COPYRIGHT BILL [H.L.]

HL Deb 01 December 1955 vol 194 cc1016-90

2.49 p.m.

Order of the Day for the House to be again in Committee read.

Moved, That the House do now resolve itself into Committee.—(Lord Mancroft.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DROGHEDA in the Chair]

Clause 7:

Special exceptions as respects libraries and archives

(2) In making any regulations for the purposes of the proceding subsection the Board of Trade shall make such provision as the Board may consider appropriate for securing—

1. (a) that the libraries to which the regulations apply are not established or conducted for profit;
2. (e) that persons to whom copies are supplied under the regulations are required to pay for them a sum not less than the cost (including an appropriate proportion of the general expenses of the library) attributable to their production,

and may impose such other requirements (if any) as may appear to the Board to be expedient.

(3) The copyright in a published literary dramatic or musical work, other than an article contained in a periodical publication, is not infringed by the making or supplying of a copy of part of the work, if the copy is made or supplied by or on behalf of the librarian of a library of a class prescribed by regulations made under this subsection by the Board of Trade, and the conditions prescribed by those regulations are complied with:

Provided that this subsection shall not apply if, at the time when the copy is made, the identity of the owner of the copyright in the work is known to the librarian or could by reasonable inquiry he ascertained by him.

(5) The copyright in a published literary, dramatic or musical work is not infringed by the making or supplying of a copy of the work, or of part of it, by or on behalf of the librarian of a library of a class prescribed by regulations made under this subsection by the Board of Trade. If— (b) the librarian by or on whose behalf the copy is supplied does not know the identity of the owner of the copyright in the work and could not by reasonable inquiry have ascertained it; and

LORD CHORLEY moved to add to paragraph (a) of subsection (2): A library shall not be deemed to be established or conducted for profit solely because it is owned or operated by a profit-making body. The noble Lord said: In moving an Amendment to the last clause I explained the interest of the Libraries Association in this matter. Clause 7 deals particularly with the libraries aspect. It sets out special exceptions with regard to copyright in articles contained in periodicals and publications when the libraries provide copies for the purpose of scholarly research. That is very welcome and acceptable to the libraries and to the world of scholarship at large. Subsection (2) contains a number of safeguards which I feel we can agree are generally sensible and reasonable. The first says that the libraries to which the Board of Trade regulations are to apply must not be established or conducted for profit, and in so far as we are dealing with commercial libraries which are run for profit in the ordinary way, that is undoubtedly a very reasonable provision.

But there have grown up during the last generation a number of great industrial organisations whose work requires scientific application of a very high order. Those organisations have established scientific libraries of great importance and value which the companies concerned halve freely placed at the disposal of scholars and on which scholars make requisitions for copies in this sort of way. It would be a great misfortune if libraries of this sort were thrown outside the area of this concession on the ground that they are established for purposes of profit. No doubt the companies which own them exist for purposes of industry and commerce and are established for purposes of profit; and it might well be said, without some sort of proviso such as that which I am moving in this Amendment, that that has brought the libraries in question within the area of paragraph (a). It would be most unfortunate from the point of view of the scientific community if scientists could not obtain the copy from one of those libraries belonging to the great industrial organisations in exactly the same way as from a library in one of the universities. I beg to move.

Amendment moved— Page 8, line 22, al end insert ("A library shall not be deemed to he established or conducted for profit solely because it is owned or operated by a profit-making body.")—(Lord Chorley.)

LORD MANCROFT

I was pausing for a moment because I thought the noble Lord, Lord Lucas of Chilworth, would be on his feet strongly opposing this Amendment. When we parted company the night before last the noble Lord delivered a powerful speech on the subject of erosion. He was worried about the constant erosion into authors' rights, and he commanded sympathy from all parts of the House. The noble Lord, Lord Chorley, has put down a series of Amendments which carry erosion much farther than it has been carried so far. What the noble Lord is saying is this. There has been for many years the night of the bona fide scholar to get what he wishes in the genuine scholars' libraries, a right, I suppose, which has existed from time immemorial, from the days when books were chained. The introduction of microfilms, photostat procedure and other developments has, of course, produced an entirely new aspect. Every time one of these processes is used it is an erosion upon the rights of the author, The noble Lord, Lord Chorley, in this Amendment and several others which follow, seeks the whole time to take away what many people, including the author, would take to be his just rights. I am afraid that we cannot, except perhaps for one or two minor details, accept the spirit which lies behind all these Amendments.

The Copyright Committee were perfectly firm about this matter. They recommended that the new protection which they were proposing to give should be restricted to non-profit making bodies and should not be an additional prejudice to the income which the copyright owner has a right to expect. There does not seem to be any need to go further than we have done here. Let me make this point quite firmly. Our present Bill takes away none of the "fair dealing" provisions of the Act of 1911—which are themselves a derogation of the copyright owner's rights. Clause 7, as drafted, is a further derogation of those rights, and each of Lord Chorley's Amendments would, directly or indirectly, still further prejudice them. In introducing the Amendment at present before the Committee he spoke about technical libraries in big industrial firms. They are the tools of a particular trade. I cannot see why they should not provide that material for people to copy, provided that proper payment is made for it. I cannot see why they should make this derogation of the author's rights which he is entitled to expect. For those reasons I am afraid that we cannot help the noble Lord in these Amendments.

LORD CHORLEY

I am disappointed that the noble Lord should have taken this extraordinarily reactionary view. The object of this Amendment is not to assist these libraries, but to assist the scientists on whose work the future of this country depends more than anything else. For the noble Lord to make a speech of this kind is really antediluvian, but it is obviously no good my arguing and I shall have to ask you Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

2.57 p.m.

LORD CHORLEY moved, in subsection (2), to delete paragraph (e). The noble Lord said: This is on the same sort of lines as the previous Amendment, and as I gather from what the noble Lord has said that he is equally unsympathetic I do not propose to take much time in dealing with it. The subsection in question is no doubt put there to ensure that publishers are not subjected to undue competition and that, broadly speaking, is very reasonable; but in effect that is secured by the three paragraphs (b), (c) and (d). They restrict this concession, so far as it goes, to research and private study, prevent it from applying to more than one copy, and go further and say that no copy is to extend to more than one article contained in any one periodical. I should have thought that those were ample safeguards, and that to make this provision in regard to general expenses was altogether unnecessary.

It puts the libraries into an exceedingly difficult position. They are not allowed to make profits. They are almost all libraries which exist on the basis of being non-profit making concerns. Most, if not all, of them do make charges which are roughly calculated on the cost of the labour and materials involved; but if they are to carry out this clause as it stands in the letter, it is going to require very elaborate costing and bookkeeping, because overheads will have to be taken into account. It is going to be a serious obstruction to this most valuable service which the libraries afford to scientists and scholars. In those circumstances it seems to me that there is a very strong case for deleting paragraph (e). I am sorry the noble Lord has indicated that he is not prepared to be helpful. I beg to move.

Amendment moved— Page 8, line 32, leave out paragraph (e).—(Lord Chorley.)

LORD MANCROFT

I will take up no more time than is necessary. Let me throw the noble Lord a crumb, and say that, if there is any weight in the point about over-elaborate costing or complicated accounting, I will look at it and see whether I think he is right. But on the general principle I cannot possibly agree. This clause has been worked out very carefully to hold a balance between the interested parties. To do what the noble Lord wants to do would run counter to the Copyright Committee's recommendation and act as a serious prejudice to the rights of the author. I will not weary your Lordships with the arguments again, but they still hold good.

LORD CHORLEY

In the circumstances, I have no other course but to ask your Lordships to allow me to withdraw the Amendment.

Amendment, by leave, withdrawn.

3.0 p.m.

LORD CHORLEY moved in subsection (3) to leave out the words "literary, dramatic or musical." The noble Lord said. This is, in effect, an Amendment which I moved in connection with Clause 6. On the last occasion the noble Lord, Lord Mancroft, referred me to Clause 9, and he said that if I tied the two clauses together I should find that this particular point was covered. I have, in fact, attempted to do so but I cannot, as I indicated at the time, agree with him. Clause 9 deals with artistic works. It is true that in subsection (5) there is a reference to drawings. The main object of this Amendment is to get diagrams and drawings—

LORD MANCROFT

Would the noble Lord forgive me? Is he, not speaking now on Amendment No. 35? The Lord Chairman called the Amendment, No. 34. I thought that I dismissed Amendment 34—the noble Lord, Lord Chorley, seemed to think rather callously. The noble Lord, Lord Chorley, I think, is speaking now to Amendment 35, and that Amendment is on quite a different point.

LORD CHORLEY

I beg your Lordships' pardon if I have made a mistake.

LORD MANCROFT

If the noble Lord would like me to do so, I will explain his Amendment to him.

THE CHAIRMAN OF COMMITTEES

Amendment 34 was called, and it has not yet been dealt with.

LORD CHORLEY

I am sorry. Amendment 34 was connected with the last one and I thought I was dealing with the two together. I do not move that Amendment.

The object of this Amendment is to leave out the words "literary, dramatic or musical." As in the case of the Amendment which I moved on the previous occasion in connection with Clause 6, the purpose of this Amendment is to leave the law as it stands under the 1911 Act, because plans and diagrams are not included in these words. The noble Lord who replied for the Government on Tuesday indicated that in his view this was effectively covered by Clause 9, and while not altogether accepting that view, I withdrew my Motion. If you look at Clause 9, your Lordships will see that it deals with artistic works. While it is true that in subsection (5) there is a reference to drawings, and drawings are defined in the definition clause, Clause 42, as including diagrams, surely the drawings which are aimed at here must come within the genus artistic work. Many of the diagrams and plans of the kinds with which librarians are concerned are geographical diagrams and plans of a type which would not be included in the definition "artistic works" at all, and so really cannot be brought within Clause 9. Therefore, it is necessary to go back to the wider protection given by the 1911 Act, and take out the words "literary, dramatic or musical," because if they are left in, it means that plans and diagrams are included. I hope the noble Lord will bear with me and possibly agree with me also that it is necessary that the words "literary, dramatic or musical" should be taken out. I beg to move.

Amendment moved— Page 8, line 39, leave out ("literary, dramatic or musical").—(Lord Chorley.)

LORD MANCROFT

I was a little puzzled to know what was in the noble Lord's mind when I saw this Amendment on the Order Paper. Now that I have listened to his argument, I can see what he is getting at. I think he has a point here. Where the copying of such things as diagrams or mechanical drawings or other specialised forms of drawings is concerned, I can see difficulties. But I do not think that the clause is intended to cover, for example, the making of what may be a high-grade photographic reproduction of a copyright picture, possibly in competition with similar works issued by the copyright owner. If the noble Lord will consent to withdraw his Amendment, I will undertake to go into this matter and we will see whether we cannot devise something to meet the point which he has made. I think it is a good point.

LORD CHORLEY

I am pleased to hear what the noble Lord has just said, and on that undertaking I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD CHORLEY moved to leave oat the proviso to subsection (3). The noble Lord said: In view of the fact that the copying which is authorised by this clause is very limited in extent, it seems to the librarians quite unnecessary to make copying conditional in any circumstances on the consent of the owner of the copyright being obtained. The deletion which is proposed in the Amendment would bring the copying of pictures into line with the copying of periodicals. It seems to the librarians that this is reasonable. I put the Amendment down with a view to securing what they seek and I hope that the noble Lord will be able to accept it. I beg to move.

Amendment moved— Page 8, line 45, leave out lines 46 to line 2 on page 9.—(Lord Chorley.)

LORD MANCROFT

These two Amendments—that is, Amendment 36. which the noble Lord has just moved and Amendment 37—are, I imagine, alternative Amendments. The one which he has just moved would allow the copying of a substantial part of a book without any attempt whatsoever being made to communicate with the copyright owner. If the noble Lord will turn to paragraphs 51 and 52 of the Report of the Copyright Committee he will see that they recommended that the consent of the copyright owner should be sought before his rights were interfered with, and the reasons given in those paragraphs seem to me to be absolutely conclusive. I am not prepared to ignore that recommendation or to agree to copying of this kind without at least some attempt being made to make contact with the copyright owner or possibly the publisher.

EARL JOWITT

Supposing you know the identity of the owner of the copyright, and you communicate with him. These people often possess artistic temperaments and are notoriously bad at answering letters. I take it that the relevance of knowing the identity is that you may write to him. But if, as so frequently happens in these cases, he does not answer, what do you do?

LORD MANCROFT

My noble and learned friend the Lord Chancellor suggests that you send him a wire, and I think myself that a prepaid telegram might well produce a result. Of course, artistic people are notoriously lax in these matters of correspondence. If the noble and learned Earl's hypothetical artistic friend puts the letter into the waste-paper basket, or does what Disraeli said he used to do with letters—leaves them in a drawer for five years without answering them in the hope that they will answer themselves—then he must stand the consequences. But it is only reasonable that if you get in contact with the copyright owner you should give him a chance to refuse or take some other steps, by way perhaps of striking a bargain. One must take some reasonable steps and one would hope that some reasonable answer would be available. But I quite agree that what the noble and learned Earl has suggested is quite likely to happen on numerous occasions.

LORD DOUGLAS OF BARLOCH

May I say that to me it seems that there is nothing in the subsection which enables a librarian to provide a copy in those circumstances. If the identity of the author is known he is bound to communicate with him, and if the author does not reply he is still debarred from supplying a copy.

LORD CHORLEY

That would appear to be so. Would the noble Lord, perhaps, agree to look at this point again? I agree that there is a good deal in the noble Lord's argument, but I think the clause as it stands is not tightened up effectively. As is shown by my next Amendment, the address is required, and possibly—I am racing ahead a little—he will be prepared also to look at that point. Even so, the clause should deal with the situation where a man fails to respond to a communication, and I think that could be provided for without lengthening the subsection very much. Would the noble Lord be prepared to look at it with the idea of tightening it up?

LORD MANCROFT

What I will offer to the noble Lord, if this is acceptable to him, is that, so long as I am not asked to go any further than the principle which I have stated as clearly as possible, I will look at the points which both he and the noble Lord, Lord Douglas of Barloch, have made. While the noble Lord has been talking, it has occurred to me that it might be possible to shift the onus of receipt from the recalcitrant author who does not reply to his letters to the publisher, who probably answers letters more efficiently. I will look into this matter, if I may, without making any promise, to see whether I can help the noble Lord; but I must not be taken as going any further than that.

LORD CHORLEY

I am grateful to the noble Lord for going so far as that. As these two Amendments go together, I beg leave to withdraw this one and shall not move the next one.

Amendment, by leave, withdrawn.

LORD CHORLEY moved after subsection (4) to insert: (5) The copyright in any work is not infringed by the making or supplying of a copy of the work or any part thereof by or on behalf of the librarian of any library if the making of that copy by the person to whom it was supplied would not constitute an infringement of the copyright therein. The noble Lord said: This Amendment is intended to make clear that the protection given to students and research workers by the fair dealing provision extends to librarians when acting on behalf of students and research workers. I beg to move.

Amendment moved— Page 9, line 10, at end insert the said subsection.—(Lord Chorley.)

LORD MANCROFT

I am afraid that this Amendment will not do, either. I ask the noble Lord to consider what he has proposed in such a light and easy manner. Under the fair dealing provision there is no limit to what can be copied by a person for his own private study. But in this clause we are dealing with a method of mechanical reproduction by a third party, such as photostatic reproduction, involving no activity on the part of the student himself. Under this Amendment a student could ask a librarian to copy a whole work without any formalities whatsoever, without even attempting to secure the consent of the copyright owner. Does the noble Lord imagine for a moment that this is in accordance with our Convention obligations or with justice? I am certain that is not what he means, but that would be the effect. He now proposes to throw completely on one side the recommendations of the Committee regarding the status of the libraries which were to be given these powers and he makes no provision for payment for copying. What the noble Lord proposes is to assist in setting up a traffic in the reproduction of copyright works without let or hindrance. That is the effect of his Amendment and I am sure that neither he nor I would tolerate that for a moment.

LORD CHORLEY

I explained that I was not wedded to the drafting. It may be that on the drafting, what the noble Lord has said is right, but he has not really answered the spirit of this Amendment. I am sure he appreciates the point I have in mind; simply that the position should be tightened up to protect librarians who are acting on behalf of students or research workers. I had hoped that the noble Lout would have accepted the spirit of this proposal, and, having skilled draftsmen at his command, would have offered to redraft the Amendment to meet the point, which is a good one. I wish he could have taken up that point of view. As he has refused to do so, I am afraid I have no recourse but to ask your Lordships for permission to withdraw the Amendment, but I will try to redraft it so as to make it viable, and will put it down on the next stage.

LORD MANCROFT

May I make it perfectly clear that I do not disagree with the drafting, but precisely with the spirit that lies behind the Amendment.

Amendment, by leave, withdrawn.

Clause 7 agreed to.

Clause 8:

Special exception in respect of records of musical works.

8.—(1) The copyright in a musical work is not infringed by a person (in this section referred to as "the manufacturer") who makes a record of the work or of an adaptation thereof, if—

1. (a) records of the work, or, as the case may be, of a similar adaptation of the work, have previously been made for the purposes of retail sate, and were so made by, or with the licence of, the owner of the copyright in the work;
2. (b) before making the record, the mamufacturer gave to the owner of the copyright the prescribed notice of his intention to make it;
3. (c) the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by another person, or intends to use it for making other records which are to be so sold or supplied; and
4. (d) in the case of a record which is sold by retail, the manufacturer pays to the owner of the copyright, in the prescribed manner and at the prescribed time, a royalty of an amount ascertained in accordance with the following provisions of this section.

(2) Subject to the following provisions of this section, the royalty mentioned in paragraph (d) of the preceding subsection shall be of an amount equal to six and one-quarter per cent. of the ordinary retail selling price of the record, calculated in the prescribed manner:

Provided that, if the amount so calculated includes a fraction of a farthing, that fraction shall be reckoned as one farthing, and if, apart from this proviso, the amount of the royalty would be less thin three-farthings, the amount thereof shall be three-farthings.

LORD LUCAS OF CHILWORTH moved to leave out subsection (1). The noble Lord said: When the noble Lord, Lord Mancroft, sought to enlist my aid to do his job, which he Goes so much better than I could ever hope to do, I listened with interest to his sturdy declaration that he would not budge one inch from the incontrovertible right of an author, composer or artist to have the absolute natural properly right in the creation of his own brain, as we on this side of the Committee have always maintained. When I come to this Amendment, I find myself with the noble Lord as one of my most enthusiastic supporters. He cannot do anything else but accept this Amendment.

LORD MANCROFT

It has nothing to do with librarians at all.

LORD LUCAS or CHILWORTH

It has everything to do with the copyright of authors, which should not be infringed by librarians or anybody else. This Amendment deals with what is known as a compulsory licence. I would ask noble Lords to turn back the pages of the Bill to Clause 2 (5), where it says in unmistakable terms: The acts restricted by the copyright in a literary, dramatic or musical work are— (a) reproducing the work in any material form; If I may use the expression, that is the Ark of the Covenant of this Bill. When we come to subsection (1) (c) of Clause 8, we are seeking to take away that right in regard to any subsequent record or reproduction of a work which a composer has permitted to be recorded or reproduced only once. I intend to follow the example I have set before by not going into a technical explanation but by giving a concrete example. Let me cite the recording of a symphony written by one of this country's greatest composers—say, Vaughan Williams. Vaughan Williams consents to the granting of a licence for the recording of one of his symphonies. Jealous of his reputation, he chooses the orchestra with care, and he chooses the conductor. He might say: "There is only one conductor who can conduct one of my compositions properly, and that is myself." He goes into detailed, artistic and, indeed, scientific, discussions with the recording company, and eventually the record is produced as a masterpiece of artistic work. Once he has done that. any orchestra in this country, with any conductor, can perform that symphony without having to ask the permission of the composer. What is the idea of the Government in this regard?

Again going back to Clause 2, we find it there says: The acts restricted by the copyright in a literary, dramatic or musical work are— (a) reproducing the work in any material form … The composer says: "My work may be ruined. To any orchestra, second, third or fifth rate, or any conductor, I am compelled to give a licence. I do not want anybody to reproduce my work without my consent. I am jealous of my reputation, and I will allow the reproduction of my work to be undertaken only by orchestras, conductors and artists who I think are fully qualified." What is the object of the Government in this clause? I cannot see it. It is damaging to the prestige of the natural property owner, and, after all, copyright was instituted to protect that very thing. Not only does, it go that far, but at present it gives the producer of the record a performing right. I think it must be a mistake, although I can quite appreciate why the Government have put in this clause. When this matter was before the Copyright Committee I suppose I must admit to recommending, it to a certain degree, and perhaps that is going to be what the noble Lord will tell your Lordships. But although in the course of this Committee stage I shall, when it suits me, pray in aid this Report, as, of course, will the noble Lord, Lord Mancroft, and the noble and learned Viscount, the Lord Chancellor, I do not consider that the Report of the Copyright Committee is Holy Writ.

I think I should tell your Lordships that in 1951, when the Copyright Committee considered this problem of the compulsory licence, there were only about three major recording companies in this country—and when I say "major recording companies," I mean recording companies that issue a catalogue of the works they record. But the advent of the tape recorder has revolutionised this matter, and there are to-day in this country about fifty recording companies who will record for anybody. They do not issue a catalogue for the market. So—if I may use this term quickly and without too much emphasis—the piracy that can go on is most damaging to the original artist, because he must give consent. I do not say that he does not get royalties, if he can track all these tape recordings—and those who record for special people do not market their recorded works in a comprehensive manner.

I want the noble Lord to underline what he has said: that no reproduction of a work can take place—as is said in Clause 2 (5) (a)—"in any material form," otherwise it is a breach of copyright. In my opinion, that is an unanswerable case, underlined by the almost passionate denunciation of the first Amendment moved by my noble friend Lord Chorley. The noble Lord, Lord Mancroft, thought I was going to fly to his aid, and he committed himself to this principle. With those words, I beg to move this Amendment, and I hope the noble Lord will accept it.

Amendment moved— Page 10, line 25, leave out subsection (1).—(Lord Lucas of Chilworth.)

LORD DOUGLAS OF BARLOCH

I should like to support the Amendment which my noble friend has just moved. This clause establishes a principle which is quite alien to the rest of the Bill. If there is to be a right, without any permission whatever from the author, to reproduce a musical work, why should there not be a right to reproduce a literary work? Exactly, the same argument, presumably, can be applied: that if the author has once chosen to have an edition published, then any other publisher should have the right to publish another edition of the work, paying to the author the minimum royalty laid down in the Statute. So, also, with works of art and other things. Let us come to a case in which the reproduction takes a material form different from that of the original work itself. If an architect produces the plans of a building, is it to be suggested, after a building has once been erected in accordance with those plans, that anybody should have the right to erect other buildings according to those plans, subject to payment to the architect of a royalty? If this principle is correct in the case of musical works, why is it not correct with regard to all the other works which are the subject of copyright under this Bill? There cannot be any excuse for making an exception of musical works.

Let us consider this matter a little further. This provision is absolutely arbitrary, in that it fixes a rate of remuneration for the records made which has no relationship to any free bargaining between the parties. It has no commercial or economic significance of any kind; it cannot be justified by any kind of calculation; it has nothing to do with the merits of the work. Further, suppose this provision is put into operation and some company makes a record of a musical work using an inferior orchestra and producing it very badly, how damaging that may be, in the long run, to the author of this piece of music! It may interfere with the sales of the record which he has originally allowed to be made. It may give a totally wrong impression and damage his position extremely seriously. I really cannot see what justification there can be, once one admits the principle of copyright in the productions of human intelligence, whether they take a musical, an artistic or a literary form, for derogating from the principle in this extremely arbitrary way.

LORD BURDEN

Whilst I agree entirely with the general case put up by my noble friend Lord Douglas of Barloch, for the purpose of the record I should like to know whether the illustration he used with regard to the position of the architect is a correct one. I have always understood that once a building has been erected nothing can prevent another arehitect from using the general building for his plans for a similar building. May I recall an instance within my knowledge? I was a member of a local council which obtained permission of the Ministry of Health to erect a nursery for children under five. The council with which I was connected was obviously a good one, because before the Ministry would allow any other local authority to build a nursery for children of the same age they instructed the local authority to go down and see the one which we had erected for our children. It seems to me that in that way there was no copyright at all in that form of art, whatever there may be in others. I am raising the point in a general way because I think we ought to get the position clear.

3.32 p.m.

LORD MANCROFT

Now let us see if we can get back to the purpose of this clause, which is entitled: Special exception in respect of records of musical works. The other points are interesting, but I hope I shall be forgiven if, just for the moment, I stick to the clause we are discussing. The gist of the complaint of the noble Lord, Lord Lucas of Chilworth, is this. Dr. Vaughan Williams grants record company A the right to make a record of his Fourth Symphony. Under this Philistine clause which this terrible Government have suddenly popped into the Bill, record company B, an inferior lot, can make a record of the same symphony and do it in a disgraceful, shoddy and tasteless sort of way. Let me say straight away that this is nothing new at all. The Amendment which the noble Lord has now put before us proposes to take away the right which is deliberately given by subsections (2) to (6) of Section 19 of the Act of 1911 under which, where a composer has given permission to one record manufacturer, other manufacturers can secure a licence of right. That right has existed since 1911; it is not new to the Bill. We have not put it in; it has been there since 1911, when, for the first time, composers were given the right to authorise the recording of their works. The Copyright Committee made no recommendation to abolish the right, and Article 13 (2) of the Brussels Convention envisages that Member States may make such provision. The existence of the arrangements made in 1911 allow for the play of competition, not only between record manufacturers but, of course, between bands and orchestras.

Let us get back to the real point which is worrying noble Lords opposite, which is the question of inferior performance of the second recording. If the noble Lord, Lord Douglas of Barloch, would be good enough to follow me through subsection (6) of this clause, I think that will answer his question. Subsection (6) says: For the purposes of this section an adaptation of a work shall be taken to be similar to an adaptation thereof contained in previous records if the two adaptations do not substantially differ in their treatment of the work, either in respect of style or (apart from any difference in numbers) in respect of the performers required for performing them. That subsection is put in specifically to prevent the vulgarisation or the "jazzing up" of a distinguished piece of work which, naturally, might annoy and aggravate the composer. This right has gone on for a long time without much trouble. I think the composers would be upset if it were taken away. They would lose far more than they would gain. I do not doubt that there may be one or two composers who would like to have their works played by the Royal Philharmonic or B.B.C. Symphony Orchestra, and by none other; but I do not think they are numerous, and the reason is because of this safeguard. Of course, if there were the risk of a piece being vulgarised or "jazzed up," one could readily see the objection.

LORD LUCAS OF CHILWORTH

Would the noble Lord forgive me? I have not mentioned the terms "vulgarisation" or "jazzed up." That is an entirely different thing from being performed by an orchestra which the original composer does not think will increase, enhance or even affect his reputation.

LORD MANCROFT

Is that a very serious handicap? It has not been so in the last fifty years, and has not caused much trouble. Look at the other side of the coin. It means that you are going to limit the performance to one orchestra of the composer's choice. Take a slightly less elevated example—that of the popular dance tune which some of us hear played a bit too often by too many bands. It would mean that you would have the right to confine it to one band, and nobody else could make a record of it.

LORD CHORLEY

Surely, the composer would always license some other orchestra or band to play it. In the case of a dance tune he obviously would.

LORD MANCROFT

Yes, but what is the objection to its being done in the way in which it has been satisfactorily done for fifty years? I cannot see why noble Lords are worried about something which has been quite satisfactory for a long time. That has caused fair competition; it has met with the approval of the public, and there have been no complaints. It met with the approval of the Copyright Committee, comes under the terms of the Convention, and appears to work satisfactorily to the interests of everybody. I cannot see why something should be removed from the Bill which has been satisfactory to the law of the land for fifty years.

EARL JOWITT

I am sorry to hear that reply. I regard this as an important matter and of first principle. I have been approached personally by the composers of this country on this question and I will re-state it to your Lordships, because it seems to me that what we are doing here is a monstrous injustice. I am not the least concerned about dance music. It may be possible to differentiate by the length of time which a record occupies or something of that sort—you may get out of the difficulty in that way. But in the case of really serious works, such as those by Sir William Walton or Vaughan Williams, they take the greatest trouble in making up their minds whether to authorise the recording of that work. They go to the studio to satisfy themselves that the orchestra is of the correct quality and that the conductor is the right man. It is a common thing for them to say, "I am not satisfied with that performance; we will have another." These people are difficult to satisfy. I am only telling your Lordships what I am told by these eminent people themselves. They could say, "I am satisfied with that performance, but I am not satisfied with any other."

It is perfectly true that the proposition which the Government are making is enshrined in the existing Act, but, after all, the object of this Bill is to amend the existing Act. The circumstances are now entirely different, because, owing to the fact that we now have this method of tape-recording, the number of people who are making recordings is growing rapidly, and is likely to grow even more rapidly. In the days of 1911 (I speak subject to correction) there were only two or three people who did recording, and they were people of the highest repute and with some artistic outlook. To-day, the position is very different. The composers are complaining bitterly, and I ask all your Lordships on all sides of the House to have regard to them. If Dr. Vaughan Williams gives his consent to the recording of a particular performance, having regard to the way in which it is done, the artistic skill displayed, and so on, is it really to be said that, having once given his consent to that performance, he is to he taken as having authorised any other performance by an orchestra which he would regard as unworthy, with a conductor whom he would consider not a good conductor, it being, generally speaking, a performance which he does not like at all? As the Bill stands, that is what we are proposing to enact.

I make it plain that I have not spoken to Dr. Vaughan Williams himself about this matter, but I take this illustration which was used by the noble Lord, Lord Lucas of Chilworth. Dr. Vaughan Williams, for instance, has to be content with a royalty of 6¼ per cent. It is utterly different from the case of a dance band, where recording is done mainly for profit. I can assure your Lordships that these eminent people regard profit as purely subsidiary. What they want to see is a performance of their work which corresponds with their ideal of how it should be rendered. I am not dealing with the obvious case of "jazzing up," or anything of that sort. This case arises where an orchestras trying to reproduce a work and is reproducing the work honestly and sincerely, not trying to alter it or "jazz it up" in a way that the composer regards as utterly unworthy.

I press the Government on this point most sincerely. Is it really to be said that the composer of such a work is bound to allow these recordings, and that it is enough to say, "Well, it is quite all right; he will get 6¼ per cent." Let us just look at this for a moment. It is a mere chance of the wheel of political fortune that I am not on that side of the House introducing this Bill and that noble Lords at present on that side are not on this side of the House criticising. There is nothing of a Party nature about this Bill. Sir Stafford Cripps said, "When I have finished my Patent Commission, I want to do what I can about the law of copyright." The Committee on the Law of Copyright was, in fact, appointed in our time. I remember, if I may let your Lordships into a secret and perhaps be a little indiscreet, the President of the Board of Trade coming, either in person or by his deputy, the noble Lord, Lord Lucas of Chilworth, and asking me for a Lord of Appeal to preside over the Committee. I responded, as Lord Chancellors are rather apt to respond to these requests, "I am sorry, but I have not enough Lords of Appeal to attend to their ordinary work. I cannot do it." We looked about, in place of a Lord of Appeal, for some eminent lawyer who could preside over this Committee. We were very fortunate to have the noble Marquess sitting opposite me. Lord Reading. He started and presided over this Committee until, I think, the end of the evidence period, but he cannot be held responsible for these recommendations. It was unfortunate that, at the formative part of the Committee's Report, we did not have as Chairman some very distinguished lawyer, such as he is, or such as a Lord of Appeal would be.

It is perfectly true—I will give the, Government the point—that this provision is in the existing Act, if I am right. But I beg your Lordships to consider this fact. These people are a small group of people who write serious works. They are works the performance of which takes much more than five minutes. I throw myself upon your Lordships when I say this: they object most bitterly to the idea of having to authorise performances of these works by all and sundry just because they have authorised the performance of one particular work by one particular orchestra which they personally have supervised. That is the case. I beg your Lordships to do what you can to remedy what seems to them to be a gross injustice. What is at stake here is not money but, as they see it, their reputation, their aesthetic reputation and they do not like these performances going out which they have not approved. I know very well that we cannot go into other artistic matters because, as the noble Lord. Lord Mancroft, pointed out, this clause applies to musical matters. We do not gain much by considering paintings, but I can well understand that an artist would allow a reproduction of his painting by A but would be very annoyed if he were bound to authorise reproductions of his work by B, C and D, and content himself with a 6¼ per cent. royalty. He might think their reproduction was wholly unworthy.

I say this, further, to your Lordships. We feel strongly about this matter and, even if we are in a hopeless minority, we shall ask the House to divide on it. But I suggest this via media. The works which I have in mind and about which I care are works which cannot be performed in a minute or five minutes, or anything of that sort—they are serious works. I am not in the least concerned with a dance tune, a jazz tune or anything of that sort. With them it may be right to say that if a composer authorises orchestra A to reproduce it, by all means let it be reproduced by B, C and D and all the rest. The main object of that composer is, of course, to get money, a perfectly laudable object, and I have no complaint about that. But where you have something other than that, some serious work, where the main object of the composer is not merely to make money but to see that his work is worthily produced, I beg your Lordships to say that this provision, albeit it was enshrined in the 1911 Act, in different circumstances, has proved onerous to the composers. The composers have come to me and asked me to put their case to your Lordships, and that case, to the best of my ability, I have endeavoured to put.

3.48 p.m.

THE LORD CHANCELLOR (VISCOUNT KILMUIR)

I am sure that all your Lordships will have been impressed by the force and sincerity with which the noble and learned Earl has put his case. Especially in the last part of his remarks he has made clear that the case which he is putting is, in truth and in fact, a limited case dealing with what your Lordships will agree is a small section of a great subject. My noble friend Lord Mancroft has said that we had no complaints in this particular field, but the noble and learned Earl has made us well aware of his feelings on the matter. At the risk of occupying a little of your Lordships' time, I want to show your Lordships that we have not approached the clause and the problem with which it deals in, if I may be Victorian for a moment, a Philistine attitude of mind. As my noble friend made clear, the code was laid down, as I am sure noble Lords who have studied this matter have seen, in the Act of 1911, in seven subsections, numbers (2) to (8), of Section 19.

We have tried to improve the situation. The noble and learned Earl will agree with me that the Act of 1911 was silent on the question of the selling of a record. We have made it clear that copyright now arises when a record has been offered for sale. That means that the composer is protected if the B.B.C. use a recording for putting out his work. We have tried to meet that point. I think we have also dealt fairly—if necessary, we will consider whether it can be improved—with the case where there is another copyright in respect of words, namely, songwriting: and I think we have also dealt with the question of adaptation.

We have tried to improve the clause, but, as the Government of the country, we must look at the whole problem. I hate to speculate how much of the joy and happiness of young people in this country comes out of records of light music, especially dance music and popular music of the day. I am sure the noble Lord, Lord Lucas of Chilworth, would think sympathetically on this point. When you have had a recording made of a dance tune it is sometimes desirable to have competition between bands in the production of different versions of it. I really cannot see what is wrong so long as you are fairly treated, and we have tried to make fair arrangements.

EARL JOWITT

So far as dance music is concerned, the Lord Chancellor need not bother. It is the serious work with which I am concerned.

THE LORD CHANCELLOR

I quite agree; but this point is a fair one. I think I take the noble and learned Earl with me in saying that the Government must deal with the whole situation; they must see the problem as a whole. I would not for a moment accept this Amendment which would destroy this right. I think I should be wrong in accepting it. I think that that existing right, which affects a large section of music, is certainly something which has worked well. The matter has been given a good deal of consideration. It has been considered not only by the Committee presided over by my noble friend, but also by the Convention, which has come to the conclusion that it should exist. Therefore, on the first point, of doing away with this tight as a whole, I should certainly advise the Committee not to do it.

Now I come the second point. The noble and learned Earl, with his vast experience of drafting Bills, knows that the hard case he has presented to me is a most difficult matter. It is so trite to say that "Hard cases make bad law" that I hesitate even to mouth the words in your Lordships' House. But if, on the noble and learned Earl's hard case, I had to do away entirely with the limited right in regard to light music, I have no doubt in saying that I should be prepared to vote against that, even if I were the only one of your Lordships who did. I believe, equally strongly with the noble and learned Earl, that the public interest and public enjoyment demands that it should be kept.

Therefore, what the noble and learned Earl and I have to consider is: can we differentiate the hard case? It is the kind of task we have often had to undertake. We have often had to consider it together or on opposite sides of the House, and we sometimes have to say: "If I deal with this hard case I shall vitiate the principle." I hope we shall not have to say that here. Therefore I ask the noble and learned Earl to try to find some way of making a category of his case. I am prepared to consider that and to help him if I can. I think that is a perfectly reasonable attitude to put to your Lordships. I am not prepared to accept the principle of this Amendment at all in doing away with a limited right. I do not think it is common sense. I think the answer of my noble friend Lord Mancroft, is right: that it has gone on for forty years with success and satisfaction to the public, and it has been reviewed by the independent bodies who have considered the matter, and they have not found fault with it. I am prepared to reconsider the point if the noble and learned Earl can find some method of delimiting his serious category. I do not think I can be fairer than that. As the noble and learned Earl knows. I put forward that suggestion in a most conciliatory manner: but I am not prepared to accept an Amendment on a principle with which I fundamentally disagree, merely to cover a hard case which is only a small portion of the field which Her Majesty's Government must consider.

EARL DE LA WARR

When I started to listen to this discussion I must confess that I had no idea that I should feel a wish to intervene; but I should like to say that what the noble and learned Viscount the Lord Chancellor has just said certainly gave me personally, and I believe a number of other noble Lords, a great sense of relief. This is not a Party matter and I should not for a moment wish to press the Government to accept this Arnendment—I am not sure whether the noble and learned Earl opposite wishes to do so either. But we are not here discussing just a hard case; we are discussing something of quality—the sort of thing that to-day all too often gets brushed aside in favour of the amusement of the largest possible number. It is really the soul of the nation that we are discussing—the really great things that only a few great men can produce. I beg the noble and learned Viscount the Lord Chancellor to use his wisdom and his ingenuity, as well as throwing the ball to the noble and learned Earl opposite, in trying to produce something to cover this point.

LORD LUCAS OF CHILWORTH

I am sorry that both the noble Lord, Lord Mancroft, and the noble and learned Viscount the Lord Chancellor have adopted the argument they did. Either they did not hear my argument or I failed to make myself clear. First of all, to say that this compulsory licence has been going on since 1911 and that what was good in 1911 is therefore good in 1956, is to my simple mind unconvincing. The object of bringing forward this Bill is to revise a law which is now totally out of date, to deal with the mechanical contrivances of 1956 which were unknown in 1911.

THE LORD CHANCELLOR

Would the noble Lord help me on one point, because I am trying to approach this subject seriously? Why does he make a distinction—apart from the special case of the noble and learned Earl—of serious music of the highest quality? Why does he make a distinction, and how does he make a distinction?

LORD LUCAS OF CHILWORTH

I am coming to that.

THE LORD CHANCELLOR

In regard to an ordinary performing right, where ordinary music can be played by bands, no one doubts that it is subject to the payment of a performing right. I should like the noble Lord to develop that point.

LORD LUCAS OF CHILWORTH

I am going to do that. But let me come back to what I was saying, about whether what has been good for forty-odd years is good to-day. When the Committee was set up, I had the great pleasure of persuading the noble Marquess, Lord Reading, to become its Chairman. When the Committee started its deliberations there were only three recording companies. No one could plagiarise, because the three recording companies were responsible companies who produced catalogues. I think I am right in saying all three employed first-class orchestras. When the noble Marquess, Lord Reading, had finished his deliberations as Chairman of the Copyright Committee in 1951 there were five recording companies. By 1952 the number had grown to nine; in 1953 there were thirteen; to-day, in 1955, there are eighteen. These are all respectable companies who issue catalogues. But there are between fifty and sixty recording companies in this country who have a perfect right to record any composer's work under compulsory licence, and who do not even issue a catalogue. That is one circumstance which has altered, and of which we have to take care in 1956.

I do not suggest that this matter will be confined, as the noble Lord, Lord Mancroft, seemed to insinuate, to one orchestra and one conductor. I mentioned Dr. Vaughan Williams. We have in this country at present first-class composers and first-class orchestras. If such orchestras wished to perform the work of Dr. Vaughan Williams he would doubtless willingly agree, on the proper terms. But why should he be subjected, as he is to-day, to "under-cover" recordings of his works on tape machines by very inferior orchestras for circulation through inferior channels? The man who writes a "boogie-woogie" ballodia is only too glad to get as many records as possible on the market because 99 per cent. of the people of this country could not tell whether that particular tune was played by a good or a bad orchestra—it is a hell of a row anyway! When one comes to really serious works, however, works where, as the noble Earl, Lord De La Warr, says, British prestige and the prestige of British composers is at stake, that is an entirely different matter.

This is not a hard case. I am not seeking to create a monopoly so that a composer of classical or serious music can have only one orchestra or one conductor. This is the very essence of copyright, as I pointed out on Clause 2 (5) which lays down perfectly clearly: The acts restricted by the copyright in a literary, dramatic, or musical work, are— (a) reproducing the work in any material form … But this sort of recording is reproducing the work in a material form. With cheap jazz music the more records that are made the better it is for the author, but, as my noble and learned friend has said, with the classical composer it is not a case of money. The noble and learned Viscount the Lord Chancellor wants to put the onus on the Opposition. Why should he? This is a Government Bill, and we have put down what we believe is the correct Amendment to delete the subsection. The Government say, "We cannot accept it so go away and think of something better." My suggestion to Her Majesty's Government is that they, not we, should do the thinking. Theirs is the Bill, not ours. I have said before, and shall never tire of saying, that the noble and learned Viscount is always receptive to any point of view which we put forward. If the noble and learned Viscount will say that the Government will take this matter back and look at it again, we will refrain from asking your Lordships to express your opinion in the Division Lobby; but unless the noble and teamed Viscount will say that, we cannot depart from this for it is a vital principle. Perhaps the noble and learned Viscount would like to say something.

4.2 p.m.

THE LORD PRESIDENT OF THE COUNCIL (THE MARQUESS OF SALISBURY)

My Lords, I have not been here during the whole of this debate but I have listened with the greatest interest to the part which I have heard. I should like to refer only to the last point of the noble Lord, Lord Lucas of Chilworth. My noble and learned friend the Lord Chancellor said that he was quite ready to consider any Amendment which the Opposition chose to put forward and to examine it carefully to see whether it was at all practicable. I think that was a fair answer, but the noble Lord, Lord Lucas of Chilworth, says, "No, no; we are only the Opposition. You are the Government, you are the people who are introducing this Bill, the people who do not wish to divide your Lordships' House." I do not think that is quite fair. Her Majesty's Government, rightly or wrongly, were quite satisfied with the wording of the clause. Although I am not criticising him in any way, for it is a difficult point, the noble Lord was not satisfied. It then turned out, as I understood from that part of the debate which I heard, that it was what might be called "limited criticism" as expounded by the noble and learned Earl. Lord Jowitt. Though they did not really object to the wording of the subsection as it applied to light and dance music, where they felt it did not matter very much, they were concerned about the better type of music.

It appears that the important point, to which everyone should put his mind, is whether it is possible to draw a differentiation. Where are we to draw the line? Honestly, I do not think it is right for the Government to have to do that. That is for noble Lords opposite and those in various parts of the House who support them, and who have raised this difficulty. If they have no solution, they cannot very well expect Her Majesty's Government to have one. They have not produced a solution in the light of the debate which has taken place, although the two sides have come closer together. The real difference of opinion is over the question of whether or not it is possible to find a dividing line, between types of composition which matter and those which do not. I should have thought it was quite possible for noble Lords opposite to think it over, and I am quite certain that my noble and learned friend would be willing to do so. If we can, between us, find any way out of this difficulty, then it should be possible to have that incorporated in the Bill. If not, there is nothing to be done but to ask your Lordships' House to decide. But it is not at all fair for the noble Lord, Lord Lucas of Chilworth, to throw the whole onus on to the Government when it is he who has raised the complaint.

EARL JOWITT

I agree. It is no good trying to throw the onus either upon Her Majesty's Government or upon the Opposition. This is a very difficult problem. I think we are all agreed that the particular case which I put is a monstrous one. Frankly, I think it is shocking, and acting like a Philistine, to say that because a composer of serious music authorises a particular orchestra to perform a work he is therefore bound to let any orchestra thereafter perform his work. To my mind, that is an absolute abuse; and if Her Majesty's Government are to adhere to that proposition then I, for my part, should ask the House to divide. On the other hand, if the Government are saying, in effect: "We quite realise that it would be utterly wrong to do that, and we are going to say that some way must be found of preventing that result with serious music, and we will gladly take you into consultation to see what can be found," that course will be our ambition and ideal. If Her Majesty's Government will say that I will advise my noble friend—though of course he must please himself—not to divide the House to-day.

My test would be that we should have from Her Majesty's Government a statement that, in the sort of case I mentioned (I do not care tuppence about jazz or dance music), they will agree with my principle, and will consult with us as to how that principle can best be carried out. I should not then seek to divide the Com- mittee. Unless Her Majesty's Government, in perfectly clear terms, can say that they agree to my principle, I must ask the Committee to divide. This is not in the least a Party question: I should divide as a matter of artistic principle, for I believe it to be utterly wrong that, because a composer has authorised one performance of a work by a particular orchestra, with regard to which he has taken every possible care to get things right, it necessarily follows that he has to authorise its performance by every band in the country on a 6¼ per cent. royalty basis. That is wrong, and I want Her Majesty's Government to say that it is wrong. We will then collaborate with them to see how to put the matter right, without a great deal of trouble over jazz music records which I, being old-fashioned, think were much better not performed at all.

LORD DOUGLAS OF BARLOCH

May I just refer to one point raised by the noble Lord, Lord Mancroft, who intimated to us that the quality of reproduction and the reputation of the composer were safeguarded by subsection (6) of this clause. That is not at all the effect of that subsection. It deals only with adaptations. An adaptation of a musical work is a case, for example, where the work was originally written, let us say, as a pianoforte piece and is afterwards adapted as an orchestral piece. Subsection (6) says only that where there has been such an adaptation and where, under this clause, someone is given the right to make another adaptation the two adaptations are not to differ substantially in respect of style or in respect of the number of performers required. But it has nothing to do with safeguarding the quality even of the adaptation, let alone the quality of the reproduction of the original work.

THE LORD CHANCELLOR

I want to go as far as I can to meet the noble and learned Earl. On the other hand I do not want to promise to do something I cannot do. I will never do that. But within what can be done in drafting, I shall do my utmost to meet the principle of the point made by the noble and learned Earl, as I understand it—that serious musical works of a higher standard should be treated specially in the sense which he has stated. I will try and find a way to do that and do my utmost to collaborate with him in doing it. I cannot go beyond that, because I do not think that would be right, and I am not going to buy off the Division by promises.

LORD LUCAS OF CHILWORTH

The noble and learned Viscount has altered the position entirely. He now says that he will look at this matter and see whether he can meet us on this narrower issue of the classical composer. I accept that willingly. We put down our Amendment, but, as I understood the noble and learned Viscount, he said that he could not accept it and he could not accept any deviation from the principle. What was the good of our putting down another Amendment? The Government have an advantage that we have not: they have Treasury counsel in the Department at their beck and call; we have but our own poor efforts. Now the noble and learned Viscount has not slammed the door. We want to meet the noble and learned Viscount on this matter. If discussion breaks down, it breaks down, and we will return to it as best we can at the next stage of the Bill, poor though may our effort be. I do not suppose our effort will commend itself, but we will try. This is a principle in which we are vitally interested. May I say this in conclusion, so that the noble and learned Viscount can have clear what I have in mind. I say it does not matter whether it is the cheapest jazz tune or the best classical symphony, this is wrong in principle; but I do not think it would operate for practical purposes against the composer in the cheaper field, because there the more the merrier; in the classical field one might almost say the fewer the better. So with those words and with my grateful thanks to the noble and learned Viscount, I ask your Lordships' leave to withdraw my Amendment.

LORD REA

Before the Amendment is withdrawn, may I say this with regard to the point the noble Lord made about "the more the merrier"? Surely in that case the composer of cheap music is equally anxious to get as big a spread as he can. May I ask the noble Lord's Party and the Government to consider whether this rigid line between what is called good music and the other does exist, or whether the principle should not extend over the whole field?

THE LORD CHANCELLOR

That is the problem: whether we should not try —I will not say who tries first, because we are both going to try—to see if a line can be drawn. I have certainly stated the view that I do not agree with applying what has been suggested over the whole field, including light music; and by that I will stand. But within that position I believe we can consider profitably whether we can meet the noble and learned Earl. I say that in answer to that particular point, and I hope it does not vitiate the withdrawal of the Amendment.

Amendment, by leave, withdrawn.

4.19 p.m.

LORD LUCAS OF CHILWORTH moved after subsection (1) to insert the following new subsection: The following provisions of this section shall not apply to a record of a work the playing of which occupies more than five minutes. The noble Lord said: This Amendment has some bearing upon the last Amendment. I do not think it will prove controversial. Perhaps I might, to save your Lordships' time, also deal with the subsequent Amendment, because one really hangs on the other. This is what I seek to do, but my drafting may not be good. The Bill at the present time says (and it only repeats what was said in the 1911 Act) that the statutory royalty upon records should be 6¼ per cent.—if I am not right perhaps the noble Lord, Lord Mancroft, wall correct me. That was drafted and settled in the Act when the maximum size of a record was what we call a 78 revolutions per minute record. To-day we have long-playing records which play for any period up to an hour and a half, and the new tape recordings that are coming out will play for hours. My suggestion is that on the 78 revolutions per minute record—which is now an old-fashioned type, being, in fact, the ordinary 14" record—the statutory royalty of 6¼ per cent. should stand, while with regard to anything of a long-playing nature (that is, anything over five minutes; the 78 revolutions per minute record plays for about five minutes), whether it be a long-playing record or a tape recording, the matter should be one for negotiation between the composer and the producer of the record.

At the present moment there is an arrangement in the case of the leading big record manufacturers. In their agreements with regard to long-playing records or recordings they do not, if I may use a colloquialism, "stick" to 6¼ per cent. because so many and such varying circumstances have to be taken into consideration. Some of these long-playing recordings enable a complete opera to be played. In some cases one tape lasts for hours. With regard to such recordings, a different kind of commercial contract is made for their production. I think I cart say that this arrangement with regard to long-playing records and tape recordings would meet with the approval of everyone in the industry—perhaps I had better qualify that by saying that I think it would meet with the approval of the very big and responsible manufacturers; that is to say, in effect, those who control the bulk of the recordings. While we are on the task of revising the law on this matter, I submit that my two Amendments might well be accepted. If the noble Lord does not like my wording, well, he has skilled draftsmen at his service who can alter it. It is the principle that I want him to adopt—the principle of leaving the statutory royalty on the 78 revolutions per minute record at 6¼ per cent. whilst the royalty on long-paying records and recordings is left a matter for negotiation between the producer and the composer and no statutory figure is laid down.

I want to make one suggestion, however, and this is tie first of the suggestions that I shall make throughout the passage of this Bill. The noble Lord will have seen that by a later Amendment—I think it is on Clause 22—I suggest altering the title of the tribunal. The reason for that is that I think that the tribunal could usefully be used for other purposes than those specified. I would suggest to the noble Lord that if he would accept the principle which I have put forward—that with respect to these long-playing records and these tape recordings the matter should be left to free commercial negotiation as between the record manufacturer and the composer—he should also agree that if the matter cannot be settled amicably between the two the tribunal should be asked to adjudicate. I shall make another suggestion of a similar nature later also. I think it would be a very simple method of adjudication. The noble Lord may or may not already chow that recording at the present time is going through a revolutionary stage. I do not think we shall be able to look to recording in the future as being part of the same stereotyped process which was carried out in the case of the old 78 revolutions per minute discs. So I believe I think it would be well to stick to the 6¼ per cent. statutory royalty for those old-fashioned records and leave it as a matter for negotiation when any of these varying forms of long-playing records and tape recordings are in question. I beg to move.

Amendment moved— Page 10, line 45, at end insert the said subsection.—(Lord Lucas of Chilworth.)

LORD MANCROFT

I agree with the noble Lord, Lord Lucas of Chilworth, that the whole process of recording long-playing records, making tape recordings and so on, has changed vitally from the old days of the 1911 Act and is changing from day to day. I myself do not possess a long-playing record machine unfortunately, but I think that the price of such records is considerably higher than that of the older ones, and of course the royalty is correspondingly higher. I think it may be that the noble Lord, Lord Lucas of Chilworth, has overlooked the provisions of subsection (3), under which the Board of Trade may hold a public inquiry if satisfied that the rate, that is the rate of 6¼ per cent. has ceased to be equitable, either generally or in relation to any class of records. After the inquiry the Board may make an order prescribing different rates for different classes. If, therefore, a case exists for a different rate of royalty for long-playing records from that for ordinary records, there seems to be the solution—the way is open for that difference to be recognised. I should have thought that that would have met the noble Lord's point. It seems to cover what he seeks to ensure.

LORD LUCAS OF CHILWORTH

I think that two years is too long a time. In a revolutionary age such as that in which we are now living, two years is a very long time, especially in view of the advances which are being made all the time with these mechanical contrivances. Why have this period of two years? What is the virtue in two years? Why not have it left open? I have suggested that there should be provision for reference to the tribunal. Once either side has gone to the tribunal they cannot go again for, I believe, twelve months. That appears to me quite fair. It would not be right that somebody should be able to rush along to the Board of Trade every five minutes and ask them to hold an inquiry. I trust therefore that my object in mentioning the tribunal is clear. I think that the period of two years after this Bill comes into operation is too long. Consider the revolutions that we have had in two years. Two years ago we did not have the I.T.A.—some of us wish we had not got it now; but that is by the way. We have had a great many revolutions in the last two years. Would the noble Lord agree to consider cutting down the period?

LORD MANCROFT

There is nothing sacrosanct about the two years. It was put into the Bill only because there is, obviously, a great deal to be done in the way of costing, calculations, inquiries and so on before an equitable figure can be arrived at. I will certainly look at this matter again. As I say, there is no magic in the period of two years. If the progress of mechanics is faster than the progress of this Bill we may have to reconsider this point. I can assure the noble Lord that I will certainly look at it.

LORD LUCAS OF CHILWORTH

Upon that assurance I will withdraw my Amendment. I shall not move the next Amendment, No. 43, because these two Amendments hang together, but may I put this point? I do not like this rate of 6¼ per cent. which is set out in the Bill. What are the mechanics of the matter, supposing the Government wanted to alter it at any time? The Board of Trade, I suppose, would have to put an Order before the House.

LORD MANCROFT

That is so.

LORD LUCAS OF CHILWORTH

What a paraphernalia to go through! Why does not the noble Lord take out this provision and give the matter to the tribunal to settle?

LORD MANCROFT

That is quite a different question.

LORD LUCAS OF CHILWORTH

I do not think it is. As matters stand, when two commercial concerns, both anxious to reach an agreement, come to an amicable agreement it is necessary to invoke all the machinery of statutory orders to ratify what both parties have agreed. I think that is a cumbrous and laborious process to invoke. Would the noble Lord, when looking at the other point, also look at this one? I am sure he does not want to have to stand up at the Despatch Box and move numbers of such orders, as people like he and I have had to do in the past. Why not leave this to the free play of the market and let it be referred to the tribunal if an agreement cannot be reached?

LORD MANCROFT

That suggestion. I think, is verging on blackmail. For the moment I should like to keep away from such a controversial point and stick to the undertaking which I gave to the noble Lord.

LORD LUCAS OF CHILWORTH

If I do not like what the noble Lord proposes after reconsidering this matter, I can put the Amendment down again at a later stage of the Bill. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 8 agreed to.

Clause 9 [General exceptions from protection of artistic works]:

4.30 p.m.

EARL JOWITT moved, after subsection (1), to insert: (2) No fair dealing with an artistic work for purposes of teaching in establishments maintained or assisted by a local education authority within the meaning of the Education Act, 1944, or by the Minister of Education, shall constitute an infringement of the copyright in the work: Provided that this subsection shall not apply to any exhibition to which members of the public are admitted, whether on payment or otherwise. The noble Earl said: I may perhaps discuss this Amendment and No. 49 together. I am not going to move it at great length, because your Lordships discussed this question of educational establishments after I had gone on Tuesday, but as there w is a failure to reproduce the point I had in mind I should like to put that point briefly.

I find this an extraordinarily difficult Bill, and I think that we are doing most valuable work in predigesting it so that we can present it in a better and more appropriate form. On the last occasion I was surprised to find that when we discussed establishments under the Ministry of Education a differentiation was made between schools of that type and schools of other types. I am not so much concerned with the words "fair dealing." I agree with the noble and learned Viscount the Lord Chancellor that we are putting such a burden on this unfortunate phrase that the whole thing may break down, and I sympathise with his point of view. If we can, let us avoid trying to define "fair dealing," because if we put certain things in, expressis unius exclusio alterius, we shall have to leave all sorts of things out, and the last state may be worse than the first.

Let us consider the broad principle. I am so confused by this Bill, and particularly by subsection (3) of Clause 3, on which we had a great deal of discussion, that I may be wrong in what I am going to say. For a good many years when I was at the Bar I lived with the Copyright Act of 1911 and I go back to that, because I am fairly familiar with it. In that Act the broad test of the infringement of a copyright was public performance. I believe that that point still survives, though I am not sure, in view of the clause to which I have referred. If this Bill passes in its present form I understand that I shall still be entitled, if I like, to play a copyright piece on my own piano in my own house, or even, if anybody should be rash enough to ask me, to sing a copyright song. What I cannot do is to play that piece or sing that song in public. It is difficult to see what is in public and what is not in public. There are many illustrations, but crudely and unscientifically stated, anything outside one's own home may be said to be in public.

Now we come to the question of schools. My noble friend Lord Pethick-Lawrence suggested on the last occasion that we should have a special clause to provide for schools. First of all, let us consider the question of preparatory schools, run by people who take a large house in the country, which could hardly be used for any other purpose in present circumstances. Suppose they have a group of 50 or 60 small boys there, and try to bring them up in the way in which they should go. Suppose they are teaching these children by means of music, or teaching them appreciation of art, or what you will. Is a performance given in that school a public performance or a private one? I should have thought that it was probably a private performance, not a public one. It is given under the roof of a house where all these children are living, and the schoolmaster is in loco parentis. I should regard that as a somewhat extended family and the performance as being a private performance. Therefore, no question of copyright is involved. I may be easily wrong about that, and I hope your Lordships will not feel that I am being dogmatic when I say that I think that is right. I think the noble and learned Viscount would agree with me, but neither of us is committed hereafter if it becomes necessary to consider the point.

Then we come to the class of schools called public schools—Eton, or we might even take Harrow; or, if you like, Winchester or Marlborough, or any other school of that sort. The school buildings are vested in trustees or governors. Again, I do not know whether a performance there is a public or a private one. This seems to me the crux of the whole matter: it is on this that the matter turns. This point was not mentioned in the previous discussion, so I am sure the noble and learned Viscount the Lord Chancellor will not mind my speaking about it now. It was assumed that the concession that ought to be given to schools coming under the local education authorities should be given also to other classes of school. But to my mind the real difficulty is this: is a performance given in any kind of school a public performance at all? I am certain that as a result of our passing this Bill there is going to be a good deal of litigation. May I tell your Lordships that some members of the Bar who practise on that side of the courts are rubbing their hands with glee over the prospect of the good things coming to them as the result of the passing of this Bill.

I am not going to press this matter to a Division nor do I contemplate so doing, but it is worth considering whether we ought to have a clause making plain the position of educational establishments. Of the three sorts of schools I have mentioned, I think the institutions maintained by the local education authorities are probably "nearer the knuckle" than any of the others. They are more likely than the others to be held to be staging a public performance. I think we must consider whether it would not be possible to have a separate clause for schools making it plain whether performances given in the course of teaching, in a limited class to which the public cannot go, are to be regarded as public or private performances. Of the two Amendments, I am inclined to prefer No. 49 to that now before the Committee. As I have said, I agree with the Lord Chancellor and I do not want to press this overworked term "fair dealing" too hard. However, I am not at all wedded to either Amendment. All I want the noble and learned Viscount to do, if he will be so good, is to consider this case with a view to avoiding a good deal of the confusion, uncertainty, and possible future litigation by making plain the position with regard to schools. If he takes it into consideration and comes to a conclusion about how to deal with this problem, we can again consider it when we come to a later stage of the Bill. I beg to move.

Amendment moved—

Page 13, line 21, at end insert— (2) No fair dealing with an artistic work for purposes of teaching in establishments maintained or assisted by a local education authority within the meaning of the Education Act, 1944, or by the Minister of Education, shall constitute an infringement of the copyright in the work: Provided that this subsection shall not apply to any exhibition to which members of the public are admitted, whether on payment or otherwise."—(Earl Jowitt.)

VISCOUNT HAILSHAM

I ventured to take part in the previous discussion on this question and I do not want to repeat what I said then, but I cannot resist the opportunity of suggesting to the noble and learned Earl that for the time being he may have overlooked the provisions of Clause 43 (2) (a) of the Bill as it stands. It is obvious, to my mind, that the position of artistic works, to which these two Amendments, Nos. 44 and 49, specifically refer, is rather different from that of literary, dramatic and musical works, whether for the purposes of schools or generally. The noble and learned Earl, Lord Jowitt, appears to be under the impression that the exhibition of an artistic work ordinarily comes under one of the restrictive actions. In that I venture to think he is mistaken, because it is expressly provided in Clause 43 (2) (a) that the exhibition of an artistic work is not a publication. If one starts with the premise that the exhibition of an artistic work is not a publication at all, I should have thought that one would rather question the need for the proviso in the Amendment immediately under discussion; and one would rather tend to sup-pose that, at any rate as regards schools, the mere display of an artistic work need not be dealt with specifically by an Amendment, because what, in the main, schools do, as the noble Lord, Lord Burden, explained in relation to previous Amendments, is to retain a library of these copyright pictures—if they are copyright at all—for the purpose of reference by the scholars. I should have thought that was already outside the ambit of an infringement by virtue of the provision to which I have drawn attention.

VISCOUNT BRIDGEMAN

I will not attempt to intervene in the legal argument in which the two noble and learned Lords have been taking part, but I would simply say this. First of all, the arguments I ventured to use on the last occasion on Amendment No. 20 seem to me to apply with equal force to this Amendment; and for that reason I do not propose to repeat them. Secondly, whatever may be the outcome of the argument which the noble and learned Earl, Lord Jowitt, has just used about schools, I feel that the privately maintained schools should not be in any worse position, because of the final shape of this Bill, than the schools under local education authorities.

LORD BURDEN

I assure the noble and learned Viscount, Lord Hailsham, that I agree entirely with what the noble Viscount, Lord Bridgeman, has said about schools. The Amendment that I ventured to put down, and which we discussed earlier, was not intended to be of a limiting character. Perhaps we have all been rather led astray by what the noble Lord, Lord Mancroft, said when I ventured to raise this point on Second Reading, when he suggested that, so far as schools were concerned, he did not see why the author or composer should not get his pennies from the schools; and we have proceeded from that basis. We are all grateful to my noble and learned Leader for raising this interesting point as to whether work in the schools in connection with works of art and so on can conic within the ambit of a public performance, and we shall listen with great interest to what the Lord Chancellor has to say on it.

LORD SILKIN

I want to say only a word or two on this matter. We are all giving thought to what is the best thing to do, and I do not think it matters whether we are consistent or inconsistent. I believe that the noble and learned Viscount, Lord Hailsham, has to-day said something different from what he said the day before yesterday, but I do not worry about that because we are all sincerely trying to think about this problem. I should like to ask try noble and learned friend Lord Jowitt whether he really wants the proviso to his Amendment at all. It looks as if the Amendment may not be necessary. I have read Clause 43 (2) (a), and it may weft be that that would protect performances of this kind. But do we really desire to say that if there is a school concert, to which the parents are invited, and where an artistic work is performed, that is subject to copyright? I should have thought that we might well leave the test as to whether payment is made.

In the ordinary way, where there is a small family celebration, which is what these concerts are (I have attended many), where, perhaps, parents are invited, would the fact that half a dozen parents turn up convert the performance into a public performance for the purpose of bringing it within the copyright provisions? It looks as if this whole question of educational establishments (the noble and learned Viscount, Lord Hailsham, does not like the word, but I repeat it for want of a better one) needs looking at; and it may well turn out that nothing further is necessary in the Bill. I, for one, should like to make it clear that in my view, whether or not anything is necessary, a performance of the kind I have indicated should not be made subject to copyright.

THE LORD CHANCELLOR

I am grateful to the noble and learned Earl, Lord Jowitt, for raising this point again and for making his contribution on it. I entirely agree with him in thinking that this Committee is performing a most valuable task in regard to the Bill, and I should very much like to think, as I am sure would all your Lordships, that by the time it leaves this House, by our united efforts we shall have put it into a shape which commands respect. The noble and learned Earl will realise (and I think it is an answer to the point of the noble Lord, Lord Silkin, with regard to the proviso) that here we have to consider all the time the two Conventions that we want to ratify as a consequence of passing this Bill. As I pointed out on the last occasion—and I think the noble and learned Earl, Lord Jowitt, will agree with me—the conception of fair dealing is something which springs from English law and is not a matter that, so far as I know, is covered by the Conventions. Therefore, we have to be careful that we do not overwork it; and I am glad the noble and learned Earl agrees with me about that. Equally, we have to be careful not to over-define it. That is why I have suggested, and I think the Committee agree, that I should consider the educational position as a whole, and come before the House on Report with my suggestions, having in mind the position of the Conventions.

The noble and learned Earl, Lord Jowitt, has posed an interesting question as to when public performance arises. I should have little doubt myself—though again, I do not want to be dogmatic; nor do I want it to be held against me if I have to reconsider the point, after considering the arguments on both sides—about performances in any school. On the other hand, I think the point of the noble Lord, Lord Silkin, does raise difficulty, because then, in deciding whether a performance is public or not, one would have to consider not only who comes, but who could have come as the result of the invitation. If, in fact, the practice was that only two or three parents came in to hear their own children doing their work, that is one thing; but if you had an invitation as a result of which a number of parents might come, then I think the position would be more difficult. Equally, I think the position put to me on Tuesday would be difficult; that is to say, if a school choir gives a performance to some gathering outside the school. But if there was a gathering of 500 or 1,000 children at a school in their own hall, I think it would still be arguable. If it were not too common I do not think anyone would worry about it, because it would be said that each of the children was still taking part in private study, although they did it together. But that is right on the line, or on the fence, and it shows that we have to consider the points.

I am grateful to my noble friends who have intervened in the debate. My noble friend Lord Hailsham has assisted us again, and I agree with my noble friend Lord Bridgeman that this raises the same point, and I shall include it in the consideration that I have undertaken to give. I think this is a point well worthy of our consideration, and the only reason that I have intervened at any length is that I am sure your Lordships will have in mind that this is not only a question of our adjusting our law but a question of adjusting our law so that it will meet Conventions which Her Majesty's Governments have signed, and which both sides of the House are anxious should be put into effect. Within these limits, I shall do my best and will bring the matter before the House on Report.

VISCOUNT ALEXANDER OF HILLSBOROUGH

As on previous occasions in connection with this Bill, we are grateful to the noble and learned Viscount, the Lord Chancellor, for his offer to look at this matter from the points of view expressed. However, when it comes to consultations, especially when he comes to take legal advice either as to what would be a malpractice under the Act now, or would be constituted as such in any revised legislation, would he kindly bear in mind one or two points? The specific Amendment which my noble and learned Leader moved refers only to schools which are aided by local educational authorities, and he has based his comments on preparatory and public schools. But there is a wealth of work going on in the country besides the work in either of those two types of school. If one takes the work of a local education authority for example, one finds it makes quite a big contribution to extra-school education through continuation classes, some of which are not always conducted in schools: they are often conducted by outside bodies, such as the Co-operative, the Workers' Educational Association and Youth Clubs. They deal with artistic works, whether they be music, art, drama or literature. I should not like those to be excluded from consideration, always remembering the words which the Lord Chancellor used at the end of his speech about consideration being given to what is to be defined as a public performance.

There are other things to be borne in mind. There are large numbers of individual instructors in private schools—schools for quite young children in elocution and, as they get a little older, in drama and the like—all of which will run some danger of coming under penalty unless the position is clearly defined. It is quite clear to me, from one or two of the matters of which I have knowledge, that where a person conducting such schools for private profit holds a public performance at the conclusion of a particular session, that is something which would have to be taken into consideration on the lines suggested by the Lord Chancellor. But there is a wealth of difference between that and their being liable to considerable penalties in regard to the conduct of these quite desirable pieces of extra education.

THE LORD CHANCELLOR

I am grateful to the noble Viscount for what he has said, and I shall certainly take that into account in the consideration which I will give to the general point.

EARL JOWITT

Let me assure the noble Viscount, Lord Hailsharn, that I have not forgotten Clause 43 (2). I know very few clauses in this Bill, but that happens to be one of them, and I had that in mind. If the noble Viscount looks at that clause he will see that if these performances about which we are talking are not private, then, of course, one need not regard them any further: they are out of the matter altogether, if I understand it aright. The question is, are they in private or in public? It is really that point which I want to get cleared up, If any of them are said to be in public, then Clause 43 (2) (a) may not be applicable.

I am grateful to the Lord Chancellor for saying that he will look at this matter. There is a wide ambit of schools and educational establishments, from the preparatory school to the extra-mural work of the universities, and so on. One wants to clear up the position as to whether they are public or private. First, I want to do nothing which will prejudice our rights to adhere to the Convention to which, on balance, I think we ought to adhere, and that is why I put in the proviso. I should like the Amendment better without the proviso, but that is the reason why I put it in. Secondly, I want to do nothing to interfere with the rights of authors, composers and so or. After all, they are the people who have given us much that makes life worth living, and I think we ought to be most careful not to erode their rights more than we need. The whole question is whether these performances should properly be regarded as public or private. Unless we can have some clause dealing with that matter I foresee a great deal of litigation about it, in which, unfortunately, in these days I shall not be able to take part at the Bar. In those circumstances, I ask leave to withdraw this Amendment, and I shall not move Amendment No. 49.

Amendment, by leave, withdrawn.

4.57 p.m.

EARL JOWITT moved, after subsection (2) to insert: () The making of a photographic reproduction of a picture by or on behalf of the owner of the picture and the publishing of such photographic reproduction to a prospective purchaser of the picture shall not constitute an infringement of the copyright in the Picture. The noble Earl said: This Amendment concerns a small matter. I can speak with some knowledge of the old days about how you bought pictures and also how you sold them. Some odd remarks of mine, which were meant to be humorous, were taken seriously, I am sorry to say. A person interested in buying pictures will often tell a dealer that he wants to buy the works of a particular artist and that dealer will communicate with him when he has anything suitable.

In the old days I used to buy pictures largely from Paris. The dealers there would write to me if they had available, or knew where there were available, works of a particular artist. They would send me a photograph of a picture which would have the date written on the back. In those happy far-off days it was sometimes possible to get the dealer to send a picture over. If you could not do that, there was an excuse to go to Paris. You went to Paris to look at it—and for other purposes, too, no doubt. Equally, if you want to sell a picture, the first thing the dealer will want to do is to see that the picture is adequately cleaned; and then he will ask if he may take a photograph of it. Obviously, he will want his prospective buyers—who may not be in this country—to have a photograph of this picture, to see whether they are interested. That is always done; it has been done for years, and I do not see how dealers can work without these photographs. I am perfectly certain that no artist I have ever met would object in any way to this practice. They all know of it. I do not know what happens nowadays, but I have never bought a picture about which I have made any stipulation as to the copyright, and I do not know anybody else who has—one just goes and buys the picture. If I were asked who held the copyright of the pictures that I possess I should be hard put to it to say; certainly I had not stipulated about it. In some cases, the pictures have been given to me by the artists, and what the copyright position is there I do not know.

That is my reason for moving this Amendment, which I commend to your Lordships. I do not think it infringes any Convention—at least, I hope not. I do not think any of the artists would in the least object to it so long, of course, as the photograph was not used in the Press or anything of that sort, but simply put in an envelope and sent to the prospective purchaser. It should be done; it has been done; and I have no doubt that it will be done, whatever is put into this Bill. I think it is a pity that anybody doing that should be guilty of an offence—I am not quite sure whether it is a criminal offence. Anyhow, it will be a breach of the law unless we have some such provision as this. For these reasons, I beg to move the Amendment.

Amendment moved— Page 13, line 25, at end insert the said subsection.—(Earl Jowitt.)

THE LORD CHANCELLOR

I think there is a technical difficulty about the form of the Amendment which I will ask the noble and learned Earl to consider, in that the Amendment talks of the publishing of such photographic reproduction to a prospective purchaser. The noble and learned Earl will agree, I think, that one does not publish it by sending it to a prospective purchaser—

EARL JOWITT

No.

THE LORD CHANCELLOR

—because, under Clause 43 (2) (c), "publication" is the issuing of the reproduction to the public. I agree with the noble and learned Earl that I do not think the difficulty which he has had in mind is likely to cause much practical inconvenience because, in the first place, the artist, if he learned about it, would probably be more pleased than otherwise.

EARL JOWITT

Certainly.

THE LORD CHANCELLOR

And if we put it in the more astringent way in which the noble and learned Earl and I have looked at it in other years, it would be difficult for the artist to show he had suffered any damage by the action that had taken place. As I have said, there is difficulty in the way of accepting the Amendment as it stands, but I will have another look at it with those who advise me and consider it both from the point of view of its practical need and from the point of view of the Conventions. I will communicate with the noble and learned Earl. He will agree that this is a limited point. I hope that, for the moment, he will be content with that promise.

EARL JOWITT

I agree that this is a very small point. This practice always has been followed, and always will be. The only question is whether we should have it within or without the law. It will be done in any case. "Sending" may be a much simpler and better word than "publishing." If the noble and learned Viscount will look at it, I am content. I will certainly withdraw the Amendment.

VISCOUNT HAILSHAM

Would the difficulty not be met by omitting all the words between "and" in the second line and "picture" in the fourth line? Would not that get rid of the difficulty?

EARL JOWITT

Maybe.

Amendment, by leave, withdrawn.

EARL JOWITT moved, after subsection (2) to insert: () The reproduction of a picture in the catalogue of a public art gallery shall not constitute an infringement of the copyright in the picture.

The noble and learned Earl said: This is another small point to which I do not attach great importance, but it came up when I was concerned with certain public galleries. I agree that, if you have a picture which is in the private domain and of which you have not the copyright, you must not publish Christmas cards of it; that would be reproducing the picture. But it seems to me that it is a pity that you cannot publish it in a catalogue. Some art galleries publish catalogues which contain small reproductions of the pictures. If that is done as part of the catalogue, it is really quite innocuous. The artist would not mind—in fact, he would probably rather like it. For instance, in the case of the Walker Art Gallery in Liverpool, it would be rather a pity if they had to leave out all the works which were still in the private domain.

It is easy to say: "Why do you not write to the owners of the copyrights and get their consent?" My experience is, first, that it is difficult to ascertain who are the owners of the copyright; and secondly, that they never answer letters; and so it is difficult to get permission in that way. If this proposal does not infringe the Convention—it is a very small point—I should like to see it included. If there is any difficulty on those important grounds, then I certainly agree that we should not bother about it. In any case, I shall certainly not press it. If the Lord Chancellor thinks we could do something on these lines, it would be agreeably received in artistic circles. I beg to move.

Amendment moved— Page 13, line 25, at end insert the said subsection.—(Earl Jowitt.)

THE LORD CHANCELLOR

I am afraid there is a difficulty here. It is not that I am out of sympathy with what the noble and learned Earl says, but the publication in a catalogue of a photograph would be an infringement unless the consent of the copyright owner were obtained. To provide to the contrary would be to fail to implement our Convention obligations, since possibly those reproductions might take the place of the reproductions of the picture which the artist might wish to have made and to sell. The consolation is that in most cases where you can get in touch with the artist he is only too glad to agree. I suspect that the noble and learned Earl has been reading the same books about the lives of various French impressionists that I have been reading. Having read these, I realised that he had a good point when he said there might well be some difficulty in getting hold of them in order to obtain their consent—I am referring to those who are now dead, and not to those who live to-day. Even so, I do not make that slightly obvious answer to the noble and learned Earl, but I say there is that difficulty about the Convention. I sympathise with him. Again, if either of us can think of a way round the difficulty, I shall be pleased to consider it.

EARL JOWITT

I have given my little rabbit a run and it has not stayed the course very well. I never thought it would, because I realise there is a difficulty about the Convention. Having ventilated the point, I ask your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.9 p.m.

LORD ARCHIBALD moved, after subsection (5), to insert: (6) No fair dealing with an artistic work shall constitute an infringement of the copyright in the work if it is incidental to the making of a cinematograph film.

The noble Lord said: This is a comparatively small point but one of some practical importance to the makers of films. I will try to explain it briefly. After the remarks which have been made in the course of this afternoon with regard to not overburdening the "fair dealing" side of the Bill, I regret that I should have raised this matter in the form in which it appears, but I am sure that the same effect could be obtained by a skilled draftsman without bringing it under the category of "fair dealing." The point at issue refers in the main—and I am willing to limit it if suitable words can be found—to an artistic setting in the film of, shall we say, buildings and sculpture. There is an increasing tendency among some of the quite important film makers, in order to get a greater element of realism in their films, to take certain shots in the street, in public places, instead of building sets in the studio. It may well be that, for the purposes of the film, a character is walking down a London street and it is necessary to identify the street. If it so happened, as is quite likely to-day, that in that street there is a new building on which there still exists the architect's copyright, the mere inclusion of that building in the photograph would, I think, technically be a breach of the architect's copyright. Then, for the purpose of a point in a story, people may be shown as meeting alongside a modern statue which would still be in private copyright, and that fleeting shot would again constitute a breach of copyright. To require that the film producer should in all cases seek out the owner of the copyright and get his consent might well be impossible.

Let me take an example of a type of film for which one of our studios is rather famous, where very often the film finishes with an exciting chase, it may be with the criminal driving a car in effecting his escape, and with the police pursuing him. The camera flashes along street after street. In those streets there may be buildings and statues which are still the subject of copyright. To seek out the owners of the copyright would be an impossible task and one which is quite out of proportion to the point at issue, because obviously no harm is done to the owner of the copyright, it being a purely technical infringement. The Amendment is confined to an artistic work. It includes only those limited items of artistic work which are found in public places, which are naturally caught by the camera, and which might put the film-maker in a great difficulty. He will have done something which does no one any harm at all. I am not concerned about the form of words in the Amendment; if the noble Lord who is to reply can indicate some sympathy with the practical point at issue, I shall be more than satisfied. I beg to move.

Amendment moved— Page 13, line 37, at end insert the said subsection.—(Lord Archibald.)

LORD MANCROFT

The point which the noble Lord, Lord Archibald, has in mind is admittedly a small one, but I can see that there is a risk, in extreme cases, of an infringement. When I first saw his Amendment I did not know what he was going to argue, but I can think of one example only that I have come across. There was a film in which a long scene between the hero and the heroine took place in front of Epstein's statue of Rima in Kensington Gardens. I think the film was taken sufficiently long ago to be well within copyright. That is the type of case the noble Lord has in mind. Merely flashing through the streets and past buildings is strictly within fair dealing, but I can see one or two remote cases where there might be an infringement of an artistic copyright. I cannot go quite as far as does the noble Lord in the wording of his Amendment, as I think he foreshadowed in his observations; but we are trying to tidy up Clause 9, which relates to fair dealing, and we will see whether we cannot put something into our Amendment to meet the point he has just made.

LORD ARCHIBALD

I thank the noble Lord for his reply, and would ask permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 9 agreed to.

Clause 10:

Special exception in respect of industrial designs

(2) Where copyright subsists in an artistic work, and— (b) articles produced by so applying the design are sold or offered for sale to the public, and then, subject to the next following subsection, it shall not thereafter be an infringement of the copyright in the work to do anything which, if the design in question had been registered immediately before that thing was done, would have been within the scope of the copyright in the design as extended to all associated designs and articles.

5.14 p.m.

LORD MANCROFT moved, in subsection (2) (b), to leave out "or offered for sale to the public" and to insert instead: let for hire or offered for sale or hire. The noble Lord said: Amendment No. 50 marches with Amendments Nos. 51 and 52. As your Lordships will have seen, the intention is that all artistic works shall have copyright protection initially, but that when the work is industrially applied and commercial use is made of it, the only protection available to the articles embodying the work shall be that obtainable under the Registered Designs Act. In our Bill, we provide that an article is put to commercial use when it is sold or offered for sale. But to hire an article is also to put it to commercial use, and these Amendments provide accordingly. I believe that there are some commercial products which are never sold but which manufacturers exploit solely by hiring. I believe there is such machinery in the shoe business, and things like Hollerith machinery, linotypes and various other things. Although I have no personal information on this point, I believe it will be of use to industry and those who make common use of this type of product if we insert these quite uncontroversial Amendments in the Bill. I beg to move the first Amendment.

Amendment moved— Page 14, line 35 leave out from ("sold") to ("and") in line 36 and insert ("let for hire or offered for sale or hire,").—(Lord Mancroft.)

LORD CAWLEY

This is a small point, but the words "let for hire" are not found in the Registered Designs Act, 1949. I would suggest that the words "let for" are omitted.

LORD MANCROFT

I am sorry to say that I have not the Registered Designs Act readily to hand, to look at the point which the noble Lord has made. I will get a copy and will look at the point. At a later stage I may be able to help him if he has a good point. Perhaps he will allow the Amendment to go through now, and I will look at it afterwards.

LORD CAWLEY

Certainly.

On Question, Amendment agreed to.

LORD MANCROFT

This is consequential. I beg to move.

Amendment moved— Page 14, line 37 leave out from ("sold) to second ("the") in line 38 and insert ("let for hire or offered for sale or hire,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This, too, is consequential. I beg to move.

Amendment moved— Page 14, line 47, leave out from ("sold) to second ("the") in line 1 on page 15 and insert ("let for hire or offered for sale or hire,").—(Lord Mancroft.)

On Question, Amendment agreed to.

On Question, Whether Clause 10, as amended, shall stand part of the Bill?

LORD DOUGLAS OF BARLOCH

On the question whether the Clause shall stand part of tilt,' Bill, I should be extremely grateful if the noble Lord in charge of the Bill would elucidate a little of the meaning of part of the clause. I understand its primary purpose, which is to differentiate between copyright and rights in a registered design, so that they shall not overlap. Subsection (1) deals with that case, but subsection (2) deals with a case in which the design is not registered under the Registered Designs Act at all, and it appears now that this wording is so extensive that it will impinge upon the meaning of certain other provisions in this Bill.

Subsection (2) deals with a "corresponding design," which is defined in subsection (6) as meaning a design which, when applied to an article, results in a reproduction of that work. Let us take the case of an engraving, which is an artistic object to which copyright is given by this Bill. An engraving is reproduced by something which, within the meaning of these words, is quite clearly a "corresponding design," which is applied to a piece of paper and which results in a reproduction. It looks as though subsection (2) is going to destroy the protection which hitherto has been given to engravings, and to put them in a totally different category. I should like an explanation of these provisions. I may be mistaken, for they are extremely complicated and difficult to interpret, but I should like to know that this point has been considered.

LORD MANCROFT

As the noble Lord says, this is an extremely complicated clause and I have not had the advantage of having notice that he was going to raise this point. I will certainly look at it and take advice upon it. The subsection to which the noble Lord has referred deals only with a case where copyright subsists in an artistic work, the copyright design has been applied industrially, and the articles produced are sold or offered for sale, and at the time that the articles are sold the design has not been registered as a registered design. We are now trying to achieve that it will no longer be an infringement of copyright to do anything which would have been in the scope of the design had the design been registered; and that is the purpose of the clause, which I thought had been achieved. If, as the noble Lord thinks, the clause has gone wide for its purpose we will look at it again and see whether we have made a mistake.

LORD DOUGLAS OF BARLOCH

The clause virtually achieves that purpose, but my question was whether, in doing so, it has not achieved the entirely different purpose of destroying copyright which would normally exist in the engraving.

Clause 10, as amended, agreed to.

Clause 11 agreed to.

Claues 12:

Copyright in sound recordings.

12.—(1) Copyright shall subsist, subject to the provisions of this Act, in every sound recording made in the United Kingdom or in any other country to which this section extends.

(2) Copyright subsisting in a sound recording by virtue of this section shall continue to subsist until the end of the period of twenty-five years from the end of the calendar year in which records embodying that recording or any part thereof are first issued to the public, and shall then expire.

5.23 p.m.

THE LORD CHANCELLOR moved, in subsection (1) to leave out all words after "recording" and to insert instead: of which the maker was a qualified person at the time when the recording was made. (2) Without prejudice to the preceding subsection, a copyright shall subsist, subject to the provisions of this Act, in every sound recording which has been published, if the first publication of the recording took place in the United Kingdom or in another country to which this section extends. The noble and learned Viscount said: I hope your Lordships will allow me to move this Amendment, which stands in the name of Lord Mancroft. I do not know whether the noble Lord, Lord Lucas of Chilworth, has considered it, but it might be helpful if we had a rather wide discussion on the first Amendment to Clause 12 so that I could explain the general line of Her Majesty's Government on these points. The noble Lord will then be able to consider how we are to deal with each of these separate points.

This Amendment, and Amendment No. 55, with the help of some consequential Amendments which come later, alter the conditions upon which copyright in sound recordings can be acquired. Your Lordships probably know the difficulties in which the gramophone industry say that they are placed by the fact that the Bill gives copyright to sound recordings only when they are made in this country. We are therefore providing that making in the United Kingdom shall no longer be a criterion for acquiring copyright. Instead, there will be copyright in every recording made by a qualified person (that is, a British subject or company) wherever it is made. In addition, there will be copyright in every recording, no matter by whom it is made, if it is first published in this country. By a later Amendment, No. 55, your Lordships will see that the publication of the recording lies in the issue of records to the public.

The point I wish to put to the Committee is that sound recordings which comply with those conditions will have copyright here, irrespective of any Orders in Council that we may make. I hope your Lordships will feel that this is generous treatment to sound recordings made by foreigners, since we are under no Convention obligations to protect such recordings. We were urged by the gramophone interests, and no doubt we shall be urged by those to whom the case of the gramophone interests has commended itself, to go even further and to protect all records published here, irrespective of the place of first publication of the recording which they embody. Although we have not fully met this claim, I hope your Lordships will think that we have gone a long way.

I will mention the difficulties shortly but I am prepared to elaborate upon them if necessary. To adopt the gramophone industry's suggestions about "published," as distinct from "first published," would have the effect of bringing back into private ownership recordings which had been published and were in the public domain, and therefore were free for anyone to use. Her Majesty's Government must look at the point of public convenience, and it is important, in their view, that when something is first published the general public should know whether or not they are free to use it. If a recording is published in circumstances in which it enjoys no copyright, it is wrong that at some later date it can, at the option of its maker, subsequently acquire copyright. For that reason we must adhere to the conception of first publication.

As I understand the case which the industry has sought to make, it is that over 50 per cent. of their repertoire consists of records pressed from American recordings and that, for a number of reasons, it is impracticable to ensure that a record will be published in the United Kingdom within thirty days of its publication in the United States, with the result that, under the Bill, even as we propose to amend it, as time goes on there will be a large proportion of records prepared by the British industry which will enjoy no copyright. Under the Bill as it stands, none of these records will enjoy copyright unless an Order in Council is introduced under Clause 29. Irrespective of the words used in subsection (1) of Clause 12, whether they be "made in the United Kingdom" or, alternatively, "first published in the United Kingdom," the industry represent that the presence on the British market of so large a proportion of records out of copyright would be a great loss to them, and, additionally, that since these records could be played in public without being subject to any control the interests of instrumentalists and bands generally would be gravely affected. I have summarised the case because I do not want your Lordships to think that I have ignored anything. Every interest has the right to have its case considered before legislation takes place, and I haw tried to consider the case, as I understand it, which the gramophone companies have spared no pains to put forward.

I would remind your Lordships, if I may speak generally on the matter at this point, that the series of Government Amendments to the clause which are being made will, I think, help considerably; and a number of them (again I am speaking generally) are on substantially the same lines as several of the Amendments which the noble Lord, Lord Lucas of Chilworth, has in mind. They deal with the old Amendment which he originally thought of making at line 30, and provide new requirements as to marking in lines 32 and 33. They will propose a limit on subsection (6) (and as to this, the Amendments on page 16, line 43 and page 17, line 3, are relevant); and they will make a new provision as defining publication. Again I ask your Lordships to consider the proposal to add a new subsection (8) on page 17, line 13. I hope your Lordships will feel—that is the object of my speaking at such length on this Amendment—that we have tried to understand, and to meet, so far as we can, the difficulties which the gramophone industry has found. I come back to the difficulty which I have ventured to put before your Lordships: that the idea of a record switching in and out of copyright is one which would be extremely inconvenient to the public, and I thought the noble Lord would not mind if I gave him preliminary notice of the difficulty that was in my mind. I am grateful to the House for allowing me to go a little wide of this present Amendment, which I now beg to move.

Amendment moved— Page 16, line 9, leave out from ("recording") to end of line 10 and insert ("of which the maker was a qualified person at the time when the recording was mace. (2) Without prejudice to the preceding subsection, copyright shall subsist, subject to the provisions of this Act, in every sound recording which has been published, if the first publication of the recording took place in the United Kingdom or in another country to which this section extends.")—(The Lord Chancellor.)

5.32 p.m.

LORD LUCAS OF CHILWORTH

I personally, as, I ant sure, are all your Lordships, am grateful to the noble and learned Viscount for having a general discussion upon this aspect of this Clause. May I follow his example? This is one of the most vital clauses in this Bill; it is the one we have been waiting for. It can readily be divided into two distinct parts. The first part is the one which the noble and learned Viscount has now explained to your Lordships: that is, copyright protection for the gramophone record manufacturers against copying and piracy. The other part concerns the public performance of gramophone records. I propose at this juncture to confine myself to the half of the vital issues in this clause which the noble and learned Viscount has most generously, if he will allow me to say so, dealt with; because he has spent more time on the Opposition's case than he has upon his own. That is characteristic of the noble and learned Viscount; I believe he wants to be quite fair.

Let me say at the outset that I realise to the full the dilemma in which he finds himself. As the clause is drafted, without any of the Amendments to which the noble and learned Viscount referred, it would have the effect of practically putting out of business the British recording industry, which I believe (and I do not think I am making any exaggerated claim: I am not a spokesman on their behalf; I ask your Lordships to believe that), is the foremost gramophone recording industry in the world in quality, and also, I believe one might almost claim, in quantity.

I should like to explain very simply the dilemma in which the Government find themselves. When they found that, under the original drafting of this clause, 70 per cent. of the gramophone records produced in this country would be devoid of any copyright whatsoever, and unprotected against any infringement, they naturally had to have another "think." That is quite apparent if one looks at subsection (6) of Clause 12, which says that copyright can exist only in a recording made in this country—and "making" was defined as the actual physical recording in this country of artists in this country in a studio in this country. But 50 per cent. of the records on sale in this country are made by foreigners in foreign countries, and 20 per cent. (making the total 70 per cent. to which I have referred), are made in a foreign country by British companies.

The technique to-day has developed along the line that it is far easier to take the recording apparatus to the artist than to bring the artist to the recording apparatus. For instance, take recording opera at La Scala, in Milan. A British company has a contract running into thousands and thousands a year. It takes its whole delicate recording apparatus to Milan, records the whole of the opera on a steel tape that can be brought back to this country in a waistcoat pocket. When the Government realised the dilemma they were in, because they had no desire to put the British gramophone recording industry out of business, they produced the Amendment which the noble and learned Viscount has just moved and which includes the words of which the maker was a qualified person at the time when the recording was made. As the noble and learned Viscount has said, that Amendment has made a dent in the problem, because it will give copyright for all purposes required by Clause 12 to those records recorded in a foreign country by a British concern—that is, the 20 per cent. to which I have referred.

But it will still leave 50 per cent. of the records on sale in this country without any copyright whatsoever. As the noble and learned Viscount has said, the vast bulk of these—indeed, practically the whole—are American records, recorded in America and sold to the British companies for manufacture in this country under licence. I think I have explained to your Lordships the dilemma, because these records will not be copyrighted in any way under this clause, unless an Order in Council is made under Clause 29, which will extend the provisions of this Act to countries with which this country is in Covenant obligation. So America will then be included. But there will be, of course, an interval between the two.

If the noble and learned Viscount could arrange that the necessary Orders in Council came into force simultaneously with the coming into force of this Bill, as an Act, I think that would meet the case. But will they? I do not know whether the noble and learned Viscount can give that assurance, whether that is a physical possibility, or whether it can be incorporated in the Act. But at present between the time an American record is first published in America and the time when the Orders in Council cover publication in this country—and I am told that Orders in Council may take eighteen months or two years—that record is not copyrighted at all. The noble and learned Viscount has been kind enough to explain to your Lordships why he feels in a difficulty about removing the word "first" from any of these Amendments. That is the stumbling block; it is first published in another country. What would happen would be this. A steel matrix would be made and it would come over to this country under licence. The licence-holder may make a record from the matrix at once, or he may delay making it for commercial purposes which he thinks proper from his own point of view. But although he is the licence-holder and entitled to make that record under licence in this country, it is still open to anyone to go to America—or to anyone in America—purchase one of those records, bring it over to this country, take a recording of that recording, make a record and publish it to all and sundry, because it is not copyrighted until the Order in Council comes into force.

What is baffling the noble and learned Viscount is this. If he omits the word "first" from "first published" and leaves the single word "published," and, in the interim, a pirate—I use the colloquial term "pirate" so that your Lordships will understand who it is I mean—steps in, or anyone other than the licence-holder, or it may be even, indeed, the licence-holder, then any record that is made can be sold outside or in the public domain. And as soon as the licence-holder publishes it—that is, if the word "first" is eliminated—what was in the public domain immediately goes into the private domain. In other words, something that may have been uncopyrighted for three months or six months then becomes copyrighted. I think the noble and learned Earl will say that it is not right, in the case of something which has been to the free use of the public for a length of time, to the free use of everyone, that because a licence-holder then makes his record the axe should come down and no one be able to make that record again: that it cannot be performed in public because it is fully copyrighted.

My answer to the noble and learned Viscount is this. Unless the Order in Council is published simultaneously with the coming into force of this Bill, the dilemma he will he in is this. A record is made and is first published in America. It is then brought over to this country. Thousands of records are made and sold. As soon as the Order in Council comes into force it comes out of the public domain into the private domain. That is my interpretation. So the noble and learned Viscount really is not getting out of his dilemma. I am suggesting to him that there are only two ways out of his difficulty. The first is to make the publication of the Order in Council simultaneous with the coming into force of this Bill, so that there is no time lag. The second way out of his difficulty is to accept my series of Amendments.

My Amendments do not do anything other than do those of the noble and learned Viscount, except that, by my Amendments, the copyright comes into force immediately the licensee first publishes the record and so exercises his licence. That is the position as I see it. I do not know any other way to get the noble and learned Viscount out of his difficulty unless he says that we must put up with having 50 per cent. of the records on sale in this country non-copyrighted. He might—though I do not think he would—turn round and say: "Would not that please you, in view of your insistence that there cannot be a performing right in respect of a record which is not copyrighted?" Unless it is copyrighted three things would be permitted: copying, performing in public and broadcasting.

My final point in reply to the noble and learned Viscount is this. He may say: "Is not a producer of a record in this awkward position: that although he has a licence to produce this record in this country it has first been produced in America, and until he actually produces someone may do all this in an act of piracy?" I say: "Yes, but that is a commercial risk." The holder of a licence to produce the record must run this risk if he does not want to produce the record in this country straight away. That is his business. If he does not get to work straight away, others—to use a colloquial term—may" muscle in "before him, and he must put up with it. But I think it is against the interests of industry to have that risk multiplied by the time lag which I think must occur between production in America and the operation of the Order in Council. So I now leave this point with the Government, having explained my Amendments, which are practically the same as those of the noble and learned Viscount, but I leave out the word "first."

The effect of my first Amendment would be to make subsection (1) of this clause read: Copyright shall subsist, subject to the provisions of this Act, in every sound recording published in the United Kingdom or in any other country to which this section extends. That is the simple point. If the noble and learned Viscount, putting the word "first" in, thinks he gets out of the difficulty of coming out of the public domain into the private domain, my contention is that he does not, because he comes into the private domain from the public domain as soon as the Order in Council becomes operative. I am sorry to have spoken at such length, but that is the other side of the story. I am afraid that for the present I shall have to leave this problem to the noble and learned Viscount. I would suggest that it would be a very serious thing for British industry in future if this were allowed. I would further suggest to him that he should seek some way of salving his conscience over what I think is this rather academic point of coming from the public domain into the private domain.

LORD CONESFORD

This is, I think, a very difficult clause, and it is made more difficult to follow in some ways by the multitude of Amendments that have been put down. I am grateful to my noble and learned friend for his clear exposition of the Government Amendments. I think there is no doubt at all that they make a great improvement in the clause as it was originally drafted. Nevertheless, I am not clear about the effect on some of the interests of this important industry, many of which have been touched on by the noble Lord, Lord Lucas of Chilworth.

I want to make my points in an interrogative way, to make certain that I have understood the matter correctly. I agree with the noble Lord that, were it possible to accept the Amendments he has put down, the position of the industry would be more satisfactory; but that does not mean that my noble and learned friend was wrong in pointing out the substantial difficulties of abandoning entirely this conception of first publication. Hitherto all records in the industry's catalogues have enjoyed entire protection against piracy, and the industry would be content if that could continue to be the case for the period of copyright conferred, subject to any provisions dealing with the tribunal and so forth. The first question I wish to put to my noble and learned friend is this: even if amended by the Government Amendments, is not this clause making a great change in the existing law, to the disadvantage of the industry? That is not necessarily a final argument against it, but if I am right in saying that it does make a considerable change in the protection that the industry has enjoyed, certainly de facto and I think de jure, for many years, it is a little surprising that that change was not pointed out either in the Explanatory Memorandum to the Bill or in the comprehensive speech of my noble friend on Second Reading.

Now we have these Amendments. I would draw attention to the concluding words of the first Amendment: —if the first publication of the recording took place in the United Kingdom or in another country to which this section extends. As the noble Lord, Lord Lucas of Chilworth, pointed out, that takes us to Clause 29. I was glad to see that the Government Amendment, No. 118, has been tabled to that clause. I think it is germane to consider it in this general discussion. It may be that the difficulty felt by the industry can be dealt with by the Order in Council procedure under Clause 29. I fully appreciate the difficulty of my noble friend in making any definite pronouncement about what might be contemplated under Clause 29, but if the protection of the British industry should depend on an Order-in-Council procedure which is primarily concerned with giving benefits elsewhere, it is a little curious. That may not be a great objection.

There are other matters which concern me. It may be that they are inevitable difficulties. One is that there is no certainty of an Order in Council in the case of all countries that may be involved, but by far the most important is the United States, and if this Order-in-Council procedure is adopted under Clause 29 it may greatly diminish or do away with the difficulty to which I have drawn attention and to some extent with the difficulties to which the noble Lord, Lord Lucas of Chilworth, has referred. But I think it would be reassuring if my noble and learned friend could give us some idea of what might be contemplated under the clause. I am encouraged about what might be contemplated by Amendment No. 118.

LORD LUCAS OF CHILWORTH

I think the noble Lord is a little muddled in his numbers. The clause is No. 29, and I think the Amendment to which he refers is No. 121.

LORD CONESFORD

The difficulty may be that we are using different lists of Marshalled Amendments. In the list I am using it is No. 118, but it may be No. 121 in some other list. However, I think the noble Lord and I are referring to the same thing. To remove all difficulty it is the Amendment which reads: insert 'sound recordings'. I am obliged to the noble Lord for clearing up any doubt there may be. I should be grateful if the noble and learned Viscount could tell us whether this is new law in the sense not merely of redrafting but of the withdrawing of a protection that has long been enjoyed by the British industry; and secondly, whether he can give me any general idea of the use that will be made of Order-in-Council procedure which may largely remove the difficulties I feel and which I believe the British industry fears.

EARL JOWITT

This is a very difficult clause and I think the noble and learned Viscount the Lord Chancellor is wise in having a general discussion at this stage. May I add a word or two, because I think it was I who pointed out on Second Reading that the position would be deplorable in a case where people were sent, for instance, to Milan to take a recording of a performance at La Scala. Do not let us pass that by as a mere mechanical matter. To get the occasion when all the artists are singing in tune and the orchestra is doing its best would involve a good many performances. It is a matter which involves not merely mechanical skill, but also musical and artistic appreciation, and it would be unfortunate if anybody sent out to do such a recording, with all the necessary staff, had no copyright whatever, which is the position as this Bill is drafted before we pass this Amendment; and it is, I believe, the position under the existing law. The noble and learned Viscount will correct me if I am wrong, because I am becoming muddled. There has been no assertion to the contrary, which gives me some confidence.

We must bear in mind that copyright involves three things. First of all, it means that no one can pirate a recording. For instance, in the case I have given, if somebody sends out to Milan and takes a recording, nowadays it is perfectly easy, I understand, to play that record through on your gramophone and make a tape recording (it may be even simpler), and then, from the tape recording, make a new record. I believe that is quite a simple thing to do for any mechanically-minded person. By that means, without having borne the burden and the heat of the day, without having gone to Milan and got the recording, or used the considerable artistic musical knowledge and appreciation, you can reap benefits. That is what I call piracy. The second point is this: if it is copyright, you have the right to prevent its being played in public—and that is a very different right. Third, comes the question as to broadcasting, which does not arise here.

The general proposition on which I stand is this. I am all against copyright in so far as it involves any question of public performance. I think it a great misfortune that, by a side wind and by an accident, this right ever came in. It was never intended, and personally I should like to see it ended. However, on this occasion, as on many others, I have made friends with the mammon of unrighteousness and have been in touch with the gramophone people. I must say that they have been most reasonable and helpful. Amendment No. 56, the Amendment on broadcasting which we shall come to in due course, I drafted myself, although I am not at all proud of the drafting; I did it in a few minutes, while others were talking, and undoubtedly it can be improved. But it does represent, by and large, subject to consideration with them, the length to which they are prepared to go. It is fair to add that I think they have gone a considerable way; and if they go to that length, I think a good many of the objections which I have previously felt to giving them the right to prevent public performances will disappear.

On the other hand they think that where somebody hires a cinema or a concert hall and gives concerts, simply by using records, there is no reason in a case of that sort why they should not have some royalty paid to them. I should have thought that that is an unlikely thing to happen, but I am assured that recording has become so good that it is not by any means inconceivable that that form of concert may take place in future, when people will like to go and hear these records, to hear music played by a good orchestra rather than by a not so good orchestra. So it is not fanciful to imagine that there may be occasions when a concert hall or a cinema will be engaged and, for purposes of gain, with the public paying for admission, somebody will give a concert of gramophone records. In a case like that my objection is much less strong than it is in the other cases. But that is all broadcasting.

Having taken a rather hostile view to the gramophone people on the question of performance in public, where, frankly, I feel they ought not to have any rights at all, I have great sympathy with them with regard to piracy. Frankly, I do not think it is playing the game, if they have had all the expense and trouble of sending out their people and recording a performance, that any Tom, Dick or Harry should be allowed to take advantage of their work merely by buying one of their records, playing it through, producing his own record and selling it. I would give them every protection I could against piracy, but I would give them no protection in the sense that they have a copyright to prevent public performance. That is where I stand.

I was greatly impressed with the figures that the noble Lord, Lord Lucas of Chilworth, gave us, and I know what trouble he has taken in this matter. This country is in a fortunate position to-day. A large part of the records from all over the world come to this country and are sold from here. I do not mean that the records sold from here are necessarily mechanically produced here, but they are copied here, and under licence. Again, I do not think it is fair that if anybody here gets from an American manufacturer a licence to reproduce his records—so that he is not a pirate in any way—he should be more or less put out of business by somebody who had got in first, who has managed to get that American record, bring it over here in his suitcase, coming over on the "Queen Mary," and publish it. At this stage, unless the Orders in Council are made simultaneously with the passing of the Act, there will be no copyright.

The case I want your Lordships to imagine is this. One of the gramophone companies enters into a contract with some American people—for which they pay in many cases many thousands of pounds—to have the right to reproduce their music. It frequently happens, and commercially it generally happens, that the American company will not let that be done until they have first had a run. Therefore, there is not simultaneous publication in America and this country. That, I believe, is the general rule. We therefore have to consider the difficulty of a company here, paying a large sum of money in order to secure the right to reproduce those records, who can more or less be put out of business by an individual who happens to be in America, who buys this record—which ex hypothesi is on sale in America before it is manufactured here—flies back to this country with it, and having got back here manufactures his own group of records from that one record (which, as I have said, is quite easy to do) and thereupon proceeds to vend it. I do not think that is very commendable work, and I do not think we should give that gentleman much encouragement. He can, of course, say: "At the moment I am making my copies and I am doing nothing wrong, because the work has not yet been published in this country, and therefore, there is no copyright in it." But he knows that in all probability very soon afterwards the record will be manufactured here under an agreement for which a lot of money has been paid. He is taking a chance and making hay while the sun shines. If the licence is granted to some manufacturer who starts making this record, then from that time on the records which the man as a semi-pirate has made should no longer be allowed.

That is the object of the group of Amendments which we have put down. I say that only because I think it is necessary to keep in mind the distinction between stopping performances, on the one hand, and stopping piracy, on the other. The broad attitude of noble Lords on this side is that we want to do away with the decision in the Cawardine case, so far as we can, and do away with the right of the gramophone people to prevent performances in public—though I am prepared to settle on that basis broadly on the lines I have indicated. On the other hand, I want to give them every protection I can against all the trickery which may—and probably does—exist to-day whereby the work for which they have gone to a great deal of trouble, or the record for which they have paid a large sum of money in order to be able to reproduce it, is taken from them by somebody who has paid nothing at all other than in the purchase of a gramophone record. I hope those lines will become plain as we discuss the rest of the Bill. With regard to this particular Amendment, I need hardly say that we welcome it. It is a fundamental change in the Bill, and I venture to think that the existence of this Amendment, if nothing else, justifies the task which at some length and after some heavy work we of the Opposition have been trying to carry out. It shows how important it is that in this House, as in the other place, there must be some Opposition in order that these matters may be debated.

6.11 p.m.

THE LORD CHANCELLOR

It might be convenient if I gave my views in answer to what has been said so far. The noble and learned Earl has been kind enough to say that he is prepared to accept this Amendment pro tanto, and accept it as something which makes an improvement. I want to confine my remarks to the aspect of the matter which has been largely discussed—namely, whether the Bill, with the Amendments that are proposed, provides the best means for the protection of foreign records. The noble Lord, Lord Lucas of Chilworth, and my noble friend Lord Conesford drew attention to Clause 29, under which the provisions of this Bill, either in whole or in part, can be applied to the works of other countries. Both noble Lords drew attention to the Amendment which it is proposed to make to Clause 29 (1) (a), after which it will be possible, by an Order in Council, to extend the full protection of Clause 12 to gramophone records made from recordings made it the United States and first published there I submit to your Lordships that that provides a means of protection, and in short time I shall come to the question of how far I ought to go to-day and also, let me be frank, how far your Lordships ought to ask me to go to-day in saying what the contents of the Order in Council shall be. I am glad that the Amendment we are now discussing has removed part, at least, of the grievance of the British gramophone industry by bringing within the scope of the clause any maker who is a qualified person.

I have listened carefully to the argument that this is not enough, in view of the large proportion of foreign, particularly American, records in the repertoire of the British companies. As it is convenient, may I contrast it for the moment with the noble Lord's suggestion in his next Amendment, which is to substitute for "made" in line 9 of page 16, the word, "published." I think the noble Lord is aware that, despite its attractions at first sight, that Amendment introduces a concept which is entirely foreign to the principles on which copyright is granted. I am afraid—and I should like him to consider this—that it would also have mischievous results. What I meant by saying that it is foreign to the principles is that it is inconsistent with the general scheme of copyright, which, in so far as it depends on publication, depends on first publication. Your Lordships will remember that I went into that point in speaking on this Bill on Second Reading. To take the example of a book, your Lordships may remember that I men- tioned that a book first published in a Convention country secures copyright, but if the first copyright is in a non-Convention country and there is no simultaneous publication, the book enjoys no copyright in the United Kingdom.

I have indicated that I appreciate the point which the gramophone companies are making; and it has been urged on their behalf by some of your Lordships to-day that there may be a lapse of weeks, or even months, between the publication of the record in the United States and its subsequent publication in the United Kingdom. So one has to face the difficulty that, even if an Order in Council were to be made applying Clause 12 to American recordings, it is improbable that many of them would enjoy the protection of the Order in Council. Unless the Order in Council confers copyright on recordings made by American nationals this would be true, and I think that is the point one comes down to. It would not be right for me to anticipate the form of the Order, but I submit to your Lordships that it could be done; and if it were done, surely the industries on both sides of the Atlantic can so manage their business that they can take advantage of the provisions relating to simultaneous publication. I submit that that could be done, and, as I say, I do not think it would he right for me to anticipate the Order in Council. But I think your Lordships should be convinced that that will be the position under the Bill after it has been amended.

I want your Lordships to appreciate the difficulty which I put earlier. I think the noble Lord, Lord Lucas of Chilworth, appreciated the other horn of the dilemma, if I may put it that way. Of course, he will remember that this is not a matter in which the United Kingdom and the United States gramophone industries are alone concerned. On the facts which, as I understand them, form the basis of the noble Lord's argument—that there is a considerable period of time between the publication of records—the position might well arise that an importer of records will have bought American records, will have sold them and that they will have been played. That is apart altogether from any sinister position. As I see it, that would be a perfectly ordinary and proper commercial transaction. They will have been played, and they will be in course of being played in public. All this will be perfectly legal, and neither the importer nor the persons playing the record will be liable for any infringement. Nevertheless, at a much later date the whole of these rights which have been in the public domain will, by the mere act of pressing and publishing records, have passed from the public into the private domain. That is the difficulty. I do not see, on the other side of the line, how we can relieve that position.

LORD LUCAS OF CHILWORTH

I am following the noble and learned Viscount with great care. Would not the same position arise when the Order in Council is made? There would be a lapse. The same thing could happen, as the noble and learned Viscount has just said, from the quite legitimate purchase of a record in America, bringing it over here and quite legitimately selling it. But the Order in Council is then made and that takes it back into the private domain, because it then becomes copyright.

THE LORD CHANCELLOR

Yes, but surely—and this is the point I want the noble Lord to consider—the Order in Council plus provisions for simultaneous publication would get us out of that difficulty.

LORD LUCAS OF CHILWORTH

But let us suppose—I think I am right in this—that the arrangements that were made for simultaneous publication were not a feasible proposition on both sides of the Atlantic.

THE LORD CHANCELLOR

That is what I find difficult. One horn of the dilemma is, as I have said, putting people in the position that I have just indicated, and the other is the argument that the gramophone industry, with its enormous size, wealth, position and business experience on both sides of the Atlantic, cannot arrange for a reasonable application of simultaneous publication. I shall need a lot of convincing on that. The very apprehensions which your Lordships have had in the other field is a tribute to the tremendous ramifications and power of the industry.

LORD CONESFORD

May I put to my noble and learned friend a case where it can arise? Supposing it is a recording of a musical play that has been produced on the other side of the Atlantic but has not yet been produced in this country; then there may be the greatest difficulties in publishing a record of the musical comedy before the musical comedy itself has been produced.

THE LORD CHANCELLOR

I should like, if I may, to give some expert evidence on that. I visited New York last September. While I was engaged on rhetorical activities, at which the noble and learned Earl will probably be able to guess, my family went to the New York performance of The Pajama Game. They brought back a record of the New York performance of The Pajama Game and also a long-playing record of the American version of Wonderful Town. I do not know about your Lordships (I am speaking only for myself) but I often find that I want to hear the American version of good musical plays and that whether I go to the version in London or not may well depend on whether I have enjoyed the American records. I agree that the noble Lord, Lord Conesford, has a point. I am sure that other people may well say, "Well, that is the thing. We have heard the American records and we are not going to hear another version." But it may work the other way. It is a point of some persuasion, but not absolutely conclusive.

EARL JOWITT

Before we leave The Pajama Game, that is a perfect illustration, because in that actual case the Americans would not allow the publication of the records over here until after the records had been published there. I was told that that frequently happens. If that is so, then difficulty arises.

6.24 p.m.

THE LORD CHANCELLOR

That is a difficulty and I quite see that it is a reasonable point of view, as I have admitted, although it did not happen to be persuasive with me. If one took an ordinary Bing Crosby or Frank Sinatra recording of a popular song, I should not think that any such difficulty would arise—at least I cannot see any a priori reason for its arising. The same applies to a large field. I think the noble and learned Earl has a point. If you have a long-playing record of a whole play, or of the main numbers in a play, as, for instance, these Wonderful Town and The Pajama Game records, there might well be an objection; but that forms a special class. Broadly, I should have thought that it was rather difficult to imagine that they could not use the two things, the Order in Council procedure plus some arrangement as to simultaneous publication. That would have met the noble and learned Earl's point. As I say, I cannot give any undertaking as to what would be in the Order in Council, but I am concerned to-day to show that it is a possible line that could be pursued. The other horn of the dilemma really worries me because, by it, people are, so to speak, lured into the use of the records and then are put in great difficulties. I am glad that, so far as this Amendment is concerned, your Lordships are prepared to accept it—indeed, are not merely prepared to accept it but regard it as an improvement on the position under the Bill as it stands.

With regard to the next Amendment, I have, in anticipation, stated the difficulties that I feel with regard to the noble Lord's substitution of "published" for "made". As to the general matter, I have gone part of the distance in helping to overcome the difficulties of the gramophone companies, and by Amendment. No. 118, which I propose to make, I have provided the means. In that way, we have gone a considerable distance to meet the difficulties of the companies in this regard. I hope that at this stage of the Bill your Lordships will be content with this, but if your Lordships do feel that we should consider it again, that can be done on Report. Of course everything that is said will be studied. I do not want to tic myself in any way, but I give that promise.

LORD LUCAS OF CHILWORTH

Perhaps the noble and learned Viscount will permit me to say this. As this particular subject must have far more careful consideration than we can give it across this Table, and as the noble and learned Viscount has said that he wants to do the best he possibly can—from the first I have appreciated his dilemma—I would ask him one or two questions so that we can have this in our minds. If my figures are right—and I can assure the noble and learned Viscount that they are —if we pass all his Amendments, that will still leave 50 per cent. of the gramophone records in the catalogues of this country unprotected by any form of copyright during the interim period before the Order in Council is made and the copyright subsists. I am right there. And if I am right there, does not this, for all practical purposes, nullify subsection (4), paragraphs (a), (b) and (c), of Clause 12?

Subsection (4) says: The acts restricted by the copyright in a sound recording are the following, whether a record embodying the recording is utilised directly or indirectly in doing them, that is to say

1. (a) making a record embodying the recording;
2. (b) causing the recording to he heard in public;
3. (c) broadcasting the recording."

That provision falls to the ground in regard to 50 per cent. of the records. Taking paragraph (c), does this mean that not only the B.B.C. but also the I.T.A.—and when we are talking about the I.T.A. we are really talking about the programme companies—can, without let or hindrance, use all American records for the purpose of their entertainment and that they are rot covered by copyright? Is that not a serious threat to British industry and to the British artist? Are we not saying, in effect, that the only records that can be used with impunity and without charge of any kind are American records? Fifty per cent. of the records used are British-made records or records made by British companies in foreign countries.

I want the noble and learned Viscount the Lord Chancellor to think this over. It is all very well for the purist to say, "We cannot bring something back again from the public domain into the private domain." I believe that if the noble and learned Viscount would study carefully the Patents Act of 1949, he would see that there is an assumption in that Act that an article is patented. I am not a lawyer. When I get to a problem such as this, I always say, "Thank goodness, I am not!" But I would beg the noble and learned Viscount not to be misled by the purists who may be advising him that one cannot bring anything back front the public domain to the private domain because it has never been done before. If some of the facts I am now giving about the damage it may do to industry are right, it is about time it was done.

I am not going to put the supposed rights of a pirate—again I use the word with reservation—who knows that he pirates these records. He buys them; he does not do anything illegally, but all the time he knows very well that he can "make the going good" only for a short period, until the Government make an Order in Council; then back the matter comes into private domain. He is then high and dry. He knows this from the start. The noble and learned Viscount who bought his record of The Pajama Game in New York—

THE LORD CHANCELLOR

I was given it.

LORD LUCAS OF CHILWORTH

—is not going to pirate it. There may be hundreds of people who do the same thing. The person who is going to buy a record in America to come over here and pirate, knows that he can enjoy his life as a buccaneer only for a limited period. Meanwhile, these three paragraphs (a), (b) and (c), which contain the purpose of this clause, cannot operate in regard to 50 per cent. of the records. The B.B.C. or any programme company can play these records. Records are playing a bigger part in broadcasting every day, until, in my view, there will come a time when there will be no live broadcasting at all, either on television or on sound. They can play all American records; they can play all the best symphonic music, so long as the record is first published in America. The noble and learned Viscount must seriously think about this problem. I am not going to hamper his thought. If my noble Leader acquiesces I am quite willing not to divide on the Amendments of the noble Viscount, or to move mine—

EARL JOWITT

I do not agree to that.

LORD LUCAS OF CHILWORTH

I speak only in regard to this limit—I have not come to Amendment No. 56. I think the Committee need to give a lot more thought to this matter; we shall have to return to it upon many occasions until this Bill is through. Why is this being done? It is because the Copyright Act, 1911, needs revising, and we are afraid to revise it. We have not the courage to do something that the purist does not want done—that is, to bring something back from the public domain into the private domain. That is the dilemma. If my noble friends wish to discuss any other of the noble and learned Viscount's Amendments on this matter, I am perfectly willing; but I am going to leave this problem with the noble and learned Viscount.

THE LORD CHANCELLOR

Before the noble Lord finishes on this matter, I want to make one thing clear. It is not a question of our not wanting to alter the law. What worries me is the true dilemma: that on the one side we have the noble Lord's point that there will be these records coming in, with the difficulties which he has mentioned. But there is still my point—not the mere fact that these records are coming back from the public to the private domain but that millions of people may have treated them as being in the public domain and will then suddenly have to switch back at a difficult date. I hope that I may make a reciprocal request to the noble Lord, who obviously has taken great trouble over this matter, to have another look at simultaneous publication.

EARL JOWITT

If the Lord Chancellor looks at Clause 43, at page 50, line 20, he will see that the Bill there deals with unauthorised publication. I agree that it is in rather a different context, but we are considering what is publication and what is unauthorised publication. It seems to me that it might meet this point, if the licensed, authorised publication were made the first, disregarding all the unauthorised publications, such as where a man has cut his own record.

THE LORD CHANCELLOR

I will certainly consider that.

LORD DOUGLAS OF BARLOCH

I find it not easy to understand the difficulties which are alleged to exist in this matter. The whole object of affording copyright to gramophone records is this. The maker of a gramophone record has to undertake considerable overhead expenditure in the first place in order to make a record, and if somebody is allowed to take an Impression of his record and to reproduce it, he is robbing the person who originally made the record of the fruits of his labour. The person who makes the record expects to get the reward of the fruits of his labour by selling the record. If he takes steps to sell it in this country, he will get protection. If he does not bother to take the step, of having his record sold in this country, why should he get any protection at all? Why should not the market be free to anybody who chooses to sell it here? Surely that is the criterion. Immediately he begins to take active steps to sell it here, having made the record, let us say, in the United States, at that stage he becomes entitled to protection, because he is then determined to exploit it here. Why should he get protection in anticipation, for a possibly unlimited period, because he simply made a record somewhere else and is not exerting himself at all to sell it in this country?

With regard to the difficulty which the noble and learned Viscount raised towards the close of his last observations, it is true that it could then happen that a number of unauthorised copies would be sold in this country because the original maker of the record had not taken the trouble to exploit it here. But he is not damaged by that; he has not been trying to sell records here; he has not apparently been trying to get his profit by selling them in this country. If he afterwards gets copyright in his record, because he then exploits it in this country, it is true that he will have lost part of his market because he did not exert himself sooner; but why should he have any compensation for that, and what practical inconvenience will arise? The records will have been offered to the public and the public will have bought some of them. His future sales will be to that extent diminished, but that is all that will happen.

VISCOUNT BRIDGEMAN

Is it not possible that the noble Lord who has just sat down has rather over-simplified the issue when talking of certain manufacturers of records not exerting themselves sufficiently to bring recordings over to this country? The position is a little difficult. Every manufacturer of gramophone records here will have various commercial agreements with other people, for example in America; but it does not follow that those commercial agreements automatically make it possible for him to bring the records over and publish them simultaneously. It may easily turn out that although one has a perfectly good commercial agreement and everybody on this side is exerting themselves to fulfil it, that commercial agreement will not, for various good reasons, allow simultaneous publication, and therefore there is bound to be a lag in time.

LORD DOUGLAS OF BARLOCH

Publication need not necessarily be simultaneous. If a man makes an agreement which does not allow him to have simultaneous publication, why should we worry about it? That is a private deal between the people concerned.

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment is consequential, I beg to move.

Amendment moved— Page 16, line 14, leave out from beginning to ("and") in line 15, and insert ("the recording is first published,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH

Might I ask your Lordships' indulgence here? Most of us have had a tiring day. Through the usual channels, we had arranged to break oil at seven o'clock and it is now almost a quarter to seven. The next Amendment is a vital one. I would therefore ask the indulgence of the noble and learned Viscount to resume the House. We could then begin this Amendment with rather fresher minds and voices at our nest sitting.

THE LORD CHANCELLOR

I am pleased to accede to the request of the noble Lord, Lord Lucas of Chilworth. We shall deal with this entrancing subject at our next sitting.

House resumed.