COPYRIGHT BILL [H.L.]

HL Deb 29 November 1955 vol 194 cc859-937

2.47 p.m.

Order of the Day for the House to be put into Committee read.

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

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF DROGHEDA in the Chair]

Clause 1:

Nature of copyright under this Act

(5) For the purposes of any provision of this Act which specifies the conditions under which copyright may subsist in any description of work or other subject-matter "qualified person"— (a) in the case of an individual, means a person who is a British subject or a citizen of the Republic of Ireland or (not being a British subject or a citizen of the Republic of Ireland) is domiciled or resident in the United Kingdom or in another country to which that provision extends and

LORD MANCROFT moved, in subsection (5)(a), after the first "subject" to insert "or British protected person." The noble Lord said: It looks as if we might be some time on the Committee stage of this Bill, and rightly so, because it is a long and complicated Bill which has not been before another place and deserves full and complete consideration. I am happy to tell your Lordships that the first Amendment on the Order Paper in my name, although a little exotic, is at least wholly uncontroversial. By this Amendment and Amendments Nos. 2 and 3, which march with it, we seek to add to the list of qualified persons—that is persons qualified for copyright protection. At the moment, that expression includes all British subjects. Under the Bill, for example, Jamaicans in Jamaica would, as British subjects, have rights whether the Bill were extended to Jamaica or not, but Somalis in Somaliland, being British protected persons, would not have copyright unless the Act were extended by Order in Council to Somaliland. We feel that this differentiation between the inhabitants of one Dependency and another is difficult to justify, and, therefore, we propose that the works of British protected persons should have copyright on the same footing as the works of British subjects. I beg to move.

Amendment moved— Page 2, line 18, after ("subject") insert ("or British protected person").—(Lord Mancroft.)

EARL JOWITT

Noble Lords on this side of the House will support this Amendment. We think it is a wholly good idea that Somalis should have the same rights as Jamaicans, and we welcome the opportunity of studying some Somali music.

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment is consequential. I beg to move.

Amendment moved— Page 2, line 19, after ("subject") insert ("or British protected person").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This is also consequential. I beg to move.

Amendment moved— Page 2, line 26, at end insert ("In this subsection 'British protected person' has the same meaning as in the British Nationality Act. 1948.")—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 1, as amended, agreed to.

Clause 2:

Copyright in literary, dramatic and musical works

(3) Subject to the last preceding subsection, copyright subsisting in a work by virtue of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the author died, and shall then expire:

Provided that if immediately before the death of the author none of the following acts had been done, that is to say,— (a) the publication of the work, the copyright shall continue to subsist until the end of the period of fifty years from the end of the calendar year which includes the earliest occasion on which one of those acts is done.

LORD LUCAS OF CHILWORTH moved, in the proviso to subsection (3), to omit "immediately." The noble Lord said: The noble Lord, Lord Mancroft, opened what he described as the commencement of a long journey on the Committee stage of this Bill with three noncontroversial Amendments. I hope that I can follow his example and that the first Amendment in my name will prove equally non-controversial. May I say this by way of preamble? It has been said, that "A fellow-feeling makes us wondrous kind." I feel disposed to have a very tender feeling for the noble Lord, Lord Mancroft, because it was on the 29th March, 1949, that I stood at that Despatch Box attempting the tortuous journey of piloting through your Lordships' House a Bill for the reform of the patent law. I can tell Lord Mancroft that we shall give Her Majesty's Government every possible assistance we can to make this Bill a better Bill, so that it leaves your Lordships' House, as all Bills usually leave your Lordships' House, a credit to its revising powers. We shall, however, have some heavy criticism to make, and we shall, as I said on the Second Reading of this Bill, attempt to underline and fortify what is our idea of the fundamental principle of copyright. May I be allowed to quote these words I used on behalf of noble Lords on this side of the House on Second Reading (I quote from the OFFICIAL REPORT, Vol. 194, col. 511): … 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. That will be our guiding principle, so far as we can make it so, all the way through this Bill.

The first Amendment in my name is to leave out the word "immediately." At present, the proviso to subsection (3) of Clause 2 says: Provided that if immediately before the death of the author none of the following acts had been done, that is to say— and then there appear paragraphs (a), (b), (c) and (d). I cannot understand what "immediately" means. Does it mean an hour before the death, a day, a week, a year? What is immediately? I should have thought it was superfluous, or at any rate I should have thought the correct wording would be "Provided that if at any time during the lifetime of the author" or "any time before the death of the author" these things had been done. Perhaps the simplest way is to leave out "immediately." I hope the noble Lord will be able to accept this Amendment. I beg to move.

Amendment moved— Page 3, line 3, leave out "immediately."—(Lord Lucas of Chilworth.)

LORD MANCROFT

I will accept this Amendment immediately.

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH moved to leave out subsection (6) and insert: (6) In this Act "adaptation" in relation to a literary, dramatic or musical work includes—

1. (a) a dramatised version of a literary or musical work;
2. (b) a non-dramatic form of a dramatic work;
3. (c) a translation or revision of a literary or dramatic work or the words (if any) of a musical work;
4. (d) an arrangement, transcription or other alteration or revision of a musical work; or any of them in combination."

The noble Lord said: What a happy start we have made! The Oppositon have had their first Amendment accepted by Her Majesty's Government, a record since I have been in your Lordships' House and, I suggest, an all-time record since anyone has been in your Lordships' House. What an omen for the future!

In this Bill the Government for the first time seek to define what adaptation is. It has not been done before. It was not done in the 1911 Act. I suggest that if they wish to define "adaptation" they had better do the job completely. The definitions that are in subsection (6) of Clause 2 leave out quite a number of adaptations. They do not provide for the dramatisation of a musical work, the translation of the words of a musical work, or the revision of the words of a literary or dramatic or musical work. If I may follow a procedure which I wish to adopt all through, I should like to give your Lordships illustrations instead of a lot of technical arguments. I have had looked up a few well-known things that the definition of adaptation would not cover, or which might be said to be doubtful. The first one is a dramatised version of the musical work Hiawatha. That was dramatised. As a matter of fact, it was performed at the Albert Hall. But it would very likely not be covered by this Bill. I am sure the Government do not intend that.

As regards a literary work, there is the abridged form of Lawrence's Seven Pillars of Wisdom. My expert advice is that that would not be covered. There is Carnival, Opus No. 9, by Schumann, which has been revised and published. That, also, would not be covered. The Amendment I have tabled covers, I think, every possible adaptation that one could think of; therefore I hope the Government will accept it. While we are now revising the copyright law which, if it stands as long as the 1911 Act has stood, will stand for more than forty years, let us at least be at pains to do the job as well as we can. I hope the noble Lord will be able to accept the Amendment which I now beg to move.

Amendment moved—

Page 3, line 26, leave out subsection (6) and insert— ("(6) In this Act "adaptation" in relation to a literary, dramatic or musical work includes—

1. (a) a dramatised version of a literary or musical work;
2. (b) a non-dramatic form of a dramatic work;
3. (c) a translation or revision of a literary or dramatic work or the words (if any) of a musical work;
4. (d) an arrangement, transcription or other alteration or revision of a musical work;

or any of them in combination.").—(Lord Lucas of Chilworth.)

LORD MANCROFT

I am grateful to the noble Lord for his gallant attempt to clarify this Bill, and we welcome any attempt to get it as clear as we can, but I think that there is a misconception at the back of the noble Lord's mind on what is admittedly a very technical point. The assumption on which I think he is basing his argument is that, for the purposes of the Bill, a work such as a song, an opera or a musical comedy, is one work, namely, a musical work. This is not so. For the purposes of the Bill, a musical work consists of music and nothing else; and in the case of vocal music the words constitute a separate and distinct work, namely a literary or dramatic work. There are therefore two copyrights: a copyright in the music, which normally continues for the life of the composer plus fifty years, and a copyright in the words, which normally continues for the life of the author plus fifty years; and since one may die before the other, the periods of copyright may equally be different. Since, in the Bill, a musical work consists only of music, the conception of a "dramatised version of a musical work" does not seem to be applicable; and the same applies to the reference in paragraph (c) of the Amendment to "the words (if any) of a musical work." If words are added to the music, the words will constitute a separate work.

The references to "revision," I would respectfully submit to the noble Lord, are thought to be both unnecessary and confusing. Under Clause 2 (5)(a), the acts restricted by the copyright in a literary, dramatic or musical work include the act of "reproducing the work in any material form"; and by Clause 43 (1) this includes reproducing any substantial part of the work in any material form. A "revision" will almost inevitably reproduce the whole or a substantial part of the work; if it does not, then it would be a new and original work and ought not to be treated as an infringement of the copyright in the former work. Any express mention of "revision" would therefore cast doubt on the generality of the words "reproducing the work in any material form"; and it is important not to do this, since this form of words is also used in the Act of 1911, and there is a good deal of Case Law about the matters which it covers.

The reason why translations are separately mentioned in the clause is that where, for instance, an English book is translated into French, the translation may not contain one word which appears in the original book, and it is therefore arguable that the translation does not reproduce any part of the work. The same thing applies to an arrangement of a musical work. If a piece composed in the key of D flat is rearranged in the key of C, there will probably not be in the arrangement any note which appears in the original work. The Amendment of the noble Lord substitutes the word "includes" for the word "means." It therefore suggests—and I do not doubt that the noble Lord intends it to suggest—that there are other forms of adaptation which are not expressly mentioned in the Amendment but are also meant to be covered by the word "adaptation" as defined by the Amendment. This might open the door to disputes and litigation, which is the one thing we are seeking to avoid in this Bill. I agree with the noble Lord that this is a most complex point. Perhaps he would like to reconsider the careful definition that I have sought, on advice, to give him, and to look at it by way of comparison with his Amendment and see whether I may not have been able to help him to understand this admittedly complicated point. There is nothing between us on the matter of policy—we are both trying to get at the same thing—but it is purely a question of definition.

EARL JOWITT

Having listened to this discussion, I think the noble Lord, Lord Mancroft, has correctly stated the law on this matter with regard to separate copyrights, but I am not particularly happy with his wording, although I do not suggest that that of the noble Lord, Lord Lucas of Chilworth, is better. I hope that the noble Lord, Lord Mancroft, will look at this point again, because there is nothing between us here. We do want to get this matter as clear as we can, and we must have in our minds for ever the unfortunate matter that arose under the last Copyright Act when, by a misadventure which was never intended by Parliament, a new right was given because the language was unfortunate. That must be our excuse, if any is needed, for scrutinising this Bill particularly carefully. I hope that the noble Lord, Lord Mancroft, will look at the definition again. I never very much like a definition which uses two words, one "includes" and the other "means." Subsection (6) uses in paragraph (a), the words, means a dramatised version of the work"; and, in paragraph (b): means the work converted into a non-dramatic form. Then it goes on: and (in either case) includes a translation of the work.… I cannot think that wording is very happy. Then when we come to a musical work, we see the words means an arrangement or transcription of the work. I am sure the noble Lord, Lord Lucas of Chilworth, will not press his Amendment, but I feel that this is a matter that the Government might look at to make certain that their Amendment, with the definition, is in all respects satisfactory.

LORD DOUGLAS OF BARLOCH

There is one other point. Clause 2 (6) says that "adaptation" in the case of a non-dramatic work, means a dramatised version of the work … and (in either case) includes a translation of the work.… That covers two steps; turning a non-dramatic work into a dramatised work, and then a translation; but it appears by that to exclude the case in which a translation is made without turning the non-dramatic work into a dramatic work. Surely, it is not the intention that a translation pure and simple shall not be protected, whereas a translation coupled with a change in the form of the work will be. As the definition stands, it seems to exclude a pure translation.

LORD MANCROFT

I will certainly look again, as the noble and learned Earl, Lord Jowitt, has asked me to, at our definition, and with a view to the point which the noble Lord, Lord Douglas of Barloch, has just raised. I agree that we want to have no such mischances as occurred last time. I will do that on condition that lie noble Lord, Lord Lucas of Chilworth, promises me that he will study carefully the attempt I have made to define our definition.

Lotto LUCAS OF CHILWORTH

I readily give the noble Lord that assurance, and at the same time express my gratitude for the trouble he has taken to give us his interpretation of the meaning of this clause. I confess that I am not happy about it. I can see a number of flaws and holes in it. As my noble and learned Leader has said, we do not want to make the same mistakes that our predecessors made. My noble friend Lord Douglas of Barloch has emphasised what my noble and learned Leader said. Perhaps we can have some discussion after we have thoroughly discovered each other's point of view. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 2, as amended, agreed to.

Clause 3:

(5) The acts restricted by the copyright in an artistic work are—

1. (a) introducing the work in any material form; and
2. (b) publishing the work.

LORD LUCAS OF CHILWORTH

Although this clause deals with copyright in artistic works, I think the same argument that I advanced in support of Amendment No. 4 holds good. I will not reiterate the argument. I hope the noble Lord will accept this Amendment as speedily as he did the, other one. I beg to move.

Amendment moved— Page 4, line 24, leave out ("immediately")—(Lord Lucas of Chilworth.)

LORD MANCROFT

I am quite prepared to accept this Amendment.

On Question, Amendment agreed to.

3.8 p.m.

EARL JOWITT moved, in subsection (5), to omit paragraph (b). The noble and learned Earl said: I confess that at an earlier stage of this Bill I was very worried about these words "publishing the work". Perhaps if I had studied the Bill more carefully, as I ought to have done, I should not have been so worried. I was concerned at the time to make it quite plain that the owner of a work who possessed the copyright of the work—and that, in my experience, applies to nearly all private collectors—should not be considered to have infringed copyright if he lent the picture for public exhibition. Many of us are asked periodically to lend pictures to public exhibitions and, speaking for myself, I always do it if I possibly can. The subsection that we are considering here reads: The Acts restricted by the copyright in an artistic work are—

1. (a) reproducing the work in any material form; and
2. (b) publishing the work."

If your Lordships will turn to Clause 43 (2) you will see that that provides: With regard to publication, the provisions of this subsection shall have effect for the purposes of this Act, that is to say.— … the exhibition of an artistic work … do not constitute publication thereof".

That, to some extent, allays my doubts, but it raises more doubts. What on earth is "publication" if "exhibition of the work" is not? What do you mean by "publication"? I would ask the noble Lord, Lord Mancroft, if he is to reply, or the Lord Chancellor who is sitting by his side, what is the construction of subsection (5), because I am bothered about it. Does it mean that what is mentioned in paragraph (a) is a breach of copyright in itself apart from what is mentioned in paragraph (b), or does it mean that the breach of copyright involves a breach of both paragraphs? I have read this clause through to myself several times and frankly I do not know. Let me give a practical and simple illustration. In public galleries, as I know well, there are certain copying days, and students and others will go round to the National Gallery or the Tate Gallery—the two with which I am more familiar than I am with others—and copy the pictures. Frequently, of course, they copy pictures of old masters, whose pictures are lying in the public domain. But they do not always do so, I am glad to say. They sometimes copy the works of modern painters whose works are still in the private domain. Does one of these students, by going to the gallery and making a copy of a picture—which he does to instruct himself in the art of painting; and very necessary it is, too—by that act alone commit a breach of copyright, or is the breach of copyright only complete when, after having made the copy, he publishes or exhibits it? At the present moment I do not know whether I ought to read paragraphs (a) and (b) together as both being two necessary components to constitute the breach, or whether each of them constitutes a breach. Therefore the clause is plainly defective, if I may humbly say so. The fact that I have difficulty in understanding it would, I think, make it desirable to make the matter quite clear.

Secondly if "publishing" is not exhibiting, then what, with reference to a picture, is "publishing"? What do you add to this clause by including in it the word "publishing"? It is a word which may give rise to a good deal of controversy and possibly lawsuits hereafter, and I think that before we pass it we had better know what we mean by it. What I should have meant by "publishing"—and I am thinking of my experience of the law of libel—is making the thing public; showing it to the public. If it does not mean that, what does it mean? How would this Bill read differently, or would it read differently, if you took paragraph (b) out? Those are the difficulties I have, and I thought I had better expound and explore them at this stage, because on this construction of subsection (5), with these two branches, I am in a difficulty. I do not know what they mean, and I should be grateful if the noble Lord would expound the position. I have put this Amendment down in order that we may get the matter cleared up. I beg to move.

Amendment moved— Page 4, line 35, leave out ("(b) publishing the work.")—(Earl Jowitt.)

LORD MANCROFT

I quite appreciate the difficulty of the noble and learned Earl in this matter. Let me answer straight away one question he has put—the question of the student who copies on copying day either an old master or a work which is still in the private domain. That, I am fairly certain—I will confirm it later on—would come within the scope of fair dealing. This is freely done. I remember the other point the noble and learned Earl raised on Second Reading, when he expressed concern about what would happen if he exhibited a picture. That is no infringement, because it is not actually publication. But I wonder whether the noble and learned Earl is not making this question a little more difficult for himself than he need by so narrowing the description of an "artistic work." Consider an engraving, which is an artistic work. The noble and learned Earl is not intending to allow entirely free publication of such things as an engraving. If his Amendment were put into the Bill any number of copies of an engraving might be made. That would be the effect, of his Amendment.

EARL JOWITT

Would the noble Lord mind making that plain to me?

LORD MANCROFT

If the noble and learned Earl removes from the Bill Clause 3 (5) (b), it will have the effect of allowing the entirely free publication of such things as engravings and mezzotints which are artistic works and are in copyright.

EARL JOWITT

But are they not reproducing a work?

LORD MANCROFT

They are themselves artistic works.

EARL JOWITT

But they are also reproducing the pictures, and therefore come within paragraph (a).

LORD DOUGLAS OF BARLOCH

More than that, are they not reproducing the plate on which the engraving is made, which is itself an artistic work?

LORD MANCROFT

We are getting into very deep artistic water now. That is a work of art in itself; so also is a mezzotint or engraving, although it is a reproduction of another work of art which is in itself the original work. The noble Lord's Amendment would take those entirely out of copyright and I am sire that is not his intention.

EARL JOWITT

May I respectfully submit not? The Blue Boy of Gains-borough, and the engravings of Gains-borough, would constitute a reproduction of the original picture by Gainsborough and therefore they come within paragraph (a). My problem is what does paragraph (b) add to paragraph (a)?

LORD PETHICK-LAWRENCE

May I ask the noble Lord a question? I am not clear what the word "work" means. I think it means a reproduction, and if so would it not be much clearer to say that? What I think the Bill means is that you can reproduce a work of art so long as you do not publish that reproduction, in which ease paragraphs (a) and (b) stand together. As it stands, anybody reading it would think that the word referred to the original work. I think if the word "reproduction" were used the clause would be much clearer.

LORD MANCROFT

We are getting into a proper tangle here. Fortunately, I have a way out up my sleeve which I shall reveal in a moment. I want to point out that there are two rights: the one is to prevent the reproducing of a work in material form, and the other is to stop the publishing of the work. Those are separate rights. I think that may help. May I produce the trump card which I have rather unfairly been holding, and that is to point out that the noble and learned Earl's Amendment would put us outside both Conventions, and certainly outside the Universal Convention in which Article VI defines publication and requires us to protect the rights of authors and copyright proprietors of artistic works. That, of course, is a wholly different argument front the one we have just had. I will look again at the words of the Amendment and make quite certain that we have no misunderstanding on this matter. I think the overriding right of the Conventions will appeal to the noble and learned Earl, if I remember his remarks on Second Reading. I think this clause is right, but I will look at it again.

EARL JOWITT

I am grateful to tae noble Lord for saying that. I say at once that the plea of the Convention is one that goes straight to my heart. I think we need to pass this Bill to get the Convention, but I do not consider it means that we must pass completely unintelligible clauses. I do not think we are compelled by any Convention to do that. I do not understand what this clause means, and nothing the noble Lord has said has thrown a glimmer of light upon it. If I had to construe this clause I am perfectly certain I should have to reject the solution of my noble friend Lord Pethick-Lawrence. If I were to construe this clause I should have to say that the "work" mentioned in paragraph (a) was the same thing as the "work" mentioned in paragraph (b). I could not possibly construe the word "work" referred to in paragraph (a) as meaning something quite different from the same word in the next paragraph. The "work" mentioned in paragraph (a) quite plainly means the original painting. If you reproduce Gainsborough's Blue Boy, whether you do it by means of mezzotint or engraving or whether you do it by a mere drawing, you are reproducing the work, and consequently that action comes within the scope of paragraph (a). I realise that by the Convention that must be stopped, and I am willing to have it stopped, but I do not understand what paragraph (b) adds to it. There can be nothing in the Convention to say that we must have paragraph (b) if nobody understands what paragraph (b) means. The problem I want to have solved is this: what does paragraph (b) add to this clause? Suppose paragraph (b) were not in, would the consequence or the effect of the clause be exactly the same as it is to-day? What case do you catch by paragraph (b) that you do not already catch by paragraph (a)? That is the problem I have in my mind. I am grateful to the noble Lord for his promise to look at this matter, but he has not succeeded in penetrating to my "grey matter," such as it is, and telling me what is the answer to that question.

3.21 p.m.

LORD CHORLEY

In support of what my noble and learned Leader has said, I suggest that, if the view of the noble Lord, Lord Pethick-Lawrence, were right, the correct words in paragraph (b) would be "publishing the said reproduction," or something of that kind.

LORD DOUGLAS OF BARLOCH

I have one question with regard to this matter. The noble Lord, Lord Mancroft, has referred to the Convention. May I ask whether the Convention contains a definition of "publication" in relation to an artistic work: and, if so, is that in this Bill?

LORD CONESFORD

Did not the noble and learned Earl make one slip in his last speech, when he said that the work covered by paragraph (a) would be Gainsborough's Blue Boy? It might be an engraving of Gainsborough's Blue Boy: that might itself be the work.

EARL JOWITT

I agree.

LORD CONESFORD

It seems to me that that could be reproduced simply by making one copy. But "publishing," I should have thought, meant also making it available to the public. While I am grateful to the noble and learned Earl for raising the point, it strikes me at first sight that paragraph (a) and paragraph (b) are two distinct things and are both rightly in the clause.

THE LORD CHANCELLOR

We are obviously in a complex position and it is worth having another look at it. May I suggest to the noble and learned Earl that he starts from the definition of "publication" which is in Clause 43 (2)(c)? He will find, if he turns over the page from the passage to which he referred your Lordships a short time ago, that it says: subject to the preceding paragraphs, a literary, dramatic or musical work, or an edition of such a work, or an artistic work, shall be taken to have been published if, but only if, reproductions of the work or edition have been issued to the public. That is what it adds to the reproduction, as has been canvassed in the debate. Therefore, there are the two rights: the one to prevent the reproducing of a work in a material form, and the second to prevent the publishing of the work. With that definition, it is clear that the two things are distinct. My noble friend, Lord Mancroft, has put aside "fair dealing," with which your Lordships are familiar. I think point is given to that when your Lordships have in mind that the reproducer may not be the publisher. Obviously, you may have someone who will reproduce and someone else who will give the reproduction to the public; therefore the publisher may not be the reproducer, and it is necessary to have a provision which will strike at him as well as at the reproducer.

I was asked about the Convention, and the noble and learned Earl was frank about his view on Second Reading, that, if there was a contravention of the Convention, that was a good enough argument for him. I could not agree more with his addendum, that that does not prevent us from legislating clearly. I hope I have shown him that there is a necessity for these two provisions in the Clause—namely, that reproduction and publishing must both be covered. But I want to emphasise a point that my noble friend Lord Mancroft has made: that it would be contrary to the Convention, and indeed the Amendment would put us outside both Conventions, I believe, but certainly outside the Universal Copyright Convention, because—I think this is the provision of the Convention to which the noble Lord, Lord Douglas of Barloch, wished to be referred, and I do it with pleasure—Article VI of the Convention defines "publication," and that we have tried to follow. It requires us to 'protect the rights of authors and copyright proprietors of artistic works. I know that the noble and learned Earl never contemplated for a moment an entirely free publication of such things as engravings which were in copyright, as my noble friend, Lord Conesford, has pointed out.

I hope I have demonstrated the two points. The first is that it is necessary to have protection against both reproduction and publication. To put it in another way, the paragraph regarding publication deals with an important right which must be covered. The second point is that we must do this in order to comply with the Convention. If the noble and learned Earl has any ideas in the meantime about further clarification, I shall be glad to discuss them with him and shall naturally see if we can do anything to deal with it; but I hope that I have at any rate taken the noble and learned Earl with me so far; that it is necessary to provide for both reproduction and publication. As I say, if any improvement can be made, then for heaven's sake let us make it!

EARL JOWITT

I am most grateful to the noble and learned Viscount for his help, but I should like to make a suggestion. Suppose a man breaches paragraph (a) and reproduces a work but does not issue it to the public—he takes a photograph of a work which he keeps locked up in his cellar. Has he infringed subsection (5) or not? That raises the question of infringing subsection (5). Must it be both paragraph (a) and paragraph (b) or not? That is an ambiguity in the clause at present.

THE LORD CHANCELLOR

In my view, it need riot. It is enough if you breach paragraph (a), subject to the provision of fair dealing.

EARL JOWITT

Then should not the conjunction be "or instead of "and"?

THE LORD CHANCELLOR

I am looking at Clause 2 (5) which reads: The acts restricted by the copyright in a literary, dramatic or musical work are

1. (a) reproducing the work in any material form;…
2. (b) publishing the work …"

These may be cumulative, but they need not be taken together. They are successive acts against which protection is given.

EARL JOWITT

I am afraid I have not made myself quite clear. Clause 3 (5) is as follows: The acts restricted by the copyright in an artistic work are

1. (a) reproducing the work in any material form",

and then comes the conjunction "and." The Lord Chancellor is reading it, as follow it, as if it were "or." I think it might well be that it should be "or," but at the present moment that is my trouble.

THE LORD CHANCELLOR

The noble and learned Earl is perfectly right in the sense that I am reading it. May put it this way? These are two offences—they are separate offences. I will look at that point. But that was the way in which we intended it to be read, and if "or" is clearer and has no malign effect (which I cannot see at the moment) then we will willingly change it. It may be that there is some magic in the drafting. I should never like to declare on that point without again having consulted the draftsman. But there is no difference between the noble and learned Earl and myself on the sense. These are separate matters, and I will willingly look at the purely drafting point.

LORD PETHICK-LAWRENCE

If these are two separate offences, and an offence is committed if only paragraph (a) is concerned, then any person who copies a picture is committing an offence. Is that really the intention? Has he the right to copy a picture, or what is the position?

THE LORD CHANCELLOR

That is subject—I think the noble and learned Earl was proceeding on that basis—to the general provisions of "fair dealing." "Fair dealing" is something that we introduced into our own copyright law. It is that, for purposes of self-tuition and self-education and the like, it has always been held to be within "fair dealing" for students to make copies in the way that has been described; and so far that has not been attacked as a breach of the Convention. We shall be discussing in due course—the noble and learned Earl has some Amendments which raise the point, which is an extremely important one—how far we can go in "fair dealing" without attracting criticism which has not hitherto arisen by parties to the Convention. But the answer to the noble Lord, Lord Pethick-Lawrence, is that there is a third view which we shall be examining closely in the discussions on this Bill and in protecting the person that he has in mind.

VISCOUNT HAILSHAM

In referring this question to the draftsman, would my noble and learned friend point out that, in the comparable paragraph of Clause 2—that is, Clause 2 (5)—the words "and" and "or" are both omitted? The acts are enumerated without "and" and "or"?

THE LORD CHANCELLOR

I am grateful to my noble friend Lord Hailsham. It may be that the best way to deal with this matter is to leave them out and to make no substitution; then we have the two points together—we have the two sections in line the one with the other. That is my inclination at the moment. I am grateful to my noble friend.

EARL JOWITT

In asking leave to withdraw my Amendment, I am happy to think that this point is going to be looked at. I raised it because I honestly was in a state of confusion in my own mind about what was here being struck at. It is most undesirable that we should pass a Bill in a form which, to a reasonably intelligent person, creates an ambiguity. I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.34 p.m.

LORD LUCAS OF CHILWORTH moved, in subsection (5), after paragraph (a) to insert: (b) broadcasting a visual image of the work. The noble Lord said: I am afraid the argument that I shall place before the Committee in support of this Amendment will not reach the high legal level to which we have enjoyed listening on the last Amendment. This Amendment illustrates the complexity of the problems that the Committee are asked to grapple with in this Bill. We have a new medium of publication and, as the noble and learned Viscount the Lord Chancellor has just said, the Convention places upon us an obligation to protect the work of the artist. To-day, on television artistic works are more and more being shown to viewers. Should they be protected?

Again, perhaps the best way I can put the matter to the Committee is by way of illustration. A little while ago Sir Gerald Kelly gave a talk on television upon the Royal Academy. He took us around the Royal Academy and showed us, through the television screen, a number of pictures that were on view there. I presume that Sir Gerald Kelly was in the rôle of a paid artist. Were the artists who painted the pictures paid? I hope the Committee will not think I am being frivolous, but I think this is the best way of illustrating my point. If the television producer has substituted for Gerald Kelly and the pictures those scantily clad young ladies called, I think, the Television Toppers, they would have had to be paid. If somebody had sung a song, he would have had to be paid; the composer of the song would have received a fee. How far can we go in using the artistic works of an artist without remunerating him or protecting him by copyright so that his pictures should not be used by television authorities, be they the B.B.C. or anybody else, for public entertainment? I pose that question.

There is an argument, and force in the argument, that as his pictures are being used in a medium of public entertainment the artist who painted the pictures should receive a fee, in precisely the same way as the singer of the song, the author of the work, or the composer of the piece of music. I invite the Government to say that they hold the same view, that the artist should be so protected. If they do hold the same view, they will perhaps see fit to accept my Amendment. If they do not hold the same view, will they please explain why? Perhaps the noble Lord will allow his imagination to wander a little, but not much. Where are we coming to in this matter? It is entertainment. I believe that the programme to which I have referred occupied nearly three-quarters of an hour. I understand that similar programmes will be televised periodically. These tours are entertaining entertainment—far better than some of the humorous programmes one gets. I thought Sir Gerald Kelly did remarkably well; the programme was full of interest. But why should the artist who painted the pictures provide the B.B.C. with three-quarters of an hour of entertainment and not get anything by way of a copyright fee for so doing? I do not think I need go any further. That is the purport of my Amendment. Perhaps the noble Lord will tell me what he thinks. I beg to move.

Amendment moved— Page 4, line 35, at end insert ("(b) broadcasting a visual image of the work.")—(Lord Lucas of Chilworth.)

LORD MANCROFT

The noble Lord, Lord Lucas of Chilworth, has here a good point which he has elaborated with a bad illustration. While I do not want to start another twenty minutes' legal argument requiring everyone to help me out of my difficulties, I am not at all certain that the case of Sir Gerald Kelly taking us round the Royal Academy would not come under the heading of "fair dealing" and the use of such works for purposes of review or criticism.

LORD LUCAS OF CHILWORTH

The noble Lord must forgive me for interrupting, but I want him to explain this point: for how long is the exhibition of a picture "fair dealing?" For three-quarters of an hour? The accepted principle of "fair dealing" does not run to exhibiting pictures by way of entertainment for three-quarters of an hour.

LORD MANCROFT

There is that risk, and that is why the noble Lord may have a good point in principle; but, as I have said, he is on slightly controversial ground with his example. His real point is a good one which can be accepted. Will the noble Lord object if I ask him to withdraw his Amendment? We will try to put it into rather tidier words but in the spirit in which he presents it. We will give that undertaking.

LORD LUCAS OF CHILWORTH

I am glad that the noble Lord accepts the principle and will gladly agree, for I am but a poor draftsman while the noble Lord has expert advice. Perhaps he will suggest to me wording which I may put down on the next stage. With his assurance, for which I thank the noble Lord very much, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 3, as amended, agreed to.

Clause 4:

Ownership of copyright in literary, dramatic, musical and artistic works

(2) In the case of— (b) a literary or dramatic work made by the author in pursuance of a contract with another person providing specifically for the making of that work for publication in a newspaper, magazine or similar periodical, or that other person (hereafter in this section referred to as the employer") shall, in the absence of agreement to the contrary, be entitled (subject to the provisions of this Act) to any copyright subsisting in the work by virtue of this Part of this Act.

(3) Where by virtue of the last preceding subsection the employer, or a person deriving title from the employer, is entitled to the copyright in a work, and the work was commissioned or ordered for a particular purpose, or was made for publication in a newspaper, magazine or similar periodical, the employer shall be treated as having entered into a covenant with the author, and with his personal representatives and assigns, that the work—

1. (a) shall not be used for a different purpose by, or with the licence of, the owner of the copyright, or (as the case may be)
2. (b) shall not be published by, or with the licence of, the owner of the copyright otherwise than as part of a newspaper, magazine or similar periodical

Provided that the operation of this subsection may be excluded by express provision in the contract between the employer and the author, and shall have effect subject to any provision in that contract relating thereto.

LORD LUCAS OF CHILWORTH moved, in subsection (2), to leave out paragraph (b). The noble Lord said: We now come to the first Amendment in which we seek to stop what I called, on Second Reading, a "major erosion" in copyright. In considering this matter it was at first thought that the principle was so vital that copyright should remain with the author until, in the words I have already used to your Lordships "by his own free will he assigns it to somebody else." I thought of putting down an Amendment to paragraph (a) of subsection (2) of Clause 4 which refers to a work made by the author in the course of his employment by another person under a contract of service or apprenticeship. Your Lordships will see that subsection (3) states: Where by virtue of the last preceding subsection the employer, or a person deriving title from the employer, is entitled to the copyright in a work. and so on. That means that anybody under a contract of service to an employer does not give, but has taken from him by the employer, the whole of the output of his brain in regard to literary, musical or artistic works. Perhaps it is right that under a contract of service the whole of the creator's brain and muscle should be at the disposal of the employer; but when I come to paragraph (b) I feel that this is altogether a different matter.

This provision seeks to reverse what is to-day the accepted practice in regard to the work of a commissioned author, whereby the copyright remains with the author unless it has been specifically transferred to the employer by contract. Now that whole position is to be reversed. I cannot think that is right. It cuts across the whole conception of copyright. I am given to understand that commissions from newspapers are sometimes given over the telephone at short notice—I am speaking here of work commissioned by a newspaper for publication in a newspaper. If, without any argument, copyright automatically vests in the person who commissions the work unless the author insists upon a legal agreement to the contrary (which could take days) he may see his work used for any purpose whatsoever so long as that purpose is connected with the newspaper. The work can be syndicated and may appear in a dozen or twenty newspapers. An author may write a little article for a small provincial newspaper and be paid three guineas, or some such small fee, for it; and it can then be sold by the newspaper to other newspapers, if it is attractive, for perhaps three hundred guineas. I cannot believe that that is really the intention of Her Majesty's Government and I believe your Lordships are at least entitled to a very convincing argument showing why in this Bill the present position is wholly reversed. I cannot see that there can be any argument upon it for surely this provision violates the very conception of copyright. It may be said that it does not do so because the commissioned author can have a contract. But he cannot. The process is automatic. Copyright vests in the person described in this Bill as the "employer."

I hope that I have stated my case clearly. I see sitting opposite the noble Viscount. Lord Hailsham, whose journalistic work. I must confess, I read with the greatest pleasure and who must know far more about these matters than I do. If the noble Viscount will not accuse me of being personal I feel he must agree with me that the copyright of any work must stay with the author unless there is a contract expressly transferring it. As my noble and learned leader said on Second Reading, there is a world of difference in this regard between "contracting in" and "contracting out"—of which we have heard a good deal. In endeavouring to remove paragraph (b) and to maintain the position as it is to-day I am also attempting to deal with the point raised by my noble friend Lord Faringdon. As your Lordships will see, subsection (3) says that the work: (a) shall not be used for a different purpose by, or with the licence of, the owner of the copyright, or (as the case may be) (b) shall not be published by, or with the licence of, the owner of the copyright otherwise than as part of a newspaper, magazine or similar periodical. I have another Amendment dealing with that point, but as my noble friend has clearly asked, while that work can be used only for the purpose which is stated here, what happens if someone wants to write a short play or a short film upon the story? The copyright is owned by the newspaper, for newspaper purposes; it is not owned by the author. Who does own the copyright? It is in a complete vacuum.

The elimination of paragraph (b) would mean that the copyright for all purposes would vest in the author until such time as, by his own free will, he assigned it to somebody else. That is the simple purpose of my Amendment. I do not think I need say any more. It seems to me that the case is crystal clear. I think that in using the term "employer" the draftsman has been rather misled. The owner of the copyright can be an employer under paragraph (a) but not under paragraph (b)—there it is the commissioner of a work. Free-lance journalists are not the employees of anyone. I feel that that is perhaps where a wrong thought was being started. I should like to hear the Government explanation of this paragraph. I feel that they must have a better one than I can conjure up in my mind, because it is so apparent that this is wrong. With those preliminary comments, which I expect will be augmented by other noble Lords, I beg to move the Amendment.

Amendment moved— Page 5, line 1, leave out paragraph (b)—(Lord Lucas of Chilworth.)

3.52 p.m.

LORD MANCROFT

It may be for the convenience of the Committee if I intervene straight away to let your Lordships know our views on this complex and difficult subject. Your Lordships will remember that the Copyright Committee made a general recommendation that, in the absence of an express contract to the contrary, the copyright in commissioned works should vest in the commissioner. We recognise that in some cases—for instance, that of music commissioned for a film—this might operate unfairly on the author, and the Bill is, accordingly, drafted to achieve what seemed to us a fair compromise between the parties. Nevertheless, the noble and learned Viscount the Lord Chancellor and I were impressed and a little disquieted by the general line of the argument advanced on the Second Reading of this Bill, and, having gone into this matter, we had intended to put down some Amendments to this clause at this stage of the Bill. Unfortunately, time is running slightly against us in the matter, and we have not been able to complete our consultations, as we had hoped to do, in time to get this done for the Committee stage. What we propose to do will, therefore, have to be carried over to the Report stage.

It may be some help to those noble Lords who have later Amendments on the Order Paper if I give some idea of what we intend to submit for your approval, and I hope that the noble Lords concerned may then see fit not to move their Amendments or, perhaps, to speak to them raise the points which they have in mind, and then withdraw them and allow the whole of Clause 4 to be recast along the lines which I will now indicate to your Lordships. What we have in mind with regard to commissioned works (as distinct from works made by employees) is this. Copyright in commissioned portraits, photographs and engravings should always vest in the person commissioning the works. It would clearly be most invidious if a photographer who is privately commissioned should be free to take your photograph and then use that photograph for some purpose of which you might well disapprove. There is a point upon which I must caution your Lordships, and that is with regard to the difference between work you may commission and the familiar situation when a photographer writes and suggests that your photograph taken by him free would be of interest to the Press or would be welcome for inclusion in a gallery of distinguished portraits. Your Lordships, if so approached, would be well advised to strike a separate bargain over that matter. But that is not the point with which I am dealing now.

Let us turn to literary or artistic works. When literary or artistic works are commissioned for publication in a newspaper, magazine or similar periodical, instead of applying the idea of a restrictive covenant, the copyright is to be split, the newspaper proprietor getting newspaper rights and the author retaining all other rights. Copyright in all other commissioned works would vest (in the absence, of course, of any agreement to the contrary; that is a most important point which I must stress) in the author. I think the logic of that is this. Of the two parties in such a transaction it is probably the author, rather than the business house, that is in greater need of protection. On the other hand, works made by employees in the course of their employment under a contract of service should, we propose, vest normally for all purposes—again in the absence of agreement to the contrary—in the employer. The exception is a contribution to a newspaper, magazine or similar periodical, in which case the same result would be achieved as with works commissioned for such a purpose.

That is the general outline of what we now propose to do. As Lord Lucas of Chilworth will perhaps agree, we are, I think, moving towards the 1911 state of affairs. These matters which I have dealt with have, of course, to be put into draftsman's language. I hope that your Lordships will agree that my explanation of what we propose goes a long way towards meeting the difficulties which were put forward on Second Reading, and that the Committee will approve of what the Government propose to do in this matter.

LORD DOUGLAS OF BARLOCH

Before this Amendment is withdrawn—if my noble friend Lord Lucas of Chilworth decides to take that course—may I say this? It is very difficult to follow what the noble Lord, Lord Mancroft, said just now, but I would put this general point. It is, broadly speaking, the policy of our law not to interfere with freedom of contract. There are exceptions, of course, to that rule, and those exceptions, again broadly speaking, have been introduced for the purpose of protecting those who are in a weak bargaining position as against those who are in a strong bargaining position. Even the modification which I understand the Government have in mind appears to me to be a departure from that general principle. I think it is perfectly obvious that writers of articles for newspapers are in a weaker bargaining position than the proprietors of newspapers of very large circulation and of great wealth. If any protection is to be given it ought surely to be in the direction of preserving the copyright of the author of the article or other work as far as possible and limiting the rights of the person who has commissioned the work to the express purpose for which the work has been commissioned and not for any other.

4.0 p.m.

LORD LAWSON

I have listened carefully to the noble Lord representing the Government, and I was pleased to find that he saw a distinction between the person dealt with in the Report and the person who does work on commission—that is, between a person who is employed and creates a work in the time during which he is employed and the person who has a work commissioned. But I was amazed to hear the noble Lord suggest on behalf of the Government that a newspaper proprietor who commissioned a work should have the right to reproduce that commissioned work. Anyone who knows the newspaper world, both nationally and internationally, can see clearly that if this is granted, then the value of the work created under commission has been neutralised altogether in advance.

May I give a personal experience in this matter? I remember as a youngster witnessing a dramatic incident in connection with my trade which moved me very much. I put the scene on paper, never thinking that it would count for much outside, but I thought it ought to be made public. It was accepted, and to my surprise I was asked for other articles of the kind dealing with dramatic incidents in industry. I was commissioned to write such articles. Incidentally, from that experience I learned just how wide is the radius of the English Press in the world, and how works which have been commissioned can be used to an extent which can neutralise the value to the author. Under this clause, I should have lost the right to reproduce that first dramatic sketch and the others that were written after it. Fortunately, that was not then the position, and I have a book of such sketches. I do not suppose they bring much in, but I enjoy looking at the book. I would ask noble Lords to think what this means to a regular author. The more serious an author's works, the greater is the disability under which he works. If such authors are to live at all, they also have to do some sort of newspaper work. But the clause as it stands means that they would lose, unless they had a regular contract. The newspaper world knows very well that those who can do that kind of work are at a considerable disadvantage, and puts the author in a worse position than he would be otherwise.

By his suggestion the noble Lord is asking first-class authors to-day to work under contract, because if they do not make a contract and sell their works to newspapers which circulate widely not only in this country but also abroad, they lose by this wide reproduction. I believe that the noble Lord and the Government are trying to do the right thing in this matter, but I am sure the noble Lord's suggestion does not touch the edge of the problem. In these days of television, radio, newspapers, and all the rest, his suggestion would place serious literature at a big disadvantage. The serious author needs to be protected instead of having the principle in this clause laid down as a condition of his work.

VISCOUNT HAILSHAM

I agree with a great deal of what the noble Lord, Lord Lawson, has just said, but I think he has drawn inadequately the distinction between the clause as it stands, which I agree was really unacceptable, and the proposal which my noble friend on the Front Bench has now made. I want to offer a few thoughts on that proposal. I must say I share the difficulty of the noble Lord, Lord Douglas of Barloch, in grasping correctly what is now proposed, but I think I understand it sufficiently to offer a few comments. It draws a distinction between paintings, photographs and engravings, and literary artistic works. I think that at bottom that is probably a sound distinction. I agree with the Government that the commissioner of a portrait ought prima facie to have the copyright in his face. There have been some notable portraits recently. Not all of them met with the approval of the person whose face was depicted on the portrait. Whatever the loss to art, I feel that there is something to be said, particularly in the case of photographs, for the commissioner to have the last word on reproduction. On that part of the distinction, if think the Government are probably drawing a valid distinction, although I ask for a little more clarification.

Do the photographs and engravings which come within the first arm of the distinction include all photographs and engravings, whatever the subject, or are they only photographs and engravings of subjects in the nature of portraits, as in the first enumerated item? Because I cannot see any valid distinction for this purpose between, say, the engraving of a landscape and the painting of a landscape. I do not think the method of depiction ought to be the test here. If what is proposed is that the copyright of portraits, whether painted, sketched, photographed or engraved, is primarily in the commissioner, I should wholeheartedly agree with the distinction but if the first enumerated item is portraits, and then it is proposed to be added all photographs and all engravings, whether of portraits or not, I am more doubtful whether the distinction is a sound one.

That brings me on to the second part of the distinction, the other artistic works; there I am frankly more interested and more conversant with the problems relating to literary works, particularly works of a journalistic character. There, it seemed to me, I was wholeheartedly in agreement with Lord Lucas of Chilworth when he moved the Amendment. I agree that in principle neither the clause as it stands nor the Copyright Act 1911, refer to the terms of contract, but only to the causes omissus when the contract is silent. In matters of that kind it is the party which is most in need of protection who ought to get the benefit of the presumption—indeed, I understood that my noble friend, when he made his proposals, rafter conceded that point in principle. Once that is conceded in principle I do not see why the Copyright Act of 1911 is at all wrong, or why we need to alter the existing law at all. I absolutely concede that in altering it the Government have the authority of the Copyright Committee behind them, but we need not necessarily agree with the Committee; and personally I do not.

May I just underline one or two of the reasons why I do not? There is, first of all, the problem of syndication, and secondly that of book rights. I cannot for the life of me see why a newspaper proprietor, who pay;, let us say, somewhere between 15 and 30 guineas for the right to publish in a particular newspaper a particular article, should deprive the author of the right of syndication. He pays for the article at the standard rate. Why, if it is a particularly good one, should he get all the benefit from it and the author none? It seems to me that the property in the article, apart from the right to do that with it which the author originally contracted should be done, ought to belong to the author. If it is a particularly good article, and therefore attracts widespread attention, I should have thought the syndication right ought to belong to the author and not to the newspaper proprietor, despite the fact that it was a commissioned article. I do not yet know the argument against that viewpoint. I agree that if the author sells the copyright, that is another matter; but in the case where the contract is silent on the point I cannot see that he should be deprived of it.

It must be remembered, at any rate in the case of professional journalists (and for this purpose I must modestly confess that I am not one), that the rights of syndication are extremely valuable. I know of one, for instance, who, although he might command very high fees for his articles in the United Kingdom newspapers commands an even greater sum, at rates of sometimes as little as five or ten shillings, all over the English-speaking world, with small newspapers who are happy to reproduce what he has originally written for a national newspaper here. I cannot see why those fees should inure for the benefit of the national newspaper proprietor who has got the article for the standard rate which he pays for any article not capable of reproduction elsewhere.

As I see it, the Government proposal, on the other hand, does safeguard book rights. As I understood my noble friend, it is upon syndication that the Government proposal offers no safeguard. I must say I attach very great importance to book rights myself, because for this purpose I should be interested, and interested rather strongly. The type of publications in which I indulge most frequently are nearly all political or philosophical. I find again and again that I desire to reproduce in one form or another what I have written in an article for the purpose of publishing my own views on a later occasion. The question of copyright is not simply a commercial problem at all. When you are dealing with ideas, and particularly controversial ideas as to which the author may have strong feelings and may wish to reproduce as widely as possible, the right to reproduce in a given form may go beyond the sphere of mere commercial remuneration. I should be sorry to think that if ever I contributed an article to a newspaper on any given political or philosophical subject I should be debarred thereafter from reproducing those ideas in the same form in some other work. I therefore think that the fullest possible protection ought to be given in this regard.

I should like the Government to consider also this aspect, because I am not sure how far their proposals govern it. Many of us have to be careful of the way in which our name is used. Many of us, for instance, belong to professional associations which preclude the use of advertising in any form. If we sell an article to a newspaper, do we have on every occasion to debar the proprietor of that newspaper, by a special clause in the agreement between us, from reproducing matter in that newspaper or some other which might infringe our professional obligations against advertisement? It may be a serious thing for a young member of the Bar to contribute a journalistic work to a newspaper and find it published in some other connection in the newspaper, without reference to him, because the Government made him lose his copyright in the absence of an express provision in the contract. Although I fully concede that the Government have the authority of the Committee behind them, they have shown themselves ready to consider objections, and I hope before they press their ultimate proposals they will take these arguments into account.

EARL JOWITT

I hope the Government will go a little further than they have done. I should not attempt, and we on this side should not attempt, to divide the Committee on this matter to-day. It is far wiser to see the exact words the Government put down, and to consider the position then. I shall certainly bring an open mind to bear on the matter. However, I hope the Government will go further than Lord Mancroft has indicated. I am concerned, as was the noble Viscount who has just spoken, about the simple principle which was indicated by the Copyright Act, 1911. I cannot see why the Government wish to depart from it. If your Lordships look carefully into what the Copyright Committee say (I refer to paragraph 268 of their Report) you will find that their difficulty is that they want to get the position clear: they want clarity beyond everything else. But clarity could equally well be obtained by saying that if there is no agreement to the contrary the copyright belongs to the author, or that the copyright belongs to the newspaper. I cannot think that the argument for clarity advances the matter one way or the other. I think we have to go back to first principles. And surely the first principle is that the copyright rests in the author of the work. Notwithstanding what has been said, there is a distinction between a contract of service (I am not concerned with that case, where the man who writes the article is employed by the newspaper) and the commissioning of a person by a newspaper to write an article on a particular topic or series of topics. Surely it is only fair that the man who writes those articles should be able to get the fees that come from all over the world if his articles excite any interest. I cannot see why not.

If I have made the point plain, it is not on the ground of clarity but for the reasons I have given, and those which the noble and learned Viscount, Lord Hail-sham, has given, that in this matter I would rather stay where we are. We will look at what the Government propose, but I hope that they will look at the point again to see whether the right principle is not that which we have in the Act of 1911: that, where a man is commissioned to write an article for the Press, he is paid for that article by the newspaper concerned and the copyright of the article remains in him. That is the position as it has always been, and I do not see why it should not remain. I very much hope that the Government will consider that; and I hope that noble Lords on all sides (there is no Party question here) will feel that that is the right proposition and will support that point of view if, unfortunately, we cannot get agreement. I thought I would make plain where I stand on the matter, though I shall certainly reserve a final judgment until I see what the Government's proposals are.

LORD CHORLEY

This clause is one of such importance that I hope your Lordships will forgive me if I detain you for a minute or two longer on it. I have been worried during the last few minutes over some words which dropped from the noble Lord, Lord Lucas of Chilworth, at the beginning of his remarks on this Amendment, when he referred to paragraph (a) of subsection (2), which he said he had been minded to deal with by way of Amendment, although he had decided, on the whole, not to move an Amendment. As Her Majesty's Government have said they will look at the whole of this clause, I hope that they will look at subsection (2) as well. Subsection (2)(a) refers to a work made by the author in the course of his employment by another person under a contract of service … I regret that, owing to many preoccupations, some of which have been in the service of this House, I have been unable to give that attention to this Bill that I should have liked, and it may well be that I have misunderstood something here. But as subsection (2) (a) stands at the moment, it seems to me to be an extraordinarily dangerous one.

I speak here as a university teacher. Some of the most important and valuable work which has been done, not only scientifically and from the point of view of literary criticism, but also from the point of view of legal work, and in many other directions, has been done by university teachers and by teachers employed in public, secondary and other schools. This work would certainly come within a wide interpretation of the words "in the course of his employment." My own small contributions to legal scholarship have certainly been made while employed as a professor at the University of London. One would not imagine for a moment that the University of London would wish to pre-empt the copyright in, say, a little book that I wrote on the law of banking. But there are other institutions which have already gone some distance in the way of requiring people whom they have taken on to their staffs to undertake that the institutions shall have the copyright in legal works of this kind. The words "in the course of" are words which have been before your Lordships' House in its Judicial capacity on more occasions than one would like to mention, in connection with the Workmen's Compensation Acts, and it is a phrase that it is not at all easy to construe. But if it can be said that works produced by a person while he is employed as a university teacher, which have arisen out of the work he is there doing, come within this paragraph, then I suggest that a wide gap is being opened in the existing law and an exceedingly dangerous precedent is being set. I hope that the Government, while looking at the clause as a whole, will look particularly at this point, which as it stands worries me very much.

LORD FARINGDON

I rise now rather than take up your Lordships' time on the Amendments standing in my name, which I shall not press. Though to some extent satisfied with what the noble Lord, Lord Mancroft, has adumbrated as to the future clause, I regret that we have not that clause before us to-day. We are placed in an extremely difficult position, because we do not know quite what the Government are proposing. I find myself largely in agreement with the noble Lord, Lord Chorley. I, too, unlike the noble and learned Earl, Lord Jowitt, am much concerned about works produced under a contract of service. I do not think they are essentially in a different position from commissioned works. I agree that in the case of works made under such contract there is a case for the copyright in them, or, at any rate, some rights in them, belonging to the employer, so far as they are used for the purpose for which the author was employed at the time of his employment. But apart from that, I think the residue of copyright should belong to the actual artist. I say "artist", because I have noticed to-day that nearly all speakers have dealt with literary artists. But there are other artists who are interested in this matter and they, it seems to me, get rather short shrift from the noble Lord, Lord Mancroft. I very much hope that when we do see the new clause these points will be covered and that we shall all be satisfied.

LORD BURDEN

I should like to add a word or two to what has been said by my noble friend, from whom I gather that artists, as such, are getting short shrift. My memory goes back to the controversy which arose when the late Lord Leverhulme had his portrait painted. When it was delivered, for some reason or other he did not like it, and he cut out the face, or some part of the portrait, and threw the other in the lumber room, much to the indignation of the artist, who felt that Lord Leverhulme was defacing a work of art. But Lord Leverhulme said that he would pay for it and he could do with it as he thought fit. Of course, it may not have been a work of art, but that is a point into which I need not go. Take the work of a sculptor. Suppose that someone commissioned Epstein to do a piece of work, and that when it was delivered he did not like one of the figures and got somebody to chisel it off, and kept it in that form. That would go down to those who came afterwards as a work of Epstein, although it had been mutilated in that way. What protection is there for sculptors or painters? I gather that it simply rests with those who buy these commissioned works, who, when they have paid for them, have the right to do with them as they see fit.

LORD JESSEL

Arising out of what the noble and learned Viscount, Lord Hailsham, said, there is one small point that I should like to mention about the position of the artist. I think he said that a person who commissions a picture has the right to the copyright in his own face, and I think we should all agree about that. But do we go so far as to say that a third party who commissions a portrait of somebody has the copyright in his face? That is quite important, because there are a great many commissioned portraits, and the person who commissions the portrait is apt to say to the artist: "I have paid you for it, and any reproduction rights in the portrait are mine." I know of several cases lately where that attitude has caused a great deal of ill-feeling. I wonder whether these two cases should be treated on all fours.

LORD LUCAS OF CHILWORTH

I am grateful to the noble Lord, Lord Man-croft, for what he has said, and if I understood him correctly I must say that we shall press him hard. We must preserve the fundamental right of the author to the copyright of his own creation, as the noble Viscount, Lord Hailsham, has said. And, if he will permit me, with respect, to say so, I thank him for a most valuable contribution on this point: I hope that the Government will take notice of it. But as I understand the Government's proposal, while they are willing more or less to concede the point in regard to artistic works (using the word "artistic" in the sense in which my noble friend Lord Faringdon used it), they will still maintain that the commissioner of literary works should hold the copyright. We shall contest that attitude, and it would not be fair to the House if I did not say that immediately.

What would it mean? It would mean the suicide—or perhaps murder would be a better word—of all the young journalists in this country. A young journalist would be commissioned to write an article for a newspaper. Eager and anxious to get his foot on the bottom rung of the ladder, he would have to say, "I am sorry, but I shall have to retain the copyright, so I will instruct my lawyers, or perhaps you would instruct yours, to draw up an agreement." In ninety-nine cases out of a hundred the editor of the newspaper will say, "Never mind. I will get somebody else." What an impossible position! Take the established author. I do not operate in this field, but I understand that in many cases an author of the standing of Sir Compton Mackenzie is commissioned at short notice. Under the Government's proposal he would have to say, "Before I can write this article or contribute anything for you, I must have it stated in a written and legal document that the copyrights vests with me." What an impossible position! It cannot work like that, and it would be unfair not to warn the Government of the line we shall take unless we have satisfaction upon this point.

I do not want the noble Lord to think that we shall not give careful consideration to anything the Government may put forward. We are grateful for the way in which they are treating this Bill and, if I may say so, we on this side of the House, in the difficulties under which we labour, are grateful that the noble Marquess who leads the House has given so much time for the proper consideration of this Bill so that we shall not have to hurry it. But to us this point is fundamental. I had intended, unless I had acceptance of my Amendment, at least in principle, to divide the House—though I shall not, of course, do so now. We will reserve our position to a later stage, because we on this side of the House, with. I suspect, every noble Lord who has any regard for the spirit of copyright as a protection for the creation of the mind, can never allow a man's work to be syndicated, in the way mentioned by Lord Hailsham, all over the country. If the noble Lord, Lord Mancroft, has anything further to tell the Committee, I will sit down before I withdraw my Amendment.

LORD MANCROFT

I am grateful to the Committee for the careful and conscientious way in which they have considered this difficult point. Let me remind them, if I may, that I did preface my remarks by saying, "What we had in mind": I was not hying down any hard and fast decision. Of course, we will think carefully about every point that has been made. I may remind your Lordships that many points were in direct conflict with other points. Indeed, the only thing upon which your Lordships seemed unanimous was apprehension in preserving the copyright of your Lordships' faces, which has been mentioned by every single speaker. The other points are highly controversial, particularly with regard to syndicated articles in the newspapers. I cannot give the noble Lord a promise that we shall meet every point—of course not—but we will try to get a clause put down on the Order Paper for the Report stage which meets all the points we possibly can. I do not think I can do more than that, and I ask noble Lords to be good enough, on that promise, not to pursue the other Amendments which stand under this clause, and which, of course, we shall take into consideration in the drafting of our new clause.

LORD LUCAS OF CHILWORTH

I am grateful to the noble Lord. Before I withdraw this Amendment (and I shall not move the others) the noble Lord will see that my other Amendments attempted to meet the point which the noble Viscount, Lord Hailsham, made. However, I will not waste any more of the Committee's time in debating this matter now. I beg leave to withdraw the Amendment under discussion.

Amendment, by leave, withdrawn.

4.38 p.m.

LORD FARINGDON had given notice of intention to move, in subsection (2), to omit "any copyright subsisting in the work" and to insert: an absolute exclusive licence for the use of the work for the purpose for which it was made. The noble Lord said: As I said a moment ago, it is not my intention to press this Amendment. I hope, however, that the noble Lord, in reconsidering this clause, will look into the question of these contracts of service and also the question of what he has described as divided copyright. I have a slight prejudice in favour of my own scheme, but I think we are aiming at the same thing. With the leave of the Committee, I will not move this Amendment, or Amendments Nos. 11, 12 and 13.

On Question, Whether Clause 4 shall stand part of the Bill?

LORD LUCAS OF CHILWORTH

I wonder whether the noble Lord would also consider this point. Perhaps I ought to know the answer, and perhaps the noble Lord can give me the answer now. It is with regard to literary works contributed under a pseudonym to newspapers, journals or periodicals. Is a pseudonym part of the article and, under the Bill as drafted, would the pseudonym pass with the copyright to the commissioner? And what would happen if it did? I am rather puzzled, because writing under pen names has achieved great fame or notoriety, whatever term your Lordships like to use. The point I am trying to make is this. If a journalist established a pen name, a pseudonym "Scrutator" or something like that—and the copyright in that name was vested in a newspaper, could anybody who contributed to that newspaper for ever after, if I may use the expression, "cash in" on the good will? That is what it really means. Could the noble Lord answer that now? It would clear up a point that has been puzzling me all the time I have been giving consideration to this Bill.

LORD MANCROFT

It has not been puzzling me all the time, but it is now. I remember that there was a crisp argument three or four years ago in one of the Sunday papers about some Latin pen name that was passed on. I remember the row well, but I do not remember the outcome. I will look into that matter carefully and see whether I can produce an answer for the noble Lord.

LORD LUCAS or CHILWORTH

Thank you very much.

Clause 4 agreed to.

Clause 5:

Infringements by importation, sale and other dealings

(2) The copyright in a literary, dramatic, musical or artistic work is infringed by any person who, without the licence of the owner of the copyright, imports an article (otherwise than for his personal use) into the United Kingdom. or into any other country to which this section extends, if to his knowledge the making of that article constituted an infringement of that copyright, or would have constituted such an infringement if the article had been made in the place into which it is so imported.

(5) The copyright in a literary, dramatic or musical work is also infringed by any person who permits a place of public entertainment to be used for a performance in public of the work, where the performance constitutes an infringement of the copyright in the work:

Provided that this subsection shall not apply in a case where the person permitting the place to be so used—

1. (a) was not aware, and had no reasonable grounds for suspecting, that the performance would be an infringement of the copyright, or
2. (b) gave the permission gratuitously, or for a consideration which was only nominal or (if more than nominal) did not exceed a reasonable estimate of the expenses to be incurred by him in consequence of the use of the place for the performance.

LORD LUCAS OF CHILWORTH moved, in subsection (2), to leave out "personal" and insert "private and domestic." The noble Lord said: This is not a point of great substance, and yet I think it is important. The expression "personal use" is used in the clause. A person might import an article for the giving of public performances or for the making of mechanical contrivances. Anything that is operated by the importer is for his personal use, for whatever purpose he uses it. Would not the noble Lord think it better and more watertight to insert instead "for his private and domestic use"? I think it would be a far better term and would perhaps close a door which, in my view, is left wide open to abuse. That is the reason why I have put down this Amendment. I should like to hear what the noble Lord has to say. I beg to move.

Amendment moved— Page 5, line 43, leave out ("personal") and insert ("private and domestic").—(Lord Lucas of Chilworth.)

LORD MANCROFT

I think the noble Lord has a good point there and we can be safe in accepting it.

On Question, Amendment agreed to.

LORD LUCAS OF CHILWORTH moved, in subsection (5), to leave out "of public entertainment." The noble Lord said: I hope the noble Lord will think I have as good a point here also. What is "a place of public entertainment"? Surely it is where an entertainment is held to which the public are admitted. What we want here is a definition such as "any performance to which the public can be admitted." "Place of public entertainment" conjures up in the minds of most people a theatre or a concert hall, but any four walls and a roof can be a place of public entertainment. So I suggest to the noble Lord that, if we just say: The copyright in a literary, dramatic or musical work is also infringed by any person who permits a place to he used for a performance in public …", that is what we really want, irrespective of where it is and whether or not it is a recognised place of public entertainment. Perhaps the noble Lord will let me know what he thinks. I beg to move.

Amendment moved— Page 6, line 23, leave out ("of public entertainment").—(Lord Lucas of Chilworth.)

LORD SILKEN

I think that my noble friend has a good pint here. I remember that some years ago I saw in an actual cathedral a play called Murder in the Cathedral. Tickets were sold. I do not think it was for a charitable purpose. Would it be contended, in those circumstances, that as the cathedral was not, of course, a place of public entertainment, there was no infringement of copyright? I agree with my noble friend that the place in which the copyright is infringed is not really relevant so long as it is a public performance. Some other words must be used than the words "place of public entertainment."

LORD MANCROFT

The noble Lords opposite have not quite succeeded in putting themselves, in this case, into the mind of the draftsman. What he is trying to do and say is this. Under the existing law—that is, under the Act of 1911 —any person who "for his private profit" permits a theatre to be used for a public performance of a work without the consent of the copyright owner is made a party to the infringement unless he acted unknowingly and had no ground to suspect that the performance would be an infringement. The Copyright Committee pointed out an ambiguity which attaches to the words "for his private profit," and proviso (b) to subsection (5) remedies this ambiguity. Apart from this, the subsection has the same effect as in the existing law.

The effect of the Amendment of the noble Lord, Lord Lucas of Chilworth, would be that the lessee of any place, not merely a place of public entertainment, would be liable for infringement in the case of an unauthorised performance taking place there, and he could not claim to avoid the result of his action by having allowed his premises to be used gratuitously or for a nominal consideration. I do not think that those are the reasons which were in the noble Lord's mind when he produced this Amendment; and. indeed, it runs counter to the recommendations of the Copyright Committee. I should think that it is reasonable that a distinction should be drawn between the case in which the person sued has let his hall for gain and one where the letting has no commercial implications. The primary offender is the person giving the entertainment and not the person letting the hall, and there is no obvious reason why the protection of the kind given in the Act of 1911 should be withheld from him. That is what the draftsman is trying to get at. I hope that that may clear up some doubt in the noble Lord's mind.

LORD LUCAS OF CHILWORTH

I am afraid it does not, because my next Amendment seeks to alter the clause on the grounds that whether a place is given gratuitously or whether rent is charged has nothing to do with copyright. That is a matter between the promoter of the entertainment and the owner of the hall. What has it to do with copyright? Why is the copyright not infringed in this context when it is given gratuitously, when the hall in which it takes place is given gratuitously, or when it is given for a lower fee? The real question surely is: has the copyright been infringed? Whether it takes place, as my noble friend Lord Silkin said, in a cathedral, a theatre or a barn in a village has nothing to do with the case. I submit that, equally, it has nothing to do with the case whether the owner of the hall lets it for a nominal sum or for nothing at all. That is a matter between the two parties who are negotiating. Surely it has nothing to do with copyright. I hope that the noble Lord will accept not only this Amendment, to which I speak now, but also the one that follows. If he cannot accept them now, I think at least he would be well advised, if I may be impertinent enough to say so, to have another look at them.

VISCOUNT HAILSHAM

With respect, I do not agree with the noble Lord, Lord Lucas of Chilworth, on this Amendment. I think the Government are perfectly right. The ordinary acts of infringement of copyright in a literary or dramatic work are defined in Clause 2 (5), which we have just passed; there restricted acts are defined. The present clause extends infringements to the case of a person who allows his premises to be used. That may impose a good deal of hardship on a man who allows his premises to be used; he is not himself infringing the copyright ex hypothesi. This Bill really indicates that in certain circumstances he is to be in the same position as a man who does infringe the copyright by committing one of the restricted acts. I think it perfectly right to confine the infringement to cases where it is done for profit, in the words contained in the Bill.

LORD SILKIN

I think the noble Viscount is right. I think that he has put forward a fair criterion: whether it is done for profit. If you get something out of it you take the risk that the performance may Abe an infringement. But the criterion, surely, is not only whether it is a place of public entertainment. What does it matter whether the infringement takes place in a place of public entertainment or anywhere else, if it is being done for profit? I quoted an extreme case, but it was a real case. I should have hated the cathedral to have got into trouble over it, but the performance of Murder in the Cathedral to which I have referred actually took place for profit in a cathedral. I have not the slightest doubt that there was no infringement in fact. But it is conceivable that a person may, for profit, let a place which is not a place of public entertainment, and yet not be responsible for any infringement. I say that it makes no difference whether or not it is a regular place of public entertainment.

LORD DOUGLAS OF BARLOCH

I think the observations of the noble Lord, Lord Mancroft, were more directed to the next Amendment, which has not yet been moved; but I do not think he has really given us an explanation of what is the distinction between a place of public entertainment and a place which is not a place of public entertainment. I should have thought that there was a reasonable case for saying that, if for the sake of profit a person allowed an infringement of copyright to take place, it did not matter very much whether it was in a place of public entertainment or not. I see the distinction between the case where it is done gratuitously or where the owner of the premises has no idea that an infringement of copyright is likely to be committed. Then, undoubtedly, I think he is to be presumed to be an innocent party and ought not to be subjected to any consequences of the infringement of copyright. But where he is making a profit out of the performance, what differance can it possibly make whether it is in a place of public entertainment or not? May I mention that I do not think there is any definition in this Bill of what is a place of public entertainment? I think it is necessary that one should know what the definition is.

4.54 p.m.

THE LORD CHANCELLOR

May I just try to make clear what is at the back of our minds in this matter? I think it is important to realise that since 1911, as I understand it, the law has been limited to infringements in a place of public entertainment—the theatre was the main example. I think my noble friend Lord Hailsham put the point most sharply when he said that this provision really extends to another class of people the liability to be sued for infringement. Presumably, in almost every case there will be someone who produces and gives the show, and someone else who allows the show to be put on in a certain place. What we are really considering is the question of when it is right to take in the second class of person. If he happens to be both at once, he is caught under the first limb. If the lessee of the theatre or the owner of the hall puts on the show, then—cadit quœstio—he is liable to be sued at once.

But then we have to consider the situation when you want to go beyond him. For nearly fifty years it has been the view that only the proprietor of a place of public entertainment—the theatre proprietor—should be put in that position. The difficulty in the law, as my noble friend Lord Mancroft, pointed out, was the ambiguity in the phrase "for his private profit." What we are trying to do here is not to change the law in any way but simply to get rid of the ambiguity. I think this is something that the Committee might well consider, because we are all approaching this Bill from the point of view of improving the law of copyright. I ask the Committee to consider whether they want to make that change. The law has stood unchanged for fifty years.

It has been thought equitable that it should concern only the proprietor or lessee of a place of public entertainment, presumably because (I am now speculating) he is in the business and therefore his mind ought to be alert to these matters. Supposing that the noble Lord, Lord Lucas of Chilworth, gives his barn, or something like it, for a local performance—one can take a number of examples of that kind—I do not think that anyone would say he is in the same position as the lessee of a theatre, who knows all about show business and has had these copyright problems put up to him. What we have done is to follow that line—to leave it to the person in the business, and to make an exception where no profit is made.

What I suggest is that the Committee consider that point of view, the fact that the present law has operated equitably and reasonably for fifty years. All we are doing here is to clear up an equivocal phase. If, on consideration, your Lordships see some further point that makes it imperative to change the law after fifty years, then I shall be pleased to reconsider the matter. But I should hesitate to change the law, or to tighten it up, because that might involve in difficulties some quite innocent and well-disposed people—for example, the person who might make a small charge to cover incidental expenses. All sorts of points are at the back of one's mind in this. I hope the Committee will think it reasonable when we ask your Lordships to be good enough to have another look at this matter. If you see any reason for altering the law, will you let me know, and I shall be pleased to consider it. I ask the noble Lord not to press this Amendment to-day.

LORD LUCAS OF CHILWORTH

The noble and learned Viscount is kind when he asks us to leave this matter. We do not want to penalise well-disposed people. But suppose that I have a barn which somebody wants to hire for an entertainment in the village, and he is quite willing to pay me. Suppose I wanted payment for it, and said to him "If I give it to you gratuitously, or at a peppercorn rent, I evade the law; but I shall want a quid pro quo for this in some other direction. You are the local publican and I shall want some preferential treatment." Would it not be as well to get over these ambiguities? Can the noble and learned Viscount give me an answer on that point? It cuts both ways. I maintain that it matters not whether the hall or place of entertainment is given free, or whether a peppercorn rent or the full rent is charged. That has nothing to do with copyright. As I. understand the law, a man who is the owner of a place in which an illegal action occurs is equally responsible with the individual who has created the illegal act. If that is right, what does it matter what rent is charged if I am the proprietor of the place in which any such illegal act has taken place? That point puzzles me. I am quite willing to accept the suggestion of the noble and learned Viscount. I will have this examined again and perhaps he too would look at it again, so that either he or I may put down another Amendment at the next stage of the Bill.

THE LORD CHANCELLOR

I am grateful to the noble Lord. There are really two points here to both of which I am sure he will direct his mind. The first is does he want to bring in anyone except the proprietor of a place of public entertainment? Does he want to bring in the noble Lord who gives his barn, or not? It might be that if he made a habit of it the barn would become a place, of public entertainment. But, short of that, does the noble Lord want to bring in people who do that, or, as in the point raised by the noble Lord, Lord Silkin, the authorities of a church who give its use for a performance of Murder in the Cathedral? That is the first point for which I would ask consideration. If we are against the idea of bringing in the person other than the proprietor of a place of public entertainment, then the whole matter goes. But if it is thought that the person to be concerned is the person who has a place of public entertainment, then your Lordships have to consider the second point which the noble Lord, Lord Lucas of Chilworth, has put so well. That raises a very interesting moral question. The man is in the class that we have hit, because he owns a theatre or place of public entertainment. Then, out of generosity, he says. "I will not charge for the use of the place," or "I will not charge more than roughly covers my overheads." By that kindly action he has changed the place from being an ordinary profit-earning theatre: he has made it the vehicle of helping a good cause. That may not be entirely logical, but I am never convinced that to be entirely logical is to be entirely right. I have inflicted myself upon your Lordships again only because it seems worth while getting these two points quite clear. Let us both think again on them, and I shall be only too happy to see the noble Lord, Lord Lucas of Chilworth, if he would like to see me concerning them.

LORD LUCAS OF CHILWORTH

On that undertaking by the noble and learned Viscount, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD LUCAS OF CHILWORTH had given notice of an Amendment, in subsection (5), to leave out all words after "copyright" in proviso (a). The noble Lord said: As the noble and learned Viscount has so generously offered to give further consideration to this point (and I will also do so), I will not move this Amendment.

Clause 5, as amended, agreed to.

Clause 6:

General exceptions from protection of literary, dramatic and musical works

6.—(1) No fair dealing with a literary, dramatic or musical work for purposes of research or private study shall constitute an infringement of the copyright in the work.

(3) No fair dealing with a literary, dramatic or musical work shall constitute an infringement of the copyright in the work if it is for the purpose of conveying news of current events to the public in a newspaper, magazine or similar periodical, or by means of broadcasting, or in a cinematograph film, and is accompanied by a sufficient acknowledgment.

(7) Where by virtue of an assignment or licence a person is authorised to broadcast a literary, dramatic or musical work, but (apart from this subsection) would not be entitled to make records of it, the copyright in the work is not infringed by his making a record of the work solely for the purpose of broadcasting it:

Provided that this subsection shall not apply if—

1. (a) the record is used for any purpose other than that of broadcasting in accordance with the assignment or licence, or
2. (b) the record is not destroyed before the end of the period of twenty-eight days beginning with the day on which it is made, or such extended period (if any) as may be agreed between the person who made the 904 record and the person who (in relation to the making of records) is the owner of the copyright.

LORD CHORLEY moved, in subsection (1), to leave out "a literary, dramatic or musical" and insert "any." The noble Lord said: This is the first of a small group of Amendments which I have been asked to move on behalf of the Libraries Association. Perhaps your Lordships will permit me briefly to explain the way in which that Association has become interested in this matter. Your Lordships will appreciate that the library is perhaps the most vital tool of modern scholarship, and the facilities provided by present-day libraries are really quite remarkable. They enable the scholar, sitting in his study, to draw upon archives from all over the world by means of modern photographic processes and particularly by means of the remarkable process of photostatic reproduction of all kinds of things, including texts from ancient scripts, passages from modern works and photographs of pictures in all the galleries of the world; and no doubt, also, enable us to have the pleasure of hearing Doctor Pevsner's most interesting and stimulating series of Reith Lectures to which we have recently had the pleasure of listening.

It is a matter of professional pride and honour with the libraries that they should provide these facilities as freely and efficiently as possible. Under the law as it exists at present, they have been able to do so and have been able thereby to perform remarkable service to world scholarship. The libraries are rather apprehensive that these facilities may to some extent be cut down by certain provisions of the present Bill, and for that reason they have asked me to put down these Amendments. I do not pretend that they are expertly drafted, but if Her Majesty's Government can see their way to accept them I shall be pleased to have them remoulded by the professional draftsmen.

LORD MANCROFT

While I am most loth to interrupt the noble Lord, I am not wholly certain that he is speaking on the Amendment of which I am thinking. Is he not speaking to the series of library Amendments, numbers 32 to 41?

LORD CHORLEY

These Amendments are all part of the same thing, and I thought it would be convenient if I made my explanatory remarks on the first of them. While the main series of these Amendments comes later, I am moving them on behalf of the Libraries Association and wished to explain to your Lordships why that Association, which is after all a body of librarians and not people who are, so to speak, directly interested in copyright, came to wish to have these matters considered. The first of these Amendments proposes to delete the words "a literary, dramatic or musical." We are apprehensive here, since under the existing Act of 1911 a wider range of works is covered. The Act of 1911, under Section 2 (1), covers any work, which means such things as diagrams or plans, of which librarians are frequently asked to provide reproductions. The provision in this clause appears to them to be a rather dangerous innovation and they believe that it would be better to maintain the position which exists under the Act of 1911, using the word "any" in conjunction with "work," which would cover diagrams anti plans as well as literary, dramatic or musical works. The matter is in a very short compass anti I hope that I have been able to make it clear. I beg to move.

Amendment moved— Page 6, line 37, leave out ("a literary, dramatic or musical") and insert ("any").—(Lord Chorley.)

LORD MANCROFT

I apologise to the noble Lord for interrupting him just now, but I could not for the moment see how he was going to get from his opening bars to his principal theme. He seems now to have accomplished it quite satisfactorily. I am happy to be able to put his mind at rest. think that if he will marry up this subsection—that is Clause 6 (1)—with Clause 9 (1) he will find that between those two subsections all works are covered. The noble Lord, therefore, has nothing to worry about.

LORD CHORLEY

I hope the noble Lord is right. I should like to consider the point which he has put a little more. In the meantime, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.10 p.m.

LORD BURDEN moved, after subsection (1) to insert: (2) No fair dealing with a literary, dramatic or musical work for purposes of teaching in establishments maintained or assisted by a local education authority within the meaning of the Education Act, 1944, or by the Minister of Education, shall constitute an infringement. of the copyright in the work: Provided that this subsection shall not apply to any performance or exhibition to which' members of the public are admitted, whether on payment or otherwise.

The noble Lord said: This Amendment is put down on behalf of the County Councils' Association, the Association of Municipal Corporations and the Association of Education Committees. The importance of all these representative bodies needs no emphasis from me. The suggested Amendment endeavours to give effect to the plea which I ventured to make on the Second Reading of this Bill, that educational work in the schools, and in the schools only, should not attract copyright charges. It is not on the ground of expense that these bodies are seeking this exemption, although, as noble Lords will be aware, in the areas of most progressive authorities the education rate at the present time—perhaps, quite rightly— is a heavy one. It is, first, on the ground of administrative difficulties that the Amendment is put forward. We all know that if the clause stands as it is at present, without being amended in the way I propose, local education authorities, in the nature of things, will have to enter into negotiations with a number of collecting societies, arid the problem of assessing the amounts due will be almost an insuperable one. I am sure we are all happy that in our primary and secondary schools, as time goes on, a library of good gramophone records will be built up. Is it to be the case that every time a gramophone record is played to a class in musical appreciation the unfortunate teacher will have to take account of that; has that all to be totalled up at the end of a session, and a few coppers, to use the words of the noble Lord, Lord Man-croft, paid for each performance?

In the second place, in many of our schools to-day—and those of your Lordships who have been in some of our modern schools will know this as well as I do—the education authorities are building up a collection of works of art, reproductions of good pictures. Is the position to be that every time a teacher takes one of those reproductions from the walls, gives a lesson on that particular picture, and then instructs her pupils to endeavour, in their own way, to reproduce what they have learned and can see in the picture, copyright dues have to be paid?

Am I overstating the case when I put it that this clause will, in the main, apply to boys and girls who will be leaving primary and secondary schools at the ages of 15 or 16—ages at which many noble Lords, quite rightly, were thinking seriously of beginning their education? At 15 or 16 many of these young people are thrown out into the labour market. In many instances, they have to do soul-destroying work in our repetitive factories, and they come under the influence of organised, commercial forms of entertainment which are one of the most striking developments of the present century. I have in mind football pools, greyhound racing, cinemas and things of that kind—commercially organised forms of entertainment, the promoters of which are all anxious to transfer money from the pockets of those who are engaged in industry into their own. Is it asking too much that these young people should carry in their minds, into their working life, some memories of good music which they have heard in their schools, some memories of pictures they have looked at and the meaning of those pictures as illustrated to them by their teachers, some memories, also, of the beauty of form that they have seen in sculpture exhibited to them in their schools?

Surely, it is our duty, and it is the duty of any Government, to make as easy as possible that instruction in our schools and not try to hamper and restrict it by a petty collection of pence—as was suggested by the noble Lord, Lord Mancroft. I would beg Her Majesty's Government, realising that this Amendment is put forward in the name of responsible bodies who know precisely what the problem is, to give this point their earnest consideration, with a view at any rate to adopting the principle of the Amendment. I beg to move.

Amendment moved— Page 6, line 39, at end insert the said subsection.—(Lord Burden.)

VISCOUNT HAILSHAM

May I, to some extent, put the other side of this shield? I am perfectly sure that any of your Lordships who heard the very eloquent way in which the Amendment was moved would feel a great deal of sympathy with the general objects which those responsible for it have in mind, but I ask whether they are not trying to avoid one evil by creating another. Let us look at this Amendment and what it involves. I agree with the noble Lord, Lord Burden, that it is highly desirable that education authorities should build up their libraries of records and collections of pictures and reproductions in order to educate those who come to their teaching establishments. I think that is something about which everybody would be agreed.

It is also largely true that in actual practice a great number of these works will be works of old masters which are not subject to copyright at all—and that restricts the area of possible disagreement between anybody. But when we come to the records which are to be employed in this way or the pictures to be displayed which are the subject of copyright because they are the works of living authors, composers or painters or of those whose deaths have been comparatively recent, why should the public, in its capacity of educator of the young, deprive such an author of the benefit of his work if they are going to use that work? That is what I do not understand. I do not sympathise with the policy of these collecting societies. I think they are both pedantic and mean in the manner in which they have protected the rights of their members, and I make no bones about saying it. But why should it be right to confiscate the work of a successful author because it is so good that you want to teach it to the young? Why not pay him a reasonable fee? Why is it necessary to do it by confiscation, if you want to do it at all? I do not believe that is necessary. And why limit the proposal to establishments which are under local education authorities?

LORD BURDEN

Or under the Ministry of Education —that widens it.

VISCOUNT HAILSHAM

Why limit it to those schools which are paid for out of the rates or taxes? Why should the schools paid for out of rates and taxes be entitled to confiscate the property of a successful author, composer or artist, but not the other education authorities who probably have not the same unlimited means at their disposal? If it is right that this should be done for educational purposes, why should it not be done generally for educational purposes? Why limit it to those public bodies who have the unlimited resources of the Consolidated Fund ultimately behind them? We should pay for what we use. As public authorities we should set an example in fair treatment of artists, composers and authors. In the last resort it cannot be right to set a bad example by confiscating these works in order to encourage a proper appreciation of art. That is not the way to encourage a proper appreciation of art. Those who are responsible for good artistic works ought to be paid, if they are so good that they have to be shown to the young by way of education.

Therefore I cannot agree that this side of the matter has teen properly thought out at all. My own suggestion would be that sooner or later—perhaps sooner, in this Bill—we shall have to deal fairly with the collecting societies as a separate problem. The whole system of Common Law was that if anyone infringed certain rights he might be held liable in damages —that is, to a reasonable money payment to be assessed by an impartial body. Collecting societies tend to use the proprietary right created by the Copyright Act for the purpose of creating a monopoly and so dictate their own terms —that is not only in this field of education but in much wider spheres. Sooner or later Parliament will have to deal with them. But to deal with the matter in this way I do not think is just to the author whose valuable work it is envisaged will be used in this important way.

THE LORD CHANCELLOR

I wonder whether your Lordships will allow me to intervene at this moment for a reason I will make clear at once? My reason is that I am going to severely cross-examine the proposals in this Amendment, because I think it is essential that your Lordships should know what is asked for. It is certainly essential that the Government should know what is asked for, if we are going to deal with this problem in a satisfactory way. That is why I deliberately intervene before, for example, my noble friend Lord Bridgeman, who spoke on Second Reading for the County Councils Association. This Amendment is in a more limited form than Amendment No. 22, which raises much wider considerations and raises more acutely the matter that my noble friend Lord Hailsham spoke about so strongly a few moments ago.

I would approach this Amendment from the standpoint of its first words, which are, "No fair dealing," because I think your Lordships would agree that we all must know what the movers and supporters of the Amendment intend to include by the term "fair dealing." The Amendment seems to be less wide in its scope than the other Amendment to which I referred and would exempt only fair dealing with literary, dramatic or musical works under Clause 6 or artistic works under Clause 9 "for purposes of teaching" in local educational authority establishments. May I point out to the noble Lords a difficulty that arises on the last word, which does not affect my general argument but affects our ultimate purpose of putting the Bill in the best possible order. I am told that "establishment" is not a word that has been used in legislation and administration in regard to education and it is difficult to give an exact content to the term. I raise this in passing because I should like noble Lords to have that in mind. Obviously, the proviso appears to restrict whatever there may be of a performance of a work to performances in class or at any rate inside the school.

I want to get a precise idea of what is in the minds of noble Lords who support this Amendment. When I have done that I shall he perfectly prepared to consider it. As I have said. there are some difficulties with regard to fair dealing. So far as I know, the term has never been defined in the courts. Obviously, it is difficult to define. Secondly, as I indicated earlier on, it finds no place in either of the two Conventions. Its insertion in our law has probably been allowed to pass because up to now it has been used only de minimis. We have to face the point. We are all being responsible in this matter; we are all anxious that we should be within the Convention. We must face the point that any considerable widening of its scope is most likely to attract attention, and therefore the question must be approached with care, because basic copyrights are involved. At the moment the Amendments that we are considering do not refer to gramophone records and films or broadcasts, as do the Amendments in the name of the noble and learned Earl. I will leave that matter for the moment but may I give what, in my view, are practices which are nearest to the concept of fair dealing, as I understand it?

First of all, there is the inclusion in examination papers of extracts from copyright works. I think that would be generally believed to be fair dealing and would not be a matter of exception. I was trying to consider it, turning my mind back to those halcyon days when I myself used to answer examination papers. The most horrible thing, when one was very small, was that sudden piece of dictation from works of literature whose chief merit, for the teacher's purpose, was that they contained long and unusual words. I do not think that is likely to be an infringement, because there the teacher is not taking a substantial part of the work. The only difficulty that I saw in this respect was with the short poem. If you are suddenly faced with a poem that is in copyright, and you are told to put it into Latin or Greek verse. the poem itself is, of course, the subject of copyright. It may be a poem of only twenty or thirty lines, but it is a complete work, because the author has published it as a separate poem. There is the difficulty.

There is no record of any author having brought an action for infringement because an examination paper has propounded that his poem should be put into Latin or Greek verse, or even that it should be the subject of English précis, which is another of the inflictions on the young which sometimes takes place. So that I do not think there is very much in the point, but I am trying to be perfectly fair. The short poem presents a technical point, and the answer is, I think, that it is extremely unlikely that any action for infringement would take place. Then one comes to the recitation and quotation of such works in class. There again, in my view, that would normally come within fair dealing. Thirdly, there is the use of musical or dramatic works for tuitional purposes. It does not matter whether you use the word "tuitional" or "instructional." There again, I think anyone would conclude that that was fair dealing. The fourth point is the copying of artistic works in drawing classes. This would be within fair dealing. It was one of the matters that worried the noble Lord, Lord Burden. I do not think there would be any difficulty on that ground.

LORD CHORLEY

May I ask the noble and learned Viscount where "tuitional purposes" appear in the Bill? The "fair dealing" exemption is limited to criticisms or review, so far as I can see. I cannot find in the clause the words "tuitional purposes." The words of the clause are, "for purposes of criticism or review"; it does not say anything about tuitional purposes. If it were as wide as that I think it would be much improved.

THE LORD CHANCELLOR

I was taking the examples which I think would be held to be within fair dealing. I prefaced my remarks by saying that there is no authority on the point, but I think the four matters that I have mentioned are the matters which could be dealt with, without any likelihood of objection from the parties to the Convention. I gave those examples because I want to know from the noble Lords who are pressing this Amendment whether they want to go further in regard to literary or dramatic or artistic works. I say that I think it is most unlikely that any of these acts would be used as the basis of an infringement action. So far as all the researches we have made go, no such action has hitherto been started, and I do not think that an Amendment which is intended to cover these acts is necessary at the present time. I pointed out to your Lordships, and I should like to indicate it again, that infringement occurs only if the copying is a substantial part of the work. Your Lordships will see Clause 43 (1). In most of the cases I have quoted there would be no question of using a substantial part of the work. The only difficulty I have pointed out is the question of the short poem.

That is one thing. If we go beyond that we come into a very different field. Do the local authorities want to get protection for concerts organised for schoolchildren or for dramatic performances? And, if so, what? It is very important, because an end-of-term concert, or a concert to which parents are brought, comes into a very different category.

LORD CHORLEY

My noble friend Lord Bridgeman will deal specifically with that point, but I said "No" in my Second Reading speech; and I tried to make that clear when I was moving the Amendment in my name.

THE LORD CHANCELLOR

I am very grateful. The noble Lord will see that what I am intending to do is to get this delimited, so that one can deal with it in that way. Of course, the noble Lord has put the proviso, but I want to know as exactly as possible what we are dealing with. There is also another point that, again, I should be grateful if the noble Lord or my noble friend Lord Bridgeman would deal with: that is, that the Amendment includes "establishments maintained or assisted by a local education authority." If that refers merely to the kind of school to which the local authority funds are given for its assistance, that is One thing; but, of course, "establishments assisted by the local education authority" might include matters that are really outside the general run of schools. Again, I want to know whether that is in tended. There would be a difficulty in trying to fit the law, and our proper conduct under the Convention, to it, if we were to go outside the tuitional or instructional establishments.

There is one point that I want to make quite clear. As I say, no one has taken any action with regard to the four matters that I mention and, so far, no one has raised any objection under the Convention. I cannot imagine that on these matters it is any likelier that it will happen in the future than it has been in the past. I know it is a good thing to make the law tidy and to provide for foreseeable difficulties, but it often happens that the tidying of the law involves you in greater difficulties than those you were previously in. This is a general point. I know that it sounds, at first sight, a remarkable point for a Lord Chancellor to be propounding, but it is a fact that when you try to put something in statutory form, with clear inclusions and exclusions, by the act of including one matter you exclude others; and it is a problem which those of us who have had to deal not only with the drafting of Statutes but also with the presentation of Bills to Parliament have had to consider again and again. Therefore, I ask your Lordships, quite seriously, to consider whether a precise statutory definition of what is permissible may not be less advantageous, in the long run, than the present position. I put that point to noble Lords to consider.

I am sure your Lordships will acquit me of the idea that I want us to do anything except what is entirely right and proper under the Convention; but when there have existed a system and examples of fair dealing to which no one has taken exception in the past, I ask your Lordships to consider whether to draw attention to them may not bring our friends in the Convention countries to attach an importance to them which hitherto they have not done. That is a difficult point to make, but I think your Lordships know me well enough to realise that I put it forward with considerable thought, because I want to see reasonable conduct and also fair dealing, in its ordinary accepted term, take place. I think we have done it largely in regard to the class of work with which this Amendment deals. Therefore, I would invite my noble friend Lord Bridgeman to let me know what he wants to be included in"fair dealing," and I will consider it care— fully from the aspect of our Convention obligations to see whether it can be done. I should also like him to consider my second point: that, when you have had something that has worked well for a number of years, there is something to be said for allowing the good work to. go on and not to change the position. I hope I have made my point clear to your Lordships, and I shall listen with interest to the definition of "fair dealing" which I am sure will be given to me.

LORD SOM̃ERS

I apologise to the noble and learned Viscount, the Lord Chancellor, for being so dense, but I should be grateful if he would make my mind clear about one or two points. At the school where I was director of music we had two general types of concert. One was given simply by outside performers who had come to the school; the other was given by school performers, and outsiders were allowed in. Also, we had the question of anthems which were performed in the chapel. Do all, or any, of those come under the question of an infringement of copyright?

THE LORD CHANCELLOR

I should have thought that the first two probably would; but as to the chapel anthems, that point I should like to consider. If concerts are given where parents appear, and concerts where children sing to an outside audience, I should have thought they would be clearly included.

LORD SOM̃ERS

I am sorry to hear that reply, because it means, I am afraid, that I was often a criminal.

THE LORD CHANCELLOR

Not a criminal.

5.47 p.m.

VISCOUNT BRIDGEMAN

I am sure that everybody, on all sides of the Committee—because Party lines do not seem to be very distinct this afternoon—will be grateful to my noble and learned friend the Lord Chancellor for the trouble he has taken to explain his position and to get us who represent the local authority associations to explain ours. Before I do my best to answer him, perhaps I can go back to what my noble and learned friend Lord Hailsham said earlier. He made the point—and I entirely agree with him —that the Amendment, as drafted, did not cover the schools not assisted by the Ministry of Education. I think I can explain that by saying that these Amendments were drafted by the local authority associations, who felt, rightly or wrongly, that it was no part of their business to deal with any matter except those matters referred to education committees. But what is sauce for the goose is sauce for the gander, and I should be glad to cooperate with my noble friend Lord Hailsham if he can help me to deal with the matter on the Report stage.

Without necessarily agreeing with the rest of what my noble and learned friend said, I would now go back to the questions which the noble and learned Viscount the Lord Chancellor asked just now. First of all, I can say clearly and without any reservation that the County Councils' Association—and I imagine, also, the other local authority associations—do not seek any exemption in regard to any activities which do not form part of the actual teaching. There is no desire on their part to make any claim for exemption from paying royalties on any what might be called out-of-school activity, such as school concerts and performances of that sort. I hope that makes that point clear. I do not think anyone would suggest that there should be exemption in a matter of that kind. Another point which my noble and learned friend made earlier was the question of the words "establishments maintained or assisted". I think he felt that those words were not usual, and perhaps not very clear. Let me say now that it seems to me that, whatever happens at this stage, there is ample room for further discussion between now and the Report stage, and I do not imagine that, if the principle of what we are talking about is accepted, anyone would wish to stand by the actual letter of this Amendment—in fact, I am sure we should all be glad to have suggestions towards improving the drafting.

I now come shortly to what I think was the most important point raised by my noble and learned friend the Lord Chancellor: what were the things which the local authority associations had in mind when they put forward these amendments? They were thinking entirely, as I see it, of the day-to-day things which happen in the course of teaching: quoting in an examination paper extracts from a modern book or poem which is subject to copyright; a class being asked to read a play; a teacher playing on the piano from a musical score, or an art class being asked to reproduce, as well as they might, a piece of painting or sculpture. That was the sort of thing that county councils had in mind; and although I may have left out one or two of them the others were all of the same class and did not go beyond that type of thing. Then we come to the question whether those can be left to take care of themselves, in that they are taken care of by the "fair dealing" clause. This was the point on which certain members of the County Councils' Association felt that they could not agree. They had found, not very often, let us admit, but from time to time, that the Copyright Act, 1911, was not really clear about matters of this sort; and, furthermore, they felt—and I agree with them—that when a new Bill was being discussed this was the time to clear up any possible doubt.

Now we come to what I think was the last point on which my noble and learned friend sought an answer: do we still think that we want an Amendment of some sort or another or do we, on reconsideration, think it might not be better to "let the sleeping dog lie"? At the moment, I am bound to say, with great respect, that I am not convinced by what my noble and learned friend said. Equally, I am not convinced that our Amendment is the right one. I feel that if the position is that those various activities which were mentioned by my noble and learned friend are covered by the "fair dealing" clause, it would be much better to have an Amendment of some kind (not necessarily this one) drafted between now and Report stage which made that fact clear beyond all doubt, equally making it clear beyond all doubt that the education authorities are in no way to have any preferential treatment in respect of any activity which takes place out of school—"school" being strictly interpreted. I have dealt as best I can with the points that my noble and learned friend raised. As I say, if my replies have any substance, if further consideration is to be given to the points, I certainly should not wish to press this Amendment now. I do not know what the noble Lord. Lord Burden, feels about that; he must speak for himself. But that, at any rate, is the position in which the County Councils' Association finds itself.

THE LORD CHANCELLOR

May I say that my noble friend Lord Bridge-man has put the position with great frankness and clarity. I am sure, on what he has said after my speech, and what the noble Lord, Lord Burden, said before my speech, that there is a case which requires consideration here. I have tried to put the point objectively and fairly and to mention the difficulties, but, on the other hand, I am anxious that those who are conducting so great a service to the community as education should have the position made as near their hearts' desire as the conventions and the legal position allow. I am pleased to say that the Government recognise that there is a problem to be considered. I will consider it, and I shall do my best—I cannot give any promise as to exact forms—to bring something before the House on Report stage. If I find it is impossible—and I hope it will not be so—I will give noble Lords ample warning so that they can put down an Amendment themselves. I hope I shall be able to find some via media on this point. I think we all appreciate that what I am dealing with at the moment is the relatively narrow point of fair dealing raised by this Amendment. There are other Amendments on the Order Paper which might involve a much wider course of action, and nothing that I have said on this Amendment must be taken as approving of anything wider than the very reasonable fair dealing proposals which have been put before us. With regard to these, I am ready to consider them, and I hope we shall be able to do something to help the educational interests.

LORD LUCAS OF CHILWORTH

I am particularly grateful for what the noble and learned Viscount has said. I imply no criticism, but this Amendment and what I might call the other educational Amendments appeared on the Order Paper only yesterday. Doubts immediately occurred to me, although I quite see the purpose of the Amendments. When the noble and learned Viscount was addressing your Lordships I rather assumed that he was dealing with the whole of the Amendments, because they raise the same difficulties, in one way and another, that he has mentioned. There is one saving grace in the other Amendments, to my mind, and that is the insertion of the word "teaching." But, even then, I should like him at some time to deal with the point as to how far they run in concert with the Convention. This is a most difficult point. The answer to the noble Lord, Lord Somers, is easy: he has been a criminal; he has been breaking the law.

LORD MANCROFT

Not a criminal —a tortfeasor.

LORD LUCAS OF CHILWORTH

If he gave a public performance of a copyright work in a school hall—

LORD SILKIN

It is not a crime.

LORD LUCAS OF CHILWORTH

I use the word "criminal" jokingly.

LORD MANCROFT

That is what we are objecting to.

LORD LUCAS OF CHILWORTH

He did infringe the law.

LORD DOUGLAS OF BARLOCH

is a criminal offence—see Clause 20.

LORD LUCAS OF CHILWORTH

My noble friend tells me that it is a criminal offence, so I was right. The point I wish to emphasise is this. Would the noble Viscount prefer to deal with all these educational Amendments together? Does he think that would be the better way? There is point in them all. I think he will tell your Lordships, if we deal with them piecemeal, that there are many real difficulties. To save your Lordships' time, the noble and learned Viscount might say that in general terms some of the objections that apply to the Amendment we are now discussing apply to all the others, whereas some of the virtues apply to them also. I was wondering whether the right course to adopt would be for those who have their names to these Amendments to meet the noble and learned Viscount to see whether there is some kind of Amendment which would keep us, as a country, within the Convention, would protect the fundamental rights of the author, composer and artist, and, at the same time, give my friend and the noble Lord, Lord Burden, what they desire. My noble and learned Leader was, I think, going to say approximately the same thing. He had another pressing engagement and asked me to apologise to your Lordships for not being here, but I think that what I have said would meet with his approval. He has an Amendment down dealing with somewhat similar circumstances, but not, I will grant, the narrow point that the noble and learned Viscount put. It is not the narrow point of "fair dealing"; it is the wider issue. While there are provisos to this and it is confined to teaching, I do not know—I should like his advice upon this at some time—how far it is in conflict with the Convention.

6.1 p.m.

THE LORD CHANCELLOR

I am in your Lordships' hands. If the noble Lord in the Chair took no objection and your Lordships thought it convenient, I could deal at the moment with the general point which is raised by the noble and learned Earl's Amendments, which is, of course, a much more difficult point than the limited one which the noble Lord, Lord Burden, and the noble Viscount, Lord Bridgeman, have in mind. If your Lord, ships would like me to do so, I am perfectly prepared to give a general account of the situation, and then your Lordships can move the Amendments or not, as you desire.

LORD LUCAS OF CHILWORTH

Perhaps it would be for the convenience of noble Lords and would not confuse them if we dealt with the Amendments before your Lordships. On behalf of my noble friends, I will just move briefly Amendment No. 22 when we come to it. That will give the noble and learned Viscount the opportunity he seeks.

THE LORD CHANCELLOR

May I respectfully and entirely agree with the noble Lord, Lord Lucas of Chilworth. I have tried to be definite on the question of fair dealing and to raise various points. My noble friend Lord Bridgeman has answered them and I have said that I will consider that limited problem raised by fair dealing. It will be convenient to finish with that because we know where we are, and then, if the noble Lord will move his Amendment formally, I will deal with the other point separately.

LORD PETHICK-LAWRENCE

Before my noble friend withdraws the Amendment, there is one point I should like to put before the Government and the noble and learned Viscount for his consideration. The whole question of copyright, in all its forms, as we have it in this Bill, deals with a great number of different forms of reproduction and publication. In particular, it deals with this question of education. It really comes to this: that the application of the copyright law, so far as schools are concerned, is in many respects quite different from what it is in regard to ordinary commercial enterprises. We have to make in this Bill limitations and subjections to this, that and the other clause. I wondered whether the noble and learned Viscount would consider the possibility of something of this kind: of having one clause dealing with schools and interpreting the law of copyright so far as schools are concerned. Perhaps I can best explain what I mean by an analogy. The noble and learned Viscount will remember that we sometimes have English Bills and Scottish Bills. Occasionally we have an English Bill with an adaptation to Scotland which is contained in two or three clauses at the end of the Bill. My suggestion for the noble and learned Viscount's consideration—and it arises only on this Amendment because we are dealing with what is practically the first of the educational Amendments—is whether it might not be better to bring all the divergent proposals of copyright so far as schools are concerned into one clause. Perhaps the noble and learned Viscount would give that his consideration. I am not asking for his consent now but he might consider it.

THE LORD CHANCELLOR

I will certainly give it my consideration. I have not considered it or discussed it with those who have prepared the Bill but, like everything that comes from the noble Lord, Lord Pethick-Lawrence, it is well worthy of consideration. I will certainly consider it.

LORD CHORLEY

I hope that the noble and learned Viscount will not confine it to schools, because this point is even more important in the universities than it is in the schools.

LORD DOUGLAS OF BARLOCH

The noble and learned Viscount the Lord Chancellor has met this point in a fair fashion. All of us naturally want to pay attention to what is suggested by responsible associations of local authorities. On the other hand, I am not clear about what are the real difficulties with which they have been confronted. I suspect that possibly they arise more in the case of, let us say, gramophone records than in the case of literary copyright. The Amendment deals with literary, dramatic and musical copyright in an omnibus fashion. It may be that a solution of this difficulty will be found by separating these various forms of copyright and dealing with them in different fashions. Let me give an illustration. It is well known that books are written specifically as class books, or text books for the use of schools. I do not think that anybody who speaks for the Association of Municipal Corporations would want to interfere in any way with the livelihood of the people who do that. That is a matter which arises far more acutely on Amendment No. 22, but it may arise partly upon this Amendment. Therefore I respectfully suggest that the solution may be found in dealing with some specific form of copyright in which a real difficulty has arisen in the past.

LORD BURDEN

The noble and learned Viscount the Lord Chancellor indicated that he was giving this Amendment a rigorous cross-examination. If I had been a prisoner at the bar and subjected to a similar rigorous cross-examination, I should have felt that my case came out with flying colours. I will not plead guilty to the use of certain terms: that is an ace of trumps which can always he used by any Government in regard to the drafting of an Amendment, because of the wonderful knowledge of the skilled Parliamentary draftsman. I will not defend the use of those terms "fair dealing" and "establishments" in this proposed Amendment. On what the Amendment seeks to advance—namely, the work in the schools—we are all in agreement, but the Lord Chancellor said that trouble has not arisen in the past and we might with confidence let that happy position continue. I do not want to he controversial, as the noble Viscount, Lord Hailsham, is not in his place, but, if I were to deal with it from a controversial point of view, I would ask how it could be left like that after the vigorous onslaught, made in his usual happy fashion, by the noble and learned Viscount on those rascally education authorities who wish to deprive the authors of their mess of pottage. Obviously, that would be picked up.

But the second and more substantial point is this. In many respects this Bill is making a fresh start. It is hoped to weld together a number of things, and, with due respect to the noble and learned Viscount, I think it would be inadvisable to leave this matter at a loose end, although generally I would agree with his case about alleged tidiness in drafting. I am certain that collecting societies (if they continue to exist after the onslaught of the noble Viscount, Lord Hailsham) will be "after" education authorities in this matter; that is certain. Again, I have no objection to the point made by the noble Viscount in regard to schools which are not assisted directly either by the Ministry of Education or by local education authorities. Nowadays nobody wants anyone coming from those schools to grow up without any knowledge of music and art, and so on. But in view of the friendly attitude of the noble and learned Viscount die Lord Chancellor to the spirit, if not the words, of the Amendment, may I say that, on the understanding that there is the necessary consultation between interested parties, I should be happy to withdraw the Amendment, with my grateful thanks to the noble and learned Viscount the Lord Chancellor and to other noble Lords who have been kind enough to support me.

Amendment, by leave, withdrawn.

6.12 p.m.

LORD LUCAS OF CHILWORTH moved, in subsection (3), to leave out "broadcasting, or in a cinematograph film," and insert "sound broadcasting (but not television broadcasting),". The noble Lord said: Strangely enough, this Amendment deals with the question of fair dealing. At the present moment, a cinematograph newsreel and a television newsreel are covered with regard to copyright. As I read Clause 6 (3), that protection is now removed, and I wonder why. This is a serious matter. I do not want to exaggerate, but I think this is another case of erosion. The reason why I move this Amendment is that "fair dealing" in this regard has been the subject of a legal dictum. If the Committee will bear with me I will give the name of the case—it was the interesting case of Hawkes & Son (London) Ltd. v. Paramount Film Service, Ltd. In that case. Hawkes were the owners of the copyright in a well-known march entitled Colonel Bogey. I expect that every noble Lord knows the march in question. There was no dispute that the playing of this march upon a cinematograph newsreel was a public performance. The defence, under the appropriate section of the Copyright Act, 1911, was one of "fair dealing."

The unanimous judgment of the three Judges of the Court of Appeal was, that in publicly performing this extract from the march as part of the newsreel, Paramount had infringed Hawkes' copyright. Lord Justice Romer, in his judgment, pointed to the fact that in a newspaper comment on the event in question they might well have included a reference to the fact that the boys were marching to the tune of Colonel Bogey and that would have been "fair dealing." If the paper had printed the 28 bars of the Colonel Bogey march that was played, that would not have been "fair dealing"; but, in effect, that is what the newsreel did.

Here, we have a case which is in advance of cinematograph newsreel—we have the television newsreel. In a sound broadcast, of course, this would not arise; the sound broadcaster would give an account of the particular incident which came before the court, saying that the boys of this, that or the other school marched down from (let us say), Waterloo Station, through Parliament Square, headed by a band playing Colonel Bogey. That would be no infringement of copyright. But when you get to a newsreel depicting the same incident, you see the boys marching and hear the band playing the march. That has been held by the Court of Appeal to be an infringement of copyright under the appropriate section of the 1911 Act. Why do we now change it? Why do we say in this Bill that it is not? I hope that I am interpreting the appropriate clause accurately. As I will try to point out, this is another erosion. As the principle now applicable has worked satisfactorily under the 1911 Act, why should it not work satisfactorily now? Perhaps the Government will tell me why something which was copyright under the 1911 Act, and for which the appropriate author of the work would have his royalty or his copyright fee for any playing of his work, should be altered now so that he cannot have it. Let me confess that I am a special pleader—I want to protect the inherent rights of the composer. They are gradually being whittled away until soon it will not be worth anybody's while to become a composer. With those observations, I beg to move the Amendment.

Amendment moved— Page 7, line 5, leave out ("broadcasting, or in a cinematograph film,") and insert ("sound broadcasting (but not television broadcasting),").—(Lord Lucas of Chilworth.)

LORD MANCROFT

Up to a point, the noble Lord, Lord Lucas of Chilworth, is quite right—this is an erosion, but it is a small one. It is an erosion which has been brought about by the passage of time. In 1911, when the last Act was passed, very little was known about cinematograph or television newsreels, and the only means of giving news to the public was completely different. Perhaps we might consider for a few moments the effect of the noble Lord's Amendment. Its effect would be to allow the use of copyright material for newspapers and sound news bulletins but to deny it for cinema and television newsreels. I think that is a little illogical. Have I understood the Amendment correctly?

LORD LUCAS OF CHILWORTH

Yes.

LORD MANCROFT

That is where I think we differ. I think it is illogical. The fact that the subsection operates only in respect of the conveying of news on current events means that the rights of copyright owners are not unduly invaded. I think that the effect of the noble Lord's Amendment would be completely illogical and would not compensate for the fact of erosion, about which he is quite understandably worried. There is another point, again a conventional one, which I should like to bring to the attention of the noble Lords. Article 10 of the Brussels Convention clearly envisages this type of thing in providing for cinematography and radiodiffusion. I hope that the noble Lord will reconsider this point. Whilst in no way decrying his eagerness to ensure that the rights of original thinkers and workers are not eroded, I feel that this is a very small erosion and one which, if it were dispensed with, would produce an illogicality. I believe there is no serious risk in what we are proposing here.

LORD ARCHIBALD

I am sure that all your Lordships will share the desire of the noble Lord, Lord Lucas of Chilworth, to prevent any serious or even, if possible, minor erosion of the creative work of composers and artists; but I suggest that on this point my noble friend has his sense of proportion a little out of balance. In his concluding remarks he said that there were so many erosions that soon it would not be worth while for anyone to be a composer. May I point out to him that since the passing of the Act of 1911 there has, for many composers, been a very great widening of their field of activity, as well as higher remuneration. It is now possible for a composer to get what may be a very substantial sum for composing the music for a film. Subsequently he has his performing rights in that music. He retains his publishing rights and may, of course, develop that music into a symphony which is published and in which he has all his rights; and he may use any other residual rights entirely as he likes. It is not quite correct, therefore, to suggest that his field is being eroded to the point of disappearance when, at least in some directions, his field is being very greatly extended.

When we come to consider the specific point in the Amendment I agree with the noble Lord, lord Mancroft, that it is illogical to suggest that newspapers, magazines and other media for disseminating news of current events can be trusted to deal fairly but that newsreels, whether for cinematograph or television use, are not to be so trusted. I would also suggest that the decision to which the noble Lord, Lord Lucas of Chilworth, has referred has not had quite the effect that he has indicated. I believe that, despite that decision, the newsreels, for example, in showing the Lord Mayor's Procession, will include the music which is being played at that time; and it may quite well happen that some of that music is copy right music. Obviously if the use goes beyond what is fair dealing—for instance, if that music is used as the musical accompaniment for a very extensive part of the newsreel—then that would pass out of the bounds of fair dealing and into that of ordinary infringement of copyright. To say that a newsreel in showing an event may not include some mere snatch of music, if there happens to be a musical accompaniment to that newsreel, is going to an undue length in a very legitimate desire to protect the composer and is giving him quite unnecessary protection to the detriment of two media for the dissemination of news which would be put to undue risk and hardship were this Amendment successful.

LORD LUCAS OF CHILWORTH

At the outset of my remarks I frankly admitted that I was a special pleader and I am not repentant. I quite agree with the noble Lord, Lord Mancroft, if the use here is confined to what my noble friend has called a "snatch." There I have no objection; but it may not be so. What then is "fair dealing"? This is very wide. There can be far mare than a "snatch." Sometimes cinematograph newsreels, of which my noble friend Lord Archibald is such a competent advocate, find difficulty in filling up their newsreels in the ordinary space of time, when there happens to be a paucity of news, and I have sometimes heard on television newsreels far more than a mere "snatch."

LORD MANCROFT

Then it is paid for.

LORD LUCAS OF CHILWORTH

Who is to decide? In my view this gives them unlimited time.

LORD MANCROFT

No.

LORD LUCAS OF CHILWORTH

All right, I will consider that point. I am grateful to noble Lords for giving me at least the reason for this view of Her Majesty's Government. I do not want to be pernickety but one has to argue these points, for if we do not do so and they go by default then they cause trouble, as trouble was caused in the past. I am grateful for the noble Lord's explanation, and in the light of that explanation I will give the matter further consideration. In the meantime, I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

6.27 p.m.

LORD LUCAS OF CHILWORTH moved, after subsection (6), to insert: () The copyright in a literary, dramatic or musical work is not infringed by any of the acts which are specified in subsection (5) of section two of this Act and which occur in the course of teaching within the curriculum of establishments (including teacher training colleges) maintained by a local education authority in pursuance of the provisions of the Education Acts, 1944 to 1953: Provided that this subsection shall not apply to any performance or exhibition to which members of the public are admitted, whether on payment or otherwise.

The noble Lord said: I now move this Amendment on behalf of my noble and learned Leader. He put down this Amendment, as many other Amendments were put down, in order to give an expression of opinion upon the lines that he has given in the previous Amendment which we have discussed. I do not think any useful purpose would be served by my going into this particular Amendment at any great length. Like my noble and learned Leader I am rather apprehensive as to how far the Convention is infringed here. I believe he has tried to cover it with the provision which appears at the end of the Amendment. Also, perhaps, a strict interpretation of the purposes of teaching would be the real safeguard. I should like the opinion of the noble and learned Viscount on these two points, for as my noble and learned Leader has emphasised so many times during the passage of this Bill through your Lordships' House, he is really a 100 per cent. supporter of the Convention. Neither he nor any noble Lord on this side of the House wishes to do anything that would put us in a difficult position in that regard. With those words, I formally move the Amendment, and I should like the noble and learned Viscount to give the House his opinion on those points.

Amendment moved— Page 7, line 37, at end insert the said subsection.—(Lord Lucas of Chilworth.)

THE LORD CHANCELLOR

I am grateful to the noble Lord, Lord Lucas, for this opportunity. I believe he will agree with me that it would he useful if I here included reference to Amendment No. 49, which deals with the same point with regard to artistic matters, and also if I looked for a moment at Clauses 12, 13 and 14, so that we may see the whole picture. I shall not involve your Lordships in any difficulty over that, and your Lordships' rights under the Amendments are completely reserved. First, I should like to point out the difference between this Amendment and Amendment No. 20 which we were discussing earlier. The broad effect of the present Amendment would be that in the course of teaching within the curriculum of establishments (including teachers training colleges) teachers and officers of the local education authority would be free to reproduce original literary and musical works, to perform them in public and to adapt them.

As I have indicated, the noble and learned Earl has similar Amendments down relating to artistic works, sound recordings, cinematograph films and television and sound broadcasts. Each of these proposals raises different questions. Some of them are at variance with our Convention obligations, and, taken altogether, they would place the agents of local authorities for acts which occur in the course of teaching within the curriculum outside the law of copyright altogether. That is the serious matter which we have to consider, both from the point of view of the Convention and from the point of view which the noble Lord, Lord Lucas of Chilworth, has strongly expressed. Copyright is really a human right, and not only he, but all people who are civilised and of good will, attach importance to it. That is the main difficulty with this series of Amendments. And, of course, it is very difficult to construe and interpret in advance what a phrase like "in the course of teaching "really means. Your Lordships know that I never take technical points on an Amendment. I am dealing with this only because it raises a really important issue.

May I take an example with regard to the artistic field? Suppose an art class is dealing with French impressionists. Let us go back to July, because then my point would clearly be good. It is probably as good to-day but I take it then because at that time Utrillo was still alive. Let us suppose, then, that an art class was dealing with Utrillo, and the school thought it would be a good thing to take coloured photographs and have coloured reproductions of Utrillo's more famous works, in order that the pupils might see them and take them home to copy, and so on. It would clearly be an infringement—I think a serious infringement—of Utrillo's copyright if the right of licensing and permitting copies to be made of his works were utilised in a school and, because it was for the purpose of teaching and the use was in the course of teaching, the school took the right to themselves, without any payment, of making reproductions of that kind. I have taken one example which just happened to occur to me, and because I always like to think of Utrillo's pictures, but it would apply equally clearly with regard to other pictures if the school were going to reproduce its own set of pictures or if they took copyright works—I mean poems, or essays, or letters, or whatever you like—and produced their own editions, and said: "We produced that in the course of and for the purpose of teaching." That, again, would be wrong, I think. Apart from that, it would clearly put us completely in the wrong in regard to our Convention duties.

That is one side of the line, and I contrast that with what I mentioned on the last Amendment when I dealt with examination papers or reciting works in class, or copying work, or reproduction of works of art in class by students—at any rate providing they are members of the class. I am quite sure we could not contemplate the wider use which I mentioned at the beginning of this speech. The point I want to impress upon the Committee is that, in these cases, we are concerned with the basic copyright under the Convention which we are obliged to honour. I think, too, that to go to that extent would clearly be wrong, and would, as I indicated earlier, be the sort of point which might well bring trouble from reasonable people abroad, who would say: "That is beyond reason, when you consider your Convention obligations." That is one side of the matter, and I want to put that clearly, as something which I think would be a very dangerous aspect.

Now I want for a moment to turn to other matters which we shall be considering more carefully when we get to Clauses 12 and 13 with regard to gramophone records. As I understand, one of the difficulties of the local authority associations has been that they consider they have been badgered by the various protective societies—the Performing Right Society, the people one knows about who collect on behalf of the composers' basic rights, and the P.P.L. which operates the gramophone collecting right, and finally a society collecting what is known as the "mechanical right" of the copyright owner to authorise the recordings of his works. With regard to the first two of these societies, certainly, the associations will be able to take any dispute about tariff rates to the tribunal. But I want to draw attention to a further point which I think we have to consider very carefully. In his proposed Amendments to Clauses 12, 13 and 14, if I may anticipate them for a moment, the noble and learned Earl, Lord Jowitt, is proposing the same sort of exemptions in respect to the subject matters dealt with in Part II of the Bill. This presumably follows the representations made from the associations who, so far as the gramophone right is in question, wanted to be free to play gramophone records in schools and to record reasonable extracts from gramophone records and broadcasts and play them for instructional purposes.

What I want to point out, and what I think it is useful to make clear, is that in regard to these there are two rights involved. First, there is the right of the gramophone or broadcasting interests (and these are not Convention bound). Secondly, there is again involved, even in this field, the basic right of the composer, which we are bound by the Convention to protect, under which it is he who can authorise the recording of his works. So far as the first right is concerned, the tribunal, is perfectly free to hear any case the local education authorities can make. It is the operation of the latter right which will cause trouble, because this right is the basic composer's right and we must be careful about how we deal with it. That is a genuine difficulty and if the noble and learned Earl and his friends have some suggestion to make with regard to it after they have seen what has been said, I shall be glad.

The same difficulty arises with regard to cinematograph films. Here the associations want to cover the showing of film strips and instructional films and extracts from film strips and films used for instructional purposes. Again we are required to protect cinematograph films under both Conventions—the noble Lord, Lord Archibald, has gone out, but I am sure this is a point near to his heart—and it is difficult to know how far local authorities want to go in infringing that right or, if the noble and learned Earl's Amendment were accepted, how wide exemption would go. I want noble Lords to consider that the British Government, however composed, cannot ignore the risk that Her Majesty's Government might be represented by other Convention countries as having gone outside the terms of the Conventions.

These are the difficulties as I see them. It is our desire and anxiety to consider the question once again. I thought it might serve a useful purpose if I indicated these difficulties, but I want noble Lords opposite to realise that I have not indicated them in order to put up a smoke-screen to cover the absence of action. That is not in my mind for a moment. I have put them up in order that we may all try to help to get rid of them if we can. I am prepared to consider this matter again, and I will do that with great pleasure. If we can find some way of helping education more widely than in the last Amendment, we will certainly try to do it, but—and I am sure I take the whole Committee with me on this—it must not be at the expense of our obligations under the Convention. We must make it clear to other countries that we are going to respect and honour these obligations.

LORD LUCAS OF CHILWORTH

As usual, the Committee are deeply indebted to the noble and learned Viscount for his exposition of the position. I am not going to attempt to add to it. To-morrow we shall have an opportunity of reading what the noble and learned Viscount has said in the OFFICIAL REPORT. We are grateful to the noble and learned Viscount for his kind offer to give this matter consideration. His mind is not closed and our minds are not closed. If convenient to the noble and learned Viscount perhaps we may have consultations between now and the next stage to see whether and how we can reconcile our positions. We insist with him that we cannot do anything that will infringe the Convention. With those words, I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.45 p.m.

LORD MANCROFT moved, in subsection (7), to leave out "records of it" and to insert: reproductions of it in the form of a record or of a cinematograph film. The noble Lord said: We come now to a more ephemeral and less fundamental matter. I say that advisedly, because subsection (7) of Clause 6 deals with "ephemeral" recordings made by broadcasting authorities by means of their own facilities and for their own emissions. It confers upon the assignee or licensee holding the right to broadcast a work the right to make records of the work for the purpose of the broadcast. But such a record may be used only for the purpose of broadcasting and must be destroyed within twenty-eight days after being made, unless this time has been extended by the owner of the copyright. This subsection gives effect to the recommendation contained in paragraphs 118 and 119 of the Copyright Committee's Report. It is true that the Committee talked only of "records." But it is clear that what they were discussing was broadcasting, both sound and television, and it is also clear that Article 11bis (3) of the Brussels Convention is also speaking of both. This Amendment makes it clear that the broadcasting authority may have the same "ephemeral" facilities in regard to telefilms as the clause already provides for records. I think that is a reasonable provision and that it is an uncontroversial one. I beg to move.

Amendment moved— Page 7, line 41, leave out ("records of it") and insert ("reproductions of it in the form of a record or of a cinematograph film").(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This Amendment and the next three are all consequential on the one we have just passed. I beg to move.

Amendment moved— Page 7, line 42, leave out ("a record") and insert ("such a reproduction").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

I beg to move the next Amendment.

Amendment moved— Page 7, line 43, leave out ("it") and insert ("the work").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

I beg to move the next Amendment.

Amendment moved— Page 7, line 45, leave out ("record") and insert ("reproduction").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

I beg to move the next Amendment.

Amendment moved— Page 8, line 1, leave out ("record") and insert ("reproduction").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT moved, in subsection (7) (b), after the first "made" to insert: or with the day on which the work is first broadcast in pursuance of the assignment or licence, whichever is the later,". The noble Lord said: Subsection (7) as drafted makes the broadcasting authority destroy the record or film within twenty-eight days of its making. It sometimes happens that an artist in a series, like the popular ones, Much-Binding-in-the-Marsh and Take It From Here, goes abroad. Then it is usual to record the programmes some time before they are broadcast, in which case the clause as drafted would be of little or no help to the broadcasting authorities. This Amendment therefore provides that the time should start to run instead from either the date of making the record or the first time the work is broadcast in pursuance of the agreement to broadcast it, whichever is the later.

Amendment moved— Page 8, line 3, after ("made") insert ("or with the day on which the work is first broadcast in pursuance of the assignment or licence, whichever is the later,").—(Lord Mancroft.)

LORD LUCAS OF CHILWORTH

I am sorry to halt the noble Lord's progress, but I dislike this Amendment—as a matter of fact, I dislike subsection (7) altogether. It is another erosion. The noble Lord has dealt fairly with this matter. He has told us that the subsection relates to ephemeral records. The subsection gives broadcasting companies, for their own convenience, the right to record material that will he used in a later broadcast at times to suit their convenience and on terms to suit their convenience. The danger in subsection (7) is that recording in television programmes is bound to increase. Indeed, I think the recording in all types of broadcast pro- grammes is bound to increase, because we shall not be able to have the live performers, whether they be actors or even sometimes politicians, on television at times that suit the listening public; and this ephemeral recording may go on to great lengths. A foreign artist may visit the recording studios and record in the morning his contribution to a television programme to take place a week afterwards. On and on this can go. Paragraph (b) of subsection (7) is bad enough, but the noble Lord's proposed insertion in the middle of it is even worse. What does it do? It would entitle a broadcasting organisation, say on January 1, to record something, leave it unused until months later, and then claim a further period of twenty-eight days before the reproduction need be destroyed in order to qualify for exemption from payment to the mechanical right owner.

I can shorten this discussion and I can meet the noble Lord. I dislike this subsection. I think it is open to abuse, because later on, in another clause—if my memory is correct, Clause 34 —the Government propose to give the performer an absolute right in ephemeral recording and to deny it to the author or composer. If the noble Lord will tell me whether he proposes to accept my Amendment No. 31, I will make a bargain with him and accept the Amendment which he has just proposed, although I do not like it. But at least with my Amendment there will be some check upon the number of these recordings, because payment will have to be made. This is a very serious point. Who is going to check the twenty-eight days? The term "ephemeral" is used because the records have a short life. They are supposed to be made for no other purpose than insertion in a. broadcast; and when they are inserted in that broadcast they are supposed to be destroyed and that is the end. But it will be extremely difficult to check whether they are, in fact, destroyed in twenty-eight days. The noble Lord's Amendment really gives them, if I may use the expression, ad libitum without end. It is now five minutes to seven, and it is late to start a discussion on this matter, but does the noble Lord intend to accept my following Amendment?

LORD MANCROFT

I am afraid not.

LORD LUCAS OF CHILWORTH

Then I am afraid that we must go on and argue this matter, because I think the Amendment now under discussion is very bad.

I think the composer should be paid for these ephemeral recordings, because they can go on and they will go on. They will play a bigger and bigger part, and the broadcasting company will have the advantage all the time, because they can make the contract with the artist to broadcast, or record his contribution to the broadcast, at the time when it suits the artist, say early in the morning, at a lower fee. If some celebrated artist had to arrive and give his broadcast performance at eight o'clock at night he would say, "My fee is £X." The broadcasting company will say, "All right, if you will come at the time convenient to you, whenever that may be, you can come here and record it." Then he accepts a far lower fee. That is ephemeral recording, and it is going to play a very big part in future broadcasting programmes. This recording can be so superimposed upon the programme later in the day, at a peak viewing time. It will become perhaps the universal practice.

Surely we should be able to agree upon this matter. I am sure the noble Lord does not want to encroach or make this erosion of principle any greater. Would he take this Amendment back and look at it again in the light of what I have said? I think it is a very important point, and a very involved one, I grant. Under the noble Lord's Amendment a broadcasting company, the B.B.C. or I.T.A., would be able to build up a library of these recordings. How are we going to check them? How are we going to see that the records are destroyed in twenty-eight days? Originally, I thought of moving that this subsection be deleted altogether. My two Amendments are only a compromise and I think the noble Lord would be well advised to take his Amendment back and I will not move my two following Amendments. I have no objection to his other Amendments, Nos. 29 and 30; it is No. 28 that really widens the scope of subsection (7). If the noble Lord will do that and we can have the benefit—we do not want to quarrel at two minutes to seven—if he will withdraw his Amendment, I will accept the two following Amendments and not move mine, on condition that I reserve my position to put them down again later if the noble Lord's deliberations do not bring fruitful results.

LORD MANCROFT

The noble Lord is going to get the best of this bargain. I am not going to quarrel with anybody at this time of night. I am sure the noble Lord is wrong. I think I shall still be certain that he is wrong. I do not quite understand what is the ephemeral library that he suggests is going to be built up.

VISCOUNT HAILSHAM

"Horror comics."

LORD MANCROFT

I think we must rely upon people who are conducting this sort of business to play the game and honour their obligations, and if they are compelled by law to destroy something after twenty-eight days I think we must assume that they will do so. I think the noble Lord is right in saying that these recordings are going to play a large part in the future. They do play a large part at present; it is convenient to everybody, including those whose copyright is involved. It is the same point as the noble Lord, Lord Archibald, made on the subject of newsreels. However, I will look at it again if the noble Lord will not move his Amendment No. 31. I confess that I am not convinced by his arguments, but I will try to look at them in the spirit in which he made the suggestion.

Amendment, by leave, withdrawn.

LORD MANCROFT

This and the next Amendment are both consequential on Amendment No. 23. I beg to move.

Amendments moved—

Page 8, line 4, leave out ("record") and insert ("reproduction")

Page 8, line 6, leave out ("records") and insert ("reproductions of the description in question").—(Lord Mancroft.)

On Question, Amendments agreed to.

LORD LUCAS OF CHILWORTH had given notice to move, after subsection (7) to insert: (8) The person who makes a reproduction to which the last preceding subsection applies shall, as soon as practicable, give notice, to the person who (in relation to the making of the reproduction) is the owner of the copyright, of the date on which such reproduction was made and of the date on which it was destroyed. (9) The person who makes a reproduction to which subsection seven of this section applies shall pay to the person who (in relation to the making of the reproduction) is the owner of the copyright such sum by way of royalty as may be agreed between them or in default of agreement as may fixed by the Tribunal.

The noble Lord said: In view of what the noble Lord, Lord Mancroft, has said, I would doubt whether there is any living soul who is a complete authority on the whole of the question contained in this Bill. With your Lordships' permission, I will not move Amendment No. 31, on the understanding that I may return to it again after consultation with the noble Lord.

Clause 6, as amended, agreed to.

House resumed.