Lords Sitting of 19 December 1955

Preamble
The House met at half past two of the clock, The LORD CHANCELLOR on the Woolsack.
Prayers

AGRICULTURAL SUBSIDIES
2.35 p.m.
LORD.ARCHIBALD: My Lords, I beg to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether a statement cannot be made in clarification of the Chancellor of the Exchequer's reference to agricultural subsidies in his Budget speech on October 26, 1955.]
THE PAYMASTER GENERAL (THE EARL OF SELKIRK): My Lords, the reference to agriculture subsidies was part of a review by my right honourable friend the Chancellor of the Exchequer of the state of the whole national economy. He was concerned to point out that the criteria of economy and efficiency must be applied to the agricultural subsidies as much as to any other sector of Government expenditure. Their application to the agricultural industry will be worked out during the course of the Annual Review, which will be carried out next year on normal lines. I cannot anticipate the results of that Review. Her Majesty's Government will continue to aim at maintaining a stable industry giving a fair return for efficient and economical production, and able to meet the needs of the market and to assist our balance of payment problems. The aim will be to keep the total subsidy bill as low as is consistent with these objectives.
LORD ARCHIBALD: My Lords, I thank the noble Earl for his reply, but may I ask him whether he feels that it quite fulfils the semi-promise made by the noble Marquess the Leader of the House in our Economic Affairs debate, when he indicated that the Chancellor of the Exchequer's statement did need clarification? He agreed that the noble Earl, Lord De La Warr, and myself had produced forceful argument as to the need
256
for clarification and promised that, if possible, it would be forthcoming. May I suggest that we have not had that clarification.
THE EARL OF SELKIRK: My Lords, with respect to the noble Lord I think the clarification is there. I do not think my noble friend the Leader of the House said anything more than that he wanted to make quite certain there was no change in policy; and that is what I am saying this afternoon. I do not think the noble Lord can ask me more than that; he cannot ask for any anticipation of what the Review may be next spring, and I think that is as far as it is possible to go at the present time.
LORD ARCHIBALD: I do not want to press the point unduly, but may I ask the noble Earl whether he remembers that the Chancellor of the Exchequer's statement was that this necessary economy would be dealt with at the right time—in other words, at the time of the Price Review. Economy in administration does not have to wait for the Price Review. Does that not mean an implication of economy other than economy in administration? If it does not mean that, if it does not mean a change in policy, what meaning does it have?
EARL JOWITT: If any.
THE EARL OF SELKIRK: The point the noble Lord is making is, I think, beside the point. The Chancellor of the Exchequer, in reviewing expenditure, reviewed defence and said that in due course estimates would be placed before another place. He then went on to say that the agricultural prices would be reviewed. If I may, I will quote what my right honourable friend the Minister of Agriculture said on this point. He said:
"We shall, therefore, when the time comes for the Annual Review, examine them with a stern and critical eye to ensure that every pound is justified and used to the best advantage."
I suggest to the noble Lord that that type of review is really as much in the interests of agriculture as of anyone else, because agriculture does not want to feel that it has an advantage over other sections of the community.
LORD ARCHIBALD: I entirely agree with what the noble Earl has said about the view of agriculture in this matter.

257
But I would ask him whether he would agree that the Chancellor of the Exchequer's statement either had a sinister point or had no point at all.
THE EARL OF SELKIRK: My Lords, I can assure the noble Lord that it has no sinister point, and that when the Chancellor of the Exchequer speaks of a proper review of economy he means that and no more.

SOLICITORS (AMENDMENT) BILL [H.L.]
LORD COHEN: My Lords, I beg leave to introduce a Bill to amend the enactments relating to solicitors; and for purposes connecter therewith. I beg to move that this Bill be read a first time.
Moved, That the Bill be now read 1a.—(Lord Cohen.)
On Question, Bill read 1a; and to be printed.

COERCIVE ACTION (RELIEF) BILL [H.L.]
LORD GRANTCHESTER: My Lords, I beg leave to introduce a Bill to make provision for relief from coercive action; and for purposes connected therewith. I beg to move that this Bill be read a first time.
Moved, That the Bill be now read la.—(Lord Grantchester.)
On Question, Bill read 1a; and to be printed.

COPYRIGHT BILL [H.L.]
2.40 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 19:
Proof of facts in copyright actions
(2) Subject to the preceding subsection, where, in the case of a literary, dramatic, musical or artistic work, a name purporting to be that of the author appeared on copies of the work as published, or, in the case of an
258
artistic work, appeared on the work when it was made, the person whose name so appeared (if it was his true name or a name by which he was commonly known) shall be presumed to be the author of the work unless the contrary is shown.
(5) Where in an action brought by virtue of this Part of this Act with respect to a literary, dramatic, musical or artistic work it is proved or admitted that the author of the work is dead,—

(a) the work shall be presumed to be an original work unless the contrary is shown,and

(b) if it is alleged by the plaintiff that a publication specified in the allegation was the first publication of the work, and that it took place in a country and on a date so specified, that publication shall be presumed, unless the contrary is shown, to have been the first publication of the work, and to have taken place in that country and on that date.

EARL JOWITT EARL JOWITT moved in subsection (2), after "author of the work" to insert
"and the first owner of the copyright therein."
The noble and learned Earl said: This little group of Amendments, Nos. 97 to 102, may be considered together. We want to waste as little time as we can aril I think this course will save the time of the Committee. These are not Amendments for which I ant prepared to die in the last ditch, and I am not certain that I understand them all. I propose to move them in order that they may be considered by the Government, and I shall be quite content if, in answer to these Amendments, I have an assurance from the Lord Chancellor that they will be looked at very carefully between now and the next stage. Subsection (1) of Clause 19 states what is rather obvious: that you look at the pleadings and find out what are the issues which are involved. It is common, your Lordships will know, for a plaintiff to state his case, and sometimes the defendant denies every allegation in the plaintiff's case. If that is so, then, of course, you are where you were. The second subsection starts with the five words:
"Subject to the preceding subsection…"
I do not know what is the significance of those words. They are not the subject of an Amendment, but I should like the Lord Chancellor to say that he will look at them to see whether the subsection would not be more satisfactory if they were left out.
There are two points which arise on the first of these Amendments. It often

259
happens that the owner of a copyright may be in any part of the world, and it may be an intolerable nuisance for him to have to come over to this country to assert his right. If I may take an imaginary case, a man might live in Timbuctoo, and he may have written a song called Twilight in Timbuctoo. He might find that somebody is infringing his right by reproducing his song. If he has to come over to this country, of course that is a great burden upon him. He would assert in his pleading that he was the author of Twilight in Timbuctoo, and that he was the first owner of the copyright therein. The defendant might deny that the author was the owner of the copyright therein, and he might even go on to allege that he produced this work in pursuance of his duty under a contract of employment. He might assert that he was employed, for instance, by the Timbuctoo Broadcasting Company, and that they, being the employers, were the owners of the copyright. The first Amendment, therefore, is to insert after the word "work" the words, "and for the first owner of the copyright therein," because it might be that, as a result of an allegation of that sort, he would have to come here in person.
The second Amendment is to insert the word "proved" in substitution for the word "shown." I have not verified my references here, and therefore I may be wrong; but "proved" was used in the 1911 Act, and, I think, in the Brussels Convention. In this Bill the word "proved" have gone and is replaced by the word "shown." I am not clear whether there is any difference, but, if we depart from the word "proved," which has that history behind it, and use the word "shown," I am doubtful about the effect. I should like to ask the Government to consider whether it would not be wise to stick to the word "proved." Why have they abandoned the word "proved" and taken the word "shown"? I think I have covered the first two Amendments. Perhaps I may leave it at that and ask the Government whether they will consider these points between now and the next stage of the Bill. I beg to move.
Amendment moved—
Page 24, line 32, after ("work") insert ("and the first owner of the copyright therein").—(Earl Jowitt.)
THE LORD CHANCELLOR (VISCOUNT KILMUIR): I am grateful to the noble and learned Earl for the manner in which he has moved these Amendments. Perhaps if I say one or two general words it will be helpful, and then we can see before the next stage whether there is anything really between us in the matter. With regard to the first Amendment, may I point out to your Lordships that subsection (2) of Clause 19 relates to an action in regard to infringement of a literary, dramatic, musical or artistic work in a case in which a name purporting to be that of the author appeared on copies of the work as published, or, in the case of an artistic work, appeared on the work when it was made. In such a case, where the defendant has put in issue the question whether copyright subsists in the work, subsection (2) raises the presumption in favour of the plaintiff that the person whose name so appeared on the copies as published or on the work, whichever is relevant, is the author of the work. The effect of the Amendment would be to raise the further presumption that that person was also the first owner of the copyright in the work.
It is doubtful what the exact legal effect of the Amendment would be; it would either make no difference at all or would produce a wrong result. May I put my difficulty on that point? In the absence of any proof that the person whose name appears on the work is not the author, he is presumed to have been the author; and since, under Clause 4 (1), the author is prima facie entitled to the copyright, it follows that he will be presumed to be entitled to the copyright unless the defendant can show some reason to the contrary—for example, that the author was an employee, or that he was commissioned to do the work, or that he had agreed to assign the copyright to someone else. But if the defendant can prove that the person whose name appears on the work is not the author (this is the point we have to consider) then, under the clause as drafted, he will have successfully rebutted the presumption. If the Amendment has any effect at all, it seems to me to be this: that, in order to rebut the presumption, the defendant would have to prove not only (a) that the person whose name appears on the work was not the author but also (b) that he was not

261
the first owner of the copyright by any other means—4hat is, that he was not the employer of the author, that he had not commissioned and that he had not taken an assignment.
I think the noble and learned Earl will agree that that additional burden of proof raises a difficulty for the defendant to discharge, and there does not seem at the moment—of course, I am always prepared to consider a point of law of this sort—to be any good reason why it should be imposed upon him. The noble and learned Earl will remember that no such presumption is raised by the corresponding provision in Section 6 (3) of the Act of 1911. That is not the final word, because we are trying to improve upon the Act, but it is a point worthy of consideration. The 1911 Act merely lays on the defendant the same burden of proof as the present subsection. That seems to me to make sense. Naturally, if the noble and learned Earl is concerned about the point I will have another look at it with my advisers.
Perhaps, with your Lordships' permission, I may just deal with the other matters. I will pass now to Amendments Nos. 99 and 100 for the purpose of discussion. The effect of adopting these Amendments would be that. in an action relating to infringement of copyright in a literary, dramatic, musical or artistic work, whether the author was dead or alive, two presumptions would be raised in favour of the plaintiff: first, that the work was an original work and, secondly, if the plaintiff alleged that a specific publication was the first publication of the work and that it took place in a country and on a date specified, that such publication was the first publication and did take place in that country and on that date.
Subsection (5) of Clause 19, as it is drafted, raises these presumptions only where it is proved or admitted that the author of the work is dead. The reason for that is that it must be shown that the work was an original work and it may have to be shown that it was first published in circumstances which confer protection. Only the author himself can say positively that his work was original—that is, that he had not copied it from somebody else's work—and only a person who has owned the
262
right to publish the work from the beginning can say when it was first published. We feel that, where the author is dead, it is justifiable to raise in the plaintiff's favour presumptions as to these matters. But where the author is alive, it is quite unjustifiable to raise these presumptions in the plaintiff's favour and to throw on to the defendant the burden of proving that the work was not an original work and that it was not first published in circumstances which confer protection. Again we felt that that would be an impossible onus for the defendant to discharge; and, where the author is alive, it is right that the plaintiff who has to trace his title back in any event, should also establish that the conditions necessary for copyright to subsist in the work have been fulfilled.
Your Lordships will note that, where the author is alive but anonymous or unidentifiably pseudonymous, we are bound by the convention to protect his anonymity and pseudonymity; and subsection (6) of this clause raises in such a ease the same presumptions in the plaintiff's favour as if the author were dead. The plaintiff, who is normally the publisher in such a case, would therefore not be compelled to reveal the author's identity to prove the matters to which the presumptions relate. That is how we have moved on these points. I am sorry to take up so much of your Lordships' time but I thought it useful to put on record the way it appeared to us. As I say, I will certainly consider whether we can improve it in any way, because, quite clearly, that is something we ought always to be considering. The remaining three Amendments seek to substitute "proved" for "shown." I hope that in this Bill reasonableness has been our first, second and third consideration. I have great pleasure in accepting those Amendments.
EARL JOWITT: I am most grateful to the noble and learned Viscount. We on our side will obviously read what he has said to see whether we can pursue the matter further at a later stage of the Bill. I am grateful to him for his explanation. In the meantime, I beg leave to withdraw this Amendment. I shall not move any of the other Amendments down to and including No. 102.
THE LORD CHANCELLOR: I am quite prepared to accept "proved."
EARL JOWITT: That is to say, the Lord Chancellor accepts Amendments Nos. 98, 101 and 102. I shall not move the others, but those I will move.
Amendment, by leave withdrawn.
EARL JOWITT: I beg to move this Amendment.
Amendment moved—
Page 24, line 33, leave out ("shown ") and insert ("proved").—(Earl Jowitt.)
On Question, Amendment agreed to.
EARL JOWITT: I beg to move this Amendment also.
Amendment moved—
Page 25, line 17, leave out ("shown") and insert ("proved").—(Earl Jowitt.)
On Question, Amendment agreed to.
EARL JOWITT: I beg to move this Amendment.
Amendment moved—
Page 25, line 22, leave out ("shown") and insert ("proved").—(Earl Jowitt.)
On Question, Amendment agreed to.
Clause 19, as amended, agreed to.
Clause 20 [Penalties and summary proceedings in respect of dealings which infringe copyright]:
LORD LUCAS OF CHILWORTH: When I moved a similar Amendment to this in respect of an alteration to Clause 5, the Government were kind enough to accept it. My arguments for their acceptance of this Amendment are precisely the same. I do not know whether it is necessary to go over them again. If not, I will just formally move the Amendment. I beg to move.
Amendment moved—
Page 25, line 44, leave out ("personal") and insert ("private and domestic").—(Lord Lucas of Chilworth.)
On Question, Amendment agreed to.
Clause 20, as amended, agreed to.
Clause 21:
Provision for restricting importation of printed copies
(2) This section applies, in the case of a work, to any printed copy made outside the United Kingdom which, if it had been made in the United Kingdom, would be an infringing copy of the work.
2.51 p.m.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH: moved in subsection (2), after "printed copy" to insert "or to any record." The noble Lord said: I take it by and large that the subsection applies to sheet music. I ask the Government to also make it apply also to a record. I should have thought that a record was as much entitled to protection as a sheet of printed music; indeed, in our modern days, I should have thought, more so. That is the simple reason for my putting down this Amendment, and I hope Her Majesty's Government will see fit to accept it. I beg to move.
Amendment moved—
Page 27, line 18, after ("copy") insert ("or to any record").—(Lord Lucas of Chilworth.)
THE LORD CHANCELLOR: May I give one moment of explanation before I paint the exhilarating but somewhat difficult picture of events that would follow from the noble Lord's Amendment. I suspect him of a deep laid sense of humour in this Amendment—I suspect him of a deep laid sense of humour in many things, but bubbling forth in this Amendment. Your Lordships will appreciate that Section 14 of the 1911 Act provides that if the copyright owner gives to the Commissioners of Customs and Excise notice that he is desirous that copies of the work shall not be imported into the United Kingdom, those copies shall be deemed to be prohibited by the customs authorities; and the section is general and applies to works of that type in which copyright exists. The notice, once given, continues indefinitely the prohibition of importation. The Copyright Committee recommended that the provisions which I have just mentioned, which the copyright owner can pray in aid with the help of Her Majesty's customs to stop the importation of infringing articles, should be confined solely to books and other printed matter. That is in paragraph 305 of their Report. We have all suffered in that regard: we have all come to the most thrilling part of our journey just as the Channed steamer came alongside. We know all about that.
But the noble Lord wants to go further. The customs people can look at a book and see where it is published, but with regard to a record, no one can state that the lable is the correct one. What

265
the noble Lord really wants is that Her Majesty's inspectors of customs, duly subsidised by the Treasury, shall sit at the customs place with a vast number of gramophones, in which case they could then say whether this was a foreign record or not. It is a lovely thought. When I considered the noble Lord's Amendment I thought what wonderful places Dover and Victoria Station and other places would become. But the Treasury would take a rather different view. The Treasury would think it might be rather expensive and might occupy too much of the time of their employees, and for that sad reason I must ask the noble Lord not to press this Amendment to-day.
LORD LUCAS OF CHILWORTH: I deeply regret that the noble and learned Viscount has turned this Amendment down. I thought perhaps it might brighten the lives of the queues of people who have to wait at the customs shed, whose plight was so eloquently complained about by the noble Lord, Lord Gifford; the other day in your Lordships' House. The customs officials have far more unpleasant duties than that of brightening the live of passengers on the boats that arrive in this country by playing a few gramophone records. However, that was not really the reason why I put this Amendment down. I am grateful to the noble and learned Viscount for giving the explanations he has, and I agree with hire that perhaps the best thing I can now do is to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 21 agreed to.
Clause 22:
Establishment of tribunal
22.—(1) There shall be established a tribunal, to be called the Performing Right Tribunal (in this Act referred to as "the tribunal"), for the purpose of exercising the, jurisdiction conferred by the provisions of this Part of this Act.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved, in subsection (1), to leave out "Performing Right" and insert "Copyright." The noble Lord said: This Amendment, No. 105, and also Amendment No. 106, are put down in order to make a suggestion to Her Majesty's Government; and I have hinted at the reason for this in one or two of the other Amendments I have moved during the Committee
266
stage of this Bill. It occurs to me that already we have seen that there is a case for consideration by Her Majesty's Government, as to whether the scope of this tribunal could not usefully be carried a little further than the narrow sphere of considering performing rights. I will not enumerate the various suggestions I have made when moving other Amendments. I was wondering whether it would be advisable to have a copyright tribunal who, for the successful working of this Bill when it becomes an Act of Parliament, might have referred to them other matters than those implied in the narrow title of "Performing Right Tribunal." That is the only reason for my putting down this Amendment. If it is unacceptable to the Government I shall not speak any more upon it, but perhaps I might have some reason as to why the Government feel inclined, or not inclined, to accept it; and for that purpose I beg leave to move the Amendment.
Amendment moved—
Page 28, line 17, leave out ("Performing Right") and insert ("Copyright").—(Lord Lucas of Chilworth.)
LORD CONESFORD: It seems to me that the Amendment proposes a change that might be misleading. "Copyright Tribunal" rather suggests an ousting of the jurisdiction of the courts on many matters on which the courts should surely have jurisdiction. I therefore rather hope that this Amendment will not be accepted.
THE JOINT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (LORD MANCROFT): My noble friend Lord Conesford is quite right: that is our fear. I quite see what the noble Lord, Lord Lucas of Chilworth, is aiming at, but we have called it "Performing Right Tribunal" to draw attention to the fact that its jurisdiction is confined to performing rights. If we were to call it the "Copyright Tribunal" there would arise in people's minds the natural suggestion, as he has hinted, that the tribunal would be prepared to consider much wider points than the purely performing right. As the noble Lord, Lord Conesford, says, we might be trying to trespass upon the jurisdiction of the High Court, upon the jurisdiction reserved to the Board of Trade, the 6- per cent. point, and certain other matters arising under Clauses 8 and 12 where the noble Lord, Lord Lucas of

267
Chilworth, has suggested a slight widening of the scope. Once we start to widen it beyond the pure performing right point, we have to consider completely different terms of reference and a completely different composition of the court, because the people who will decide the points to be met by the Performing Right Tribunal might be quite different in approach, experience and outlook from those who will he required to meet some of the other points which a copyright tribunal might have to face.
We wish, therefore, to keep this tribunal within the narrow confines of the duties laid down in the Bill. Once we start to widen it into a different sort of tribunal we shall meet all sorts of difficulties and shall have to change the entire nature of the tribunal. That we do not want to do, unless some strong arguments present themselves at some other stage of the Bill; but, with respect to the noble Lord, there is a pretty strong case for keeping the terms of reference of the tribunal strictly within their present bounds, and keeping the title also within those bounds.
LORD LUCAS OF CHILWORTH: I am grateful to the noble Lord for his explanation. I thought it at least worth while to put down this Amendment if only to explore the possibilities. If the noble Lord thinks that it would tread on ground which was well outside that which the Government have in view, I do not want to press the Amendment, and I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 22 agreed to.
Clause 23:
General provisions as to jurisdiction of tribunal
23.—(1) Subject to the provisions of this Part of this Act, the function of the tribunal shall be to determine disputes arising between licensing bodies and persons requiring licences, or organisations claiming to be representative of such persons, either—
(a) on the reference of a licence scheme to the tribunal, or
3.2 p.m.
EARL JOWITT EARL JOWITT moved, in subsection (1) (a), after "scheme" to insert "or proposed licence scheme." The noble and learned Earl said: Under the scheme of the Bill the Performing Right Society has no direct access to the tribunal, and if
268
the negotiations between the Society and the music users' organisation fail to result in agreement upon the proposed tariff, neither the Society nor the organisation, separately or together, can refer to the tribunal for a decision. It seems to me that in those circumstances there is no alternative but for the Society to impose the tariff, leaving it to the organisation to appeal to the tribunal. That, it seems to me, puts the Society in the rather invidious position of having apparently abused its clear monopoly by imposing a tariff which the tribunal might consider to be unjust, the true position being that the Society is just as anxious as the music user to obtain an impartial ruling. The psychological effect of this, not so much on the tribunal as on the general public, on whose sympathetic understanding the composer must in the last resort rely, might be considerable.
The last thing we want is that it should be supposed that the composers, through the society, are trying to be unreasonable. This is very much the same point as that raised in Amendment 109. This Amendment seeks rather to widen the jurisdiction of the tribunal to enable this sort of matter to be dealt with. Here are two sets of people, each desirous of doing the right thing. Therefore, I should like after the word "scheme" to insert the words "or proposed licence scheme." No doubt proper safeguards will have to be considered, but that will enable the two sides to go to the tribunal at that stage, if they have not succeeded in agreeing with their advisers, and say: "This is the proposition. What is the right and proper thing to do?" I have no doubt that the tribunal will help enormously in getting an agreement. It makes the whole thing rather less formal and rather more elastic. I hope that the point will be considered. I beg to move.
Amendment moved—
Page 29, line 6, after ("scheme") insert ("or proposed licence scheme")ֵ—(Earl Jowitt.)
THE LORD CHANCELLOR: This is an attractive suggestion, but I think that the noble and learned Earl will see that it has difficulties, which I should just like to put to him. We have considered this point and it is in no stupid manner of resistance that I want to put forward the difficulties. As I understand, the noble and learned Earl would like the tribunal to act as a sort of umpire or conciliator

269
during the course of the negotiations between the licensing body and certain (this, of course, is one of the difficulties), but not necessarily all, organisations representing the person who was requiring a licence of the class to which the proposed scheme relates. The negotiations might be protracted, and disputes might arise at all stages, and the tribunal would be looking at the terms of the scheme as it might be expected to affect the person requiring licences of the class to which it is related. I see that, but we have assumed, and the Bill assumes, a tribunal which will deal with the scheme as it affects individual complainants, and each complaint will be dealt with on its merits.
What troubles me is this. If the tribunal were to adjudicate on the terms of the scheme as they were negotiated, the effect would be that the scheme, when negotiated, would have the blessing of the tribunal. To this extent it would have compromised itself with the tribunal with respect to the impartial exercise of its function, on a subsequent reference under Clause 24, by an organisation or person who was in dispute with the licensing body in regard to the operation of the scheme. I do not think it would be right to put the tribunal in that position, and it would, of course, load the tribunal with work, at a time w hen the negotiating bodies ought to be coming to terms with one another. It would seriously prejudice its purpose. That is the other side of the picture. Having staled that view, may I leave it that I will have another thought over this point? I think it is simply a question of what is the most attractive way of having the work done. There is no fundamental difference between us, as we want the work to be done well. I see the difficulties, and I will have a look at the matter. Perhaps the noble and learned Earl will leave the matter there.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: I am much obliged for the clear statement of the noble and learned Viscount the Lord Chancellor. He has kindly promised to look at this matter again. I am anxious in regard to one point he mentioned, which I was about to suggest should be carefully considered—namely, that where an agreement is likely to be negotiated between the trade associations and the society, it would be
270
fundamental, if the idea behind the agreement were adopted, that every trade association should be included in the negotiation. That is my point. I think the Lord Chancellor has a good point on that side of the matter. But when he is reconsidering it, I hope he will bear what I have said in mind.
THE LORD CHANCELLOR: Certainly.
EARL JOWITT: I gladly withdraw the Amendment. I am most grateful to the noble and learned Lord Chancellor; I fully realise the point of his argument. This is a clumsy manner of doing things, the Society having first to impose a tariff and then the Tribunal being asked what they think about it. But it may be that it is inevitable. However, the Lord Chancellor is going to look at it, and in those circumstances I will certainly ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.10 p.m.
EARL JOWITT EARL JOWITT moved, after subsection (1) to insert:
"(2) (a) An Appeal shall lie to the High Court on a point of law arising out of a decision of the Tribunal, but subject as aforesaid, the decision of the Tribunal shall be final,
(b) Any such Appeal shall be at the instance of any party to the dispute, and shall be made within such time and in such form and shall be heard in such manner as may be prescribed by rules made from time to time by the Lord Chancellor."
The noble and learned Earl said: I think that this Amendment is of much more importance. I must say at once that I am a profound believer in giving the High Court, wherever we can, some jurisdiction in these matters. I do not like matters being withdrawn from the courts. Whilst I do not know what points of law will arise, experience has taught me that anybody who asserts that a point of law cannot arise is a very rash man. If a point of law does arise, I want the whole matter to be under the control of the court, and to be dealt with by the court. I feel certain that that makes for satisfactory administration of justice, whether by the tribunal or anybody else. Accordingly I beg to move.
Amendment moved—
Page 29, line 9, at end insert—
("(2) An Appeal shall lie to the High Court on a point of law arising out of a decision of

271
the Tribunal, but subject as aforesaid, the decision of the Tribunal shall be final.
Any such Appeal shall be at the instance of any party to the dispute, and shall be made within such time and in such form and shall be heard in such manner as may be prescribed by rules made from time to time by the Lord Chancellor.")—(Earl Jowitt.)
THE LORD CHANCELLOR: I could not agree more strongly with the noble and learned Earl in desiring, at every possible point, to give access to the courts to any of Her Majesty's subjects. The only point which has troubled me here is whether anything more is necessary. May I again appeal to the noble and learned Earl—I should be very grateful for his views. The tribunal is primarily a fact-finding body. Let us consider what it has to do in order to function. The Bill imposes certain duties upon it. The tribunal must give each party to the reference an opportunity of being heard, or, at the party's option, of submitting representations in writing; and in the case of a licence relating to television broadcasts, the tribunal cannot override the conditions (except as regards the amount of the charges) under which the broadcasting authority has obtained, or is able to obtain, the requisite facilities for broadcasting the flatters concerned. These are the conditions on which the tribunal functions.
As I understand it, the first condition is a broad natural justice provision, translated into terms referable to this subject matter. The tribunal will be subject to the supervisory jurisdiction which the High Court exercises by means of perogative writs, with which the noble and learned Earl and I are so familiar. If the tribunal were to disregard these provisions, or in any other way to exceed its jurisdiction or make a determination which on its face was erroneous in point of law, the High Court would be able to correct it. This is the point which I put, with complete frankness to the noble and learned Earl, because it is one which always worries me. As he knows, an appeal on whether or not there is any evidence is an appeal on a point of law. The noble and learned Earl will remember, because I had the honour to succeed him as a Law Officer of the Crown, that in one class of work which we both did to a great extent—Revenue appeals—there was an appeal only on a question in law; but I am sure his experience is
272
the same as mine: that one fought dozens of Revenue appeals nominally on the question of no evidence, but, in fact, going into all the facts, in the hope that the appellant would be able to show that as there was no evidence, de minimis, the decision ought to be the other way. It rather worries me that such things should be taken to the High Court, because the Tribunal is primarily a fact-finding body, and disputes between the licensing bodies and members of the public are to be determined on what is reasonable in the circumstances.
I leave the matter to your Lordships. It is a point which I shall be glad to consider again, but I do not know how it appeals to the Committee. Will your Lordships try to imagine the case that I have in mind, where the tribunal is making a determination and is then held up because the matter goes to the Court of Appeal on what is, properly, a question of law as to whether there is any evidence on which the tribunal can come to its decisions? It is a worrying matter to find a practical solution to this problem. I feel very strongly, and have always expressed the view, that every suitable case ought to be accessible to the High Court. I should like the noble and learned Earl and the noble Viscount beside him to think over whether we are helping the public by giving this right of appeal when we have the collective and supervisory jurisdiction of the High Court to see that there can be no error in jurisdiction. I, too, will consider it.
EARL JOWITT: I am rather like Elijah in this matter, in that I am about to be snatched up to Heaven, and the noble Viscount, Lord Alexander of Hillsborough will, at a later stage, have to consider this matter. While I appreciate the point made by the noble and learned Viscount the Lord Chancellor I feel quite definitely that it is desirable to give an appeal on a point of law to the High Court. In my experience, the fact that there is such an appeal keeps the tribunal on its toes and ensures that it proceeds in accordance with the well understood principles of justice. It is true, as the noble and learned Viscount has said, that the court can and does exercise a measure of control—what we call the prerogative writs of mandamus and prohibition and so on; but let us remember that there are now important cases heard in the county court. Where

273
we have an appeal on a point of law this tribunal may decide important issues, and I believe that it would command more public respect if it were known that there was an appeal to the High Court. It is a matter which I hope the noble and learned Viscount will consider. We shall certainly consider it and at a later stage of the Bill we shall have to look at this point again. As at present advised, I attach great importance to a right of appeal, so that the whole matter may be plainly and obviously under the control of the High Court. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 23 agreed to.
Clause 24:
Reference of license schemes to tribunal
24.—(1) Where, at any time while a licence scheme is in operation, a dispute arises with respect to the scheme between the licensing body operating the scheme and—

(a) an organisation claiming to be representative of persons requiring licences in cases of a class to which the scheme applies, or

(b) any person claiming that he requires a licence in a case of a class to which the scheme applies,

the organsiation or person in question may refer the scheme to the tribunal in so far as it relates to cases of that class.
(2) The parties to a reference under this section shall be—
(b) the licensing body operating the scheme to which the reference relates; and
VISCOUNT ALEXANDER OF HILLS-BOROUGH VISCOUNT ALEXANDER OF HILLS-BOROUGH moved, in subsection (1) (a), to leave out "claiming to be representative." The noble Viscount said: I put down this Amendment because I want to be quite clear what is meant by this particular part of this clause, and whether what I am now going to say is or is not a correct interpretation. We believe that as it is drafted it would make it possible for, say, the National Association of Dance Hall Proprietors to act on behalf of an individual, and yet might entirely prevent bodies like the Co-operative Union, because of their different constitution and organisation, from acting for all co-operative societies. I cannot believe it would be the intention of Her Majesty's Government that such a position should arise, but my present legal advice is that
274
that might possibly be the case. I have moved to leave out these words so that we may get the matter discussed and have the view of Her Majesty's Government upon what is intended. The noble and learned Viscount will know that various associations in this country are often called upon from time to time by Her Majesty's Government for help in all kinds of circumstances. They would feel highly aggrieved if they felt that the conditions as drafted would prevent them from presenting before the tribunal a collective case on a matter of principle of this kind. I beg to move.
Amendment moved—
Page 30, line 20, leave out ("claiming to be representative").—(Viscount Alexander of Hillsborough.)
3.20 p.m.
THE LORD CHANCELLOR: So far as I can see, the apprehensions of the noble Viscount do not have any substance in view of the way in which this Part of the Bill is drawn. May I put to him some of the difficulties, as I see them, which the Amendment would create? His Amendment suggests leaving out the words "claiming to be representative." If it were accepted, the only sort of organisation which could refer a scheme to the tribunal would be "an organisation of persons requiring licences." The result would be to exclude most of the organisations which the clause is meant to cover. For example, the British Hotels and Restaurants Association is not an organisation of persons requiring licences to exhibit television performances in public; it is an organisation of hotel and restaurant keepers, some of whom require licences to exhibit television performances and some of whom do not.
If we were to leave out only the words "claiming to be" and not the words "claiming to be representative" then another difficulty would arise. The objection would then be that the tribunal might spend a long time hearing and determining a reference by an organisation, being satisfied that the organisation is reasonably representative of the class of persons it claims to represent. Of course, if an appeal were made to the High Court, that would be a condition of jurisdiction, and, therefore, if the decision of the tribunal went against the licensing body, the licensing body could challenge the decision in the High Court on the ground

275
that the organisation was not representative, and that accordingly the tribunal had acted without jurisdiction. So we felt it was desirable that the words should be left as wide as possible, so that it would allow for the inclusion of bodies such as the two which the noble Viscount has mentioned, and so that the work of the tribunal should be allowed to proceed on common-sense lines, getting down to the job in hand of deciding the issue between the two sides, and not having long legal arguments as to whether someone was really representative or not. That is our purpose, and I think we have achieved it. If the noble Viscount, on consideration, has any further doubts, or if he likes to come and have a word with me and show me the specific difficulties that may be worrying him, I shall be very happy to see him. I think, at the moment, that the best thing to do is to keep the words as wide as possible so as to include everyone. Do not let us have litigation about them if we can avoid it.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: I am much obliged to the noble and learned Viscount. I have certainly obtained the first part of my objective, in that Her Majesty's Government intentions in the clause have now been clearly stated by the Lord Chancellor. I will have one or two consultations between now and the next stage of the Bill upon the form of words. It occurred to me while the noble and learned Viscount was speaking that if these words "claiming to be representative" are to be left in, it would be nice to know that anyone who claims to be representative would be heard. If that is so, then we are covered. May I ask the noble and learned Viscount if he can clarify that point?
THE LORD CHANCELLOR: That is so. We want anyone who claims to be representative to be heard rather than that they should be ruled out on a technicality.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: On that statement, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 24 agreed to.
Clauses 25 and 26 agreed to.
Clause 27:
Effect of orders of tribunal, and supplementary provisions relating thereto
27.—(1) Where an order made on a reference under this Part of this Act with respect to a licence scheme is for the time being in force, any person who, in a case covered by the scheme as confirmed or varied by the order, does anything which—

(a) apart from this subsection would be an infringement of copyright, but

(b) would not be such an infringement if he were the holder of a licence granted in accordance with the scheme, as confirmed or varied by the order, in so far as the scheme relates to cases comprised in the order,

shall, if he has complied with the requirements specified in the next following subsection, be in the like position, in any proceedings for infringement of that copyright, as if he had at the material time been the holder of such a licence.
(2) The said requirements are—
(b) if, in accordance with the scheme as so confirmed or varied, any charges are payable in respect of such a licence, that he has paid those charges to the licensing body operating the scheme, or has tendered payment to them of those charges.
(5) Where, on a reference to the tribunal under this Part of this Act, the tribunal is satisfied that any of the licences in question are required for the purposes of organisations to which this subsection applies, the tribunal may, if it thinks fit, exercise its powers under this Part of this Act so as to reduce, in the case of those organisations, to such extent as the tribunal thinks fit, the charges which it determines generally to be reasonable in relation to cases of the class to which the reference relates, or, if it thinks fit, so as to exempt those organisations from the payment of any such charges.
(6) The last preceding subsection applies to any club, society or other crganisation which is not established or conducted for profit and whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved, in subsection (2), to add to paragraph (b):
"or of so much of such charges as is then payable, provided that in any case where the amount of such fee is not ascertainable before the performance, if the person concerned formally undertakes to pay the amount of the fee when ascertained he shall be deemed to have complied with the requirements of this subsection as to tender of the charges payable under the scheme as aforesaid."
The noble Lord said: This Amendment has been put down because we think that the Government have missed

277
something here. There is a slight difficulty, we think, with regard to the wording of this subsection, because there are many arrangements under which charges are levied that do not come within the scope of this clause. I hope that I am not wrong in saying that, as the clause is drawn, it is assumed that all these charges can be ascertainable before the performance is given. That is net so. The royalty, if I may call it such, or the charge, may be levied on considerations that can be ascertained only after the performance is given—it may be a question of a percentage of the box office takings, or something of that sort. This problem has caused trouble in other countries. The object of putting down these two Amendments, No. 113 and 114, is to make certain that if an undertaking is given that the proper charges will be met when they have become ascertainable that case should be covered. My interpretation is that the clause as printed leaves out any provision to this end. If I am wrong, perhaps Her Majesty's Government will tell me so, but I do not think I am. So in order to get this point covered I have put down these Amendments. Perhaps I may be given an assurance on behalf of Her Majesty's Government that they are considering this point. I beg to move.
Amendment moved—
Page 34, line 11, at end insert the said words.—(Lord Lucas of Chilworth.)
LORD MANCROFT: I must confess that I was at a loss to know exactly what point the noble Lord was driving at when I first saw these two Amendments on the Order Paper. May I just he certain that I have his point right? As I understand it, what he is worried about is the possibility that someone requiring a licence might not have been able to find out the appropriate fee at the time when he ought to have tendered it, and might well be in a genuine dilemma because he could not tender the fee. In these circumstances the act he wished to perform, would not be exempt from being an infringement of the copyright if it would otherwise constitute such an infringement. If, as the noble Lord suggests, there are such cases then we must certainly look at this matter again. I confess that that point had escaped my attention. There may be cases where the person in question is unable to ascertain
278
the fee, and, if such a genuine dilemma can arise, we should certainly not intend to deprive the person of protection of the kind which the clause is designed to confer. I should certainly like to look at this matter again. I agree that the noble Lord has a point which must be dealt with.
LORD LUCAS OF CHILWORTH: I am grateful to the noble Lord. I think that, if he will look up the law relating to this matter in Canada, he will find that there was endless litigation there to settle this point. The Amendment is put forward with a view to preventing this country from having a similar experience. The noble Lord has put his finger quite correctly upon the reason for this Amendment. There are a considerable number of cases where the amount of the fee cannot be ascertained until some time after the performance has taken place. I am grateful to him for saying that he will look into the point. I know that if he does and is satisfied, as I think he will be, that there may be these exceptions, he will do what is necessary to take care of them. I now ask the permission of the Committee to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.30 p.m.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved to leave out subsection (4). The noble Lord said: I am afraid that this will be the subject of some discussion, because I shall have to go back, if I may, to the discussion which we had upon Clause 14 and the performing right in television. Your Lordships did not accept an Amendment moved from this side of the House on Clause 14 and therefore gave copyright to the B.B.C. for any television, sound and vision performances, so that they can issue licences—either the B.B.C. or I.T.A. can issue licences—and charge a licence fee for the public performance of a television programme. It has been implicit right through this Bill that if anybody was aggrieved about the licence-issuing company not issuing a licence or charging too much for its issue, he could appeal to the Performing Right Tribunal. Subsection (4) of Clause 27 allows the B.B.C. and the I.T.A. to escape entirely from the machinery of the tribunal with reference to the granting of a licence, through the defence that the provider of the entertainment which is

279
going to be televised would not allow that television broadcast except under conditions which prohibited them from giving a licence for a public performance. I cannot read subsection (4) any other way.
When we discussed Clause 14 (4) (b) and the creation of a performing right in a television performance, the noble Lord, Lord Conesford, who I am glad to see in his place this afternoon, said [OFFICIAL REPORT, Vol. 194, col. 1148]:
"The problem which has to be faced, as was made quite clear by the Copyright Committee, is this: unless you confer some copyright somewhere, various events will not be televised at all; that is the real problem which this House has to face."
I would contest that statement, but for the present I quote it, because when the noble Lord, Lord Mancroft, spoke, he endorsed it. The noble Lord, Lord Conesford, went on to say [col. 1149]:
"Once you confer that copyright, the question then arises as to how you are going to guard against the abuse of the copyright so conferred. That is why we have all these provisions dealing with the tribunal to which we shall come later."
With great respect, I think the noble Lord is wrong, because subsection (4) takes all jurisdiction out of the hands of the tribunal, except on the question of payment. The subsection reads:
"In the exercise of its jurisdiction in respect of licences relating to television broadcasts, the tribunal shall have regard (among other matters) to the conditions upon which the requisite facilities, for broadcasting the matters in relation to which the licences in question are required, have been, or can be, obtained; and, in particular, the tribunal shall not hold a refusal or failure to grant a licence to be unreasonable if it could not have been granted consistently with those conditions:"
The noble Lord, Lord Mancroft, after paying tribute to the fact that the noble Lord, Lord Conesford, had put it far plainer than he could, said [col. 1150]:
"There is the tribunal to referee, in case there is any injustice or if any exorbitant charges are made. It is not a question of raising fees to provide extra cash to the B.B.C. or the I.T.A. or the promoters. We can dismiss that point entirely. It is solely a question of control."
The tribunal has no jurisdiction. The matter is being taken specifically out of their control. When the noble and learned Viscount the Lord Chancellor replied to this discussion, he said [col. 1156]:
"…it is a question of whether there will be a broacast at all. That is the first point your Lordships have to consider: Is that desirable?
280
It is not a question as to whether the I.T.A. is desirable. It is a question which began on the issue as to whether it was desirable that the B.B.C. should do it alone. Now there are two companies, and it is equally desirable, I submit, that both should do it."
Do what? They are the copyright holders. If a sporting promoter says that his sporting event can be televised only on certain conditions, the B.B.C. or the I.T.A. cannot issue a licence unless it contains those conditions; and if the licence contains those conditions, the tribunal is powerless to say whether or not the licence shall be issued. The noble and learned Viscount said further on that it was as much a case of control as of payment, and reiterated that statement. When it comes to the real issue of how this control is going to be exercised, it seems that because the fundamental control is left outside the tribunal, the television of an entertainment—whether it be a boxing, football, cricket or tennis match, or anything else—is solely within the jurisdiction of the promoter, and any aggrieved person has no case before the tribunal.
I would ask the noble and learned Viscount: is it the case that nobody can give a public performance of a television performance or a radio performance without a licence granted by the B.B.C. or the I.T.A., as these are the only two broadcasting authorities? A public performance will range from showing the vision of a television set in the shop window of a retail television and radio dealer, or the sound inside a television seller's shop, to—let us conjure up what the noble and learned Viscount said regarding a public gathering place, and I think it was the noble Lord, Lord Conesford, who mentioned the Savoy Hotel. On what conditions are these licences to be issued? They cannot be ad hoc; they must be yearly. I can only assume (I am going to make a number of assumptions, and I want the noble and learned Viscount to tell me whether I am right or wrong) that the issue of a television licence at the beginning of a year—and I am now talking about a public performance licence will have to contain various provisos that if the B.B.C. or the I.T.A. say in the weekly issue of the Radio Times or the other paper that is issued, the programme paper, that there is a boxing match at Liverpool Stadium or Harringay, no licensee who has a public performing licence may turn on his set

281
during this programme. How else is it going to be policed? These sporting events are fixed up at short notice, of a week or something like that. What are the sanctions going to be? Who is going to impose them? How are they going to be policed?
The noble and learned Viscount said that there could he a complete black-out of an area. But that would not solve the problem, because it would take away the right of the private viewer. So it must be policed in some other way. The television transmitter from London has a radius of fifty miles, and the television transmitter from Sutton Coldfield has a radius of fifty miles also. I live fifty-six miles from Sutton Coldfield, and I have such a good television receiver—I will not mention the name—that I can get a 100 per cent. picture, judged from the standard of perfection to-day. There may be within that 100 miles ten, twenty, thirty, forty or 100.000 public houses, clubs, small boarding houses, large boarding houses, small hotels and large hotels, all compelled to have a public performing licence issued by the B.B.C. or the I.T.A. How is it going to be policed? Are you going to have a crowd of "snoopers"? You cannot do it.
When the Lord Chancellor replied to my noble friend Lord Faringdon, I do not think I actually used the words, but I accused him of having "let the cat out of the bag" or of exposing in stark nakedness the ridiculousness of this particular clause. This is what the noble and learned Viscount said [OFFICIAL REPORT, Vol. 194, col. 1159]:
"Of course, if it were a broad area, it could be done by not allowing television in that area. That does not answer the point. The point that really needs an answer is how to deal with substantial places that I have called public gathering grounds. If they are public gathering grounds then it will become known and it will be possible to get an injunction against them to stop them from doing it. That can be done. Suppose that the noble Lords who are moving this Amendment had left out 'cinemas'."—
which, of course, we did not; we left them in—
"There would not be the slightest difficulty.…"
Then the noble and learned Viscount went on to say this:
"Nobody is going to worry about taking injunctions against 'Set View' boarding-house, with five bedrooms; but if there are 500
282
people in a big hotel dining room, you will worry and, on the facts which we assume, you will succeed."
May I say, with respect, that that shook me? And when I considered it further, it shook me still more. Here I heard the Lord Chancellor of this country expounding the principle that you could have one law for the big and another for the small, and that, of course, you did not intend to enforce the law against "Sea View" boarding-house, because if you did, if I may say so with respect, the law would prove to be an ass.
In another debate in your Lordships' House, when I was again pointing out the evil consequences of passing a law that was unenforceable, I quoted the dictum of a late respected member of your Lordships' House, Lord du Parcq, He was at one time a member of the Court of Appeal, who had before them a certain case. I will not go into the details, but it was a case where a Government official was giving evidence. This Government official, when the ridiculousness of this particular Act of Parliament was pointed out to him, said:
"Yes; but in such a case there would be no prosecution, because the authorities exercise common sense in enforcing the Act."
Mr. Justice du Parcq (as he then was) said:
"That is entirely wrong. If the law leads to absurdities, they should be made apparent by the enforcement of the law, and Parliament should deal with them. Nothing is worse than for authorities entrusted with the enforcement of an Act of Parliament to enforce it or not according to the dictates of 'common sense'."
He went on further to say this:
"Indeed, if ever it does happen, and I am not saying that it has happened in this case, that Parliament, owing to the difficulty of drafting a law of general application, has spread the net too wide and has done something which on more mature deliberation it would say that it had not intended to do, the best way of pointing out any such defect in an Act is that it should be rigidly enforced by the courts. The worst way of dealing with legislation of that kind is that any authority or any judge should give sanction to the view that laws which the public do not like ought to be disregarded or improperly evaded."
The Government are asking your Lordships to put into force a law which the noble and learned Viscount, the Lord Chancellor, has confessed to your Lordships could never be enforced, or which nobody would think of enforcing in the lower strata of the cases we have in point

283
—namely, the "Sea View" boardinghouse. Have your Lordships ever been asked before to do such a thing? Yet that is not only what you are being asked to do, but it is what your Lordships have done. I believe it was done—I hope the noble Lord, Lord Conesford, will not mind my saying this—because your Lordships thought that the tribunal had jurisdiction. At least the noble Lord, Lord Conesford, thought that. But if I read this clause correctly, it takes out of the tribunal's hands all jurisdiction, because the conditions under which the licence has originally been given to the B.B.C. or I.T.A. cannot be enforced.
I believe the Government are proceeding upon the most false assumptions. I do not believe, as the noble and learned Viscount believes, that what will prevent sporting events on television will be people gathering in hostelries or halls, 500 strong, to look at the Cup Final, Wimbledon tennis or a Test Match. If we take our experience, at the present time, what is agitating the minds of the sports promoters is not a gathering of 500 in a specific place but 500 people each in a different place—in other words, the private home-viewer. I think this is a dilemma, and the Government have to find a way out of it. This is not the way. Surely, it is no way out of a dilemma to put into force an Act of Parliament which will be ridiculed and which will be absolutely impossible of enforcement. There may be 100,000 public television licences in the London area or in the Sutton Cold-field area. Take a boxing match, where the contest is over in three minutes because one boxer is flat on his back. How are you going to prosecute or bring injunctions against every one of those 100,000 who happened to turn on his set at that time and gave a public performance to either one, two, five, ten, fifty or five hundred people.
What are you going to do with the retail shop which, in the ordinary course of business, has a television set in the window, with the vision working, and a television set in the shop where twenty prospective purchasers are gathered together? What are you going to do with a place like Harrod's"? As I saw not long ago, in one of their biggest halls they had every make of television set you could possibly imagine, giving a public performance to about five hundred
284
people, all prospective buyers. There is nothing illegal in that. Anybody to-day can do what the noble Lord, Lord Conesford, said the Savoy Hotel might do. Anybody can have a television set and give a public performance to a thousand people so long as he does not charge for admission. I have brought with me my television licence—luckily, I have taken one out and that is how I know the conditions. All it says is that I must not use that television set for a public performance where admission is charged. That is precisely the way we want to carry on to-day.
I do not know what the proviso means, because the proviso to subsection (4) reads:
"Provided that nothing in this subsection shall require the tribunal to have regard to any such conditions in so far as they purport to regulate the charges to be imposed in respect of the grant of licences."
I ought to understand that, but I am afraid I do not. I believe that if licences are granted the tribunal can have jurisdiction over the charges made, but they can have no jurisdiction over whether a licence is granted or not. The noble and learned Viscount talked about injunctions. In most of this Bill an infringement of copyright is, I take it, a criminal act, according to Clause 20. But as I read Clause 20 the performing right in television has been expressly excluded; so I suppose, as the noble and learned Viscount has said, that it is a process of injunction. That, I suppose, is to be granted to or applied for by the B.B.C. or the I.T.A., as they are the copyright holders. When the noble Lord replies will he be good enough to tell your Lordships whether or not the I.T.A.—this does not apply to the B.B.C. —has power to assign the copyright? Has the I.T.A. the power to assign the copyright to the programme companies? If so, then the programme companies, multitudinous though they may be, will have to apply for an injunction. I should have thought that the last thing the programme companies wanted to do was to apply for injunctions to prevent people from seeing their advertising on the screens in the hotels, pubs, clubs and boarding houses.
Are we not in a muddle? Do your Lordships not agree that we should ask the Government to think again about this matter? What we have done, as I

285
said when we debated Clause 14, is to give the sole control of whether sporting events or any outside broadcast is shown on television into the hands absolutely and completely of the entertainment provider. The noble Lord who is to reply may say, "That is how it should be; that is correct." I do not agree, because all it does is to put a hard bargaining weapon in their hands. Quite frankly, I believe that the answer to this question is finance. You will satisfy the sports promoters when you have given them a sufficient sum of money that will compensate them for any loss of revenue they might suffer. Take the argument about football clubs, about which my noble friend Lord Alexander of Hillsborough knows more than I do. It was not that the clubs themselves lost revenue; it was not that Chelsea, Arsenal or Fulham lost revenue through the televising of one of their matches; it was that all the small clubs in that area lost their "gate." If that is so, money will have to be the answer. Surely, if my interpretation of this subsection is right, it cannot be an answer to put into an Act of Parliament something which, as has been said on behalf of Her Majesty's Government, can be enforced only partially and be enforced only against the big battalions. That, in my view, is quite the wrong way to set off upon this problem. I beg to move.
Amendment moved—
Page 34, line 26, leave out subsection (4).—(Lord Lucas of Chilworth.)
4.0 p.m.
LORD MANCROFT: The noble Lord, Lord Lucas of Chilworth, has ridden several interesting hobby-horses over this course, not all of them in the same direction and not all of them very sound in wind and limb. Having said that, I may add that we also are not satisfied with the actual draftsmanship of this particular subsection. We will, therefore, have a look at it again, bearing in mind carefully the points made by the noble Lord, Lord Lucas of Chilworth, although I am certain that we shall not be able to meet him in all of them—indeed, in one or two of them we do not want to meet him because we think he is wrong. However, we will certainly consider this matter again in the light of what he has said. There are some defects and one or two points which are very unsound. As drafted at the moment, the subsection requires the tri-
286
bunal to have regard to the conditions upon which the requisite facilities for broadcasting a performance have been or can be secured. This means that the tribunal would have regard to the contracts made between the B.B.C. or the I.T.A., on the one hand, and the entertainment proprietors or promoters, on the other; and these contracts might well include a ban on the public showing of the broadcast within a certain radius. I understand that that is common in America, where they have exactly the same problem as a day-to-day feature of their sporting television existence. Without accepting such a condition, the broadcasting authority would probably have been unable to secure any television rights at all. That is a point we have to face.
The subsection to which we are referring goes on to provide that the tribunal is not to hold a refusal or failure to grant a licence to be unreasonable if such licence could not have been granted consistently with the conditions under which the requisite facilities for broadcasting were secured. The effect of the noble Lord's Amendment would be to allow the tribunal to disregard any conditions imposed by the entertainment proprietors or promoters when granting the broadcasting facilities to the B.B.C. or I.T.A. The noble Lord opposite no doubt intends this; that is what he is getting at. But this is where I am afraid we must part company with him. We firmly believe that it would be a dishonourable breach of contract if, when a programme with conditions of the kind of which I have been talking had been secured, those conditions were to be set aside. Further, if it is the intention to make the basic contract between the B.B.C. or the I.T.A. with, say, Mrs. Topham, for the Grand National, subject to review, so as to enable the tribunal to say that the conditions forming part of the contract under which she has allowed the Grand National to be televised are to be set aside, I should have thought that no surer way could he found to dry up the broadcasting of such events as the Grand National.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: Not hobby-horses.
LORD MANCROFT: I expect that a number of proprietors will want to impose conditions on the broadcasting of their events. These would be basic conditions on which the B.B.C. or the I.T.A.

287
had acquired the "requisite facilities." With regard to the financial arrangements between the B.B.C. or the I.T.A., on the one hand, and the entertainment proprietors, on the other, what the B.B.C. or the I.T.A. may have to pay for a broadcasting facility is their own affair; but what fee they charge individual exhibitors for allowing the broadcast programme to be shown is a matter which it is fully within the functions of the tribunal to review. By virtue of the proviso to the subsection, the tribunal may disregard any conditions upon which the broadcasting facilities have been obtained in so far as they purport to regulate the charges to be imposed in respect of the grant of licences.
There I have put as clearly as I can the point on which the noble Lord and I differ. Quite clearly, we differ on an important point. I see clearly the difficulty in switching off the knob in "Sea View"—the noble and learned Viscount the Lord Chancellor has explained that aspect fully. Of course, there will have to be a certain amount of trial and error. It would be silly to lay down in a Bill every tiny detail about switching off; that is hardly what the Bill sets out to control. Unlike the noble Lord, Lord Lucas of Chilworth, I envisage a greater use of the ad hoc licence, as opposed to the "blanket" licence, for the showing of important events, such as General Election broadcasts or some sporting events, in a hotel or a cinema. The point about the television sets in Harrod's or the shop window is taken up later in an Amendment by the noble Viscount, Lord Alexander of Hillsborough. I believe that, by trial and error, we shall find a perfectly simple solution to the practical points that the noble Lord puts forward, provided that we stick to the principle which I have explained as fairly as I can and from which we cannot depart because we regard it as fundamental. I hope that the noble Lord, while accepting from me the promise that we will look into his points when we have to do our inevitable redrafting—we do not pretend the clause is perfectly conceived or drafted—will realise that we cannot depart from that fundamental principle.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: I agree with my noble friend who said just now that this is the
288
most important clause of this Bill. It is fundamental. From the kind of argument made by the noble Lord, Lord Mancroft, in reply to my noble friend, he seemed to recognise that the Government were on a "sticky wicket." He charged my noble friend with having ridden some hobby-horses, but what happened was that he tried to ride one or two himself. If you make a contract between, say, the Arsenal Football Club and one of the television authorities for a certain sum of money, under which the televising authority has the privilege of broadcasting a game, the terms are thereupon fixed. The whole case for the Government appears to be that they have brought an entirely new principle into this law, giving a property right to the televising and broadcasting authorities which ought never to be there. Then they assume that if those rights are given to charge extra licence fees to viewers, there will be some later effect upon the amount that will have to be paid by the televising organisations to the people whose performances they are to broadcast.
That seems to bring us back to the principle of this Bill. It is fundamentally wrong. What is one to do? Is one to go to the Tribunal and say: "I have only seven or eight rooms to let in my boarding house and therefore I cannot get any great number of people in. I have been overcharged."? There is no difference in broadcasting to people in those small places. What arises out of a contract between a performing club or society or a set of individuals and the televising authority? There is no difference, in principle, from that broadcast being shown in an ordinary public house, a workmen's club, a co-operative institute of an educational or recreational kind, or anything of that kind. Yet what do the Government propose? They do not propose to proceed on what they have ascertained to be the right thing to do, to bring to this House of Parliament the proper draft of a law. The noble Lord says: "We must proceed by trial and error." What an extraordinary thing that is, in dealing with a point of principle such as this! I do not understand it. If the Government want to come to Parliament with legislation which puts certain restrictions and penalties upon its citizens on an entirely new principle through the giving of this property right, it seems to

289
me to be an anachronism to say: "Well, you must take our proposals as they stand. We will proceed by trial and error. Let the lawyers have a jolly good time in the future in the tribunal and the courts, and perhaps the citizens can be forgotten in the meantime until they have settled what is the position." I hope that Her Majesty's Government are going to think this matter over before the Report stage, because I can assure them that they are not "going to get away with it."
LORD MANCROFT: My noble friend must not put those words into my mouth. There is nothing about trial and error in the principle. That will come in the technical day-to-day stage. Obviously the technical side will be subject to a certain amount of trial and error, but there is nothing of trial and error in the principles I have tried to enumerate.
LORD FARINGDON: I rind myself in agreement with what has just been said. It is the point I took up with the noble and learned Viscount the Lord Chancellor, on the question of control. If I am not mistaken, if all you want is control in order that you may be able to fulfil the contract wash a sports promoter or a promoter of some other form of entertainment, you have everything you want. No one can force the B.B.C. television or the I.T.A. to broadcast any kind of programme in an area where they are forbidden by their contract to do so. I think that would be the law at the present time. What we dislike very much is the new system of licences which the two authorities are going to be allowed to insist upon, because, as the noble Lord, Lord Lucas of Chilworth, has said—and I am perfectly convinced he is right—the people who are really missing at such shows are not the people who collect in their hundreds at the Savoy, and who together are not going to account for more than a tiny fraction of the total viewers; it is the people who sit at home in their twos and threes and look at their owe television sets who are going to reduce these audiences. I believe, and I think my noble friends on this side believe, that it is totally unjust that a particular kind of viewer who is only a small fraction of the total is going to have to pay special licence fees in order that the two authorities may be able to pay extra
290
large prices for the right to televise certain performances.
My noble friend, Lord Lucas of Chilworth, is perfectly right: this is a question of money. I can conceive that things might come to such a pass tint boxing promoters would give their matches in a room the size of your Lordships' House with a couple of hundred people watching, the payment for such entertainment being paid by the television authorities whose viewers were getting the advantage of it. But I am convinced that it is totally wrong to give these authorities the right to issue special licences under which it is to be assumed that they will pay extra high prices. The control is already there, if they need control in order that the promoters shall not feel that their audience has been drawn away. They will put it in their contracts, and the authority will have to honour those contracts in withdrawing all their programmes from a certain area. I understand this has already been done in America, and so far as I can see in the subsections about which the noble Lord was so very dubious, that power is reiterated. My own belief is that it is unnecessary. But what we are objecting to is not that power, which is merely recognition of a duty under a contract: what we are objecting to is the issuing of licences and special charges for a small section of the viewers.
EARL WINTERTON: I think it is desirable that some Member supporting Her Majesty's Government should, so to speak, support the Government in this matter, especially after what I would describe as the very emphatic statement—to use the most courteous word I can think of—which has been made by the noble Lord opposite in derogation of this provision. An attack has been made upon my noble friend, Lord Mancroft, for having used the phrase "trial and error," and the only point I want to make (it is quite short) is this: I think noble Lords opposite would agree that both in this country and across the Atlantic, the whole question of televising sporting events is still, if I may use a clumsy phrase, in the region of trial and error. The sports promoters on both sides of the Atlantic have in many cases not yet made up their minds whether it is worth while, however high the fee, allowing a broadcast, because of the effect on the

291
attendance. We might get the situation that the noble Lord who has just spoken envisaged, where they would not trouble about the attendance at all; but I think we are some way off that. Therefore, as the subject is in a state of trial and error, I think it is perfectly fair for the Government to put forward what might be described as a tentative clause.
I want to say only one other thing, and I do not think any noble Lord on either side would disagree with me upon it. Some people may object to the whole principle of the broadcasting of sporting events and the paying of a large sum of money; but we have to remember that it will place at the disposal of the ordinary viewers, the private viewers in their own houses, the opportunity of seeing events which thousands of them would never be able to see otherwise. They cannot pay for their tickets in some cases. I do not want to use what used to be described in another place as the widows and orphans argument," which the noble leader of the Labour Party will know was often treated in a derisory way in another place. But there is the case of the viewer, the bedridden person or the paralysed person, who cannot go to see a sporting event and who does benefit from this broadcast. Therefore, I say, I hope with all courtesy, that I really do not think it is a matter we need get hot and bothered over, and I consider that the tentative approach to this matter which the Government envisages is the right one.
4.17 p.m.
THE LORD CHANCELLOR: I am very grateful to my noble friend Lord Winterton for his contribution, because it puts the whole point quite clearly; that is, that we are still in a state of genuine disagreement as to what is going to affect audiences in this field. The noble Lords opposite have said that organised parties in public gatherings do not matter. I do not know. I have lived a great part of my life in the North of England, and Aintree Racecourse is just outside the constituency I represented for twenty years. Certainly it is not my impression that the people concerned would like organised public gatherings to take place at the same time as sporting events. There is a genuine difference between us which I think we have to consider. On that
292
major point I am still quite convinced, and utterly unrepentant. But what I do urge on your Lordships is that the primary necessity is to see that we get outside broadcasts of these events. Like my noble friend, Lord Winterton, I am thinking of the private viewer, to whom it can mean such a lot. Like him, I do not want to give examples, but they occur to all of us, of people who have benefited and, indeed, whose whole life has been changed.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: May I ask a question?
THE LORD CHANCELLOR: Certainly.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: Does that mean that the Lord Chancellor thinks there can be no real development in enabling these sporting and similar events to be broadcast, unless some money can be paid for the contract, and that therefore extra money must be raised by these fees for this purpose? Is that the argument?
THE LORD CHANCELLOR: I thought I made clear, both on the Second Reading and on the last occasion, that it is not only a question of money. It was the noble Viscount and the others who were saying it was a question of money. What I was trying to urge, and what I am told and believe is a very serious matter, is the additional question of control. Unless there is control as well, there is a danger that the public will not have the advantage of these outside broadcasts. I do not want to fight this matter out again; we have already had a good debate on it. I am really re-stating the difference between us on that point and I unrepentantly hold to my view. That is the major matter.
The minor matter is that the noble Lord, Lord Lucas of Chilworth, has moved to exclude this subsection. On the minor matter, we have decided that we are not satisfied with the drafting of the subsection. We are going to see whether we can improve it. I think my noble friend Lord Mancroft made it perfectly clear that we are not giving way on the major point about which there is a difference between us; but, so far as the drafting of subsection (4) is concerned, we will reconsider it. With the greatest respect to everyone, we have re-stated our

293
position and I think that, on our assurance that we will have another try at the subsection, the noble Lord may wish not to prolong the discussion at the present time but to withdraw his Amendment.
LORD LUCAS OF CHILWORTH: I prolong the discussion only because I think the Government are right in saying that they have to give a lot of thought to this matter. May I deal with this question of trial and error? I agree with the noble Earl, Lord Winterton, that this whole matter is unknown to us. The noble and learned Viscount and I have a genuine and honest difference of opinion as to what will be the future attitude of sports promoters. The noble Lord, Lord Mancroft, used the expression "trial and error." I suggest that the right way to go about this matter, if the Government want to feel their way by trial and error, is to leave the position precisely as it is. Give the B.B.C. and the I.T.A. a copyright and have regard to the copyright of a television broadcast and the piracy of a television broadcast, but try your trial and error by not giving them the performing right. Noble Lords opposite say that that would mean the end of sporting television broadcasts. I challenge that. Why has it not meant the end of television sporting, broadcasts to date? In fact they have grown. It has not meant the end of television broadcasts.
So I would say to the Government: try your trial and error by letting this matter continue as at present. If it is found that money will not placate and that control will have to placate, then think out your system of control. But I would beg the Government not to undertake trial and error in regard to the law of this country—because that is what this means. The Government's intention is trial and error in this regard: to see how far down the scale they will have to go by way of injunction to placate the spotting promoters. I have never heard such an outrageous thing in my life. We in your Lordships' House, the prime legal tribunal of this country, are now saying that what we want to do is to see how far down the scale of public gatherings we can go to get Sufficient injunctions against an abuse of this performing right. It may be a gathering of 400 people or less. It is a question of how many injunctions can be obtained to satisfy the sporting promoters that they have got control, and that the law can be evaded by the rest.
294
I wonder whether the Government will at the same time bring in another Bill laying down that the licensing law shall not be enforced in the "local" but only in the Savoy Hotel. For that is the equivalent. I take it that one would be the subject of a criminal action, and this would have to be a civil action. The reason why I put down this Amendment was because of my charitable disposition and my feeling of sympathy for Her Majesty's Government. I knew that they had got themselves in a terrific jam and I wanted to give them the opportunity of telling the Committee that they were going to have sonic second thoughts.
Coming to the question of my hobbyhorse, may I say that, far from its being just a hobby-horse, it was a good winner and has romped past the post.
LORD MANCROFT: It has been disqualified.
LORD LUCAS OF CHILWORTH: Far from being disqualified, it will live to run again. Perhaps I may tell the noble Lord that next time the "jockey" will not be myself; it will be my noble friend Lord Alexander of Hillsborough. Now that we have aired this matter, and on the understanding that the noble Lord will take the subsection back to look at it again in conjunction with Clause 14 which gives this right, and that he will make sure we do not allow this Bill to go to another place containing a clause with a tag attached to it to the effect that "You can enforce this law if you like, but if you are small enough there is a hole for the small boarding-house named 'Sea View' to escape right through the middle of it," If will ask leave of the Committee to withdraw this Amendment.
Amendment, by leave, withdrawn.
4.28 p.m.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved to omit subsection (5). The noble Lord said: I am rather more happy with this Amendment and I think I need not take up a great deal of time, because, if I read aright the Amendment which has been put down within the last two or three days by the noble Lord, Lord Mancroft, he is going to meet me in practically all my arguments. I hope I am not wrong in saying that. I was most certain that subsection (5) of Clause 27 was never meant to operate as it will if it goes through without some amendment. I

295
cannot think that Her Majesty's Government would willingly give a tribunal powers to single out for special treatment one section of the entertainment world—a world which the noble and learned Viscount will agree with me is ever willing to give of its services in the cause of charity.
The only effect of this clause as printed is that the singer of a song, the player of a piano or any artiste is being told, in effect: "You are outside the jurisdiction of this tribunal," although the tribunal, on representations being made, can say to the composer of the song that is sung or the tune that is played, "You will be compelled, at the whim of the tribunal, either to have your fees reduced or to give your performance for nothing. "They never do so; but this is precisely how this will be operated because there is only one collecting society connected with composers which deals with the collection of fees. I hold no brief for the Performing Right Society: I am not their spokesman. But there are 90,000 composers earning a livelihood, sometimes precarious, from royalties and fees spread over the world. They can collect these fees only by organising themselves under one organisation. It is this one organisation which will be subjected to the machinery of this clause, under which the tribunal can say, on a reference, that the composers must suffer a reduction in their fees or forgo all their royalties. That would be the effect of the clause as it stands.
I will leave any further remarks until the noble Lord, Lord Mancroft, moves his Amendment. I am grateful to him because I have been anxious about this point, and perhaps your Lordships will not mind my saying that the noble Lord and I have had many serious discussions between Second Reading and this Committee stage. I am glad that the noble Lord has put down his Amendment. I feel sure he will have earned the thanks of all composers, from the highest to the lowest. Concessions to charity, which have always been made, will not be prevented, but these people will at least be put on the same footing as others in the musical world, performers, authors and composers, to do as they think fit. We have always been able to rely upon their charitable disposition and I am glad that in future Her Majesty's Government
296
intend to rest upon that. In the assumption that my interpretation of what the noble Lord, Lord Mancroft, is now going co do is correct, I will later withdraw my Amendment, which I now formally move.
Amendment moved—
Page 34, line 38, leave out subsection (5).—(Lord Lucas of Chilworth.)
LORD CONESFORD: I want to say only that the subsection which the noble Lord, Lord Lucas of Chilworth, has proposed to omit is clearly wrong as it stands. I never had any doubt that there was a drafting slip in this subsection, and that the subsection had always been intended to meet the point made in paragraph 194 of the Copyright Committee's Report regarding certain subsidiary rights. That will be the effect of the Amendment which will later be moved by my noble friend Lord Mancroft. As your Lordships know, the subsection as it appeared in the Bill caused considerable alarm, not unnaturally, among composers. Doubtless like other noble Lords in this House, I have been in touch with some of them, and had ventured to express the opinion that there was certainly an error here; and I told them not to be unduly alarmed. With the noble Lord who has just spoken I believe that while the subsection would have been objectionable had it stayed in its original form, it is one of those errors liable to occur in an extremely long and complicated Bill. I hope my noble friend will be able to assure the Committee that nothing of the kind was ever intended, and that what he is about to do in his next Amendment is to correct an error.
LORD MANCROFT: I have frequently heard of people trying to bolt the stable door after the horse has escaped, but I am now in the position of trying to get the door open to let the horse in. If the noble Lord, Lord Lucas of Chilworth, will withdraw these two Amendments, I will try to perform that interesting task. I can, however, assure him that my Amendment No. 115A, to which I shall speak briefly in a moment, meets practically every point that he has made.
LORD LUCAS OF CHILWORTH: Will the noble Lord allow me to withdraw the present Amendment? I have already withdrawn the Amendment to omit subsection (4). Now that I am on safe ground, though I have never really

297
doubted my position, I would ask your Lordships' permission to withdraw Amendment No. 115.
Amendment, by leave, withdrawn.
LORD MANCROFT LORD MANCROFT moved in subsection (5) after "Act," where that word first occurs to insert—

"(a) the reference relates to licences in respect of copyright it sound recordings or in television broadcasts, and

(b)"

The noble Lord said: Your Lordships may now have guessed that this Amendment is intended to remedy the defects in the clause to which many of your Lordships have drawn attention, and your Lordships will have seen the powerful correspondence in The Times newspaper of December 6, signed by a number of welt-known authors and composers. I myself have been subjected to a consistent and powerful post-bag, so I had begun to realise that all was not well with subsections (5) and (6) of this clause.
These subsections permit the tribunal, where an application for a licence is made on behalf of a club, society or other organisation which is not established or conducted for profit, and whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare, to reduce charges or, if it thinks fit, altogether to exempt such organisations from payment. But in so far as the basic authors' and composers' rights are within the scope of these subsections, they go beyond what was recommended by the Copyright Committee. My noble and learned friend and I have been impressed by arguments lodged against them, so far as these basic rights are concerned, and this Amendment therefore makes it abundantly clear that the tribunal has special powers to arrange for the issue of royalty-free or reduced rate licences only in respect of the right to perform records and broadcasts.
The National Council for Social Service accepted the justice of paying something to a composer for the right to use his music. Indeed, I readily admit that the paragraphs as drafted, with a wide definition of the societies which could make a claim for exemption, might make a serious inroad on this fundamental right. This is a most important Amendment and I am glad that your Lordships welcome it as
298
such. I hope that it will give satisfaction and that it measures up to the strength and power of the attack directed towards this matter. I beg to move.
Amendment moved—
Page 34, line 39, after ("Act") insert—
("(a) the reference relates to licences in respect of copyright in sound recordings or in television broadcasts, and
(b)")
—(Lord Mancroft)
LORD FOLEY: As a composer, author and songwriter, and for many years a member of the Performing Right Society and the Mechanical Protection Copyright Society, I should like to say how happy I am that the noble Lord, Lord Mancroft, has seen fit to move this. Amendment, I must thank him and Her Majesty's Government for dealing thus with a matter which has raised considerable worry among composers like myself.
LORD LUCAS OF CHILWORTH: Before your Lordships accept this Amendment (I am not going to look a gift horse in the mouth, and my thanks were given to the noble Lord before he moved his Amendment), may I say that it was with a fellow-feeling that I learned, only the other day, that among his many attributes the noble Lord, Lord Mancroft, is himself a composer. I do not know what he composes, other than very good Amendments, but if there is anybody who can play a tune on a fiddle better than the noble Lord I should like to know who it is. May I ask the noble Lord why his Amendment (there must be a good explanation for it) uses the words:
"the reference relates to licences in respect of copyright in sound recordings or in television broadcasts, and"
If my memory is correct, when we had the discussion on Clause 12, upon the abolition of the performing right in sound recordings, the noble and learned Viscount the Lord Chancellor accepted the principle of my Amendment. I believe that my Amendment really covered sound recordings when they were used for purposes which we are discussing at the present moment. Why bring this into the Bill now, if the Government intend to implement their promise—and I have not the slightest doubt that they are going to do so—by giving effect to the

299
principle that there shall be no performing right in gramophone records other than where they are used for the purpose of commercial profit? Is it to cover those few odd cases which may concern half commercial profit and half charity? Perhaps the noble Lord will tell me why sound recordings are included here. If he will do that, it will obviate my developing an argument which I should otherwise put. Perhaps the noble Lord will tell me now what the reason is.
LORD MANCROFT: The noble Lord has raised this point about sound recordings. Let me see if I can put his mind at rest on that. He has really gone back now, I think, to the point he made on Amendment No. 116.
LORD LUCAS OF CHILWORTH: No.
LORD MANCROFT: It is true that since we have agreed to a curtailment, as the noble Lord says, in the original scope of the performing right in records there is less need for these provisions, so far as they touch licences for the performances of gramophone records. But according to the final width and scope of the gramophone performing right these subsections may serve a useful purpose in relation to records. And they are useful and proper provisions so far as broadcasts are concerned.
LORD LUCAS OF CHILWORTH: May I put this point to the noble Lord for his consideration? Your Lordships will remember that when I was developing an argument before your Lordships on the abolition of the performing right in gramophone records the noble and learned Viscount the Lord Chancellor took my breath away by stopping me when I was going at full speed and telling me that he was going to accept my Amendment. If we are to have reintroduced on Clause 12 any semblance of a performing right in gramophone records, and if this tribunal is going to deal with that performing right (this is the point I am on now, because we are dealing in Clause 27 with the tribunal) what will be the position of the tribunal? Will it have to take any notice of any condition that might be imposed in the licence to give a public performance on gramophone records?
What I wanted to do was to ascertain the position that arose by reason of the action of Phonograph Performance,
300
Limited, or the gramophone manufacturer, who inserted in the licence granted for public performances of gramophone records a condition that no gramophone record should be played in public anywhere where a live musician had been or could be employed. If that is going to be stopped, if the performing right is going to come back into gramophone records, and the application for a right to play gramophone records is going to the tribunal, what will be the tribunal's position if it says: "Yes, you should have a licence" and the Musicians' Union say: "You cannot have a licence"? That is a point which I think the noble Lord should carefully consider in conjunction with Clause 12. He has accepted the principle I enunciated then, and that is related to copyright in sound recordings here. I do not want to press the noble Lord for an answer now, as he has undertaken to look into the whole matter. I do not want this in any way to weaken the Amendment. I think it is a good Amendment. Perhaps I have rather sprung this argument on the noble Lord at a moment's notice, so I repeat that I shall be content to let the matter rest in his hands.
LORD CONESFORD: Amendment No. 115A introduces a limitation on the subsection. I quite agree, of course, with what has been said, that an Amendment put down on Report stage on another point may have consequential effects in a number of cases. But so long as this subsection stands at all, I think that the reference in this particular Amendment to sound recordings is absolutely essential. If it were taken out, it would remove from the minds of the composers the satisfaction which they are at the moment feeling.
LORD LUCAS OF CHILWORTH: The last thing I want to do is to have that removed. I do not want the consideration which the noble Lord is going to give to Clause 12 to weaken that in any way.
LORD MANCROFT: I am grateful to the noble Lord, and I think we will let the matter lie there. Of course I will look at this point in the light of what he has said. When one is moving backwards and forwards between Amendments affecting different clauses of the Bill, as we have been doing, one has to be careful to watch that one does not

301
leave gaps which become apparent later. The tribunal can, of course, override any restrictive clause for the performance on gramophone records, but that is not the point which we have in mind. I am sorry that the noble Lord, Lord Lucas of Chilworth, has let the cat out of the bag concerning a private diversion of mine. I am glad to tell him that it is not the fiddle I play, but only the 'cello.
LORD LUCAS OF CHILWORTH: That is only a bigger fiddle.
On Question, Amendment agreed to;
4.50 p.m.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved to leave out subsection (6). The noble Lord said: I will move this Amendment, but I admit that the steam has been taken out of my boiler to some extent by the noble Lord's two Amendments. But I would ask him to look at this further point. Does he not think that this subsection is very wide and that it goes too far? The subsection states:
"The last preceding subsection applies to any club, society or other organisation which is not established or conducted for profit and whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare."
I am all in favour of social service organisations having some preference, but I should have a difficult job to eliminate many organisations which have to be run at a profit at the same time. I do not want to make a big point of this —I should have made a far bigger point of it if your Lordships had not agreed to Lord Mancroft's previous Amendment. One could almost include the B.B.C. itself in this category. I do not think that the B.B.C. would go to the tribunal to get relief from paying royalties or anything like that, but subsection (6) is drawn in the widest possible terms, and I should like the Government to look at it, though I do not want them to swing the pendulum too far the other way. Subsection (5) almost gives the tribunal a mandate to give various bodies a reduction in fees or freedom from paying fees. Then subsection (6) lays down the class of organisation that can go to the tribunal. Is it too wide? Now that the Government has so much to think about in this Bill, I think they might consider whether this provision needs tightening up. That is the only reason why I put it to the Government. I beg to move.
Amendment moved—
Page 35, line 1, leave out subsection (6).—(Lord Lucas of Chilworth.)
LORD MANCROFT: Of course, I will look at this again. These clauses are difficult to draft, and the draftsmen's difficulty is not so much what to let in as what to try to keep out. I should hate to think that the B.B.C. would qualify for assistance under this subsection and I think the B.B.C. would be slightly startled, too. The subsection is a more or less stock form of words for this sort of circumstance, but I will certainly look at it to see whether it is too wide; and if it needs tightening up we will see that it is done.
VISCOUNT BRIDGEMAN: Before Lord Lucas of Chilworth withdraws his Amendment. I should like to say that in the ordinary way, when considering a problem of this sort, one looks to see whether the organisation concerned would or would not be able to claim exemption from taxation under the Inland Revenue arrangements. When Lord Mancroft and his advisers look at this, I suggest that they tackle it from that point of view. I do not know the position of the B.B.C., but unless the position under this Bill and that with the Inland Revenue are brought into line, I should have thought there might be room for trouble in the future.
LORD MANCROFT: I will certainly bear that point in mind. I should have thought that that was the basis on which the clause was originally drafted, but I have no authority for saying that, so I must check and confirm before giving the noble Viscount an answer.
LORD LUCAS OF CHILWORTH: In view of the noble Lord's undertaking, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 27, as amended, agreed to.
Clause 28 agreed to.
Clause 29:
Application of Act to countries to which it does not extend
(3) Her Majesty shall not make an Order Council under this section applying any of the provisions of this Act in the case of a country, other than a country which is a party to a Convention relating to copyright to which the United Kingdom is also a party, unless Her Majesty is satisfied that, in respect of the

303
class of works or other subject-matter to which those provisions relate, provision has been or will be made under the laws of that country whereby adequate protection will be given to owners of copyright under this Act.
LORD MANCROFT LORD MANCROFT moved, in subsection (1) (a), after "works," where that word first occurs, to insert", sound recordings." The noble Lord said: This Amendment, and Amendment No. 120, which marches with it, are designed to ensure, if it is thought fit, that Orders in Council protecting foreign works will also protect sound recordings made by foreigners and sound recordings first published in foreign countries. Your Lordships will note that the power to make Orders in Council is confined to some extent by subsection (3) of this clause. In the case of countries other than convention countries, we must be assured of an adequate reciprocity. This is not a controversial point, but obviously it is a sound safeguard. I beg to move.
Amendment moved—
Page 36, line 21, after ("works") insert ("sound recordings,").—(Lord Mancroft.)
LORD LUCAS OF CHILWORTH: I agree with this Amendment. I take it that this will apply to all Universal Convention countries?
LORD MANCROFT: It certainly can do.
On Question, Amendment agreed to.
LORD MANCROFT: This Amendment is consequential on No. 118. I beg to move.
Amendment moved—
Page 36, line 23, after ("works") insert ("sound recordings,")—(Lord Mancroft.)
On Question, Amendment agreed to.
4.57 p.m.
LORD CONESFORD LORD CONESFORD moved to leave out subsection (3) and to insert:
"(3) Before making an Order in Council under this section applying any of the provisions of this Act in the case of a country, other than a country which is a party to a Convention relating to copyright to which the United Kingdom is also a party, Her Majesty shall be satisfied that that country has made or has undertaken to make such provisions, if any, as it appears to Her Majesty expedient to require for the protection of owners of copyright under this Act."
The noble Lord said: My noble friend Lord Jessel has asked me to move this Amendment on his behalf. It seeks to substitute a slightly different subsection
304
for that at present in the Bill. I think it will be easiest if I explain it by reminding the Committee of our discussion on Clause 12. In that discussion noble Lords on both sides of the Committee expressed their anxiety about the interests of our gramophone industry in American sound recordings. We all agreed that in discussing the Amendments to Clause 12 we had to bear in mind the provisions of Clause 29, which we are now considering, and the two Amendments which my noble friend Lord Mancroft has just moved and which have been incorporated in the clause.
In that earlier discussion the noble and learned Viscount the Lord Chancellor gave the Committee some reassurance by pointing out that, when the Amendments which have just been passed had been incorporated in the Bill, it would be possible by Order in Council to extend the full protection of Clause 12 to gramophone records made in the United States and first published there. The noble and learned Viscount felt able to give that assurance with subsection (3) of Clause 29 drafted as it stands at present in the Bill and without the Amendment which I am now moving. I do not doubt, therefore, that in his opinion the present Amendment is not strictly necessary for the purpose he then described, but I hope that Her Majesty's Government may think nevertheless that it may be desirable to accept it. It may be that we are being unnecessarily cautious, but learned counsel who drafted this Amendment thought that the wording of the existing subsection might be construed too restrictively at some future time and that Her Majesty's Government might then find difficulty in giving the protection which the noble and learned Viscount foreshadowed.
What is feared is that the word "copyright" in the expression "a Convention relating to copyright" in this subsection might be construed as copyright in the same type of work or publication as is proposed to be dealt with by the Order in Council. If that were so, the subsequent words would be too restrictive, since the United States of America do not protect, and are not likely to protect, copyright in sound recordings, though they give certain protection under State law dealing with unfair competition, passing off and so forth. But they do this under State law and not under Federal

305
law, and it is Federal law which alone appears to be contemplated under the subsection as it stands.
I have explained the fear that is entertained by learned counsel on the possible construction of this subsection. I am moving this Amendment admittedly as a matter of precaution If the Government, with the better advice open to them, are quite certain that there are no grounds for the fears that I have expressed, that will no doubt mean that my Amendment is unnecessary. I would, however, point out that the new subsection which I am proposing in place of that now in the Bill is directly modelled on the first proviso to Section 29 (1) of the existing 1911 Act. Therefore, there is plenty of precedent for the form of words that I am now proposing. If the Amendment were accepted, it would still leave it absolutely to the discretion of the Government whether to make an Order in Council or not, but they would not be prevented by a technicality from doing so, should they think it expedient. I beg to move.
Amendment moved—
Page 37, line 9, leave out subsection (3) and insert the said new subsection.—(Lord Conesford.)
LORD MANCROFT: I approach this Amendment with a certain amount of diffidence. First, as your Lordships by now may have gathered, this is not the easiest portion of the Bill; secondly, I suspect that this Amendment, as my noble and learned friend Lord Conesford said, was drafted by a learned counsel who once attempted to knock some law of copyright into my head—my own master in the law, in fact; and thirdly, because it has been moved so persuasively by my noble and learned friend. However, I think I can assure him that his fears are not well grounded. Clause 29 is the clause by which copyright protection can be conferred on foreign works and other subject matter. But subsection (3) as drafted permits Orders in Council to be made in relation to any given class of works or other subject flatter only if two things are fulfilled: first, if the foreign country in question is a fellow member with the United Kingdom of a copyright convention; or secondly, in other cases if the foreign country in question grants, or has undertaken to grant, adequate protection to United Kingdom
306
owners of copyright in that particular class of works or subject matter—and I emphasise the words "that particular class."
This Amendment, as my noble and learned friend indicated, sets out to permit us to protect American, and possibly other foreign, sound recordings. Its effect would be that, provided the foreign country in question granted adequate protection to United Kingdom copyright owners in general, it need not protect, or promise to protect, the actual class of subject matter to which protection is given by the Order in Council. But this is already the case with other convention countries. If your Lordships have the United States of America in mind—and this matter did arise on Second Reading—then the Amendment is unnecessary, since after this Bill becomes law we shall adhere to the Universal Copyright Convention, of which the United States is already a member. And in so far as the Amendment would permit protection to be given to a non-convention country's sound recordings, simply because that country gave some protection to some British works, I suggest it would go too far. The Amendment refers to "expediency." We can be sure that the convention countries will provide for an adequate general standard of protection, but we cannot be so sure of other countries. When the question of expediency is introduced in a question of copyright law, irrespective of what matters should be regarded as coming within consideration and as determining whether, in the case of a country which has made practically no provision for protecting British works, protection should be given to the works of that country in this country, then, I am afraid, the noble and learned Lord and I start to part ways. However, I hope I have now assured him that the points he is worrying about are taken care of and, praiseworthy though the sentiments of the Amendment are, I do not think they are really necessary.
LORD CONESFORD: I understand from the speech of my noble friend that, in his view and that of the Government, there is no risk of the word "copyright" in the expression "a Convention relating to copyright" being interpreted in the limited way that I suggested. In those circumstances, I am of course willing to take that advice from the Government,

307
and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 29, as amended, agreed to.
Clauses 30 to 32 agreed to.
Clause 33 [Assignments and licences in respect of copyright]:
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved, in subsection (4), after "partial)" to insert "and no grant of any interest therein by licence." The noble Lord said: This is a simple Amendment. A copy right cannot be assigned without consent in writing, and I only wish to make sure that the same provision holds good for the transfer of a licence. If somebody holds a licence, surely it should not be possible to transfer it unless the transaction is in writing. Clause 39 (4) of the Bill says:
"No assignment of copyright (whether total or partial) shall have effect unless it is in writing signed by or on behalf of the assignor."
I seek to put in, after the word "partial," the words:
"and no grant of any interest therein by licence."
I think this is logical, and I believe it is another safeguard. When the noble and learned Viscount, the Lord Chancellor, replies, I wonder whether he would be good enough to answer a question that I asked of the noble Lord, Lord Mancroft, on a previous Amendment to do with the assignment of copyright, to which obviously the noble Lord forgot to reply. I asked whether the I.T.A. have power under this Bill to assign the copyrights which are given to them under Clause 14, I beg to move.
Amendment moved—
Page 39, line 27, after ("partial") insert the said words.—(Lord Lucas of Chilworth.)
THE LORD CHANCELLOR: I will first deal with the general position and I will come to the specific point before I sit down. Perhaps your Lordships would bear in mind, first of all, that Section 5 (2) of the 1911 Act provides that, in addition to assigning the copyright, the copyright owner could "grant any interest" in the right by licence. I think that is the origin of the question which is troubling the noble Lord. The need for this provision is one which is by no means clear, because it produces a confusion between a licence which "grants
308
an interest" in the copyright and the ordinary licence, which may be written or oral, express or implied and which simply signifies the consent of the copyright owner to the doing of an act which is restricted to the owner but grants no "interest" in the copyright.
The scheme of our Bill is that, apart from death or operation of law, no interest in copyright would be created or disposed of except by assignment, either absolute or partial, but that the licence will represent the consent of the owner of the copyright to the doing of any act restricted by the copyright. The noble Lord will notice that, under subsection (5) of Clause 33, exclusive iicences are treated as assignments. What troubles us is that the effect of this Amendment would be to upset the scheme of the Bill relating to assignments and licences by introducing a conception alien to that scheme and incompatible with its intended operation. We feel that it is unnecessary to reintroduce the conception of interest granted by a licence when provision is made for the granting of such interests by assignment. I hope our method is better. It makes it quite clear, and the distinction is quite sharp, and I think it would be a pity to go back to the other point. May I deal with the other question which the noble Lord specifically asked me? Assignment of copyright by the B.B.C. or the I.T.A. is limited by the Fourth Schedule. They can assign only to one organisation appointed by each of them or appointed jointly for that purpose. I think that answers the point.
LORD SILKIN: I am not very clear—it may be my fault—as to the reply which the noble and learned Viscount has given. I visualise the possibility not merely of one licence being given, which the noble and learned Viscount says is virtually an assignment—I see that may well be the case where it is an exclusive licence. But is it not possible to have cases where a number of licences are given, or even partial licences, as is contemplated by the subsection itself? There may be copyrights given to a variety of people on a variety of parts of a work. In that case, is it not desirable that these assignments of licences should be in writing? I think it is a necessary protection for the owner of a copyright that he should know where the licence is going and who is the actual

309
owner of it, otherwise it may well be that licences will be transferred without the knowledge of the Copyright owner, into hands of which he might not approve and in a way of which he might not approve. It seems to me that to make provision that these assignments should be in writing need not upset the plan of the Bill at all. It seems a natural protection for the copyright owner.
THE LORD CHANCELLOR: The noble Lord, Lord Silkin, does not really differ from me. I am sure it is due to my unclear explanation of the first point. I entirely agree with him that no assignment of copyright shall have effect unless it is in writing.
LORD SILKIN: That is the copyright, yes—but a licence.
THE LORD CHANCELLOR: What I am against—if I may put it that way simply forensically for the moment—is that, if the Amendment were accepted, you would have no assignment of copyright, whether total or partial, and no grant of any interest therein by licence. What I want to keep out of the Bill is the conception of the grant of an interest by licence. I want the grant of the interest to be by assignment and the licence to be an act in its literal sense of permission to do something which would otherwise be prevented by the copyright. I think it would make the Bill much clearer to anyone who comes to deal with it if we kept these conceptions completely distinct. That is my point. I do not mind assignments being in writing—I think that is a very good thing.
LORD LUCAS OF CHILWORTH: Perhaps my Amendment is not clear. I want the assignment of the licence to be in writing. When we take the world of television, there is a different conception. Suppose the copyright in a television performance is held by the B.B.C., and a performer in that television show wants to perform that bit of the show. He cannot do that for anybody else because of the copyright. Very likely he could have a licence so to do. But should it not be in writing? Perhaps my wording is not as the noble and learned Viscount would like. But I cannot see any argument against it, because subsection (4) says:
"No assignment of copyright (whether total or partial) shall have effect unless it is in writing…"
310
I want to say that no assignment of a licence under that copyright shall have effect unless it is in writing. That is a very simple thing, and I should not have thought there would be any difficulty. Perhaps my wording has confused the noble and learned Viscount.
THE LORD CHANCELLOR: If I may say so, with respect, that is not what the wording conveyed to me. The noble Lord, Lord Silkin, and I have been brought up in laborious years in considering licensees with an interest, and it is a phrase which has been pregnant with legal difficulties over the centuries. Now that the noble Lord has explained what he wants, may I have another look at it? I see difficulty, I am afraid, with the words and their ferocious forensic connotation.
LORD LUCAS OF CHILWORTH: That is where I have the advantage of the noble and learned Viscount and also of my noble friend Lord Silkin. I have a simple mind, not a legal one, and that is the simple way I want to do it. I had to get this Amendment drafted by a member of the legal profession—not my noble friend Lord Silkin—hence the confusion. If the noble and learned Viscount accepts what I say as the principle, I am quite willing to withdraw my Amendment.
THE LORD CHANCELLOR: In view of what the noble Lord has said, may I look at it again? I should like to examine it very carefully.
LORD LUCAS OF CHILWORTH: Then I ask your Lordships' leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
Clause 33 agreed to.
Clauses 34 and 35 agreed to.
Clause 36 [Provisions as to Crown and Government departments]:
5.19 p.m.
LORD MANCROFT LORD MANCROFT moved, in paragraph (b) of subsection (1), to omit "and shall continue to subsist so long as the work remains unpublished." The noble Lord said: This Amendment and Amendment No. 124 go together. They are designed to place Crown copyright, as nearly as possible, on the same basis as the copyright owned by individuals. In point of fact, if your Lordships go into

311
this Amendment in great detail you will come to the conclusion that the Crown is placed in a slightly worse position. That is a minor point. What we have to take into account is the fact that the Crown does not die, and one cannot inquire what individual is the actual author of a work which enjoys Crown copyright. The clause as drafted sets out all the necessary provisions, and I need not weary your Lordships with explaining them. There is just one point, however, that I think I might make; it arises out of a discussion we had with the noble Lord, Lord Lucas of Chilworth, a few minutes ago, on cross-referencing of Amendments in this Bill. Since I put down this Amendment the Government have succumbed to the blandishments of the noble Lord, Lord Archibald, on the question of film copyright, so we shall have to look at this point again on another stage to make certain that the noble Lord has not caught us out and made us redraft it again to take in the Amendment we gave him two or three days back. Apart from that, I think the Amendment is quite uncontroversial. I beg to move.
Amendment moved—
Page 41, line 27, leave out from ("Crown") to end of line 28.—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: This Amendment is consequential. I beg to move.
Amendment moved—
Page 41, line 35, leave out from ("Crown") to end of line 39 and insert—
(" (3) Copyright in a literary, dramatic or musical work which vests in the Crown in accordance with either of the preceding sub-sections—

(a) where the work is unpublished, shall continue to subsist so long as the work remains unpublished, and

(b) where the work is published, shall subsist (or, if copyright in the work subsisted immediately before its first publication, shall continue to subsist) until the end of the period of fifty years from the end of the calendar year in which the work was first published, and shall then expire.

(4) Copyright in an artistic work which vests in the Crown in accordance with the preceding provisions of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the work was made, and shall then expire:
Provided that—

(a) in the case of an engraving, the copyright shall continue to subsist until the end of the period of fifty years from the end of
312
the calendar year in which it is first published;

(b) in the case of a photograph, the copyright shall expire at the end of the period of twenty-five years from the end of the calendar year in which the photograph was taken.")—(Lord Mancroft.)

On Question, Amendment agreed to.
Clause 36, as amended, agreed to.
Clause 37 [False attribution of authorship]:
LORD MANCROFT: This Amendment goes with Amendment No. 128. It is little more than drafting and is designed to make clearer the intentions of this clause so far as it relates to adaptations of works, in particular translations. These two Amendments are designed to make it clear that it is unlawful to describe something as a translation of a work of a famous author when in fact it is not. It is quite an uncontroversial point. I beg to move.
Amendment moved—
Page 43, line 4, at end insert—
("(3) The last preceding subsection shall apply where, contrary to the fact, a work is represented as being an adaptation of the work of another person as it applies where a work is so represented as being the work of another person").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: This Amendment is consequential. I beg to move.
Amendment moved—
Page 43, line 5, leave out ("last preceding subsection") and insert ("two last preceding subsections").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: This also is consequential. I beg to move.
Amendment moved—
Page 43, line 9, leave out ("the last preceding subsection") and insert ("those subsections").—(Lord Mancroft.)
On Question, Amendment agreed to.
THE LORD CHANCELLOR: This Amendment, too, is consequential. I beg to move.
Amendment moved—
Page 43, line 24, leave out from beginning to ("shall") in line 27.—(The Lord Chancellor.)
On Question, Amendment agreed to.
Clause 37, as amended, agreed to.
Clause 38 agreed to.
Clause 39:
Unauthorised broadcasting of performances
39.—(1) In the Dramatic and Musical Performers' Protection Act, 1925, the following section shall be inserted after section three:
"3A. Any person who, otherwise than by the use of a record, knowingly broadcasts; a performance of any dramatic or musical work without the consent in writing of the performers shall be guilty of an offence under this Act, and shall be liable on summary conviction to a fine not exceeding fifty pounds."
(2) In section one of the said Act of 1925 (which provides penalties for the making of records of performances without the consent of the performers, and for dealing with records so made), for the words "not made for purposes of trade" there shall be substituted tie words "made for his personal use only".
(3) In section four of the said Act of 1925 (which relates to the interpretation of the Act) the following words shall be added at the end of the section:
"The expression 'consent in writing of the performers' means consent in writing given either by the performers themselves or by the person who, as manager or otherwise, made the arrangements for the performance on behalf of the performers;
LORD MANCROFT: Clause 39, as drafted, for obvious reasons excuses the broadcasting authority from having to get the performers' permission before it broadcasts a record. By this Amendment we add to this exception the case of its broadcasting a cinematograph film. Again, it will be equally obvious, and I do not propose to impede the heady progress of this Bill by speaking more to this Amendment. I beg to move.
Amendment moved—
Page 45, line 19, after ("record") insert ("or cinematograph film").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD FARINGDON LORD FARINGDON moved, in subsection (1), in the proposed new Section 3A, after "record" to insert:
"issued to the public and cinematograph film made with the consent of the performers for purposes including broadcasting."
The noble Lord said: I was accused a minute or two ago of being emphatic. On this occasion I shall be most diffident. As on that occasion I rose to support the noble Lord, Lord Mancroft, I hope that on this occasion perhaps I may have his emphatic support of my Amendments— assuming that they do what I aim at doing and what I believe to be necessary. The noble Lord has just pointed out that for
314
obvious reasons broadcasting companies must be allowed to broadcast records or use cinematograph films. In my Amendment I have added after "record" the words "issued to the public.…" I took it that what was intended was that, where a certain number of minutes had to be filled in because the items in a programme did not exactly fit, a record could be played without getting, naturally in writing in advance, the permission of the performers. It seemed to me that such a record should have been a record which was issued to the public and for whose broadcasting, therefore, in due course a fee would be collected by the collecting societies. Equally, I am suggesting that the cinematograph films, a provision in regard to which the noble Lord has just inserted, should be films which have been made with the consent of the performers for purposes including broadcasting.
The reason for both this Amendment and the later one in my name is basically the same: that there might be made, as indeed there are, films and records the consent for whose making for the purposes of broadcasting is not always obtained in advance. I understand that the B.B.C., for its own purposes, makes records of a very large number, if not all, of the programmes which it puts on. Under this clause, it might be that the B.B.C., without any more ado, without any breach of copyright and without giving rise to any claim against it on the part of the performers, could use these records. Your Lordships will feel as I do, that that the B.B.C. would do such a thing is most unlikely, On the other hand, it seems to me—and I think some of your Lordships, at any rate, would agree with me—that it is always better to have these things absolutely straight and in order. It is a comparatively small matter. In the case of records or films which are to be used for broadcasting later on, I understand that the performers are always requested to give their permission; and such permission is always in writing. That is my point. I hope that the noble and learned Viscount the Lord Chancellor will think my Amendment is germane. If it is not, I am sure he will explain to me where I have gone wrong. I beg to move.
Amendment moved—
Page 45, line 19, after ("record") insert the said words.—(Lord Faringdon.)
THE LORD CHANCELLOR: The noble Lord, Lord Faringdon, has moved his Amendment in a most attractive way. I wish I could be more helpful. I think the best thing I can do is to point out to him the difficulties as I see them, and then we shall try to realise how much is between us. As the Amendment stands, it has a twofold purpose. The first is to add a right to broadcast a film without the performers' permission. That we are already doing by the previous Amendment, No. 129. The second is to restrict the right to broadcast records or films without consent to cases in which the record has been issued to the public or, with films, where the performers have agreed before making the film that it shall be broadcast.
I am sure the noble Lord has in mind that, by the 1925 Act which is mentioned in the Bill, as we amend it, it is already necessary to get the performers' consent to the making of any record not made for personal use. Since the Broadcasting authority will, therefore, already have had to get permission to make their own recordings, it seems unnecessary that they should again have to get consent when they come to broadcast it.
Coming to films, I can assure the noble Lord that I have every reason, as he may know, to have a great interest in the position of films and those who make them. On the other hand, I would remind him of the vintage of some of the films that are used by the broadcasting authorities, and I am sure that in the case of those old films the actors never gave their consent to the films' being broadcast; I very much doubt whether it would be possible to get the consent now. On the broad point as to whether there is a moral right, and that actors making films may feel that their reputations may suffer if they are broadcast in contexts of which they do not approve, I confess, with all the sympathy in the world, that I am in very grave doubt. I should have thought actors must be assumed to know when they make a film that they make it for use in any form of public exhibition, at any place and in any circumstances.
Having had occasion to try to construe for the benefit of my clients the various contracts which are made in the United States with regard to the position of film actors and producers and so on (some noble Lords nod in a way which suggests
316
they have read some of the documents), I should have thought that, if an actor wanted to put restrictions on the use of a film, he should do it by contract before-hand. I want to assure the noble Lord, Lord Faringdon, that this is not said in any spirit of denigration, or because I think the performance of a film is of any lower artistic merit than the highest performance on the stage. I have a tremendous sense of the importance of films, and I can, some time, when he is not too busy, show him my first speech on the function and purpose of films, which I made in another place some twenty years ago. I do not underestimate his point, but I think that, looking at all the circumstances, he need not press it. I would ask him not to press it on this occasion.
LORD FARINGDON: As I anticipated, the noble and learned Lord Chancellor has been extremely persuasive. His point about old films is practically irresistible, though since the actor's profession has one of the highest unemployment rates in this country, and perhaps in others, I should like some method by which they might "cash in" on a windfall. But I see the difficulty, and I will not press the Amendment.
Amendment, by leave, withdrawn.
LORD FARINGDON: This is not a consequential Amendment. It is in fact an entirely different point, although it follows in the next line. I will be very brief and perfectly clear about it. The intention is to include variety artistes. The words which I have used in the Amendment are the words which are, I understand, in the draft universal convention, and the aim is simply to bring within the range of copyright certain persons who are not so included but who are, to all intents and purposes, on all fours with those who are included, and who have, I understand, already suffered some disadvantage. I beg to move.
Amendment moved—
Page 45, line 20, leave out from beginning to ("without") and insert ("recitation, presentation or performance").—(Lord Faringdon.)
THE LORD CHANCELLOR: Here again I am in some difficulty. Perhaps I may put my difficulty, and if the noble Lord, Lord Faringdon, can see, either now or between today and the next stage, any way of getting round it, I will

317
look at his suggestions with great sympathy. We certainly do not intend that a person who has no authority from the performers should be put in a position to give their consent.
LORD FARINGDON: I think the noble and learned Viscount is one Amendment ahead. The one I am speaking to is the exchanging of the words "recitation, presentation or performance" for the words there now. Is not the noble and learned Viscount looking at 133A—" is authorised by the performers to give it"?
THE LORD CHANCELLOR: I am sorry if I have got it wrong.
LORD FARINGDON: They are not quite the same point. I am speaking on No. 131.
THE LORD CHANCELLOR: I am sorry. I thought the noble Lord was speaking on another point. I should very much like, if the noble Lord will allow me, to give consideration to the point raised in this Amendment. If, on my undertaking to give consideration to it, he will agree not to press it now, I will communicate with him before the next stage.
LORD FARINGDON: I am most grateful to the noble and learned Viscount, and naturally I accept his offer and withdraw the Amendment.
Amendment, by leave, withdrawn.
5.36 p.m.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved to add to subsection (2):
"or, in the case of a broadcasting authority, made solely for the purpose of broadcasting the work."
The noble Lord said: This returns to the point we discussed on another clause, the ephemeral record. What this clause really does is to amend the Dramatic and Musical Performances Protection Act, 1925, by saying:
"Any person who, otherwise than by the use of a record, knowingly broadcasts a performance of any dramatic or musical work without the consent in writing of the performers shall be guilty of an offence …"
What that really means is that it gives the performer the right to control an ephemeral recording; he can control the performing right and the mechanical right. But the noble Lord would not give me the same right for the composer when I wanted it on another clause. Again, as
318
the noble Lord, Lord Faringdon, said, this is not a case of getting at the B.B.C. or the I.T.A.; there may be in future dozens and dozens of programme companies, all producing performances for television, where ephemeral records will be made. You give the right to the performer to have his permission sought and given before that record is made, and before it is used after it is made, but you would not give me earlier the same right for the author and composer. That is what I seek to achieve by this Amendment. Would the noble Lord look at the matter again? It does not seem quite right to me on balance. I am not comemitted to the drafting of this Amendment. No. 133 has a similar intent, and I want to speak about that intent later on on the motion that the clause stand part. That raises another issue altogether. But I want the noble Lord to take this Amendment away and give me an undertaking to look at it again. It was put down only for the noble Lord to look into the case. Does he not think that it is right to give the author and composer the same right in ephemeral recording as the performer who actually gives the performance? I beg to move.
Amendment moved—
Page 45, line 28, at end insert the said words. —(Lord Lucas of Chilworth.)
LORD MANCROFT: First, let me see that I have got what is in the noble Lord's mind correctly, because when he first put the Amendment down I was doubtful about what he was aiming at. As I understand it, what his Amendment seems designed to do is to permit the broadcasting authorities and other persons to make records for broadcast television performances without the consent of the performers. While I agree that this may perhaps be fair if the performers' consent to be broadcast has first been obtained, it could happen that a record is made without any such consent and the record subsequently broadcast. By the 1925 Act, as we have amended it in this clause, it is no offence to broadcast a record (and, of course, by the Amendment we put, in, also a film) without the performers' consent. But by this Amendment, performers might find themselves deprived of all their reasonable rights. The noble Lord raised the question of the ephemeral recording provision —that is Clause 6 (7). I will look at that

319
again in the light of the performers' consent to be broadcast having been previously obtained.
LORD LUCAS OF CHILWORTH: I put down this Amendment in a positive way, but I did not intend to press it. I put it down only to take away from the performer what the Government would not give me for the composer, and also so that the matter could be discussed. I think both should give their consent. This covers ephemeral recordings as well as other recordings. That is what I want the noble Lord to think of.
LORD MANCROFT: All I want to make quite certain of is that, whilst I am looking politely outside the front door after listening to the noble Lord's tapping, he is not storming into my back door. On that understanding, I will look at the matter again.
LORD LUCAS OF CHILWORTH: Then I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD LUCAS OF CHILWORTH LORD LUCAS OF CHILWORTH moved, in subsection (3), to leave out:
"The expression 'consent in writing of the performers' means consent in writing given either by the performers themselves or by the person who, as manager or otherwise, made the arrangements for the performance on behalf of the performers."
The noble Lord said: I am unhappy about these words. I want the noble Lord opposite to realise the difficulties. If it is right that the performers should give their consent before they are asked to record or broadcast, then I think it is right to say that the manager who purports to give that consent should, before he does so, obtain from those performers their consent. It is all right in the case of a single act or a small orchestra, but with a symphony orchestra of 120 performers it becomes a little more difficult to get the consent in writing of every performer in the orchestra before a record is made or a broadcast is given. It becomes still more difficult in the case of a massed bands concert taking place at the Belle Vue, Manchester, where hundreds of performers may be concerned. I do not think it is going too far to say that the manager or the responsible person should give consent on their behalf.
This Bill amends the Dramatic and Musical Performers' Protection Act, 1925, and subsection (3) says:
320
"In section four of the said Act of 1925 (which relates to the interpretation of the Act) the following words shall be added at the end of the section:—
"The expression 'consent in writing of the performers'"
shall mean the consent in writing given by the manager. What is the position if a manager has given his consent and then various members of the orchestra say, "We did not give our consent; we were not asked."? Whilst the promoter of the concert, the recorder of the recording, or the broadcasting company cannot be expected to get the consent of every one of, perhaps, 500 performers, surely it should be for the person referred to here as "the manager or otherwise" who "made the arrangements for the performance on behalf of the performers" to get their consent in writing. At present he is not obliged to do so. That is a simple point and I thought I would raise it here rather than leave it to be dealt with on the Question that the clause stand part of the Bill. I beg to move.
Amendment moved—
Page 45, line 32, leave out from beginning to end of line 36.—(Lord Lucas of Chilworth.)
LORD FARINGDON: My noble friend has in fact moved my Amendment. Perhaps the noble and learned Viscount would be good enough to deal with it.
THE LORD CHANCELLOR: May I deal with the point that emerges from the Amendment of the noble Lord, Lord Faringdon, and from the speech of the noble Lord, Lord Lucas of Chilworth? The effect of the Amendment, which I think expresses the same point, is to provide that the expression "consent in writing of the performers" means consent in writing given either by the performers themselves or by the person who, as manager or otherwise, is authorised by the performers to give it. I sympathise with the purpose, but the words suggested in the Amendment, if accepted, might still mean that, before concluding arrangements with a person who is agreeing on behalf of the performers that a particular orchestra be broadcast, the broadcasting authority would still have to inquire in advance from each and every performer to play at the performance whether he was authorised to give his consent. That seems to be an unwieldy and difficult thing. Every point of the noble Lord, Lord Lucas of Chilworth, underlined the unwieldiness of that matter. Therefore

321
I feel great difficulty in accepting the Amendment in its present form.
I want to assure the Committee, however, that certainly we do not intend that a person who has no authority from the performers shall be put in a position to give their consent. The Committee will see that the words we use in the Bill are:
"the person who, as manager or otherwise, made the arrangements for the performance on behalf of the performers."
I stress the words "on behalf of the performers" The "performance" is the performance of which a recording or, as the case may be, a broadcast is to be made, and the "arrangements" are arrangements whereby the performers agree to perform. I should not have thought that those words—again, I recall your Lordships' attention to the words "on behalf of the performers"—are unreasonable. But as the noble Lord, Lord Faringdon, has, by his Amendment, expressed some apprehension in the matter, and Lord Lucas of Chilworth has supported him, I am again quite prepared to see whether I can find better words. As I say, so far as I can see our words are all right, but whenever doubt occurs on a point it is just as well to have another look at it. I will do so with pleasure, and see what I can do.
LORD SILKIN: I presume that my noble friend will, on that assurance, withdraw the Amendment; but before he does so, I should like to add my voice as to the vagueness of the provision as it stands. I can imagine nothing more calculated to produce litigation than an expression such as "as manager or otherwise." What is the significance of "or otherwise"? I should be grateful, therefore, if the noble and learned Viscount would look at this again. I see his difficulty, particularly when dealing with a large number of performers, in finding some form of words which would bind the performers in giving their consent to a broadcast. There is the possibility that some unauthorised person, or someone who has been appointed for one purpose though not for the purpose of entering into arrangements with, say, the B.B.C., will make arrangements without the authority or approval of the performers. If the noble and learned Viscount will have that in mind in looking at the matter again I believe we shall all be satisfied.
THE LORD CHANCELLOR: I will certainly bear that in mind.
LORD LUCAS OF CHILWORTH: Though I am not going to press this matter I would ask the noble and learned Viscount why we have in this Bill a provision that a performance cannot be given without the performers' consent. If we are sincere in this matter, and have not got our tongue in our cheek, we must ensure that the performer has given his consent. The only way is to require that the performer shall give his consent specifically to the person who is to act on his behalf. If the noble and learned Viscount will look at that point I will beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD FARINGDON LORD FARINGDON had given notice of an Amendment in subsection (3) to leave out "made the arrangements for the performance on behalf of the performers" and to insert "is authorised by the performers to give it". The noble Lord said: May I ask the noble Lord, Lord Mancroft, to look into this matter, for, frankly, I believe he has been a little more persuasive than usual on this particular point? It seems to me that the difficulties which he foresees would be greater with his wording than with that which I suggest. I am sure that he and I are aiming at exactly the same thing. We both wish to protect performers, but we have to get over what is clearly likely to be an extremely cumbersome procedure. I suggest that if this procedure is dependent upon the fact that the manager of the orchestra, let us say, was considered to be, and had to be, the authorised representative of the performers, then all such managers would, in fact, have power given to them by their orchestras. The B.B.C. would then immediately say to a manager: "We presume you have the, usual contract," and the obvious answer would be, "Yes." On the other hand, if the wording is left as it is, specifying "the person who, as manager or otherwise" has made the arrangements for the performance on behalf of the performers, that surely is much wider and, more open. I suggest that that wording is likely to be much more cumbersome. I thank the noble Lord for saying that he will reconsider the matter. I emphasise that there is something here which should be

323
reconsidered, and I do not move the Amendment.
Clause 39, as amended, agreed to.
Clause 40 [Savings]:
VISCOUNT ALEXANDER OF HILLS-BOROUGH VISCOUNT ALEXANDER OF HILLS-BOROUGH moved to add to the clause:
"(6) No proceedings shall be taken under this Act in respect of the operation of a television receiver in a shop or shop window, provided that such exhibition is solely concerned to assist in the sale of television receivers."
The noble Viscount said: I hope that here I shall be pressing a door that is at least ajar and ready to open, for this proposal is fundamental to the success of the industry as a whole, and I hope there will be no mistake on that point. I mention it in order that we may protect the position of those who show television sets solely for the purpose of selling them. I find on inquiry that one shop or emporium may have perhaps half a dozen sets broadcasting a programme simultaneously so that the customer may pick which he likes best. Sometimes a set will be operated in a shop window after the shop is closed for normal business, during the period of darkness, so that, though there is no actual sound broadcast coming to the public outside, there is a demonstration of the film or picture which is being shown at that particular moment. I believe it is essential that the position in law should be made clear. This Amendment makes it clear that no proceedings shall be taken where broadcasts are taking place for the purpose of assisting in the sale of the instruments. In that way we shall reach a position satisfactory to the trade. I beg to move.
Amendment moved—
Page 46, line 19, at end insert the said subsection.—(Viscount Alexander of Hillsborough.)
LORD MANCROFT: The noble Viscount, Lord Alexander of Hillsborough, has a good point here. He paints a perfectly horrible picture of a shop with six sets going at once. To me that sounds like competitive enterprise run riot, but I concede the point as liable in the ordinary business of those who sell television sets and who might also have sets displayed in the window. It is a valuable point which we must cover. Perhaps it would be better to put the provision into Clause 14 rather than here. Certainly the principle is a good one and we will try
324
to deal with it. I hope that the noble Viscount is not going too far but is confining his Amendment to those whose business it is to sell and repair television sets. There is the other case of the man who puts the television set in his shop window in order to broadcast a Test Match or a boxing contest but whose business has nothing to do with the sale of sets. Obviously we cannot have that in this particular clause. I accept the principle and, if the noble Viscount will allow me, I will find a more suitable place for it in the Bill.
LORD LUCAS OF CHILWORTH: Before the noble Lord accepts this Amendment, I suggest that we cannot subscribe to it in the form suggested, for what about Radiolympia? That is an event for the sole purpose of selling television and radio sets. It is one of the greatest shows in this country, designed for that purpose and supported by the B.B.C. How can the noble Lord draw a line between Radiolympia, which is a showroom, and the village shop which repairs perhaps one television set? This is one of the difficulties, as the noble Lord will find, when he comes to draw a line between what is a public performance and what is a performance in the course of trade. A demonstration of a motor car may take thousands of miles. A demonstration of a television set may include broadcasts of Test Matches.
LORD MANCROFT: I believe the noble Lord and I are quarrelling about nothing. The exhibition of television sets at Radiolympia would be the kind of thing which the noble Viscount's Amendment is designed to cover. It is suggested only that we have to guard against a set being placed in the window of a shop whose business has nothing to do with the sale of television sets. If I may do so without getting into trouble with the directors, I should imagine that Radiolympia would qualify as a shop.
LORD REA: Will the noble Lord bear in mind that a radio shop is not always solely concerned with the sale of sets; it may sell radio valves and other accessories, and possibly bicycles as well. It would be most dangerous to have wording which covered such shops.
VISCOUNT ALEXANDER OF HILLS-BOROUGH: I am much obliged to the noble Lord for making that point, and

325
to the noble Lord, Lord Mancroft, for the manner in which he has met me. Though in the coming absence of the noble Lord, Lord Lucas of Chilworth, I shall have to continue the fight on one or two other points of importance in the Bill, it will help a great deal in the passage of the Report stage if I secure this undertaking, because it meets a point of importance to business and industry. I do not wish to obtain by the back door, as it were, on this particular Amendment, concessions relating to something upon the general principle of which I shall, perhaps, fight rather harder. I now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 40 agreed to.
Clause 41 agreed to.
Clause 42 [Interpretation]:
On Question, Whether Clause 42 shall stand part of the Bill?
LORD ARCHIBALD: I should like for a moment to draw the attention of the noble and learned Viscount the Lord Chancellor to subsection (3) (a). I suggest for the noble and learned Viscount's consideration that it might be wise to delete the subsection. The point at issue here is the same one that I raised on Clause 14 a few days ago. I wish to raise it now in a rather wider context. I think that the Government have gone wrong on the principle involved here. They have, I admit, followed the advice of the Copyright Committee, but the Copyright Committee were dealing with this point before there had been developments in competitive television, which we now have in operation.
LORD MANCROFT: Would the noble Lord forgive me for interrupting him, but exactly what subsection is he speaking of?
LORD ARCHIBALD: I am speaking of subsection (3) (al of Clause 42. This states that:
"For the purposes of this Act—
(a) the operation of a broadcast relay station (as defined in section nineteen of the Television Act, 1954) … shall not be taken to constitute performance …"
326
My submission is that the operation of relay services does constitute performance, and should be treated as constituting performance. It is not in principle in the slightest degree different from re-broadcasting or re-telecasting a performance which has been put out by the B.B.C. or one of the programme authorities. It is only mechanically different in the sense that it is simultaneous. But what, in fact, the Bill is saying is that broadcast relay services may help themselves to any producer's programme at any time, and may rediffuse it over their services where and how they like. My submission is that they should not have that untrammelled right. I think that they should operate by way of licence.
I have no idea whether the B.B.C. and the programme contractors would wish to make any charge for such licence—probably not, but I am not speaking for them. I think that they should have the right to lay down conditions; and these conditions might, for example, include (this is a similar point to that which we have been over on another clause) that there should be no rediffusion of a particular sporting event within a certain area, or that there should be no rediffusion of a play for which a broadcasting authority had only a limited area of rights. If the B.B.C. or the programme companies put any onerous conditions in the licences, I suggest that that would be an appropriate matter for the Tribunal to deal with. Naturally, I am not asking for any statement on this point at the moment. It may be necessary to put down an Amendment before the next stage of the Bill is reached. All I now ask is that the point should be reconsidered whether the broadcasting relay services should not be brought within the scope of the Bill in the same way as re-broadcasting is dealt with in the Bill.
THE LORD CHANCELLOR: The noble Lord has said that he does not ask for a statement, but I feel that it is only courteous to hint that I should say that the matter which he has raised will receive consideration. I have heard what he has said, and I will go over it with my advisers and consider the point.
LORD ARCHIBALD: I thank the noble and learned Viscount very much.
Clause 42 agreed to.
Clause 43 [Supplementary provisions as to interpretation]:
6.7 p.m.
LORD MANCROFT: This is purely a drafting Amendment. I beg to move.
Amendment moved—
Page 49, line 37, leave out ("thereof") and insert ("of the work").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: The next Amendment is consequential on an Amendment made in Clause 12. I beg to move.
Amendment moved—
Page 50, line 31, after first ("of") insert ("a sound recording, or").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 43, as amended, agreed to.
Clauses 44 and 45 agreed to.
First, Second and Third Schedules agreed to.
Fourth Schedule [Appointment of Television Copyright Organisations by British Broadcasting Corporation and Independent Television Authority]:
LORD MANCROFT: This is only a drafting Amendment, and so are the next three. I beg to move.
Amendment moved—
Page 55, line 24, leave out ("by them").(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: I beg to move the next Amendment.
Amendment moved—
Page 55, line 24, after ("Schedule") insert ("by the Corporation or the Authority, as the case may be").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: I beg to move this Amendment.
Amendment moved—
Page 55, line 28, leave out ("by them").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: I beg to move this Amendment.
Amendment moved—
Page 55, line 32, leave out ("by them").(Lord Mancroft.)
On Question, Amendment agreed to.
Fourth Schedule, as amended, agreed to.
Fifth Schedule [Transitional Provisions]:
LORD MANCROFT: This is a consequential Amendment. I beg to move.
Amendment moved—
Page 58, line 26, leave out from ("which") to end of line 27 and insert ("the recording is or was first published").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: It has been represented to us that the requirements of paragraph 12 (a), as drafted, would be unduly burdensome on the gramophone record industry; it would be almost impossible for the industry to comply with them. We are, therefore, simply enacting that any provisions of Clause 12 which demand that the labels on gramophone records shall bear certain information shall not apply in respect of recordings made before the commencement of that clause. I beg to move.
Amendment moved—
Page 58, line 28, leave out paragraph 12 and insert—
("12. Subsection (5) of section twelve shall not apply to a sound recording made before the commencement of that section").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD ARCHIBALD LORD ARCHIBALD moved to add to paragraph 15:
"and for the purposes of this paragraph the maker of the film shall be deemed to be the author thereof."
The noble Lord said: This, I think, though not a consequential Amendment is an Amendment purely for purposes of clarification. I think it will be agreed that it is in line with what has already been provided in Clause 13, and that it merely makes the position a little clearer. I do not think it changes the intention or the meaning of the clause in any way. I beg to move.
Amendment moved—
Page 59, line 10, at end insert the said words. —(Lord Archibald.)
LORD MANCROFT: I am sorry to appear cantankerous at this hour, but I do not think that this Amendment is quite so straightforward as the noble Lord suggests. It is true that it is not clear under the existing law who is the author of a film which enjoys copyright as a dramatic work, but if we accept the noble Lord's Amendment we shall be saying that the maker is to be deemed

329
to be the author. The "maker," presumably, was, in the case of most films, a limited company, and as I said in the debate on Second Reading, companies do not die. Since copyright lasts for fifty years after the death of the author, this Amendment would mean that most existing films would enjoy perpetual copyright—that is to say, the existing doubt would be resolved in favour of the solution which the noble Lord, Lord Archibald, has put forward. We will consider the apparent intention of the noble Lord's Amendment to see whether we can help him, but I am afraid that in trying to get out of one difficulty, his Amendment has left us in a much worse one.
LORD ARCHIBALD: I can assure the noble Lord, Lord Mancroft, that I was not trying to introduce perpetual copyright for films which are already in existence. I recognise the point that he has made, and that we should be out of the frying pan into a very big fire. Nevertheless, he agrees that the present position is far from clear, and I think there should be some definition here of a copyright in a dramatic work. On the understanding that that point will be looked into, I shall be happy to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD MANCRUFT LORD MANCRUFT moved in paragraph 18 to leave out "the proviso to subsection (1)" and insert "subsection (3)." The noble Lord said: So we come to the last Amendment on the Order Paper. I am glad to say that, like the first Amendment I moved, many weeks ago now, it is completely uncontroversial and I am glad that we shall be able to end on a harmonious note. I should like to congratulate noble Lords opposite on the immensely hard work they have put into this Bill. I am grateful to the noble Lords opposite, and to noble Lords on this side of the Committee as well, for the careful examination they have given to this Bill, which came into this House a good Bill and now leaves the Committee clearly a better Bill. I am sorry that the work should have been so arduous as to force the noble and learned Earl, Lord Jowitt, and the noble Lord, Lord Lucas of Chilworth, to take, prolonged holidays. I gather that they are wintering abroad as a result. The noble Lord, Lord Lucas of Chilworth, is going to the Western
330
Pacific and the noble and learned Earl told us just now that, like Elijah, he would be going up to Heaven, though I gather he is really going to the Persian Gulf. Having been to the Persian Gulf, I can inform him that he will find it the very opposite of Heaven. But wherever the noble Lords may find themselves on February 7th, I hope that from the Western Pacific and the Persian Gulf they will think of us, ploughing our way through a London fog and the Report stage of this Bill. I beg to move the Amendment.
Amendment moved—
Page 59, line 24, leave out ("the proviso to subsection (1)") and insert ("subsection (3)"). —(Lord Mancroft.)
VISCOUNT ALEXANDER OF HILLS-BOROUGH: I am much obliged to the noble Lord for the manner in which he has moved the concluding Amendment of the Committee stage. I would amend his judgment of the Bill slightly: I would say that the Bill entered your Lordships' House a bad Bill; it is now a good Bill but capable of still further improvement on Report stage. We certainly have made a great deal of progress in the right direction. I am much obliged for what he has said about the industry displayed on this side of the Committee as well as on his own. Without the vast amount of study and labour given to this Bill by my noble friend Lord Lucas of Chilworth. I doubt whether we could have had anything like the critical examination of the position which we have had. We shall have to do without him while he goes to the Western Pacific. The whole Party is indebted to him for the work he has put in and we wish him bon voyage. If there is anything in the idea of there being telepathy between kin souls widely separated, I hope he will give us all the help and grace that he can from long distance when we come to Report stage. The Government are not going to be easily persuaded on some of the problems that remain, nor are the Opposition going to be easy in giving in. I am mach obliged to the noble Lord, Lord Mancroft, for his statement.
LORD SILKIN: The noble Lord, Lord Mancroft, and the noble and learned Viscount the Lord Chancellor have both been extremely conciliatory on this measure and have issued a large number of post-dated cheques which in due course

331
will present themselves for payment. Those who are left in this country will watch with great interest what they propose to do about the undertakings they have given. It is going to be extremely difficult for those of us who are left to follow up the work that has been done, after the tremendous labours of my noble friends Lord Lucas of Chilworth and Lord Jowitt, and to appreciate the points of the replies to the undertakings. I know that the noble and learned Viscount will honour every single undertaking he has given. He has always done so in previous measures and I know he will do so again. But I would ask him and the noble Lord, Lord Mancroft, if they would give us as long a time as possible to consider what steps they propose taking on the further stage of the Bill. The noble Lord, Lord Mancroft, talks of February 7. I do not know whether or not that will be sufficient time, but we shall know when we have the decisions of the noble Lords on their various undertakings. If it should be that we would be put in some difficulty and might need a longer time, I hope the noble Earl, Lord Fortescue, who is always very gracious in these matters, will give sympathetic hearing to any suggestion.
EARL FORTESCUE: We will certainly take into consideration every word the noble Lord, Lord Silkin, has said, and we hope to be able to please him in every way.
LORD LUCAS OF CHILWORTH: Before the Lord Chairman nuts the Question, may I thank the noble Lord, Lord Mancroft, most sincerely for his kind consideration? May I also thank the noble and learned Viscount for his unfailing courtesy and kindness to me? I regret very much that I shall not be
332
here when the noble Lord conducts the Report stage, but I promise that I shall be back as soon as I possibly can.
On Question, Amendment agreed to.
Fifth Schedule, as amended, agreed to.
Remaining Schedules agreed to.
House resumed.

CHILDREN AND YOUNG PERSONS BILL
Brought from the Commons, read 1a and to be printed.
CROSBY CORPORATION BILL
Reported, with Amendments.
HILLINGDON ESTATE BILL [H.L.]
Returned from the Commons, agreed to.