HL Deb 15 November 1955 vol 194 cc498-559

2.49 p.m.

Order of the Day for the Second Reading read.


My Lords, this Bill, the Second Reading of which I am now moving, is a comprehensive measure which, when enacted, will contain all the law of this country on copyright matters. It is therefore, I submit to your Lordships, a worthy candidate to be the first major measure to be introduced in your Lordships' House since the Recess. At the same time, I ask the indulgence of your Lordships if I take some time in explaining its comprehensive provisions. It will replace the Act of 1911, in which the British law of copyright was first codified, and three other minor measures which were left unrepealed at that time. The only parts of that Act which will remain unrepealed are Sections 15 and 34, which relate to the receipt by a number of libraries of gratuitous copies of books published in the United Kingdom. These provisions are not matters of copyright and are best dealt with otherwise than in a copyright Statute. Perhaps they may require reconsideration; but this is not the time, or, without more inquiry, the place, for amendments in the provisions on that matter.

The Bill is designed to give effect to the Report of the Copyright Committee, which sat first under the chairmanship of my noble friend Lord Reading and later under that of Sir Henry Gregory. The Committee heard evidence from a large number of individuals and associations interested in copyright, and in October, 1952, published a full Report in which the existing law was reviewed and a number of changes recommended, not only in its provisions but also in its general form. For example, it is in accordance with that Report that the so-called basic rights—that is, the rights of an author, dramatist, composer or artist in his work—have been dealt with in a separate part of this Bill, apart from the rights given to other forms of copyright—sound recordings, broadcasting programmes and the like. Rights in original works are dealt with in Part I and those in other subject matter in Part II. Again, in the Act of 1911 the nature of the rights given to all the works receiving protection and of the acts which constituted infringement are compressed into one or two complex sections, with resultant difficulties of interpretation. In this Bill, they are separated so far as possible into distinct and different sections—for example, artistic works are dealt with in a different section from literary, dramatic and musical works. Your Lordships will appreciate that while this method makes for a slightly longer Bill, it gives a clarity which was lacking in the original Act.

Apart from restating the law of copyright in a form different from that of the Act of 1911, the Bill makes considerable changes in the present law. These can be grouped into two main categories: first, those which enable this country to participate in two international conventions for the protection of copyright which we have signed but which require changes in our law before we can ratify; and secondly, those which stem not from any international obligations but from the scientific advances which have been made since 1911 in the fields of photocopying, recording and broadcasting. I scarcely think it is necessary to argue the merits of the amendments required to enable the United Kingdom to ratify the two conventions, because their importance was generally accepted by your Lordships' House, I think, in discussions on the Copyright and Television Exhibiting Right Bill which came before your Lordships earlier this year; but I might say a word or two to remind your Lordships of the nature of these conventions and of the duties and responsibilities they entail.

The Berne Copyright Union, of which Her Majesty's Government has been the leading member since 1886, is recognised as providing a high standard of rights in intellectual property, and is one to which most, although by no means all, of the civilised nations belong. Thereunder, the member countries agree to protect without any formalities, first, the unpublished works of nationals of other member countries and, secondly, all works first published in convention countries. The latest revision of the convention took place in Brussels in 1948. The text of the revised convention demands the granting of an unqualified period of protection for the life of the author and fifty years thereafter. Although in the Act of 1911 protection for that period is given, the Act contains qualifications which I think are material to your Lordships' consideration to-day. The first is that during the last twenty-five years of the copyright life of a published work, that work can be republished as of right by any person who pays to the copyright owner the statutory royalty of 10 per cent. That is the proviso to Section 3 of the old Act. Secondly, the Judicial Committee of the Privy Council have power at any time after the death of the author of a work which is being published or performed in public, to override any refusal of the copyright owner to permit republication of that work. These are the qualifications which have to go. I ask your Lordships to remember that the Copyright Committee in their Report stated that the advantages of continued adherence to the Berne Union and to the latest convention are overwhelming and greatly outweigh any disadvantages which might flow from the repeal of these provisions. Your Lordships will see, from paragraph 25 of the Report, that I have not stated this in the least too strongly. These provisions which I have mentioned are not repeated in this Bill.


My Lords, I think the noble and learned Viscount said paragraph 25; it is, in fact, paragraph 23.


I am grateful to the noble Lord for the correction, and I am sure your Lordships share my gratitude. May I turn for a moment to the position in the United States of America? I have said that most of the leading civilised nations are members of the Berne Convention, but a significant exception to this is found in the United States of America which, by reason of the provisions of their domestic laws, have been and remain unable to subscribe to the Berne Convention. As a result, hitherto it has been impossible for a British copyright owner of an English language work to obtain copyright protection in the United States without complying with the requirements that his work must not only be registered but (I use the horrible phrase) "manufactured" there—that is, printed from type set up in the United States. On the other hand, American copyright owners, by the simple expedient of publishing their works in the United States and in a Berne Convention country—for example, in Canada—can obtain here complete protection, and, incidentally, for a longer period than they do in their own country.

However, in September, 1952, a Copyright Convention (which your Lordships will find set out in Command Paper 8512) known as the Universal Copyright Convention, was signed by thirty-six States, including this country and the United States of America. It came into force on September 16 of this year and has been ratified by the United States: Germany and France are also members, as well as a number of smaller countries. The provisions of that convention differ from those of the Berne Convention in two main ways: first, the period of protection conferred is less; and secondly, published works qualify for protection according to the nationality of the author as well as the place of first publication.

The importance of the convention, so far as this country is concerned, is obvious. It provides that any contracting State which under its domestic law requires as a condition of copyright compliance with formalities, such as registration or manufacture or publication in that contracting State, shall regard these requirements as satisfied in respect of the works of other convention countries if at the time of first publication all the copies of the work bear a symbol consisting of the letter "c" in a circle, accompanied by the name of the copyright proprietor and the year of first publication. The benefits of the convention will, of course, be enjoyed in the United States only by authors and publishers whose countries, in their turn, ratify the convention. There is no need to stress that it will be of great advantage to our authors and publishers, and to the export trade in books generally, if copyright for British hooks can be obtained in the United States simply by complying with the formalities prescribed by the convention. Your Lordships will. I feel sure, appreciate that the dollar revenue thus earned is not confined to the proceeds of the books that are sold hut accrues for the owner in regard to payment in respect of dramatic and film rights as well.

This Bill enables us to ratify that convention, and it will make the necessary changes in our law to enable us so to do. It permits protection here to be conferred by Orders in Council on the published works of convention nationals irrespective of the place of their first publication. As I told your Lordships, the Act of 1911 does not allow protection to he accorded in this country, for example—if I may take a somewhat extreme case—to the work of an American author which had first been published in Russia, Russia being a country which is not a party to the convention or a country in respect of which there are any other reciprocal copyright arrangements. But this Bill makes such protection possible. And, since the works of convention nationals will in future enjoy protection wherever they are first published, the Bill grants the same protection to British subjects. The changes necessary to ratify the conventions are mainly to be found in Part I of the Bill.

I now turn to the ether subjects that I mentioned, and I will deal first with the changes that have been required by the improvements in photo-copying. Your Lordships will find these in Part I (Clause 7) in the provisions relating to the copying and publication of copyright works in libraries and archives. These changes are occasioned by the expansion in recent years of methods of photocopying in libraries (the growing use of which has been of great advantage to students, but has placed libraries in jeopardy of actions for infringement) and by the great increase in historical research which is going on in libraries, museums and public archives on unpublished manuscripts, the ownership of the copyright in which is unknown.

I think your Lordships will agree that both these matters are of importance and use, and I cannot help remembering that the reason why my own country first acquired Christianity was the fact that St. Columba made some unauthorised copies of missals in an Irish monastery and was thereupon ejected quickly. Despite that historical assistance from a somewhat unauthorised work, I think that in general it will be helpful if statutory authority is given to libraries to provide methods for copying and also to deal with ancient manuscripts which have proved so useful for historical research. The clause is designed to help the student who needs photo-copies for his own use with the minimum of disturbance to the rights of the copyright owner. It also facilitates publication of ancient unpublished manuscripts in public archives in cases in which the copyright owner cannot be traced.

Part II of the Bill deals with copyright in sound recordings, films, television and sound broadcasts and in publishers' typographical arrangements for their books or musical scores. Of these, films and gramophone records already enjoy copyright under the Act of 1911. The other two rights are new. I should like to say a word or two about the position of gramophone records. The intention of the Bill, so far as they are concerned, is to confirm the rights which are to be found in Section 19 of the Act of 1911. These rights are, first, to prevent the copying of a record; and, secondly, to control its public performance. It is true that it was not until after 1934 that the gramophone companies commenced to exercise the latter of these rights, which has been the subject of some criticism. I do not think it would be valuable if on this occasion I went into the merits and demerits of old disputes. I would simply remind your Lordships of two things: first, that both these rights have existed for many years; secondly, that the Copyright Committee recommended their continuance, subject to the safeguards which a Performing Right Tribunal would give to persons wishing to perform gramophone records in public. I will later deal with the Tribunal separately, but it is relevant that your Lordships should have it in mind on this point. The Bill has been drafted accordingly and therefore should allay some of the fears which existed in this field.

I have like hopes about cinematograph films. There the position was equally difficult, because under the Act of 1911 it was far from clear. Under that Act a film itself is a dramatic work if—and I quote the words of the Act— the arrangement or acting form, or the combination of incidents represented, gives the work an original character. If any of your Lordships were addicted to watching films, you might have the greatest difficulty in interpreting that provision, especially if you saw the films in a certain state of mind. At any rate, we think that the law ought to be improved. Your Lordships will appreciate that a number of individual rights which are partly conflicting are involved. The Copyright Committee proposed that a cinematograph film should be given a right of its own in which the individual rights of authors, composers, photographers and possibly others should be merged. It is doubtful whether in this form the proposal would comply with our obligations under the conventions, for these again are by no means clear. It would also conflict with the recommendation made elsewhere in the Report, that the existing relationships between composers and film makers, whereby the performing right in the film music, as in other music, is normally vested in the Performing Right Society, should remain undisturbed.

Accordingly, we have departed from the recommendations of the Committee, and Clause 13 of the Bill does not follow them but grants a film copyright to the maker of the film for twenty-five years, during which time the rights of the basic copyright owners remain extant, and at the end of that time the basic copyrights will not be exercisable to prevent the showing of the film itself, the copyright in which will fall into public domain. The basic copyrights—that is, of author, script writer and others I have mentioned —will for all other purposes continue until they expire at the end of the period mentioned in Part I of the Bill—that is, life and fifty years afterwards.

There has been some discussion on this point, and at this stage I want to place the Bill fairly and as clearly as I can before your Lordships. I do not want to enter into a detailed argument. I simply want to put this point to your Lordships. If your Lordships think of any film which you saw and enjoyed over twenty-five years ago, I think most of you will agree that that film to-day can be shown only more or less as a museum piece. There are some exceptions, and I am sure that every one of us has a particular exception in mind that one would like to see twenty-five years later. But, broadly, a film after twenty-five years is a museum piece and, of course, by the maintenance of the basic copyrights, the making of a new film based on the same book or the same subject matter is not prevented. So we think we have taken a reasonable course in that regard.

Now may I pass to the next subject, and that is broadcasts. Again, I want your Lordships to have the Performing Right Tribunal in mind. Your Lordships will see that here I am dealing in the main with Clause 14 of the Bill. Perhaps this is the change which will attract the greatest public interest—namely, the protection given by Clause 14 to broadcasts. When the Second Reading of the Copyright and Television Exhibiting Right Bill took place in your Lordships' House, some of your Lordships were concerned that there should be given a right to control public performances of a television programme without—and I think this was the important matter in the minds of most of your Lordships—at the same time providing for an independent body with power to adjudicate in disputes as to when and at what charge the licences should be granted. The grant of the right in this Bill is accompanied by the provisions in Part IV, setting up such an independent body as some of your Lordships desired in the debates to which I have referred. Your Lordships will recollect that it was made clear in the earlier debate that when a comprehensive Copyright Bill was introduced, such a tribunal would be set up; and I am glad that that undertaking is being carried out by this Bill.

May I say one or two further words on sound and television broadcasts and, I hope, make it clear to your Lordships how the proposals would work. The proposals are that both sound and television broadcasts would be protected, first, against copying, secondly, against recording for commercial purposes and, thirdly, against re-broadcasting by a competitor. Since considerable skill and expense is involved in compiling a broadcast entertainment programme, I think your Lordships will agree that it is only reasonable that the broadcasting authorities should have this protection. Additionally, they are given a right to control public performances of their television programmes. I want to emphasise, if it needs emphasising, that this is not a right which will affect the domestic viewer. Your Lordships are, I think, familiar with the reasons for which the Copyright Committee recommended a grant of a performing right: partly that it is inequitable that people should make free use for the showing in public for their own profit of programmes which cost a good deal to provide, but mainly to resolve what might otherwise have been, and what, in fact, has been, a deadlock in the arrangements for televising sporting events, with the result that viewers in their homes would be deprived of some of the most popular programmes.

The problem is as much one of control as finance. May I explain to your Lordships why I say that? If one takes, for example, the boxing promoter who has organised his promotion at Earl's Court, he may well be unwilling—it is a matter for him, of course—to let the B.B.C. televise his fight if all the West End cinemas and all the neighbouring hotels and bars were free to show it publicly on their screens. Clause 14 proceeds, as in the earlier Bill, to vest the copyright in the B.B.C. or I.T.A. and not in the sports promoters themselves. Your Lordships will see the reason for that: because if the copyright had been in the sports promoters, if I may quote the words of the Copyright Committee, there would grow up round the public performances of television a thick hedge of licences which would he required from many associations of copyright owners (as well as from individuals) with inevitable complaints and confusion in the minds of the public. It is for this reason that the rights of the B.B.C. and the I T.A. to assign their copyright are strictly curtailed by the Bill. It is true that by virtue of this clause cinema proprietors, hotel-keepers and others who wish to show television in public may have to pay certain sums in addition to the licence fee; but, as they have to pay more, so on the other hand they have a much greater chance of getting the broadcast of sporting events. I think your Lordships will agree that broadcasts of this kind are amongst the most popular to-day.

May I say how the Tribunal will come in? I told your Lordships that, under Part IV, a Performing Right Tribunal is constituted. The Copyright Committee felt—and I think your Lordships will agree with them—that, when rights are exercised by a body which has virtually a monopoly in its own field, people who seek its licences should have some right of appeal against a refusal to grant such a licence either outright or except on terms which they feel to be exorbitant. I hope your Lordships will understand—I am sure you do—that the Tribunal provided for will not operate to deprive the individual dramatist, composer or promoter from making the best individual bargain he can for the right to perform his work; but it can be prayed in aid by a person or an organisation wishing to strike a bargain with a society such as the Performing Right Society, which issues what I will describe as "blanket" licences to perform all the works in its repertoire, which in the case of the Performing Right Society particularly includes almost all copyright music. It is only fair to say, with regard to the Performing Right Society, that they have said that they would be glad to have an independent body to which the Society could demonstrate the reasonableness of its charges.

Also within the purview of the Tribunal will be the performing rights in gramophone records and television broadcasts. The former are at present exercised on behalf of the record makers by a single collecting agency; the latter will be exercised by, at most, only two organisations. So your Lordships will see that the Tribunal is concerned in all these material and maybe critical stages to ensure that the person who desires to receive a licence can appeal to the Tribunal with regard to terms or regarding unreasonable conditions. I hope your Lordships will feel that we have not only introduced the Tribunal but have introduced it into the various domains of this subject where it will operate to produce equity between the persons and associations concerned.

May I briefly indicate to your Lordships the other changes which are made in order to improve the law? I think I have dealt with those that are of most general importance, but there are matters which affect more limited parts of the community. By Clause 15, a publisher is given the right to prevent an unscrupulous competitor from copying, by a photographic or similar process, the typographic layout of an edition which he has published. Then there is a change in the law as it affects artistic works which are applied industrially. In case there is any doubt as to what that means, may I say that your Lordships, as parents, are, I am sure, familiar with such things as Mickey Mouse, which started as pictures on films and were transferred to children's toys which were introduced in mechanical and other forms industrially. The question arises as to the position of the original picture, which may or may not, in your Lordships' view, have transcending artistic merits. The toy certainly comes in useful at this period or a little later on in the year. So we try to clear up the position with regard to artistic works which are applied industrially.

The question whether such a work has protection for the long period given by the law of copyright or the much shorter period given by the Registered Designs Act, 1949, at present depends on the intention of the artist at the time of making his work. Your Lordships will appreciate that, years after, the intentions of the artist at the time he made his work are rather difficult to discover. I ask your Lordships to consider the intentions which were in the minds of various of your own artistic friends when they did certain portions of their work, especially in the early years of their career. Therefore, we thought that that was unsatisfactory. It is unsatisfactory that a work should get protection under both Acts, and so we provided the solution which appears in Clauses 10 and 38 of the Bill, based on the Copyright Committee's recommendations. It is one which avoids the anomalies which I have mentioned and ensures that the only protection available to the industrial application of a work—as, in my example, the toy as opposed to the picture—is that which can be acquired under the Registered Designs Act.

There are a number of other more minor changes relating to such things as the rights of the parties when a work is made under a contract of service or when a person commissions a work for a particular purpose. Your Lordships will find them in Clause 4. I suggest that these could more profitably be discussed in detail on the Committee stage of the Bill. With an eye mainly to the new television exhibiting right, the court is given power, in appropriate cases, to award something in the nature of exemplary damages. Then there is another provision by which persons innocently dealing with infringing copies are given more protection than they previously enjoyed. Certain changes are made regarding the presumptions of fact raised in infringement actions, which are altered with a view to meeting more fully our obligations under the Brussels Convention when the work is anonymous and to assisting the plaintiff to prove that the work is one in which copyright subsists after its author is dead.

I am sensible—I hope your Lordships will appreciate—of the demands I am making on your Lordships' time, but I should like to say one word (and I think your Lordships would like me to say it) on the provisions with regard to copyright in the Commonwealth and Empire. Therefore, I will say again a short word as to the extension of this Bill to the Crown's overseas territories and the protection to be afforded to Commonwealth and foreign works. The Act of 1911, as your Lordships by a simple arithmetical exercise can discover, was passed many years before the Statute of Westminster, and in subsection (1) of Section 25 of that Act it was provided that it should extend throughout His Majesty's Dominions but not to any self-governing Dominions unless declared by the Legislature of any Dominion to be in force therein. The 1911 Act therefore enacted a code of copyright law which operated automatically throughout the Colonies and was adopted by some of the self-governing Dominions. The works of authors in countries to which the Act extends are protected. Machinery was also provided in the same section for giving protection to works of those Dominions to which the Act did not extend. Thus, by Section 25, the old Act was doing two things: it was making law for the Crown's overseas territories and, at the same time, providing for the protection here of Commonwealth works. A quite separate section, Section 29, contains the power to give protection to foreign works and thus to honour United Kingdom Convention obligations.

I am sure your Lordships will agree that it is not appropriate to legislate for the self-governing Dominions at all; and in the case of the Colonies the Bill follows the modern practice of not legislating for them directly, but providing that the legislation can be extended to them by Order in Council. This will give an opportunity for consultation with the Colony concerned before the legislation is extended. Under Clause 29, there is power to give the necessary protection to the works of countries to which the Bill does not extend—that is, neither automatically nor by Order in Council—and it is under this clause that protection will be given, first, to the works of foreign authors; secondly, to works first published in foreign countries; thirdly, to works of any Commonwealth authors who are not British subjects (the works of British subjects and citizens of Eire are automatically protected) and, lastly, to works first published in Commonwealth countries.

My Lords, I have apologised, and I apologise again, for the great demand on your Lordships' time which I have made, but I think this is an important subject. It is important to authors and composers of music, and to innumerable other people to whom we owe immense pleasure in our lives. It is also important that a world which concentrates of necessity so greatly on the destructive aspects of modern thought and invention should turn occasionally to the side of intellectual achievement and the requirement to help those who contribute to the advance of the spiritual side of man. We have tried—I am afraid the length of my speech demonstrates it all too clearly—to make this a comprehensive measure. I hope your Lordships will also think, after the explanation in outline which I have given, that we have also made it a commonsense measure. It is for these reasons that I beg to move that the Bill be now read a second time.

Moved, That the Bill be now read 2a,—(The Lord Chancellor.)

3.34 p.m.


My Lords, once again we are indebted to the noble and learned Viscount the Lord Chancellor for a masterly exposition of a most intricate and difficult Bill. I am not going into quite so much detail as the noble and learned Viscount, but I think I should say at the outset that, in my view, the Government have made rather a grave mistake here. I think we should have had two Bills. We should have had a Bill to deal with the essential features and principles of copyright, and we should have had another one to deal with ancillary or subsidiary rights. I hope to explain to your Lordships that all the difficulties which arise in this Bill derive from the fact that Her Majesty's Government have tried to combine the two aspects. I am rather surprised that they did so, because there is proposed an international convention on ancillary rights, sponsored by the executive committee of the Bureau of the Berne Union. It is undoubtedly true that in the years to come we shall have to join that convention. I can foresee that some of the rights of natural copyright given to ancillaries will cut across the convention, and in the next five or six years we may well have to amend radically any Bill of this description that proceeds through your Lordships' House.

This, I think, is the sound ground upon which the noble and learned Viscount stands when he says that he went into considerable detail in regard to this matter. It is nearly fifty years since the law of copyright came into force—in 1911—and I strongly suspect that another fifty years will pass before there is another. Therefore we do not now want to make the same mistakes as we made in 1911. I wish to remind your Lordships early on in my remarks where we, on this side of the House, differ from the Government in regard to this Bill. In order to do so, perhaps I may say that, in our view, and I think in the view of everybody in this country, copyright is the natural property right in the creations of the author's own mind. Whether he be an author or a composer, it is a natural right; it is his inviolate until, of his own free will and accord, he assigns it to somebody else. I do not think that anybody who has the slightest knowledge of literary or musical works, or the natural law of copyright which existed in this country before the Copyright Acts, would dispute that even in Common Law there was a natural property right of the creator in the works of his own mind. Where this Bill cuts across that sound principle we find ourselves in opposition to Her Majesty's Government.

We start early in the Bill. If your Lordships will turn to Clause 4, you will see that at the outset the Government start eroding that principle—expropriating it, one might almost say. Clause 4 (2) says: In the case of—

  1. (a) a work made by the author in the course of his employment by another person under a contract of service or apprenticeship,"—
the copyright vests in the employer. If I may use the vernacular, not even a smell of it goes to the author. Then, in the next subsection, it appears that in regard to a commissioned work the copyright, unless a contract to the contrary is made out, goes to those who commission the work and not to the author. Some of your Lordships write articles for the Press; I have not the talent to do so, and therefore I am not in this position. The law as it stands to-day is that the copyright vests in the author, unless there is a contract with the commissioner of the work—or, as this Bill terms it "employer"—to the contrary. This Bill turns that round.

That is a serious and fundamental alteration. It is true that there are some supposed safeguards in the clause. Clause 4 (3) (b) provides that the commissioner of the work—let us say a newspaper—may not use an article otherwise than as part of a newspaper, magazine or similar periodical. What of the author who writes an attractive little article for his local newspaper and gets three guineas for it? The proprietor of that newspaper can, if it is acceptable, sell that article to one of the big daily newspapers for, perhaps, 300 guineas and pocket the money. On the Committee stage we shall seek to get this position reversed. While we shall give a Second Reading to this Bill, it is only fair that we should let Her Majesty's Government know the points to which we shall take strong exception when we come to the Committee stage.

Clause 8 is another erosion of the right on the principle of copyright. Here we have the compulsory licence. This clause says, in effect, that if a composer or author has given isolated permission for his work to be performed without a licence that work may for ever afterwards be so performed. We shall want to look at that clause very seriously. Perhaps I can follow the example of the noble and learned Viscount and come to those clauses of the Bill on which our opposition really stiffens—Clauses 12, 13 and 14. The noble and learned Viscount on the Woolsack appeared to figure-skate round Clause 12, which deals with the performing rights in gramophone records. We are opposed in principle to a performing right of any description, because a performing right must, in essence, be in itself restrictive and we are opposed in principle to any restriction on the freedom of an author or composer in the creation of his mind. That principle is fundamental in the Brussels Convention, although I grant that, in that convention, there is a saving clause which permits subscribing Governments to do certain things in their own legislation to prevent monopoly; but that does not mean that they can hand to somebody else the right and the livelihood of an author or composer, without his knowledge or consent.

On this question of gramophone records we go back to the ill-starred Section 19 of the Act of 1911, which was the cause of all the trouble. Up to that date copyright had gone along more or less on an even keel. The trouble started when somebody invented the contrivance of a phonograph. Lord Gorell presided over a committee in 1919 and later, in 1952, the noble Marquess, Lord Reading, presided over another inquiry on this question. Lord Gorell sought to get gramophone manufacturers to establish quite clearly what they wanted. What they wanted—and what I believe they were quite entitled to have in those days—was protection against copying or "piracy." The Act was supposed to be drafted with that in view, but in 1922 a clever lawyer found, in a test case, that Section 19 of the Act was drafted so as to give a performing right to the gramophone manufacturer over the performance of a gramophone record in any circumstances. An organisation called Phonographic Performance, Ltd., was set up to exploit that position. I feel that the noble and learned Viscount on the Woolsack, when referring to the manner in which the Reading Committee dealt with this matter, did rather less than justice to that Committee.

I should like to draw your Lordships' attention to what the Committee really said. The Musicians' Union put a pistol to the head of the gramophone manufacturers (I use the expression with some reserve, but that is what it amounted to) and forced them to insert a condition in all licences issued by Phonographic Performance, Ltd. And in paragraph 149 on page 52 of the Report of the Committee, that condition is set out as follows: This licence is issued subject to the following conditions inserted at the request of the Musicians' Union, namely,"— there are a number of them, but I will read those that are germane— no record shall be played, used or performed or permitted to be played … where musicians would have been employed but for the exigencies of war or national emergency or ֵ where musicians could, having regard to the size and nature of the theatre, music hall, dance hall, or other place of entertainment, be employed. That met with universal opposition from everybody who gave evidence before the Reading Committee, riot only those commercially concerned, such as the Performing Right Society, the Song Writers' Guild, the Music Publishers' Association and the Music Users' Federation: for there was also opposition from non-profit-making institutions. I quote again from paragraph 149 of We Report of the Reading Committee which says that opposition is also voiced by the National Council of Social Service speaking in a representative capacity for a large, indeed an almost comprehensive, list of voluntary organisations concerned with religious, social and educational services throughout the country and by the Parliamentary Committee of the Co-operative Union speaking on behalf of their societies. The Reading Committee conclude their observations with this comment: The conclusion to which we have been irresistibly driven as a result of our consideration of this evidence is that the rights given have been enforced in an arbitrary and autocratic manner, with the minimum of consideration, and that whatever other changes may be required in connection with the copyright provisions contained in Section 19 of the Copyright Act, 1911, some way must be found of limiting, by statute, the opportunities for exploitation flowing from the present interpretation of the term 'public performance' in this connection. Those are the last few lines of paragraph 150, on page 54 of the Report. We are now told that what came into the 1911 Act by a side wind that was never intended, as was proved by all the evidence given before the Reading Committee, is to be made the law.


My Lords, before the noble Lord leaves this matter I feel that he should also read the first half of paragraph 184, which I quoted in my speech. I should not like your Lordships who have not had the same chance as my noble friend and I have had of reading and studying this Report to think that I was misrepresenting the Report. I am sure that my noble friend Lord Lucas of Chilworth will agree that I am not.


My Lords, if I said anything which conveyed the impression that I was accusing the noble and learned Viscount who sits on the Woolsack of misrepresentation, I apologise straight away. Of course I had no intention of doing anything of the sort. I think the expression that I used was "lightly skated around it"; and I meant nothing beyond that. Substantially, the noble and learned Viscount has just said that the Reading Committee, with reluctance, recommended that this right should go forward, with sufficient safeguards to prevent exploitation. I am coming to that when I deal with the setup of the Tribunal. But not only that, this performing right given in a Copyright Bill is directly opposed to the interest of the author or composer, opposed to his initial natural right, because anything that restricts the free use and the playing of records restricts all royalties and income of the author and the composer. That is what copyright is. This Copyright Bill is more in favour of the producer of a mechanical contrivance, whether it be a gramophone, a broadcasting machine or a television set, than it is of the agreed right, in my view, of the author and the composer. That is why we shall attempt, on the Committee stage, to have this provision removed.

Again, I am not sure that I am clear in my own mind—perhaps the noble Lord who is going to wind up this debate on behalf of the Government will tell me—just what is meant by "a recording." That is the expression in the Bill. In Clause 12 (4) it says: The acts restricted by the copyright in a sound recording"— that means, no doubt, recording by what ever means, by tape or by sound track— are the following, whether a record embodying the recording is utilised directly or indirectly in doing them, that is to say,—

  1. (a) making a record embodying the recording;
  2. (b) causing the recording to be heard in public.…"
To be heard in public! What is a recording? It will be argued, I think, by the noble Lord, that sound broadcasting is not subject to a performing right except in so far as it is broadcast from a recording. If your Lordships will take the trouble to peruse the current issue of the Radio Times and will look at to-day's Home Service programme, Light programme and Third programme, you will see that one-third of the whole of the items are recordings—it may be a recording of a recording, an original recording, or played from a gramophone record. Would the noble Lord tell me what is subject to copyright, because I am thinking (and I shall come to this in detail later on) of the hotels and social services and boarding houses. Is the poor wretched proprietor of a boarding house to be obliged to stand by the switch ready to turn it on or off according to whether the programme is recorded from a record, or a live broadcast, or is a re-recording of the previous Thursday's broadcast? What is copyright? Really I do not know.

If the noble Lord will move further on and will follow me to Clause 14 (3) he will see in paragraph (b) these words: in the case of a sound broadcast or of a television broadcast in so far as it consists of sounds, making a sound recording of it for the purpose of selling or letting for hire records embodying that recording, or for the purpose of broadcasting the recording or of causing it to be heard in public, or, where such a recording has been so made, making a record embodying that recording. … I have tried to fight my way through that paragraph for a week, but still I do not know what its effect is. If I do not know, how is the poor wretched little boardinghouse keeper in a back street of, let us say, Scarborough, who will give a public performance to Mr. and Mrs. Bloggs from Bolton, to know whether or not he is infringing the law of copyright? These are some of the things which I think on the Committee stage we had better, between us, try to amend, so that we can at least make this part of the Bill look a little less complicated than it is at the present time.

In Clause 13, again, we get what I call erosion of the natural right of the author and the composer in a most flagrant manner. The noble and learned Viscount who sits on the Woolsack has explained to your Lordships that copyright will vest in a cinematograph film for twenty-five years after the registered date, but all competent copyrights, those of the composer of the music and the author of the lyrics or anything else that forms the film, would, if standing in their own separate identities outside the film, have the natural term of the copyright—that is, during the lifetime of the author or composer and for fifty years after his death. But because they are in a film the copyright dies at the end of twenty-five years. Why? The rights as regards the film die in twenty-five years. Why? I waited for the noble and learned Viscount who sits on the Woolsack to come to this subject; I waited with attention to see what he was going to say. Surely this is entirely wrong. What will be the natural result?

Take the case of the holder of the copyright of a well-known work—for instance the "Enigma Variations" of Sir Edward Elgar. If someone likes to produce a film of that work, embodying the whole of that wonderful piece of music in the film, that film can run for twenty-five years and the author or the composer loses his copyright in the film production of the "Enigma Variations" for ever afterwards.


Really he does not.


For that film he does. That is what the noble and learned Viscount who sits on the Woolsack says. That is how I read the Bill. Perhaps the noble Lord who is to reply for the Government will tell me what it does mean in this connection, because I do not know. I take it that the copyright in that film will end when the end of the film copyright comes along—that is in twenty-five years. Yet the natural right goes on for fifty years.

When we come to Clause 14 I find myself again at variance with Her Majesty's Government. The real and original reason for giving a performing right to television was that money could be collected to satisfy the demand of sports promoters. The Reading Committee stated, in paragraph 201 of their Report: … it will be recalled that one of our principal reasons for proposing this right was to enable the B.B.C. to snake its financial offers and its conditions of control sufficiently attractive to the sports promoters and others to induce them to allow televising. Since that Report was published, we have had the advent of the Independent Television Authority. Now this Bill proposes that a performing right should be given to the B.B.C. and I.T.A. by which they can issue licences to anyone giving public performances of television works. That means that every hotel and boarding-house proprietor, and everyone else who wants to show a television programme, must pay a fee, if it is demanded—and I cannot imagine its not being demanded, because that is the reason for giving this performing right.

When the Television Bill was before your Lordships' House the noble Viscount, Lord Woolton, in dealing with the proposal that a maximum sum of £50,000 a year should he given to the I.T.A., said [OFFICIAL. REPORT, Vol. 188, col. 318]: … it met with little favour in the minds of some who wanted this new private enterprise corporation to he entirely independent, for its finance, of any public funds, and to be dependent on its capacity to pay its own independent way and to attract investment and public support on its merits. The people who held these views, and they represented sound Conservative principles have been prepared to compromise, … I take it that the noble Viscount meant that it was a sound Conservative principle that I.T.A. should be independent of public funds and should stand on its own two advertising feet. But the proposal in this Bill really gives the public money by allowing them to issue licences to display their programmes. I do not know whether that is the Government's intention, but that is what the Bill does. It gives the I.T.A. a performing right, and if this Bill as it stands goes on to the Statute Book, anybody who gives a public performance of an I.T.A. programme is in breach of the law if he has not a licence from the I.T.A. and pays a fee.

Do the Government really mean this? Surely it is against those Conservative principles of private enterprise to bring in by a side wind a law which will give the I.T.A. public money? I should have thought that the contrary would have been the desire of the Government. Surely the I.T.A., like a daily newspaper, can say, "The larger the circulation, the higher the advertising fees we can charge." Why put any inhibition on the I.T.A. to prevent them from showing their programmes to all and sundry and being able to say, "We are now showing I.T.A. programmes in 90,000 hotels and boarding houses in this country"? But here, the Government want the hotels and boarding-houses to pay for the privilege. That does not sound right to me. I am prepared to be persuaded that there is a case to be argued for saying that anybody who uses a television programme in the course of business should pay a higher fee than the ordinary private individual at his own hearth and home. I am prepared to listen to an argument like that, but I am not prepared to listen to the argument that, in face of all the protests of the Government that the I.T.A. were to stand on their own two advertising feet and adjust their rates to cover their expenses, they should now, by a side wind, have a revenue from the viewing public for programmes shown in hotels and boarding-houses, "pubs" and clubs or wherever you will.

I am glad that the noble Marquess the Leader of the House is here because he may consider my suggestion. If people should pay an extra fee for this amenity to their business, it should be paid by a commercial licence and be collected in precisely the same way as a television fee is collected—by the Post Office; and it should go into the coffers of the B.B.C. Then if Parliament, in their wisdom, should wish to give the I.T.A. any further public money, it should do so above board and not by a side wind or through the back door, by a performing licence fee such as is proposed under the performing right clause in this Bill. I will not deal with that point any further now. At the appropriate stage, we shall put forward proposals different from those in the Bill, because we are absolutely opposed to this fundamental change in Government policy—and I think the Government are really opposed to it, too.

There is only one other point I want to deal with, because I am conscious that I have trespassed on your Lordships' time. But this point is so important that I think the Opposition point of view should be explained as clearly as I am capable of doing. When the ill-starred Copyright and Television Exhibiting Right Bill was before your Lordships' House, proposals put forward from this side in regard to a Performing Right Tribunal fell in a "slaughter of the innocents." We had an Amendment on the Order Paper for the Committee stage which was never reached. We made proposals for the setting up of a tribunal and, if I may say so with modesty, they were infinitely better than those of the Government. Here the Government again go for erosion of the author and composer right in what I can only term a big way.

I would direct your Lordships' attention to Clause 27 (5) and (6). At the end of subsection (5) it says: … 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"— that means collecting 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. That looks innocent enough; but it is far from innocent, because there is only one organisation, and that is the Performing Right Society. What it means, in plain language, is this: that while the man who plays the fiddle, or the woman who sings the song, or the man or woman who plays the piano, can be paid, the author or the composer, if he happens to be a member of the Performing Right Society, and not unless, may have to give his services for nothing. Surely, the Government never had that in mind; but that is what it says.

If your Lordships have any doubt about this matter, and will just turn to see what is meant by "an organisation," you will see that it means a collecting organisation who collect fees on behalf of authors and composers. And there is only one. Then subsection (6) says: The last preceding subsection applies to any club, society or any 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. That could include the B.B.C. In other words, any organisation coming within the definition of subsection (6) can go to the tribunal, and the tribunal can relieve them of paying the legitimate fees of the author or composer only if he happens to be a member of the Performing Right Society. I am sure that the Government never meant that. What would it mean? There are 90,000 members of the Performing Right Society—which is the organisation that collects their fees—and all that any one of them would have to do would be to resign from that Society in respect of charitable performances. If, then, any charitable organisation wanted to have an entertainment, they would have to negotiate with each of the members concerned, or they would be in breach of this Bill. We shall have something to say about that on the Committee stage of the Bill.

Those are our main objections to this Bill. On the Committee stage we shall put down Amendments to try to improve the Bill. Although I have concentrated on our opposition to it, there are a number of features in the Bill which we want to see on the Statute Book. I would ask the noble and learned Viscount, the Lord Chancellor, who is in charge of the Bill, if he will be so kind as to look into these things. There is no Party issue in them at all: out only desire is to protect the rights of the originators of works of art, whether they are compositions or literary works. If we on this side of the House can assist during the interval between now and the next stage of the Bill, our services are at the disposal of the noble and learned Viscount.

4.15 p.m.


My Lords, I am grateful for the opportunity to speak at this stage of the debate. I only wish I could do the right thing and make a proper, conventional Second Reading speech on the Bill, but I do not think that with a Bill of this sort that is possible, because the clauses in the Bill represent a set of Committee points one after the other. Perhaps I shall be forgiven on this occasion, therefore, for mentioning two points, rather in the same strain that the noble Lord, Lord Lucas of Chilworth, mentioned certain points, which I hope it will be possible for the Government to look into between now and the Committee stage of the Bill, for which we shall all have to go into training.

The first point I want to mention is one which refers to the possible breaking of the law by education authorities when they turn on a gramophone record in a music lesson in school, or possibly quote in an examination paper a passage of a copyright work in order that it may be translated by students into French. I believe that at the present time there is constant, if entirely unintentional, breaking in a small way of the copyright law by every sort of education authority. Although I believe the Performing Right Society and similar organisations do not press strongly for royalties to be paid in those circumstances, none the less, the point of principle is there, and it would be an excellent plan if during the passage of this Bill that point could be cleared up beyond all doubt. It is one that has, I believe, been taken strongly by the County Councils Association; it has also been taken strongly by the Association of Municipal Corporations—for whom I have no right to speak. I understand it has also been the subject of what I think was a helpful conference at the Board of Trade. Therefore l hope that between now and the Committee stage it will be possible to take this matter a stage further, because it ought not to be left as it is, and that Amendments, which I hope will be Government Amendments, will be put down. I do not ask my noble friend who is to reply for anything more than an assurance that the matter will be looked into, and I hope he will be able to say that the conversations with those interested will be continued between now and the Committee stage.

The next point may be a little more controversial, because it touches on a subject which has beer, raised by my noble and learned friend on the Woolsack and by the noble, Lord, Lord Lucas of Chilworth—namely, copyright in respect of gramophone records. However, it is not the same point as that raised by the noble Lord who has just spoken. Clause 12 (1) of the Bill gives protection only to recordings which are made inside United Kingdom, and not to those made outside—at least, that is how I understand it from my reading of the Bill as at present drafted. The gramophone industry is one which makes some use of foreign exchange, and it is important that that industry should be put to work for the best, and not wasted. However, companies can now go to considerable trouble and expense in making records overseas of music which cannot be played in this country. Suppose they go to a foreign opera house or record a conductor conducting an orchestra which cannot leave New York, There is no alternative but to record overseas, unless the gramophone company here wish to leave out some important item from what they want to be a comprehensive list of records, capable of taking the reputation of the company all over the world. At the moment, companies in this country who record performances overseas appear to be deprived of copyright, even if the records themselves are actually processed and manufactured in this country. Under those conditions, it looks as if paragraph 182 of the Report is not being implemented. That paragraph says that the Committee have already given their reasons for recommending that in each case there should be a right to prevent a copying, a right to prevent piracy. As I see it, in this particular case piracy cannot be prevented; and here is a matter which could be looked at again between now and the Committee stage.

Clause 29 provides for the extension of the application of this Bill by Order in Council to other countries. That clause, while dealing with other matters, excludes sound recordings, and I should hardly have thought it was the intention on the part of those who drafted this Bill that sound recordings should be excluded; I should have thought that the prohibition to reproduce should be extended to all records made in this country. Those are two points which come from the gramophone industry, and here again all I ask is that they should be given further consideration between now and the Committee stage, and that there should be possibly further discussion with those who are interested. It is only in this way that we in this House can deal with a complicated and detailed Bill of this kind. I hope the Government will allow plenty of time for these consultations to take place before the Committee stage and thereby reduce the contests which will otherwise occur in this House.

4.23 p.m.


My Lords, I am grateful to the noble Viscount who has just sat down for drawing attention to the difficulty of making a conventional Second Reading speech on this Bill. I find myself in a like difficulty. I want to deal. I hope briefly, with Clause 13 of the Bill, but in respect of only one matter arising in it—namely, the period of copyright which is provided for British films. I have been in communication with representatives of the British Film Producers' Association, and the view which I put forward on this matter is therefore the view of most, if not all, of the producers of films in this country. I should perhaps add that the arguments that I adduce in support of that view are my own, and that the British film producers are not to be committed to the arguments, but only to the point of view.

I think we have here another instance of what my noble friend Lord Lucas of Chilworth called an erosion of existing rights. While it is true that films at present do not have a copyright in themselves such as is proposed by the Bill, nevertheless it is also true that they have a copyright protection under the 1911 Act in a somewhat complicated manner—in some respects on sound track and in some respects on the photographs themselves. At any rate, it is a copyright protection, and it subsists for fifty years. My objection to Clause 13 of the present Bill is that it limits the copyright in films to a period of twenty-five years only, and I hope to show your Lordships that that period should be extended to at least fifty years.

I am not blaming or criticising Her Majesty's Government for inserting the period of twenty-five years in the Bill, because in this respect they have done what we so often have urged them to do: they have followed the recommendations of a Committee. It is the Committee who I think on this occasion are wrong. Their error, as I see it, is set out in paragraphs 86, 88 and 89, and I should like to examine their argument. But may I first say that if a twenty-five year period stands, it will, I think, be a permanent disservice to British film producers and put them at a serious disadvantage in relation to their foreign competitors. Now why has the Copyright Committee suggested twenty-five years? In effect, in their argument they have lumped gramophone records and films together, and put them as being more in the nature of industrial products than truly creative, artistic works. I think that view is wrong.

Without any disparagement of gramophone records, or any lack of appreciation of the great pleasure that one can have from them, I think it is fair to say that the making of a gramophone record is a mechanical process which does not add anything to the work which is being recorded. But that is not true in the case of a film. I think a film is much nearer to being a truly creative artistic work. I submit that a film is not just an arithmetical sum of the various components which go into its making—the story, the script, the acting, the decor, the direction and the music. May I point out, for example, that if the same story, the same script, the same cast of actors and actresses, the same cameramen and the same music were given to one director rather than to another, the finished product would be entirely different. Something new is, in effect, created. To take it further back still, if producer "A" reads an original story which he thinks would make a fine film, he will see it in his mind as suitable for scripting by one person, for direction by another and for acting by such and such a leading man or leading lady; whereas producer "B," with the same view that this story would make a fine film, conceives it in an entirely different way—a different director, a different script writer and a different cast. Therefore, whichever of them is the producer, a different end product would result.

In other words, I think you have there the creation of something new and something which, if it is good, is of a highly artistic nature and suitable, therefore, for copyright protection in the same way as original literary, musical and other works. A good example of how a different producer and director would make a different product will readily occur to your Lordships if you think of Sir Laurence Olivier's film of Henry V. Imagine that film made by a conventional producer or director, either here or in Hollywood. It would be something entirely different. Sir Laurence Olivier has there created something which is new and which, in my opinion, is deserving of copyright protection. As a matter of fact, there is one particular aspect of film making, one of the many processes, which is like the making of the gramophone record, and that is the mere recording of the music, involving the same kind of technical skills as those of the gramophone companies. But the fact that one small aspect of it is akin to the making of a gramophone record is no reason why the vast, complicated whole should be lumped together in the Report of the Committee in the way it has been.

I am suggesting that a reasonable period of copyright for films would be fifty years. Why fifty? One reason is that several other countries have already adopted that as the period of film copyright, and, under the Brussels Convention, the protection in any country is the same period as that given to the product in its country of origin. If, therefore, we stick to the provision in the Bill of twenty-five years, it would mean, for example, that French films coming into this country would have the advantage of copyright protection for the whole period of the copyright, which, I think, for films in France is as for the literary copyright—the life of the author and fifty years thereafter; whereas copyright protection for British films in France would be limited to twenty-five years. In other countries the protection for films is fifty years. Here, those films would have fifty years' protection, and our films in their country would have only twenty-five years' protection. That, I suggest, is not a satisfactory position for British films in relation to films from overseas.

The Committee relied, to some extent, on the sentence appearing in paragraph 104, namely: … most films are not alive after ten or fifteen years. I am authoritatively informed that that is not, and was not put forward as, the considered opinion of the British Film Producers' Association, although the Committee's Report rather suggests it. It was a chance remark made by one of the members of the producers' delegation when giving oral evidence before the Committee. But, that apart, it is probably true that most films are dead after ten or fifteen years. It is, however, equally true that most of the books which are published to-day are as dead as mutton after ten or fifteen years; but it would not be advanced as a reason for limiting the copyright in books to twenty-five years that most of them would he dead by that time. I cannot see that it is any more logical or reasonable to apply it to films.

There are, I think, enough good films surviving after twenty-five years to justify an extension of copyright protection. I could not quite accept the wording of the noble and learned Viscount who sits on the Woolsack that these are museum pieces. That has a somewhat fusty sound. It might be fairer—and I think the noble and learned Viscount would accept it—that we should regard them as the classics. Although it is true that most of the classics of to-day are not British in their origin—films like The Birth of a Nation, the early Chaplin films and so on—I believe that British films have so progressed in stature that many which have been made in recent years will come into the category of classics, and that we shall have as many British classics in the film world as we have British classics in the world of literature and drama. That certainly means that they deserve protection for a more reasonable length of time. I should think that films like Henry V, Hamlet, The Odd Man Out and various others are likely to be showing in regular revivals all over the world forty or fifty years from now.

May I digress and bring in another point? There are cases from time to time where the making of a film from an original idea which has been created in the mind of the producer or director or has come up in the literary department of the studio is followed by the production of a book or, in some cases, the adaptation of the film as a stage play. A recent case was the film of The Blue Lamp, which was subsequently adapted for the stage. It seems a little unreasonable that the stage production will have the benefit of protection for the full period of copyright, but protection for the original material from which it was adapted is limited to only twenty-five years. Without the film there would have been no play, and yet the play is in a much more favourable position from a copyright point of view.

I do not want to get myself involved in the rather complicated point which my noble friend Lord Lucas of Chilworth raised with regard to the effect of the end of film copyright on the literary, musical and other copyrights. I did not quite follow him all the way in his interpretation. As a rule, the film producer, when he is buying the rights to make the film of, perhaps, a book, buys those rights for the full period of the copyright. Similarly, with a script, he makes his contract with the script writer for the full period of the copyright. It is the same again with the composer. As I understand it, at the end of twenty-five years his copyright in the film would be exhausted but his copyright in these various component parts would remain; but a showing of the film subsequently when it is out of copyright would not be an infringement of his copyright in the other parts. My chief criticism is that I think it is a little absurd that in as short a period as twenty-five years he should lose copyright in his own, as I think, truly artistic creation, and still have the other rights remaining for the full period.

My final point is this. I ask, who would suffer if the period of film copyright were fifty instead of twenty-five years? I have not been able to find anyone who could say that anyone would be injured. If the noble Lord who is to reply can show me that the extension of film copyright from twenty-five to fifty years would have really harmful effects on some worthy people or owners of other rights, I shall give great consideration to that, but, so far, I have not found anyone to say that anyone would suffer. I have given various reasons why I think British films would be at a disadvantage if they did not get a longer period than twenty-five years. I ask that, before we get to the Committee stage, this point be reconsidered, and if it is possible to give an additional protection to British films without doing harm to anyone else, then surely only prejudice would stand in the way of its being done.


Before the noble Lord sits down, may I tell him that I relied for my interpretation, that a film may be shown after twenty-five years free when the twenty-five-year copyright ends and the author and composer have no right to any royalties, upon subsection (6) of Clause 13.

4.40 p.m.


My Lords, it has already been said that in connection with a complicated technical Bill of this character it is difficult to make an ordinary Second Reading speech. In those circumstances, I intervene for only a few moments to ask Her Majesty's Government to give careful consideration to the position of local education authorities under the Bill as it stands. The first point I would make is this. For some reason or other local authorities were not invited to give evidence before the Copyright Committee. Therefore that Committee did not have an opportunity of considering the views, or of knowing the difficulties, of local authorities and local education authorities. I would put it quite plainly to the Minister that, as the Bill now stands, teachers carrying out their work of educating children would appear necessarily to be committing infringements of copyright almost every hour of their teaching time.

If they use a gramophone record to teach appreciation of music there are, I believe, two infringements. If a piece of sculpture or a painting is shown to the children so that they may attempt to make a copy of a portion of it, again there is an infringement. As the Bill stands, there is an almost endless list of possible infringements of the law by teachers. Again, many schools, quite rightly taking advantage of the technical developments, are recording educational broadcasts on tape recording machines. As the Bill stands, if they reproduce such an educational broadcast in their classes an infringement of the law will arise. Surely, in our desire to protect legitimate interests we are not going to deny the children of to-day the opportunity of benefiting from these technical developments which are of such an advantage in teaching.

Let me make one thing quite clear, on behalf of local education authorities and local authorities. Their claim for exemption is limited solely to the work of education in the classrooms, and so on, of schools. When a school has a public concert, or, shall we say, a youth organisation connected with the school has a public performance, then of course the rightful claims of copyright holders must be fully recognised and appropriate arrangements made to safeguard these rights. It is only for teachers carrying out the statutory duties and responsibilities placed upon them in their work of education in our schools that I ask the Minister for an amendment of the Bill, to ensure that the teachers do not daily run the risk of infringement of various copyrights in this thing or the other.

I pass now to the second point I wish to raise—it has already been referred to on more than one occasion. I refer to the embargo which the Musicians' Union is at present able to place on the playing of gramophone records; and, I assume, in view of the technical developments, that it may arise in the future in regard to tape recordings of dance music. I accept without any reservation that the legitimate rights of holders of copyright should be fully protected. No one would wish to use copyright gramophone records or tape recordings without paying a reasonable charge for that privilege. But that the Musicians' Union, for its own selfish purposes, should be able to impose an embargo—which is what is happening at the present time, as can be seen by published documents, from the Report of the Copyright Committee itself, and. from the clauses read out by my noble, friend Lord Lucas of Chilworth—in my considered judgment constitutes a restrictive practice against public interest and should be no longer tolerated. I can. think of nothing more unjust, I believe it was about a hundred years ago that the candle-makers of London petitioned the Houses of Parliament against the use of windows in houses because, in the terms of their Petition, the use of windows in houses would destroy their work as candle-makers. It seems to me that the only difference between the attitude of the candle-makers of a hundred years ago and the Musicians' Union of to-day is that while the candle-makers did not have their Petition granted, the Musicians' Union are able to "get away with" their restrictive practice: With all respect to noble Lords, I submit that this stranglehold that the Musicians' Union have on phonographic performances should and must be broken. The Report of the Copyright Committee seems to imply that if the Musicians' Union are not allowed to continue this embargo, they may, and perhaps will, take strike action. My frank answer to that is: Let them! But to imagine, for example, that the quite famous Mr. Harry Davidson's Old-Time Dance Bard is going to take strike action because permission is given to some obscure old-time dance club in a country town or village to play gramophone records at a practice dance is really too silly for words. And I must say that I am somewhat surprised that the Copyright Committee appear to have been intimidated by that threat of strike action.

I hope that, between now and the Committee stage, the Minister will reconsider this matter and submit an Amendment making it illegal for a body such as the Musicians' Union to enforce an embargo on the carrying out by Phonographic Performance Limited, of what I understand to be their quite legitimate function of collecting fees on behalf of owners of copyright. I should like to make it quite clear that I am not criticising Phonographic Performance Limited. The agreement with the National Council of Social Services, arrived at after a good deal of negotiation, is to be welcomed. I am attacking what I believe is a quite wrongful use by the Musicians' Union of the entirely unforeseen effect of a section in the 1911 Act, arising out of the Cawardine decision which has already been mentioned.

May I detain your Lordships a little longer, on a matter to which my attention has been drawn by a letter in The Times to-day? Like thousands of others, I happen to own a tape-recording machine and it appears, if the letter in The Times is correct, and if my reading of the Bill is correct, that if I consider that a broadcast is likely to be of interest to my little granddaughter and I take a tape-recording of that broadcast and play it over to her in my own home, I am guilty of an infringement of the law as it stands. That seems to be the clear implication of the letter in The Times and the Bill as I read it. I suggest that that is reducing restriction to absurdity. If the Minister cannot find a way out of the difficulty and put down an Amendment to rectify this absurdity, may I suggest that we might take a hint from George Orwell's 1984 and that, as a warning to potential law-breakers like myself, the robust figure of the present Postmaster General. Dr. Charles Hill, should be shown on the television screen, and his voice heard on sound broadcasts also, so that, in that rich plum voice of his, he may tell us, as in George Orwell's 1984, "Big Brother is watching you." That would be the only way of warning potential offenders in their own homes against the State law created in this Bill.

Seriously, I would ask Her Majesty's Government to consider the fundamental position of teachers in our schools and the very difficult situation in which they will be placed if this Bill is passed without any amendment. I hope that we may be able to have some assurance that the world's enjoyment (and, Heaven knows! we all want plenty in this world to-day) shall not be impeded or retarded by a body such as the Musicians' Union in support of their own selfish class interests.

4.56 p.m.


My Lords I rise to put one brief point and to make one suggestion. Before doing so I should like, rather diffidently, to dissent from remarks which have been made by the noble Lords, Lord Burden and Lord Lucas of Chilworth, regarding the activities of the Musicians' Union. All of us who are interested in "live" music and in the formation of musical orchestras will have found by experience that the field from which performers can be recruited is steadily decreasing. The activities of the Musicians' Union in insisting on the employment of musicians wherever possible in fact provides the only source from which we can hope to draw musical performers now and in future. With that brief apologia, I come to the point which I desire to make. I do so with apologies for it is hardly a Second Reading point, but if I offend I do so in company with practically every speaker this afternoon.

I have studied this Bill from the point of view of the visual artist because I am interested in the visual arts and also because I believe that the visual artist is perhaps the least protected of all artists and is certainly the one who, nowadays. is making the poorest living. The work of the visual artist is possibly the only realm in which, over the last few years, prices have not risen but, if anything, have fallen. I have to admit, as must others who buy the work of modern artists, that we are paying no more, and in many cases less, than we paid many years ago. I believe that young artists are well advised to sell their work at prices within the reach of large numbers of people; none the less, the fact remains that they are on the whole earning less nowadays. It has been perfectly clear in this debate that every noble Lord who has spoken, and, I suspect, every other noble Lord present in the House, has had at heart the interests of the artistic producer. He is someone to whom the community as a whole has a deep debt and to whom we all owe a duty. After all, most artistic producers are not good businessmen, and we must, therefore, do our best to ensure that they benefit as is their due from the work of their genius.

The visual artist is mainly affected by the provisions of one clause in this Bill, Clause 4. Like my noble friend, Lord Archibald, I have been in touch with the relevant organisations, the Society of Industrial Artists and the Imperial League of Artists, and, though they have not approved all that I may say to your Lordships this afternoon, I have reason to think that they will not actually disagree. The effect of Clause 4 is what my noble friend. Lord Lucas of Chilworth, called "erosion" It is the erosion of copyright rights, and therefore should, I think, be viewed with considerable distrust by all of us who are interested in the preservation of those rights of the creators of artistic works. In particular, it deals with those who produce their works whilst employed. It is very difficult indeed, I think, to argue that every artist who is permanently employed by, for example, an industrial organisation, should have a special contract in which his exact rights as to copyright should be set out. It is reasonable to presume that an employer has an interest in an article of a type for the production of which he is employing the producer. Similarly, it could be maintained—though [think less satisfactorily—that the producer of a commissioned work is in a similar position, though think that the establishment of a stated contract is less complicated.

I suggest, however, that both of these cases could be met—and, incidentally, this would also meet the case, I think, of the important signatories of a letter which appeared in The Times newspaper of yesterday's date, though I do not wholly follow their arguments—if the provisions of this clause were slightly altered. I suggest that the artist producer—be he commissioned or be he employed—should have vested in him the copyright of his work, with an absolute and exclusive licence for the use of that work in the way for which it was commissioned or for which it was originally produced under the terms of the artist's employment to the employer or the commissioner. It is true that it is suggested in the Bill that these copyrights, owned by the employer or by what I have called the commissioner, should be enjoyed for periods different from the main copyright.

Here I would make another suggestion. There is, I think, no absolute sanctity about the period of fifty years. It has been generally felt to be a reasonable length of time to give to the producer of an artistic work, and I think most of us would accept that. But if there is no particular sanctity about the period of fifty years, there is certainly even less about the period of fifteen years, which I think is the period for posters, or twenty-five years which is the period for films—and may I say that I entirely agree with my noble friend, Lord Archibald, in his objection to the period as applied to films. I suspect that the reason for these different periods arises from a feeling that perhaps these works are ephemeral, but I suggest that even if they are, the creator has a right in them. If there is any ground for these other periods, they might be applied to the licence to which I have: referred, and thereafter the whole of the copyright should be that of the actual artist.

I should like to ask one question which I dare say the noble Lord who is to reply on behalf of the Government will be able to answer. Under Clause 4 of the Bill, as I understand it, if a work —let us, for the purpose of argument, say an article for a magazine—is produced on a commission, then the copyright will belong to the commissioner, It will belong to the newspaper or magazine for which it has been written. Its use cannot be altered—that is to say, it cannot be used, for example, as a film script. If it turns out that it is a suitable tale to make a foundation of a film script, who has the right to sell it as a film script? The copyright, if I read the Bill correctly, belongs, as copyright, to the owner of the magazine. But he has no right to sell it as a film script and the actual writer has no copyright in it at all. That is a question I should like the noble Lord to deal with. Possibly I may be entirely wrong in my reading of the Bill, but if my reading is correct, then clearly there is need for amendment here. My Lords, I have spoken briefly, I have put my points as briefly as possible. I hope that I shall have a favourable response.

5.7 p.m.


My Lords, I am in a somewhat embarrassing position because the masterly exposition of this Bill which we heard from the noble and learned Viscount who sits on the Woolsack, included nearly everything that I think it is necessary to say on Second Reading. On the other hand, I feel that all other Lords who have spoken were right in thinking it would be useful, both to this House and to the Government, if the points that are likely to be taken strongly on the Committee stage were indicated in this Second Reading debate. I have the further embarrassment that I am to be followed in the debate by the noble and learned Earl, Lord Jowitt, who, in spite of his modesty in a previous debate, is as much a master of this branch of the law as from experience in the courts and in another place and, indeed, from reading his speeches here, I know him to be of all other branches.

I welcome this Bill on many grounds. In the first place, I do so most strongly because it enables this country to ratify two important international conventions. I agree with the noble and learned Viscount who sits on the Woolsack that this country has always played a leading part in the Berne Convention. I am very glad that we shall be able to ratify the Brussels revision. I was myself more directly concerned at the Board of Trade with the other convention—the Universal Copyright Convention. At the time when I first held my office in the Board of Trade, that convention had not been signed. I was very glad when it was signed. I was even more glad when the United States ratified. I am, above all, glad that, when this Bill passes into law, this country will be able to ratify, to the consequent benefit of our authors and publishers and of our export trade in books.

I also welcome this Bill for the reason —given again by the noble and learned Viscount the Lord Chancellor—that it brings into one Statute all the statutory provisions relating to copyright. And in this I cannot help thinking that the noble and learned Earl who is to follow me will agree. The Bill was, however, vigorously attacked by the noble Lord, Lord Lucas of Chilworth, who seemed to think it a great disadvantage that one and the same Statute should deal with basic rights and special or subsidiary rights. I believe, on the contrary, that it is essential, if there is not to be the greatest confusion, that a single Statute should deal with both. Your Lordships are familiar with the disadvantage of dealing piecemeal with copyright law—that was made very clear early in the year when a partial Bill was introduced. On that occasion the noble and learned Earl, Lord Jowitt, pointed out that it was difficult to support the new television exhibiting right which that Bill would have conferred in advance of providing for a tribunal; but I am certain that all noble Lords will see how difficult it would have been to provide in that Bill for a tribunal which was to deal with so many other matters as well as that new television right. I welcome this measure on all these grounds. I think that, by universal admission, the Bill deserves a unanimous Second Reading, however important may be the matters which we must discuss on Committee stage and on which differences may appear.

The attacks made on certain provisions of the Bill are based, I think. on much too simple and hasty a view both of the facts and of the law. Let me take, first, the case of the right conferred by Section 19 of the 1911 Act on the makers of gramophone records. The leading case, which was mentioned by the noble Lord, Lord Burden, is The Gramophone Co. Ltd. v. Stephen Cawardine and Co., decided in December, 1933, and reported in the Law Reports [1934] Chancery, 450. From some comments on that decision, both in this debate and on earlier occasions, I think it has been assumed in certain quarters that this was an unforeseen result of the Statute of 1911 and worked some injustice. I should therefore like to remind your Lordships that the decision in that case was given by Mr. Justice Maugham, as he then was; and that the case was well argued before him will be accepted, I think, when I remind your Lordships that counsel for the plaintiffs was the late Sir Stafford Cripps and counsel for the other side was Mr. Fergus Morton, now the noble and learned Lord, Lord Morton of Henryton.

The learned judge found, as learned judges often do, that the section was badly drafted, but he was in no doubt at all both about what his decision should be and about the justice of the case. I venture to quote these sentences from page 461: I see no injustice or unfairness which is likely to arise from my construction of the section. On the other hand, I can see considerable objection, from that standpoint, to the view that persons might obtain, without doing anything more than buying a record, the advantage of the work, skill and labour expended by makers of gramophone records for the purposes of a public performance. The noble Lord, Lord Lucas of Chilworth, seems to think that this right, which has existed since 1911 and has been known to exist since this decision was given, is necessarily inimical to the composer. But, of course, that is not the case at all. Were there no such copyright in the record, the gramophone companies would not be in a position to make nearly such a good offer to the composer, and I think that is an extremely important consideration.


My Lords, upon what does the noble Lord base this supposition?—for supposition it must be. How can he say that the gramophone companies would not have been able to pay a better royalty? If they want the composer's work, they have to pay for it. If it is paid for on a numerical basis: anything that curtails the number must be against the individual who gets a royalty on the number. I tell the noble Lord frankly that I am not at all interested in what the learned judge said. I am interested only in what has been the effect, and that is clearly laid down in the report of the Copyright Committee.


My Lords, as one who happens to be one of Her Majesty's Counsel, perhaps it is not improper for me to take some interest in what the learned judge said about justice, but I understand the noble Lord's indifference to that matter. On his question to me on how I knew that this would be the effect, I agree that it is supposition; but I was using common sense, which is sometimes not a bad plan. It is perfectly true that the Copyright Committee gave various reasons why they thought that the uncontrolled exercise of this right by gramophone companies was undesirable, and it was for that very reason that they proposed a tribunal. That is an important change in the law. In interrupting the noble Lord, Lord Lucas of Chilworth, the noble and learned Viscount the Lord Chancellor mentioned what was said by the Copyright. Committee in paragraph 184 of their Report; and I think that is so important that I must read a sentence. This was the considered conclusion of the Committee on this point: For the reasons, and subject to the qualifications which hereafter appear, we recommend that the right given to gramophone companies by the Cawardine decision to authorise and control public performance of the records should not be taken away. It was not stated with reluctance, as the noble Lord, Lord Lucas of Chilworth, supposes. The Committee did say that another of their recommendations was made with reluctance, but it was not this one.

I think the noble and learned Earl, Lord Jowitt, will agree with me that, whatever we may think of the provision on this point in the 1911 Act, and whether we welcome or deplore the legal decision I have quoted, the commercial interests and practices of the gramophone industry have been based on the law as it has stood for all these years, and at the present moment are still based on that state of the law. While I should agree with any noble Lord who said, "If that state of the law is bad, let us now change it," I suggest: to noble Lords, in whatever quarter of the House they sit, that, if they are going to propose so fundamental a change of the law, the burden of proof is on them to show good reason for the change.

I would say one thing further before leaving the case of gramophone records. As a result, I think, of the state of the law, we have had the experience that there has been no interruption of the production of gramophone records of music, whereas, as I expect noble Lords are aware, in the, United States, where no such copyright in records is recognised, the musicians were able to stop the production of records of music altogether for some two years. I agree with the noble Lord, Lord Faringdon, that some of the attacks which have been made on the Musicians' Union went too far. I certainly do not defend all their restrictive practices, but I am far from denying that they have a legitimate interest in this matter.

I pass now to cinematograph films. Here again I differ a great deal from the noble Lord, Lord Lucas of Chilworth, though I listened with a good deal of sympathy and a far greater measure of agreement to the noble Lord, Lord Archibald. I believe that there are two quite distinct questions. The first is whether there should be a copyright in a film, as such, at all; and secondly, what should be its duration. I think the case for a copyright in the film, as such, is overwhelmingly made out; but on the question of what the duration should be, I think that could be more appropriately studied on the Committee stage. My first quite preliminary impression is that the period suggested by the noble Lord, Lord Archibald, may be too long, but I think it may be a fact that what is now suggested may be too short. However, I should not like to commit myself to-day; I will study carefully what the noble Lord said, and I am sure this matter will be discussed further on the Committee stage.

I feel that I must answer what I regard as a complete misunderstanding of the position by the noble Lord, Lord Lucas of Chilworth, when he said he thought that if this Bill went through in its present form, the owners of the copyright in the Enigma Variations, if the Enigma Variations had been played in a film, would somehow lose that copyright, or be prejudiced in its exercise, at the expiration of the twenty-five years' life of the film. All that they would be unable to stop would be the production of that film itself; the copyright in the music, of course. would not be affected.


Did I ever say that it would? Perhaps I was not as clear as I should have been, but what I think I said is precisely what the noble Lord has just said that, according to subsection (6) of Clause 13, … copyright subsisting by virtue of Part I of this Act in any literary, dramatic, musical or artistic work cannot be enforced in that film after twenty-five years.


"In that film."


That is what I said.


If I misunderstood the noble Lord, I express my regret and apologise; but my impression was that he thought that the owners of the Elgar copyright in the music would receive some injury. If I misunderstood the noble Lord, I am glad that we are now in agreement.


Let us get this point clear. The noble Lord and I think the same. They would not get any return when that film came in the public domain for the performances of that film. That is all.


I regret if I either did, or even appeared to, misrepresent the noble Lord.

I should perhaps mention, in passing, Clause 4 of the Bill, because it was mentioned by several noble Lords, and was, indeed, cited in the letter to The Times of yesterday, to which reference has been made. I think that Clause 4 of the Bill has been greatly misunderstood, and before anybody makes up his mind on the effects of that clause I hope he will study paragraph 271 of the Committee's Report. There is no alteration of, or limitation on, the right of the author. If he makes his contract, he can provide what he will, and his own freedom of contract is in no way curtailed. What Clause 4 does, in accordance with the recommendation in paragraph 271 of the Committee's Report, is to say what is the presumption if the contract does not make clear what the intention is. I believe that a study of paragraph 271 of the Report and of Clause 4 of the Bill shows that the presumption suggested—that now embodied in Clause 4—is a sensible one, and is probably what the parties intend. In any event, there is not the slightest sinister motive behind Clause 4: it is, as I understand it, an endeavour to carry out paragraph 271 of the Committee's Report. The matter can be considered appropriately and in greater detail on the Committee stage, but I think in fairness to the Committee and to the Parliamentary draftsman it is right to point out that there is no such sinister intention or sinister result in Clause 4 as has been suggested in some of the speeches that have been made.

The last point with which I wish to deal is this question of broadcasting on television. As I understand the Report of the Committee, they were reluctant to suggest a great many additional rights in copyright, and in that I believe we are all in agreement with them. But they did suggest the minimum extension which they thought would make it possible to do justice and to see that television broadcasts of sporting events were, in fact, made. So many of the speeches that have been made in criticism of the new right do not pay any attention to the real problem: that of whether sporting events would be recorded at all unless some such right were given. I know it may be said that certain sporting events have been, and are being, televised; but I think that a good many of the arrangements are being made in full confidence that something like what is provided in this Bill will come into being. I have a great deal of sympathy with the point previously made by the noble and learned Earl, Lord Jowitt, about the danger of giving such a right without a tribunal to see how it is worked and enforced, but under this Bill conferment of the right and the provision of the tribunal go together. I apologise to noble Lords for having detained them so long, but I think some of the criticisms that have been made are based on a misunderstanding both of the Committee's proposals and of the provisions of this Bill, and I thought that, even on Second Reading, the contrary view on some of those matters should be stated.

5.20 p.m.


My Lords, I am sure the Government are gratified with the general reception that this Bill has had. It is, of course, certain that we shall give it a unanimous Second Reading. As the last speaker has said, it is also useful that we should take this opportunity of pointing out certain matters which are really Committee points, both in order to apprise Ministers of the difficulties we have in our minds, and also so that they may be considered before minds become absolutely set.

In that connection, and rather out of turn, may I say that I have received a communication from the Film Industries Employees Council which represents all grades of technicians in the film production industry. They tell me that they are very disturbed at the proposals of this new Copyright Bill to create copyright in film and television transmissions, and urge that opportunities should be given for consultation with trade unions and other organisations affected. I ask the Government, whatever else they do, to accede to that request. I realise that it is difficult to talk to people before you have promulgated your proposals, but it is also, I am sure the Government will agree with me, useful to consult these people before minds have become absolutely fixed and whilst there is still room for change. They are an important body of people, and I hope that the noble Lord who is to reply will he able to tell me that the Government will take steps to bring these people into consultation, even if the Government are going to adhere to their proposals. It is obviously desirable that these people should have the feeling that they have been consulted and that some regard has been paid to their views.

I say at once regarding the Bill as a whole that I agree with the Lord Chancellor in thinking that it is important that we should be able to sign this convention. The advantages we may gain from the convention completely outweigh other and minor considerations. On any proposals which I personally may have to make in regard to this 13i11, I shall regard myself as being answered satisfactorily if we are told, "We cannot do that and at the same time sign this convention." I want us to sign this convention. I regard it as a matter of great importance. At the same time, there are certain observations I want to make with regard to the first Part of the Bill, though, of course, my main criticism is. with regard to the latter part of it.

Notwithstanding what has just been said, I am not at all happy about Clause 4. It is rather like the old distinction between contracting in and contracting out, with which we are so familiar in another context. I think that the matter has been put the wrong way round. I consider that the man who needs protection and help is the- author or the inventor, and not the man who employs him. Of course, if he is a man of full age he can obviously make an agreement with his employer, surrendering his copyright. On the other hand, the people we want to protect are the inventors, the thinkers or the authors, whatever you call them, and not the employers. I accuse nobody of having any sinister intention or anything of that sort, but I think it would be better to put the matter the other way round.

I am a little worried about Clause 6. I have no doubt that the Government have had representations from the librarians—at least, some association of librarians—and they are obviously people whose views on this matter should be considered. They are in difficulties, and they do not know where they stand. I expect the noble Lord, Lord Mancroft, has had the same observation as I have had from them. Put quite shortly, it is this. Students come to the library and are entitled, for the purpose of genuine research, to make extracts or copy them out. Obviously, a much more convenient way of doing that is to take a photograph, and the librarians are being asked to do that. I assume a genuine student, and I assume that the photograph goes to no greater extent than would the student's own notes. Are the librarians entitled to help him by having a photograph made and sending it to him? That is a matter upon which the librarians need help. I am only indicating the point in order that the noble Lord may have it in his mind, and I hope that in due course he will be prepared to deal with it.

I was myself in some difficulty with regard to Clause 9. The noble Lord who spoke last was good enough to say that I had some knowledge of this topic of the law. I assure him that that is quite untrue—in fact, I have revealed that already. It came as a shock to me when I was Chairman of the Tate Gallery and the relatives of a well-known modern artist who has been dead for some time now suggested that we must pay them a royalty because in our catalogue of the Tate Gallery we put photographs of these pictures, as is done in nearly all gallery catalogues. I confess I had no idea that that was the subject of copyright. I should like to be told whether Clause 9 (3) is intended to deal with that point. It says: The copyright in a sculpture or work of artistic craftsmanship which is permanently situated in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work. I am worried about the words "permanently" and "making." So far as the adverb "permanently" is concerned, the Tate Gallery and all modern galleries try, if possible, to re-arrange their pictures from time to time. Some of them go down to the cellars, and then come up again and see the light of day. Whether a picture in those circumstances could be said to be "permanently situated in a public place," I am not sure. I suppose a member of the public can, if he wishes, say, "You have not got this picture on exhibition to-day. May I go down to your cellars and look at it?" I suppose he would be allowed to do so if it were convenient, but I really do not know, and I should like that question cleared up.

My own experiences are unlike those of the noble Lord. When I was earning a good deal of money thirty-five years ago I was interested in pictures, arid I had some money to spend. I used to invest part of my savings in stocks and shares, all of which went down to almost nothing. I did not realise that it was an investment at the time, but I spent a certain part of the money I had in buying pictures. I have been extremely lucky. I have been carrying on a precarious livelihood for a good many years. I regret to say, by disposing of some of these pictures at prices which are far greater than the prices I gave for them. But if you want to dispose of a picture—I am under the disagreeable necessity of having to do so at the present time—you will find that the first thing you will be asked to do is to have a photograph taken of it. That photograph is then sent round to a prospective purchaser. Is that a breach of copyright? It seems to me that if it is, it is rather ridiculous.

There is another point which is worrying me. I have been asked frequently in the past—I shall be asked less frequently in the future—to lend pictures to exhibitions for public viewing, and I have done so. I lent a picture to the Edinburgh Festival this year. Am I guilty of a breach of copyright in doing that? It is my picture: it belongs to me; I bought it for my private house. But if I send it to the Edinburgh Festival and it is exposed to the public view there, is that a breach of copyright? I am not sure. I am asking for information because it does not seem to me to come within any of these exceptions. I think that this matter ought to be dealt with and cleared up. I have mentioned these matters; I do not necessarily want an answer to-day, but I should like the noble Lord to look at them and see how the position stands.

Our real objection to this Bill, of course, arises in regard to the ancillary or subsidiary rights. I very much regret that the Government have decided to perpetuate this ancillary right so far as records are concerned. With the greatest respect to the noble Lord who has just spoken, he has only to consider the passages set out in the Report dealing with this matter to see that, although of course it is a result of the Act of 1911, it was never intended; it was never what the Gramophone Company wanted; it was never what they asked for—indeed, it was the exact contrary to what they said. Their evidence was quite plain. There was this Committee set up in 1909, I think it was, which led to the Act of 1911. The gramophone people came and said—I quote from page 50 of the Report of the Copyright Committee: The public performance then, that we ask for, is that when a person has bought a phonogram he should be entitled to play it in public, and not merely in his private room. The noble Lord, Lord Gorell, who was Chairman, asked this question, Let us understand the position, that the purchaser of a disc should not merely acquire the right to use it in his own private surroundings like the singing of a song, but to use it in public? To which the witness replied: Yes. Lord Gorell then asked: And, therefore, to perform the songs publicly? To which the reply was given: Yes. We think it is perfectly reasonable to grant that concession. It is not a matter that would affect us personally as manufacturers, but it would affect a considerable number of our clients and customers. That is what they wanted. I have not a shadow of a doubt that the draftsman and Parliament, when it passed the Act of 1911, intended to give them that right, and nothing more than that right. The Committee indicate that pretty plainly when they point out that it can be said with great force (I have not the passage before me) that all they intended was that the records should not be pirated.

It seems to me, on principle, that the thing is objectionable and wrong. No one thought of it until about the year 1933, when the extraordinary ingenuity of Sir Stafford Cripps induced a judge to say, and no doubt rightly, that that was the true construction of the section in the Act. That was a complete surprise to everyone and I venture to think it was a great misfortune that that right ever was given. I agree with the noble Lord, Lord Conesford, to this extent: that the right has been given, and therefore I should not take it away with regard to records that have been made. I agree with the noble Lord further that I think he can fairly say, "You have to show that the law ought to be altered." But I say that, on balance, the case for altering the law here is quite overwhelming. It is true that the Committee recommend, in paragraph 184, that the right should continue. That is their ipse dixit, but I will say this, having read this Report carefully: they do not give one single reason to support it. They set out a whole bagful of reasons against it, but they give no reason whatever for coming to that conclusion.

I again ask for information. I believe I am correct in saying that this right is not given in any other country; so far as I know, this right is unique to this country. Am I correct, therefore, in saying that this result follows? If I go and buy a record of some dance music (this applies much more to dance music than to anything else in practice) which was made in this country, I cannot play it in public—and "public" means the village hall or anything outside the domestic circle; I think that is right —without the consent of the phonogram company; and, in practice, the phonogram company refuse their consent if they think it reasonable that I should employ a band of live musicians. It is their monopoly in this way. But if I go and buy a record in America of dance music, I am entitled to perform that in public here. Am I right? So far as I know, I am right.


I am not certain of that, but I believe there is some sort of agreement on that very point which I shall have to study carefully.


I mention it now so that the noble Lord can find out, but that is my belief. If so, if that is the position, I can imagine nothing more foolish. What is the moral of the whole thing? If you want a record of dance music, go to America and buy your record there for dollars; do not buy your record here. I may he quite wrong but, if that is the result, that seems to me a most cogent argument against this scheme.

For the rest, what have you? You have this strange right, this ancillary right, which has nothing whatever to do with copyright. Copyright is intended to protect the original work of the mind, be it painting, be it music or be it literature—work of that sort. This is a mere mechanical thing. Some ingenious person has found a way of recording somebody else's work. It is a misnomer, I venture to think, to say that that should be copyrighted at all. It has led to great trouble. The result was never intended. It has led to this trouble with the Musicians' Union. The Committee themselves report—your Lordships have read it—that they are not at all satisfied with the way it has been carried on.


May I ask the noble and learned Earl this question? He says that it has led to trouble with the Musicians' Union. Of course, there is the fact, to which I drew attention, that in the United States, where there is no such right, there was much more trouble with the Musicians' Union, which led to the stopping of the making of records altogether.


I really cannot be deflected by threats of strike action from what I think right. In a few weeks' time, I shall be in a position to say more regularly what I think than I can to-day, but I am not going to be deflected by threats of strike action from saying what I think is the right course to take. I will say exactly what I think happened to this Committee. In paragraph 184, they come down to saying that this right should continue. I say, on principle, that this right of receiving royalties from a gramophone record is quite out of place in the law of copyright. In my humble view, it has nothing to do with the law of copyright and the sooner it goes the better. If it is a right peculiar to this country, and if you can surmount this difficulty by buying a record of a dance band in almost any other country in the world, then it seems to me that the protection is really farcical. I hope the noble Lord will look at this matter and will consult the unions concerned to see whether this is, in fact, necessary.

The only other subject upon which I want to speak is that of films. I personally take this view, subject to the diffi- culty raised by my noble friend Lord Lucas of Chilworth, about I.T.A.—I see that there is a difficulty there. I do not think it unfair that anybody who exploits a television film of an important event for his own purposes of gain should pay something extra for so doing. For example, if, some day, Mrs. Topham should agree to the televising of the Grand National, and if thereupon the film companies in London have a large showing of the film, with crowds of people paying for their entrance, it seems to me not unreasonable that those people should pay extra. After all, one has a different class of licence according to what one is going to do with one's motor vehicle. I do not see why these people should not be treated in the same way.

But is it really necessary to extend this extra charge to hotels, boarding houses and restaurants? Is that fair? I should not have thought so. To-day, in an hotel the right to go and see television has come to be regarded as almost a necessary amenity. Many boarding houses and places of a charitable nature to which old ladies go in the declining years of their lives, have it. Why should they pay extra licence fees? It is a wholly different thing for a cinema which is showing a film. Is it really necessary to have it for pubs or clubs or hotels? I would have thought not. I hope the Government will consider this matter again. I have had representations made to me from all sorts of sources about it. I notice that the caterers say this, in a rather amusing phrase: Furthermore, the installation of television in response to public demand cannot truthfully be said to be a source of additional revenue to an establishment. Often the reverse is true, as customers and guests are likely to watch television when they may otherwise be engaged in activities for which a charge is made. I can guess the "activities for which a charge is made," and I suppose that statement is true.

The number of people who see television in a public place, such as an hotel or pub, must be very small—I should doubt whether 2 per cent. of the viewers see it in that way. Why should that 2 per cent. or 5 per cent. (I have no means of knowing what the figure is) be charged an extra sum? Many of them are people who have gone to a small hotel for their holidays and who have their own television set at home, for which they buy a licence. Why should the whole burden fall on them? And if we are going to see all these events, why should all the rest of us get off with our £3 licence and pay no more? They do it rather differently in America, where they have a sort of slot machine into which one inserts the equivalent of perhaps half-a-crown, and then one sees the broadcast of a particular event. Obviously, we cannot do that; we have not the facilities at present. I hope the Government will look at this matter again and see whether they will not exempt everybody except those who make a charge for the showing of a television film. In that case I have no objection to something being done. At any rate, this is a matter which we shall all have to look at most carefully.

Those are my points. We shall do the best we can to improve this Bill. We shall certainly do the best we can to induce the Government to change the provisions of the Bill so far as records are concerned, and, I hope, limit them so far as television rights are concerned. We shall need to have a Committee stage; we shall need to go into the Bill with great care at that lime. That is quite sufficient. I have detained your Lordships all too long at this stage of the Bill.

5.55 p.m.


My Lords, the Government are grateful to the House for having given this Bill a friendly, if fairly close, examination. Nearly every speaker has prefaced his remarks by apologising for the difficulty of having to make what amounts to a Committee stage speech in a Second Reading debate. If that difficulty has assailed your Lordships, how much more does it assail me! In the course of the interesting debate during which I have listened carefully to every speech, I have been asked thirty-one direct questions, to which noble Lords have been good enough to add that they do not require answers to twenty-six of them to-day. Of the remaining five, I know the answers to three, and I know, but do not understand, the answers to the remaining two. I shall have to do my best to deal with the points that remain outstanding at the moment.

Of course, this is the sort of Bill where there has to be a Committee stage on Second Reading. One cannot help that, and we on this side of the House are the last to complain. I readily accede to the request of the noble and learned Earl, Lord Jowitt: we will examine most carefully every single point that has been made. There are no politics between us on this Bill. It is a difficult Bill, as my noble and learned friend Lord Conesford has pointed out, and indeed the little interchange that: we have had on the highly controversial Cawardine matter shows just how difficult this matter can be. I can assure the House that I do not propose to launch forth into the difficulties of the Cawardine decision. This Bill, however, is difficult, and I think I ought to make this point at once. It is rather interesting, coming as it does after the interesting speech of the noble and gallant Lord, Lord Tedder, in the recent Defence debate. He praised the Committee system. One often hears accusations that the Government have appointed a Committee merely to shelve a problem. Here we have the opposite. The Government appointed a Committee which did not shelve the problem, and this Bill is the result of that Committee's decisions, which have been largely accepted. That is the principal basis upon which we put forward this Bill. But that does not alter the fact that in it there is an element of experiment.

The 1911 Act is now nearly fifty years old, which I think is an extraordinary tribute to the draftsmen of that Act, who knew nothing about television and "movies"; and the gramophone was then in its infancy. That Act has stood the test of time. We can only hope that we arc drafting now a Bill that will stand the test of time as well. But we must take one or two experimental risks. We are making one or two conjectural suggestions. We shall therefore look very carefully at all the helpful suggestions that have been made by noble Lords opposite. The noble and learned Earl, Lord Jowitt, referred to one body by name—the Film Industry Employees' Council. I have had a similar letter this morning from the same body. They say that they understand that the second Reading of the Bill in the House of Lords is due to-day and that they very strongly urge postponement. The matters which worry them have been public knowledge for the last six months and I think we need to put off until the Committee stage considerations of the points which are worrying them—but consider them we most certainly will.

I turn at once to the two points which I think have run through nearly every speech. They were brought out in the latter in The Times newspaper of yesterday, signed by Mr. Graham Greene and other distinguished members of the authors' profession. This letter, your Lordships may remember, makes two complaints about our Bill. The first is in relation to Clause 13, and the second in relation to Clause 4, the two clauses which have occupied your Lordships considerably to-day. The complaint is that the provision in subsection (6) of Clause 13—that is, the one whereby, after the twenty-five years' copyright life of a film, no one can stop the exhibition in public of that film—unduly invades the rights of the authors of the works (that is, the book or music or whatever it may be) which are incorporated in the film. The purpose of this provision is to ensure that we know with certainty when a film is in the public domain.

Under the existing law, this is impossible to find out, since all the component copyrights continue to subsist for the lives of their respective authors and for fifty years after their death—that was the point made by the noble Lord, Lord Lucas of Chilworth. And the successor in title of any of those authors is in a position to stop the showing of the film. In addition, most feature films are under the existing law "dramatic works" with a copyright of their own, vesting in the author of the film, whoever that may be. If that author is a film company (I need not remind your Lordships that companies do not die) that copyright, if I understand the position rightly, continues indefinitely. We have thought it necessary to achieve some kind of finality, and this the Bill tries to do. I must emphasise that the ending of the copyright in a film affects only the authors of the component works as regards the showing of that film. I think we are all quite clear upon that point, though whether the period should be fifteen, twenty-five or fifty years is a different matter. I listened with care to the noble Lord, Lord Archibald, who speaks with such authority on this subject, but he has not wholly convinced me. I believe that in this particular case twenty-five years is about right; but we will certainly consider carefully what the noble Lord has said.

Reverting to the original point which worried the noble Lord, Lord Lucas of Chilworth, I would point out that the author of the book and the composer of the music will still enjoy all the rights in their individual contributions except in relation to the showing of the film, I cannot believe, as the authors of this letter to The Times suggest, that no one will pay the author to make a new film of his book simply because of the competition to be feared from the twenty-five year old film which, by that time, is, according to this Bill, in the public domain; but I will look again at the argument of the noble Lord, Lord Archibald.

The second point raised in the letter was that brought forward by the noble and learned Earl, Lord Jowitt, and many others in this debate. It concerns Clause 4, which deals with the first ownership of copyright when a work is made under a contract of service or commissioned for a particular purpose. Although, like the noble Lord, Lord Lucas of Chilworth, I have never, unfortunately, been commissioned in this way, I know it is frequently done in a casual conversation, by letter or by a brief telephone conversation. The intention of the Bill, so far as literary work is concerned, is to provide that if the work is made for the specific purpose of publication in a newspaper, magazine or periodical, then, in the absence of agreement to the contrary, the newspaper proprietor shall own the copyright but shall be unable to use the work without the further permission of the author otherwise than as part of a newspaper or publication. The letter from these distinguished authors suggests that this purpose has not been achieved and that the clause leaves a newspaper proprietor free to exercise, for example, the film rights, without any further obligation to the author. As I read the Bill, that is not so, and I have never thought that to be the interpretation; but I will certainly look at the point again and if I am wrong something must certainly be put into the Bill to make it clearer. Those were the two principal points raised this afternoon and were both linked to that letter to The Times.


My Lords, the point I raised with the noble Lord was, in fact, the exact opposite. My impression upon reading the clause is that no one can exercise that film right—neither the writer nor the newspaper proprietor.


I think it is perfectly true that unless there were further negotiations for the film rights there would be stalemate. The noble Lord, Lord Faringdon, is correct.

May I pass to the other letter in The Times newspaper referred to by the noble Lord, Lord Burden, and others. I believe that Mr. Hughes, whose letter appears in The Times to-day, is wrong in his suggestion that new rights are granted by Clause 14 and that it will impose an additional prohibition on the making of some recordings of broadcasts for private purposes such as the noble Lord. Lord Burden, has in mind. If, at his leisure, the noble Lord will look at Clause 14, subsection 3 (b), he will see that a broadcasting authority's right is infringed only when a sound recording is made for the purpose of selling or letting for hire, or broadcasting that recording, or causing a recording to be held in public. The existing right of an author in this recording of an original work, whether from a record or a broadcast, remains in existence. We are making no change in the law in that respect.

I now come to the question of the tribunal. Noble Lords will remember that when we had the original Copyright and Television Exhibiting Right Bill last summer, your Lordships gave it a rough passage, to say the least. The chief argument was the absence of this tribunal. We had always intended to provide for it in the Bill. I think it is now perfectly clear why we did not and could not do so at that time. I believe that the tribunal as we have provided for it here will solve many problems which are in your Lordships' minds and on which concern has been voiced this afternoon. Again, this will have to be, to some degree, experimental for we shall have to feel our way as to what the tribunal can and should do; but I think it will strike a balance and prevent many possible difficulties that have been envisaged.

The noble and learned Earl, Lord Jowitt, mentioned the question of small hotels, and I quite appreciate his point. Indeed, I had a deputation from interests concerned at the time of the other Bill, and they made exactly the same point as the noble Earl. I agree that there may be better pursuits than television—using the pub for its primary purpose. The noble Earl may have seen, a few days ago, a letter in The Times from a gentleman who, when he goes to a small boarding house or hotel, always inquires whether they have television in the lounge and give public performances. He says that, on being told that they do so, it is his custom immediately to go elsewhere; so noble Lords will see that there are two schools of thought here. With the tribunal to see justice, there will be no great hardship in asking hotels which use television to attract custom (they would not do it if they did not wish to) to pay a few shillings, not to t he L.T.A. nor to the B.B.C.—I say that to put the mind of the noble Lord, Lord Lucas of Chilworth, at rest, for they will not get fat and profiteer on this. It may well find its way to the place originally intended; that is, the pockets of sports promoters and display promoters who put on shows which will bring customers into hotel bars.


But that is the same thing.


No, it is not at all the same thing. The noble Lord gave the impression that the I.T.A. would be waxing fat on this, but they will do no such thing.


My Lords, does it not follow that the I.T.A., in consequence, will have to pay less out of their pocket because sports promoters will say, "I am getting this privilege conferred upon me"? It does directly benefit the I.T.A.


That is not the intention. There is no intention here of allowing the I.T.A. to grow fat as a result of this—I can state that categorically. I appreciate that the original point is not an easy one, but we have thought carefully about it and this appears to be the best way of achieving our purpose and doing so without any serious risk of injustice arising.

The noble Lord, Lord Lucas of Chilworth, made a sound point on the question of recordings used for sound broadcasts and pointed out that if the B.B.C. include recordings in sound programmes they may then have the right to control any public performance of that recording, so that a person who has not a licence will, by playing that part in public, unwittingly infringe copyright. We are making no change in the law in this respect. By virtue of Section 19 of the 1911 Act, the B.B.C. already enjoy this right, though they do not exercise it. We are quite aware of this position and will make sure, by Amendment if necessary, that the Tribunal is able to supervise this right which is enjoyed equally by all makers of sound recordings, should the B.B.C. decide in future that they wish to exercise it.


Surely the I.T.A. will be affected. It is not only the B.B.C. whom it will affect; it will affect all. To-day, 30 per cent. of the programmes from the B.B.C. are recorded. I suspect that the I.T.A. programmes—although I have not checked them—are precisely the same.


I referred only to the B.B.C. because the noble Lord specifically mentioned that he made a check on the Radio Times. We have now heard a good deal about the Actors' and the Musicians' Union. Again, the tribunal may be of some help in this connection. We have had some very strong words from Lord Lucas of Chilworth and still stronger ones from Lord Burden, who was even more condemnatory in his remarks. Lord Faring-don put in a good word for the union for what they do in protecting artistes seeking gainful employment. Far be it from me to interfere in this family dispute on the opposite Benches, but I am strongly aware of a point, which is of considerable substance. It has now been suggested that the creation of a television performing right will place in the hands of the union a weapon which will allow them to demand—as we are only too well aware happened in the case of gramophone records—that programmes in which their members take part should not be shown in places where live artistes could be employed. But the tribunal has power not only to supervise the fees charged but also to remedy the situation if they consider that the licence has been unreasonably withheld. I hope that that will be at least a safeguard towards the problem which noble Lords have in mind.

A further point of importance to which I should like to refer arises out of the observations with which the noble and learned Earl, Lord Jowitt, prefaced his remarks. He talked about conventions and his desire to see these conventions adhered to. He expressed his willingness to give way on some small point if by so doing we were able to adhere to these conventions. I was glad to hear him say that. It brings me to one point which is causing trouble in the authors' world—the question of cheap reprints. There has been some suggestion—notably I think in the Economist—that Section 3 of the 1911 Act should be retained. This permits during the last twenty-five years of copyright life of a work publication as a right on payment of statutory royalty. It is suggested that this provision should be retained for the sake of cheap reprint books. Your Lordships will know of the cases, to mention only two, of Kipling's works and Marshall's Principles of Economics. Kipling, as your Lordships know, would never permit his works to be issued in cheap reprints, and his executors have adhered to that policy. It is impossible to buy a cheap copy of any of the works of Kipling. I understand that it is the same in regard to the book on economics which I have men-tioned—this, too, is unavailable in a cheap edition. There is some point in this, but I suggest that in any case this point arises only in the last twenty-five years and that the advantages in our Bill greatly outweigh the disadvantages.


It is a fact, is it not, that if we want the convention we have to give that up?


We have to give up this very small right if we want to adhere to the convention. I am not letting out any secrets if I say that there have been threats of some reprisals if we fail to fall into line in this respect.

I have mentioned only the case of Kipling and Marshall's Principles of Economics because, as Lord Archibald has pointed out, not many books last for twenty-five years. Very few books are in public demand after that time, and I think that, if a popular author found that his works were still being asked for, he would be only too willing to see them issued in a cheap form very much sooner than that. Therefore, I think it is right to say that, although retention of the proviso might be of slight advantage to certain persons the advantages of repealing it outweigh the disadvantages.

Another point to which I should like to refer is that about schools, which was mentioned by both the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Burden. I think that if you put into an examination paper a "chunk" out of the work: of some author who is in copyright you probably are committing a technical breach of copyright; and there may be one or two other cases—small cases—in the schools where probably some small breach has been caused. But I doubt whether one would ever win a case on those lines. As for recordings, if recorded works of authors and musicians are to be used in schools I do not see why they should not have a penny or two out of the proceeds. l will look into the points which noble Lords have made on this matter, but I do not think there is a likelihood of any great hardship being caused. I think that the noble Lord, Lord Burden, was wrong in saying that authorities were not consulted. We did not actually invite people to give evidence, but, as he knows, the Association of Municipal Corporations, in which both he and I are interested, did submit evidence; and so I think, did the Isle of Ely County Council. They put in papers.

The last point with which I will deal refers to copyright in pictures. In this matter I have some personal interest, as has the noble and learned Earl, Lord Jowitt. I have a few pictures of the Norwich School which I am happy to lend now and again if I am asked to do so. I have always been given to understand by my solicitors—and now I must make haste to check this—that I must be careful about striking a bargain over reproduction rights, because when you buy a picture you do not necessarily buy rights of reproduction, unless you have commissioned that picture and have specifically bought the copyright rights of reproduction. The artist is not under any obligation to part with those rights unless he so wishes. And in this connection, of course, one must think of the printing and engraving trades. I do not think that photographing and copying are necessarily breaches of copyright. I think if you were to take a photograph of a picture without the owner's permission—in a case such as that which the noble and learned Earl and I have in mind—you might perhaps be running into trouble. But I will look into that matter again to see whether that is the position.


What about lending a picture to another gallery for public exhibition?


That I think might well be a breach of copyright, if the picture was in copyright and you did that without the permission of the owner.


I hope that the noble Lord will study that point. It would be quite intolerable if that were the law; and should it be so, then if we can, without breach of the convention, in any way alter it, we should do so. If you wanted to lend a picture to a gallery with no gain to yourself, it would be deplorable if it were necessary to get the consent of all sorts of people some of whom might sometimes be very difficult to find.


I think the noble and learned Earl and I are at cross-purposes. What I had in mind was lending your picture to Gallery A and then Gallery A, perhaps, without your permission, lending it to Gallery B. I remember a case in point when I was asked whether I would give permission for a picture to go to Gallery B. The point is not the same as that upon which the noble and learned Earl has touched, so I will say no more on it at the moment. But I will go into it and check the position very carefully.

A large number of other small points have been made in the course of this debate. I will study them all carefully and take proper advice upon them. I have given your Lordships what I hope may be helpful observations upon, and explanations of, some of the more important questions raised. I can only conclude by repeating what I have already said, that it is difficult to deal fully with matters which, of necessity, are more appropriate to the Committee stage than to the Second Reacting. When we come to the Committee stage, we will go into these matters very carefully and we shall welcome attempts to improve the Bill. I am grateful to your Lordships for having shown so much interest in it. I am very conscious that the care which your Lordships have lavished upon it shows that fundamentally this is a Bill well worthy of that care.

On Question, Bill read 2a, and committed to a Committee of the Whole House.