, and personally I hope they always will be—to have some fund, some source of money, from which they can pay appropriate sums to the sporting promoters if the promoters choose to allow them to televise their events. I think he has hit upon the right plan. If it be the fact that there are going to be a large number of public performances in cinemas, hotels and clubs, surely it is right that the people who see them should pay something towards the cost. By granting a copyright to the B.B.C., we should enable the B.B.C. to exact fees from the public, and from these fees they would be able to pay proper compensation to the sporting promoters. If they have not the right to exact fees, it is obvious that as things are to-day the B.B.C. cannot pay adequate remuneration to sporting promoters. They have not the money to do it, and will not have enough out of the present system of licence fees, which is their sole source of income. That is an idea we commend to the Postmaster General.
1163 As I have said, I believe this problem is a very real one. I am sure it is going to become more difficult rather than easier to deal with it. I say to the noble Earl that we wish him well. We very much hope that he will not delay this matter, and that he will take it to his colleagues and try to get a decision as soon as may be. Though we do not expect to hear any sort of final answer to-day, we shall be interested to hear something of the lines on which the noble Earl is tackling this most difficult and complicated problem.
§ 3.52 p.m.
§ EARL DE LA WARR
My Lords, we shall all agree that we are deeply indebted to the noble Lord, Lord Lucas of Chilworth, for having raised this question and for the manner in which he has raised it. The debate has been of importance and extraordinarily useful. It has been perhaps all the more important in that, as the noble and learned Earl, Lord Jowitt, has rightly guessed, for the time being Her Majesty's Government are not in a position to make any definite statement, and therefore their minds are still open on the whole subject. I do not mind confessing to your Lordships that it was with a considerable sense of disquietude that I heard, about three days ago, of the indisposition of my noble friend Lord Mancroft, which meant that I should speak instead of him. Although at the Post Office we are deeply interested in this matter, the whole question of copyright law is primarily one for the Board of Trade. My disquietude was intensified when I found how much the noble Lord, Lord Lucas, knew about the subject. If we are agreed on anything, I think we are agreed that this is a terrifyingly complex question. Therefore, it was with some relief that I heard the noble Lord say he meant to restrict his remarks to the subject of television.
Before coming to that question, perhaps I may deal with another point which was raised mainly by the noble Lord, Lord Burden. Among the important matters in connection with the law of copyright, the Report deals with the general exercise of performing rights. This has considerable relation to the question of television, but there are one or two important differences. In the televising of sporting events, we are discussing the possibility of a new right, 1164 whereas in regard to performing rights in musical works and gramophone records we are dealing with existing rights. There we have to consider whether they should be continued or limited. We have to remember that the gramophone industry has been operating now for a considerable time.
From what has been said this afternoon, it is clear that there are strong feelings about existing problems. From this side of the House I do not dare to speak of trade unions affiliated to the T.U.C. as noble Lords on the other side feel able to do, but I should like to assure noble Lords opposite that I have taken serious note of what has been said and I shall represent their point of view to my right honourable friend the President of the Board of Trade. As your Lordships know, the Committee propose to deal with the question by setting up a tribunal. Whether that proposal goes far enough or not, I am not prepared to say this afternoon, but it is clear that noble Lords opposite consider that the proposal is not sufficiently drastic. This same question came up in the United States of America, and, as a result of the United States Government's efforts to tackle the subject, the Musicians' Union refused to allow their members to play for recording for over two years.
I should like to offer my thanks to Sir Henry Gregory and the members of his Committee. I think we shall all agree that, although they have taken a little time to report, the Committee have not been dilatory. They have given the whole subject a thorough examination—indeed, some noble Lords have thought at too great a length. But when I read the Report, with the ignorance of this subject with which I started, I was extremely grateful to the Committee for the manner in which they had gone so thoroughly into the subject. It seems to me that they have put up some practical proposals, and I would say to the noble Lord, Lord Lucas, that I take a rather better view of the proposals in the Report than in some ways he does. There is one fundamental point which they recognised, and which they were right to recognise—that is, the limitation to what they, as a Committee, dealing with a subject necessarily on a legalistic basis, could contribute. They had to recognise that any change in the law they proposed could 1165 provide only a framework in which, given good will, the various bodies concerned might negotiate and work.
On that point, the view of the Committee is certainly shared by Her Majesty's Government, and also, I can tell your Lordships, by the B.B.C. and the sports promoters. I have kept in the closest touch with both those sections of opinion, and it has been made quite clear to me by them, in confirmation of my own view, that, although it is essential that the Government should be prepared to stand on the side-line while they are having their discussions, and should offer their good offices at all points in any negotiations that have to be carried out between them, it is better for the Government at the present juncture not to intervene. I venture to suggest to your Lordships that that is not a negative point of view on behalf of the Government. I think I can claim that it has been possible to make both the B.B.C. and the sports promoters feel confident that the good offices of the Government are at their disposal when they feel it would be useful for us to intervene in their present discussions. One thing about which I am quite satisfied—and this is in confirmation of what the noble Lord. Lord Lucas, has already said—is that both Parties are determined to approach this matter with the public interest in mind.
The problem before us is a simple one to state, even though it may be difficult to solve. The first point I would make is that television may, and in fact almost certainly will, endanger the receipts of many of the large sporting events. I see the noble and learned Earl, Lord Jowitt, looking at me; he, of course, does not take that view, and there are many others who do not. It may be that, taking the long view, the noble and learned Earl will turn out to be right, and I am quite prepared to be convinced of that. But, taking the fairly short view, I feel considerable sympathy with the promoters of sporting events in their fear of the effect of television on their "gates."
§ EARL JOWITT
May I ask this? Is there any practical experience on which the noble Earl can base that view? I do not know of any.
§ EARL DE LA WARR
I have certainly been given practical examples of that in this country, and in America, where the experience is much greater. I do not 1166 carry astronomical figures well in my head, and I will not try to quote some of the figures that have been given to me. What is certainly worrying us all much more than that, and what I feel is much more certain, is the fear, clearly expressed by the noble Lord, Lord Lucas, as to the effect of television on the minor sporting events. There is a particularly telling phrase in paragraph 160 of the Report, which says:But without those minor events there could be no major events.These small sporting events, and small sporting clubs all over the country, are the very lifeblood of sport. I do not think there is any question that, on an unpleasant winter's day, if one could sit at home and watch the Cup Final on television one would do so rather than go out into the wind and rain to watch a small local sporting event.
My third point—again it has been made by the noble Lord, Lord Lucas, but I think it worth repeating—is this. At the present moment we know that the B.B.C. have not enough funds at their disposal to pay sufficient fees to recompense both the larger events, which may be directly affected, and the smaller events, which will certainly be affected indirectly. That is the reason for the difficulties we have to meet in dealing with promoters of both large and small events. What is the Government point of view as to all this? I must say to your Lordships quite frankly, that we are still considering the Report, and therefore anything I say must be taken as being of a preliminary and purely tentative character. If your Lordships will look at the Report you will see that an important point is dealt with in paragraph 159, on which, from certain remarks that fell from the noble Lord, Lord Lucas, I feel that he and I are in complete agreement. The Report says:… that the B.B.C. should, as a matter of right be given compulsory powers to televise any event on financial terms to be agreed or, in the event of a failure to agree, to be settled by arbitration. While we shall make our recommendations for dealing with the question of the power to control public performances at a later stage in our Report, we may say at once that we do not see our way to agree to this last request.There must be complete agreement on this point. If not, we shall virtually be killing the goose which lays the golden egg, and make it impossible for the promoters to carry on their work.
1167 I now come to the essential part of the Report, mentioned in paragraph 159 and more concretely in paragraph 192—namely, that the broadcasting authority should have power to control public use of the spectacle televised, whether it be in cinemas, in hotels, or on bridle racecourses (your Lordships will remember that it was the proposal to sound broadcast the National at Hurst Park that started the controversy as to the Grand National), and that the B.B.C. should have this power to operate, either themselves or through agents who do the work of collection on their behalf. I am sure that we were all deeply impressed by what the noble Lord, Lord Lucas, said on this question. I may say that I was impressed and somewhat disturbed when I found him criticising a proposal (here, I speak purely personally, without committing the Government in any way) with what I felt was a very constructive suggestion for dealing with this difficult question. The noble Lord then came to his alternative. Ever since he put up his alternative I have been wondering what is the difference between what he proposes and what Sir Henry Gregory has proposed. It is true that there is one fundamental difference. The noble Lord is speaking of the B.B.C. as the sole televising agent, whereas Sir Henry Gregory's Committee, taking into account the Government White Paper on Broadcasting Policy, spoke of "the broadcasting authority". There is admittedly a difference there. I confess that the words "a rose by any other name" occurred to me when I heard his proposal, but perhaps he will make it a little clearer in his reply, because I can assure him that we intend to study carefully every word which has been said in this debate.
Of course, I recognise that in paragraph 192 we have only the skeleton of the proposal, and it may be that the reason why there seems in my mind to be not a great difference between the proposal of the noble Lord, Lord Lucas, and the proposal of the Committee, is that I am thinking rather in terms of interpretation than of the machinery by which that proposal might be carried out. It may be that, at that point, we find ourselves closer together. For instance, there is the question of the technique of assessment, the technique of collection and the technique of disposing of the funds when 1168 they are collected. All those points are in the melting pot and, as I say, when they come out of the melting pot, we may find ourselves in rather closer agreement. What does come out of all this is that the difficulties may be legal but the main problem is financial. In some way or other we have to find money in order to make it possible for the sporting promoters to face, shall we say, the possible, if not certain, losses that may accrue to them from the further development of television.
There are, of course, many other points that we have to consider, some of which are referred to in the Report, some proposals and some not, such as the exceptions which may be necessary for social service clubs and educational bodies. One to which I have already referred—but I think it comes under this heading—is the importance of compensation for minor events. It is very easy for us to see the difficulty—we all referred to it—but I confess that it is going to be extremely difficult to assess the actual loss which may have to be met by this or that minor sporting event in possibly some quite remote part. There is one point which was raised directly to me by the representatives of the sports promoters, and that was the question of pirating. The particular point which was brought up was with regard to the Oval. For instance, there are certain windows which overlook the Oval and from which a televised picture could be taken without in any way going on to the Oval property. I tried to reassure them by saying that the matter perhaps could not be dealt with on legal lines, but I saw no difficulty in dealing with it in the actual granting of a licence to a televising authority. I am advised to put into a licence that anybody perpetrating an act of that character would lose his licence.
Then it was suggested that there was need to be able to blanket an area. Your Lordships who have followed this point will know about that. Suppose a big fight took place in London; then for fifty, sixty or seventy miles around London it should not be possible to show that fight commercially. I promised consideration of that point, but I must confess that, at the moment, I see certain difficulties. Then, again, I was asked that the Association for Protection of Copyright in Sport should be used as an agent 1169 for the collection of the fees. That is a matter upon which my mind is quite open at the moment, but I think it would be much better settled by negotiation between that body and the broadcasting authority. Those are some of the points which have been raised with me by the sporting promoters and which I thought perhaps it might be worth while to mention.
There is one oilier point which has been raised and to which I think I should refer, and that is the question of televising the Coronation for public purposes. Your Lordships may know that, at the present moment, the Postmaster General issues the licences for broadcasting, and that if a receiving set is used for commercial purposes, that licence can automatically be rescinded. I should like to inform the House that special licensing arrangements will be made to enable the televising of the Coronation ceremony and procession to be shown in halls, cinemas and other public places, whether to paying or to non-paying audiences. As your Lordships know, the showing of television programmes to paying audiences is not covered by the standard £2 broadcast receiving licence, but, with the full support of the B.B.C., who have consulted all other interests concerned, in due course I shall be glad to issue a simple, collective licence to cover the Coronation broadcast. I am informed that no copyright claims will be made by the Performing Right Society in respect of the public showing of the B.B.C. Coronation broadcast.
§ LORD LUCAS OF CHILWORTH
If the noble Earl has left that point, and as this is really outside the scope of this debate, may I ask him a question? If a cinema shows the television programme of the ceremony of the Coronation and charges an admission fee, to whom does the money go?
§ LORD LUCAS OF CHILWORTH
Would the noble Earl consider seriously whether or not he should make a proviso that at any performance where a charge is made, the money, after expenses have been deducted, should be given to charity? I think it would be wholly wrong that any commercial house which did not have to pay anything for the right 1170 of showing the television broadcast of the ceremony of theCoronation—especially when the Performing Right Society and all the other bodies have come together and are not going to charge anything—should exploit it for commercial gain. I do not expect an answer now, but perhaps the noble Earl will consider that point.
§ EARL DE LA WARR
I will certainly consider it. I was thinking purely of the desirability of making it as easy as possible for everybody to see the television broadcast; but I will certainly undertake to look at that point.
I think that, for the moment, I have gone perhaps as far as I can in answering the noble Lord, except for one point which I omitted, and that was his proposal that the Postmaster General himself should take to his lap this baby. May I say straight away that he would not like to do so at all. If the noble Lord will think for a moment, he will agree that it is not a task for any Government Department. It is one thing for us to have a fixed £1 sound broadcast licence or £2 television licence, and so on, and collect that sum, but the noble Lord knows a great deal more than many of us about the work of the Performing Right Society, and he knows the amount of negotiation that goes on between that Society and every single payer of a fee. For instance, imagine the Post Office having to go to a small hotel and say, "We assess you at £5 or £10" and then going to the Savoy and saying to them, "We think you ought to pay £500." I suggest that, on that ground alone, it would be quite unsuitable for the Post Office or any Government Department to undertake that type of negotiation.
May I close with an appeal? It is an appeal particularly to the public for sympathy and patience with those who have to deal with this subject. There is no doubt about it—it is certainly universally recognised in your Lordships' House—that we are up against great difficulties, as is anybody who has to deal with this subject. The promotion of sporting events is expensive and risky. The B.B.C. are at the present moment deficient in a source of funds for dealing with the problem, and I think they are entitled to ask for patience from the public. After all—let us face it—the public to-day are not getting bad value.
§ SEVERAL NOBLE LORDS: Hear. hear!
§ EARL DE LA WARR
They are asking virtually for the equivalent of the best seats at the greatest football and cricket events in the country, for the front row at Wimbledon, and at big boxing events—and all this for £2 a year to those who have to provide it: the B.B.C. For most of these events one would not get an equivalent view on one single occasion for that sum of money. I challenge anyone to go to a big boxing match and get very far by handing in at the box office the sum of £2.
This is not a matter of overriding this or that obstructive interest. We are not dealing with obstructive people but with people who are faced with a difficult problem. I hope that Her Majesty's Government will be in a position quite soon to make a definite announcement that will help matters. It is likely to entail complicated legislation, and I cannot give any assurance about when the legislation may be ready. But I think that your Lordships will agree that even a statement of policy in the comparatively near future would be helpful. The debate we have had in this House this afternoon certainly encourages me to say that the hope of early legislation would be very much strengthened if we could feel that there was a prospect of getting non-Party or non-controversial legislation. This might mean discussions, either before the Bill was introduced or during the course of its passage through both Houses of Parliament. But I repeat, our debate to-day encourages me to think that it might be possible to get a non-Party approach to this difficult subject. I close by congratulating and thanking the Committee once again for their most constructive and helpful approach to the problem, and by again thanking the noble Lord, Lord Lucas of Chilworth, for the manner in which he has presented to the House a most difficult and complex subject.
§ 4.25 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, I am very grateful to the noble Earl, not only for what he has said, but, if I may say so, for the manner in which he has said it. We on this side of the House have tried to be constructive, and I think he has given us some encouragement. The noble Earl asked me a specific question, and I feel I should apologise to your Lordships if I did not make my- 1172 self clear. I was trying hard not to bore your Lordships, but when one once gets into the technicalities of this subject it is difficult not to be boring. My answer to the question—and it may answer a point made by the noble Lord, Lord Hawke—is that I have no objection whatsoever to the broadcasting authority's having a copyright, but I do foresee considerable trouble in giving them at the same time the performing right which is brought, by a side wind, into Section 19 of the Copyright Act—which the noble Earl will now realise is subject to some very violent protests from everybody.
If the noble Earl or Her Majesty's Government are impressed with the arguments, not only of myself but of my noble friend Lord Burden, that Section 19 of the Copyright Act should be repealed in so far as that performing right is concerned—they will, I am sure, agree that it crept in against the real intention of Parliament—if it is repealed, the whole basis upon which the Committee state that the broadcasting authority would operate to limit public performances in future falls to the ground. My suggestion of independent legislation gives exactly the desired result, but not through the Copyright Act. I hope that I have now made my point clear. My suggestion gives, as I say, exactly the same result but it does not use the unfortunate section in the Copyright Act in order to do it. This section has caused the Copyright Act to do things for which the Act was never intended; it has projected it right into industrial relations and it will project the tribunal into industrial disputes. There is in this country industrial machinery to deal with industrial disputes. It has been tried and proved. This well-oiled and well-set-up machine can take care of this matter right outside the Copyright Act. I must apologise to the House if I did not make this clear previously.
The noble Earl suggests that the B.B.C. and sports promoters ought to get together. I submit that the sports promoters and the B.B.C. will never get closer together than they are to-day. What the Postmaster General has to do is to come off the sideline and obtain action for the purpose of getting money; as he says, that is the key to the whole matter. My noble and learned friend Lord Jowitt and other noble Lords may 1173 be right in suggesting that the fears of the sports promoters are groundless. I remember that when broadcasting first came in it was said that it would ruin the Press. But it never did. You cannot however, convince the sports promoters: the noble Earl is quite right in that. The sportsmen say it will have a serious financial effect on them; and as their veto is the last word I am afraid that we have got to get over that difficulty. The noble Earl's speech was very eloquent, but it was not what he said but what he did not say that mattered. The solution to the problem would be simple if the B.B.C. was the only body with whom he had to deal. The problem is bedevilled by the Government's avowed policy to bring in sponsored television. If the B.B.C. were the only body with whom the Postmaster General had to deal there would be no trouble. But he knows that anything he proposes will have to bring in a hundred and one people who are in this to make money quickly and who get out when they cannot do that. As I said in my speech, if the Government is going to allow this to happen and the price to be paid for the televising of these sporting events to be the subject of the market place, then it means goodbye to good research in television by the national organisation, the B.B.C. With that comment, I beg leave to withdraw my Motion.
§ Motion for Papers, by leave, withdrawn.