§ 2.45 p.m.
§ Amendments reported (according to Order).
§ Clause 2:
Copyright in literary, dramatic and musical works
(5) The acts restricted by the copyright in a literary, dramatic or musical work are—
(6) In this Act "adaptation" in relation to a literary or dramatic work,
LORD DOUGLAS OF BARLOCH moved, after subsection (1) to insert:
(2) A lecture shall be deemed to have been made immediately prior to the time when it is delivered, if it has not previously been reduced to writing.
§ The noble Lord said: My Lords, this Amendment is directed towards filling 885 what appears to be a gap in the provisions of this Bill. A lecture—that is what the Amendment is directed to—is presumably a literary work. But under Clause 2, a literary work is given copyright protection only in the cases where it is unpublished, or in the case where it is published subject to the conditions set out in subsection (2). Now it can easily happen that a lecture is not reduced to writing before it is delivered. In that case, it could not be said that it had already been made and, therefore, was entitled to the protection given to an unpublished work which has been made in this country. The delivery of a lecture is riot publication in the sense in which that word is used in the Bill, because, quite clearly, under the definitions which are found in a later part of the Bill, "publication" relates to publication in print and not to becoming known to the pubic or a section of the public, as a lecture would be if it were delivered in public. In the case of a lecture which has not been written out fully beforehand and, therefore, has not been made, it will have been delivered before publication can possibly take place and the author will be deprived of any copyright in it.
§ I can hardly think that that is intended. A lecture may well be a literary work of great merit which is as much entitled to protection as any ether form of creative art. I think it is a little doubtful whether or not the existing copyright Act gives protection to a lecture in these circumstances; the wording of the Act is ambiguous. But the present Bill, as it stands, is perfectly clear: it deprives a lecture which is given extempore from any protection whatsoever. I feel it is only fair that this gap should be closed and, therefore, I beg to move.
Page 2, line 35, at end insert the said sub-section.—(Lord Douglas of Barloch.)
§ LORD CHORLEY
My Lords, I have, an Amendment a little later on which is directed to much the same point as that of my noble friend. It might be as well to have the discussion all at once instead of taking two bites at it. My own Amendment was put down to obtain an elucidation from the Government on the point which the noble Lord has just made, that lectures are apparently not dealt with in the part of the clause which 886 enumerates the acts restricted by the copyright in a literary, dramatic or musical work. The noble and learned Viscount the Lord Chancellor is aware that lectures are, in fact, covered by Section 1 (2) of the 1911 Act. One would like to know whether it is now the view of the Government and of the learned draftsmen who are responsible for drawing up this Bill that the provision in the 1911 Act was quite unnecessary, or whether it has been left out by oversight.
As the noble Lord, Lord Douglas of Barloch, has pointed out, lectures are often works of the greatest importance. One remembers the lectures given by the late Professor Alfred Dicey on the law of the Constitution, Lord Acton's lectures on liberty and many other famous courses of lectures which have been afterwards published as books but which may well have been "pirated." If the fears that we have are justified and such lectures are published by "pirates," then some distinguished men will be deprived of the copyright in their work. I should be interested to know what the view of the noble and learned Viscount is on this question, and whether it would not be safer to have something in the present Bill to cover the matter.
§ 2.53 p.m.
§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I am grateful to noble Lords for raising this point. Perhaps I may first deal with the question raised by the noble Lord, Lord Douglas of Barloch, with regard to the position under the present Act. I agree with him that some doubt exists. I am sure that he has had had in mind the fact that, under Section 1 (2) of that Act, copyright is defined as meaning the sole right, in the case of a lecture, to deliver the work in public. That is not conclusive on the point raised by the noble Lord because it is at least arguable, and has been widely assumed, that that refers to a lecture which has been already reduced to writing before it is published. The same is true of Article 2 of the Berne Convention which speaks of "lectures, addresses and sermons," but does not clarify this point. It is true that in the Bill as drafted we have made it clear that there is no intention to give protection to purely oral works. We have done this by providing in subsection 887 4 of Clause 43 that a work is "made" when it isfirst reduced to writing or some other material form.The noble Lord will appreciate, that, if this Amendment were to be made, it would probably be more convenient to make it in the clause to which I have just referred, although I do not attach any importance to that fact in discussing the merits of the matter.
I would put it to the noble Lord that the protection of the spoken word gives rise to many difficulties. On the one hand, no one would want copyright protection for a number of the speeches that the Members of your Lordships' House make on numerous occasions: many of the speeches which most of us have to make we should be glad to see go into the kindly womb of time, without any permanent record having been made. That raises quite a serious point because it is difficult to draw the distinction. No one would want to give protection to the run of extempore homilies. On the other hand, I agree with the noble Lord that there is something to be said for protecting the carefully thought out lecture, given, it may be, on an historical occasion by someone who prefers not to have any writing in front of him and wishes to produce it extempore although he has thought it out before. I know that examples can be produced—I am sure many of your Lordships can think of some. Frankly, we found it difficult to decide where to draw the line.
I would ask your Lordships to give us a little further time in which to consider this matter. I can assure the noble Lords, Lord Douglas of Barloch and Lord Chorley, that we are considering and will continue to consider it, and if we can find some method of differentiation it will be dealt with in another place. I am sure that the noble Lord, Lord Douglas of Barloch, and probably the noble Lord, Lord Chorley, too, have in mind our Amendment No. 130, which deals with the delivery of a written lecture. That meets one of the matters which Lord Chorley had in mind. If the noble Lord had also in mind the question whether the delivery of a written lecture should constitute performance and hence be an infringement done without permission, then I can say that that is our intention as well. We have made clear 888 this intention by the Amendment to which I have just referred. Having met that one point and promised to consider the other, I would ask the noble Lord, Lord Douglas of Barloch, on my undertaking, not to press his Amendment at this stage, but to withdraw it and give us a chance further to consider a difficult point.
§ LORD DOUGLAS OF BARLOCH
My Lords, I am, of course, willing to accept the undertaking which the learned and noble Viscount has given. I appreciate that there may be some slight difficulties in this matter. Neither he nor I would seek to have copyright in the speeches which we make upon various occasions. I thought that the word "lecture" possibly differentiated those speeches from works for which I, at any rate, should desire to secure copyright. It may be that some other formula can be found. I throw out this suggestion: that the lecturer who desires to preserve copyright in his work should preface his lecture by an express statement to that effect. That may afford a solution in the further consideration which the noble and learned Viscount has promised. I say that there is a point of considerable importance here. I will exemplify that by this illustration. When I was a student, I had a professor who gave a series of lectures upon astronomy. The "bare bones" of the lectures were contained in a little book which he could slip into his pocket. He expanded and extemporised on this extremely complicated subject as he went along, and if any of us had had the intention to do so we might have taken his words down verbatim and turned that series of lectures into an extremely valuable book representing many years of original research. I think that illustrates the kind of case which ought to be protected, and I am grateful for the assurance which has been given. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 3.1 p.m.
LORD FARINGDON moved, in subsection (5), after paragraph (d) to insert:
(e) communicating to the public, whether over wires or not, the broadcasting of the work, when such communication is made by a body other than the original one;
§ The noble Lord said: My Lords, I am not particularly wedded to this Amendment, and if I move it at all it is in 889 order to extract one small point of rather legalistic information from Her Majesty's Government. The Amendment is based on Article 11bis, Section 1 (2) of the Brussels Convention. As I understand it, the British Government are committed to ratification of that Convention and I am wondering whether, without this Amendment or something like it, some kind of amending legislation will not be necessary. The effect of this Bill is to take the operation of a broadcast relay station out of the realm of either performance or broadcasting, and it seems to me that this will also have the effect of cutting out the author's rights which this Article of the Convention requires to be respected. I should be grateful if I could have an answer on this limited point. I do not press the Amendment generally. I beg to move.
Page 3, line 23, at end insert the said paragraph.—(Lord Faringdon.)
§ LORD MANCROFT
My Lords, I was glad to hear the noble Lord, Lord Faringdon, preface his remarks by saying that he was not particularly wedded to this Amendment, because if he had been wedded to it it would, I think, have been a singularly unhappy marriage. As he rightly says, the wording is a verbatim extract from Article 11bis of the Brussels Convention, hut the words included in his Amendment "communicated to the public" have never actually appeared in our legislation, although they have appeared in earlier Conventions of the Berne Union. The words we use are "to perform in public" or "performing in public", and I think that the inclusion of a new term such as "communicated to the public" would raise doubts as to its precise meaning. I do not think there is any reason to assume that our term—namely, "performing in public"—does not meet our Convention obligations. At no time has it been suggested that it does not.
As to the substance of the Amendment, I think we must look for a moment at what the noble Lord is trying to do, because he is suggesting that we should include under this portion of the Bill the relay companies. These companies operate in the United Kingdom under a licence from the Postmaster General, and in so far as they take only programmes as broadcast from the B.B.C. they do nothing 890 more than act as a conduit pipe between the broadcasting authority and their own customers. They pick up the broadcast from the broadcasting station and transmit it by land lines to their individual customers. I think your Lordships will agree that just taking the B.B.C. programme could not, by the wildest stretch of words, come to be interpreted as a performance. That is one thing the relay companies certainly do not do. That. I think, the noble Lord, Lord Faringdon, has already appreciated, and that is why it would be singularly inappropriate for them to be brought under this particular clause. As the noble Lord does not press it very strongly, I will not develop that theme because I think we are at one. I can put his mind clearly at rest on the other point raised by him.
§ LORD DOUGLAS OF BARLOCH
My Lords, there is one point which arises in regard to this matter. I do not know that there is anything whatsoever to prevent a broadcast relay company from disseminating things which do not emanate from the B.B.C. or from the I.T.A. It may disseminate matters which arise from some foreign broadcasting station. Certainly in other parts of the world there are broadcast relay stations which do that as a regular practice. If doing that does not constitute performance and, therefore, does not constitute an infringement of copyright, it would follow that an author's copyright in this country might be seriously interfered with and, upon the face of it, he would have no legal remedy whatsoever because, as the matter now stands, there would be no public performance.
§ LORD SILKIN
My Lords, I agree with my noble friend Lord Faringdon that this is a matter which we do not particularly want to press, but I do not think that the noble Lord, Lord Mancroft, has entirely disposed of it by his reply. I do not think he would attach importance to the first part of his reply—the verbal dialectics; I think he bases his case on the substance. On that, I would ask the noble Lord to visualise the possibility, remote if you like, of an infringement by the B.B.C. and of a performance being relayed and therefore getting a wider audience. I would join issue with the noble Lord in his statement that a performance which is relayed is not a performance. I think it 891 remains a performance whether it is relayed or comes direct. But if it were a relay performance which was being given in infringement of a copyright, then I think it ought to be brought within the purview of the Bill.
I do not want to put it any higher than to suggest that this is a matter which ought to be looked at again. No doubt it will be, in any case, in another place. I feel that the manner in which this Amendment has been dismissed is rather lighthearted and that there is more to it than appears. If the noble Lord can give us an assurance that it will once more be looked at, I can hold out—shall I call it?—the bribe to him that that assurance will dispose of a number of other Amendments which follow.
§ LORD SOMERS
My Lords, if I understood the noble Lord, Lord Faringdon, aright. this Amendment is purely a safeguard. I understand that the Performing Right Society ask for no fees at the moment from these relay companies because everything is being paid already by the B.B.C. But, as we see with the progress of broadcasting and various scientific methods, there is no possible guarantee that the B.B.C. will have to go on paying for its performing rights, and these relay companies and systems may develop greatly. It is merely to make it possible to claim these rights that this Amendment has been put down. Therefore, purely from the question of safeguarding the rights of composers or authors, I think it would be a good thing to adopt it.
§ THE LORD CHANCELLOR
My Lords. I have listened carefully to what has been said on this matter. I do not think there are grounds for apprehension in the situation. There is one point that I should like to add to what my noble friend Lord Mancroft has said. He has dealt with the general position: that the services of these companies are really a conduit pipe by which people get a better reception, with atmospherics excluded, and similar benefits. I wanted to make it clear to your Lordships, because I think the Performing Right Society have referred to the matter, that where a service is provided in hotels in which there is a master set from which programmes are diffused, first to the public rooms, and, secondly, to the private rooms, that is a 892 simple case of the recipient of a broadcast programme giving a public performance, and that the Bill makes no change with regard to the existing law on that point. I can assure the noble Lord, Lord Silkin, that we shall give consideration to the point which he has raised. As my noble friend has pointed out, we do not think there is danger here, but I shall be pleased, of course, to look at the matter again. Perhaps on that assurance the noble Lord, Lord Faringdon, will not press his Amendment further.
My Lords, it was not my intention in any case to press this Amendment further. I confess that I am still not quite satisfied that the Article in the Convention is, or will be, met under this Bill and that some alteration will not be necessary in order to comply before we ratify. With that reservation, and by leave of the House, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
LORD CHORLEY had given notice of an Amendment to add to subsection (5):
(g) in the case of a lecture delivering the work in public.
The noble Lord said: My Lords, I should like to move this Amendment formally, for the sake of the Record, and also in order that I may thank the noble and learned Viscount for his answer to my observations on the earlier Amendment. I had both types of lecture in mind, and I should like to remind him that a course of lectures with which I have no doubt he is very familiar, the Maitland Lectures on the British Constitution, which were delivered at Cambridge without any form of notes, were put together from notes taken by students afterwards. Clearly, they would not be covered by copyright, and I am sure the noble Viscount will agree with me that that is altogether wrong. I am therefore very grateful when he says that he is looking very hard to find some method of covering the situation. I beg to move.
Page 3, line 27, at end insert the said paragraph.—(Lord Chorley.)
§ Amendment, by leave, withdrawn.893
§ 3.12 p.m.
§ LORD MANCROFT moved, in subsection (6), to omit all words from "adaptation" down to the last word "in" and to insert instead:
- "(a) in relation to a literary or dramatic work, means any of the following, that is to say,—
- (i) in the case of a non-dramatic work, a version of the work (whether in its original language or a different language) in which it is converted into a dramatic work;
- (ii) in the case of a dramatic work, a version of the work (whether in its original language or a different language) in which it is converted into a non-dramatic work;
- (iii) a translation of the work;
- (iv) a version of the work in which the story or action is conveyed wholly or mainly by means of pictures in a form suitable for reproduction in a book, or in a newspaper, magazine or similar periodical; and
§ It also provides for another form of adaptation which. I understand, is becoming increasingly common. If your Lordships will look at sub-paragraph (iv) you will see that it makes it an infringement to reproduce a story in the form of a strip-cartoon without the consent of the author of the story. This practice is becoming increasingly common in perfectly reputable journals, particularly children's papers illustrating history, the Bible and so on. I think this particular paragraph of the Amendment meets this trouble. I hope your Lordships will agree that we have done what we possibly can to meet difficulties raised by noble Lords opposite in the Committee stage. I beg to move.
Page 3, line 28, leave out from ("adaptation") to second ("in") in line 34 and insert the said new words.—(Lord Mancroft.)
§ LORD SILKIN
My Lords, I gladly testify to the fact that in this case not only have the criticisms made of Clause 2 been met to the full, but the Government have gone beyond what they undertook 894 to do. They have, in fact, discovered further defects in the clause. That is one of the advantages of looking at a thing closely. In this instance, as a result of the Government's undertaking to look at the clause again, they not only discovered the defects we raised but also additional ones, and they have now had the opportunity of putting them right. I hope that the noble Lord will bear that in mind in looking at other clauses to which we shall draw his attention later.
May I ask the noble Lord whether he is quite sure that the Government are not going too far? I have heard that there are only 160 original plots in the history of the world.
§ On Question, Amendment agreed to.
§ LORD MANCROFT
My Lords, this Amendment is put down only for the purpose of clarification. It makes it clear that the generality of the words "reproducing the work in any material form" is not affected by the spelling out of the things which constitute "adaptation" of a work, and hence, in their own right, acts of infringement. Our intention is that the existing Case Law on "reproducing" of work shall remain unaffected. I beg to move.
Page 3, line 36, at end insert ("so however that the mention of any matter in this definition shall not affect the generality of paragraph (a) of the last preceding subsection").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Clause 3:
§ Copyright in artistic works
(4) Subject to the last preceding subsection, copyright subsisting in a work by virtue of this section shall continue so 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:
(b) the copyright in a photograph shall expire at the end al the period of twenty-five years from the end of the calendar year in which the photogniph was taken.
(5) The acts restricted by the copyright in an artistic work are—
§ LORD MANCROFT
My Lords, we pass now to quite a different matter. Under the Act of 1911, the term of copyright in photographs was fifty years from the making of the original negative. The Copyright Committee recommended that the term should be assimilated more nearly to the period of protection under the Registered Designs Act and the Patents Act. Accordingly, in our Bill the period of protection for photographs was reduced, as your Lordships will see, to twenty-five years from the date of the taking of the photograph. This reduction, however, seems to increase the risk that private photographs, particularly of public people, will be published in ways that will be a source of embarrassment to the subjects. The Amendment therefore provides that the term of protection shall run from the date of first publication, which, because of Clause 43 of the Bill, means publication with the consent of the copyright owner. Thus, unpublished photographs will now be protected permanently, in the same way as private letters and diaries, and published photographs will enjoy an earning life of twenty-five years. I beg to move.
Page 4, line 29, leave out from ("shall") to end of line 31 and insert ("continue to subsist until the end of the period of twenty-five years from the end of the calendar year in which the photograph is first published, and shall then expire.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFT
My Lords, this is only a drafting Amendment. Its purpose is to meet a point made by the noble Viscount, Lord Hailsham, and also to meet difficulties which were pointed out by the noble and learned Earl, Lord Jowitt, and others. I beg to move.
Page 4, line 34, leave out ("and").—(Lord Mancroft.)
§ LORD SILKIN
My Lords, for the sake of accuracy—and only for the sake of accuracy not to be pernickety—I ought to mention that this particular Amendment took up a great deal of your Lordships' time on the Committee stage. It was originally brought to your Lordships' attention by my noble and learned friend, Lord Jowitt, and it was suggested by the noble Viscount, Lord Hailsham, that the difficulty might be met in the terms of the present Amendment. That, I imagine, 896 resulted in this Amendment being put forward, so that it is only right to point out that the original matter was brought to the attention of the Government by my noble and learned friend Lord Jowitt, though the noble Viscount, Lord Hailsham, can claim the credit for the solution. Whatever the case may be, we agree with the Amendment, which meets exactly the point we have in mind.
§ On Question, Amendment agreed to.
§ LORD MANCROFT
My Lords, the purpose of this Amendment is to give effect to the acceptance in principle which I offered your Lordships of a similar Amendment put forward by the noble and learned Earl, Lord Jowitt, the noble Lord, Lord Lucas of Chilworth, and indeed anybody else entitled to claim, to all of whom I am happy to record the benefit of this Amendment. The Amendment remedies an omission from the Bill under which it would not have been a breach of copyright to televise an artistic work. I beg to move.
§ Amendment moved—
Page 4, line 35, at end insert—
("(c) including the work in a television broadcast.").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ Clause 4:
§ Ownership of copyright in literary, dramatic, musical and artistic works
§ (2) In the case of—
- (a) a work made by the author in the course of his employment by another person under a contract of service or apprenticeship, or
- (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
- (c) an artistic work made by the author in pursuance of a contract with another person providing specifically for the making of that work,
§ (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 897 covenant with the author, and with his personal representatives and assigns, that the work—
- (a) shall not he 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 he published by, or with the licence of, the owner of the copyright otherwise than as part of a newspaper, magazine or similar periodical:
§ LORD MANCROFT had given notice of two Amendments, the first, in subsection (1), to leave out "Act" (where that word first occurs) and to insert "section", and the second to leave out subsections (2) to (4) and insert five new subsections. The noble Lord said: My Lords, we come now to an Amendment, which, together with Amendment No. 11, which goes with it, is of considerable importance. I think this matter will be familiar to your Lordships. During the debate on Committee stage I indicated to your Lordships what we had in mind with regard to first ownership of copyright. These Amendments give effect to what I then said. The new subsection (2) provides that, where a literary, dramatic or artistic work—not, you will note, musical work—is made for publication in a newspaper, magazine or similar periodical and is so made either by an employee of the newspaper or in pursuance of an express agreement that it should be made for that purpose, the copyright is split. The newspaper proprietor gets the newspaper arid magazine rights; but the author gets all other rights, such as the right to use his work in book form or as a script for a film. I hope your Lordships will feel that this is an improvement on the situation created by the clause as originally drafted, which had the effect, as the noble Lord, Lord Faringdon, pointed out, of sterilising the "residual" copyright—that is, the book and film rights—so that neither author nor newspaper proprietor could make use of it without the concurrence of the other.
§ The next new subsection, subsection (3), deals with commissioned portraits, photographs and engravings and provides, as did the Act of 1911, that the commissioner shall have the copyright in those cases. The reason is, of course, that the photographer ought not to be in a position to put the portrait or photograph 898 to uses of which the commissioner may well disapprove—for example, using it in advertisements. It has been suggested to us that these provisions as to photographs should apply only to photographs of people and not to objects; but we feel that if a man commissions a photograph of his house or his dog, it is nearly as important for him to have the copyright as when the photograph is of his wife or himself.
§ The new subsection (4) deals with works made by employees in the course of their employment, other than those dealt with already in the two previous subsections. In this case, as under the Act of 1911, the copyright vests in the employer absolutely. Your Lordships will appreciate, of course, that it is not only professional writers and professional artists who create literary or artistic works within our definitions. The working drawings of an engineer are artistic works and his report to his firm on a project would be a literary work. Subsection (5) makes it clear that all the preceding provisions of this clause operate only in the absence of agreement to the contrary, and subsection (6) provides that the provisions of Part VI, notably those as to copyright of works not yet made, shall govern the provisions of this clause.
§ Your Lordships will see, therefore, that on this difficult and controversial point we have decided to revert more nearly to the position which obtained under the Act of 1911. But there are two important differences. The first is that a newspaper proprietor who commissions work for his newspaper, which he often does over the telephone and in a great hurry, now gets, in the absence of agreement to the contrary, the newspapers and magazine rights. But that is all he gets; the author retains all other rights. The second is that the position of the employee journalist is now much improved. Instead of having a right merely to be consulted as to how his work may be used otherwise than in the newspaper or magazine, he will now himself have all the rights other than newspaper and magazine rights.
§ Under the Bill as originally drafted, copyright in all commissioned artistic works vested in the commissioner for all purposes, though subject to the restrictive covenant procedure. This will no longer be the case, and, as in the Bill as drafted, copyright in musical works will always— 899 in the absence of course of agreement to the contrary—vest in the composer.
§ Although we have moved further in the direction of protecting the author rather than the employer than was recommended by the Copyright Committee, I hope your Lordships will feel that this is a move in the right direction. There is force in the argument that the commercial firm is in a better position by contract to look after its rights than is the author. I hope, therefore, your Lordships will feel that we have reached a reasonable compromise in this difficult matter between the various conflicting interests. I beg to move.
Page 4, line 36, leave out ("Act") and insert ("section").—(Lord Mancroft.)
§ LORD SILKIN
My Lords, there is a number of Amendments to Amendment No. 11, which we have not reached. The noble Lord referred to Nos. 9 and 11 as rightly constituting one Amendment and I think it might be for the convenience of the House if we had a general discussion and then took the Amendments individually and very shortly, possibly dividing on a particular one. I want to concede at once that the Government have gone a long way towards meeting the main criticism that was voiced, not only from this side of the House but also from the other, in regard to the position of the person who is commissioned to write an article in a newspaper. I think that people who work under contract, whatever the form of commission may be, are in a position to protect themselves. It is the position of the person who is perhaps inexperienced or perhaps telephoned on the spur of the moment and asked to write an article, which we feel is not adequately safeguarded even in this Amendment which the noble Lord, Lord Mancroft, has put down—and I admit that it does go a good deal farther than the original provision.
The limited point which I raise is the question of the rights of the commissioner over an article which he has commissioned. In my view, these rights should extend merely over the actual article that he has commissioned and for the particular newspaper, magazine or other periodical for which he has commissioned it. I can see no justification for saying to a man, "Would you please write an article for the Daily Sun," and then the writer 900 finds that that article is being syndicated all over the Press, the original commissioner making a great profit on it and paying the author of the article the usual limited sum. If there were time and experience on the part of the author, he would bargain. He would have in mind the possibility of syndication and would demand a fee which took syndication into account.
Most of your Lordships have had the experience of being telephoned and asked to have an article ready on that same evening or the first thing tomorrow morning. In my own case they have sometimes sent a shorthand typist down to the country so that I could dictate the article on the spot. One does not then think of all the legal consequences; one does not even know them. One is paid a fee which one regards as reasonable for the actual article; one is normally not paid a fee for the syndication. I feel that in justice and in equity the copyright in the article should be in the person who writes it and for the particular purposes for which he writes. If it is the desire of the commissioner to syndicate the article he should say so, make it abundantly clear to the author, and pay a fee accordingly. Therefore, so far as I am concerned, the Government have not entirely met the criticisms which have been made and I hope that they will find it possible to go a little further.
I want to admit freely that I doubt whether any of the Amendments on the Paper will actually achieve the exact purpose I have in mind. That is a matter of drafting. The Government have indicated and proved that if they give an undertaking that they will accept a point in principle, they honour it and put down an Amendment which, in fact, meets the case. I should be quite prepared to accept such an undertaking in this case. I feel that this is a point we ought to press, both in the interests of the author and in the interests of equity and justice, and I do not think any great harm could come to the newspaper proprietors if the Government went just a little further and put the onus on the newspaper proprietors to say whether they were going to syndicate an article or not.
§ LORD CONESFORD
My Lords, I think the greatest need on this subject is that the law should be absolutely clear. The parties can come to their own agreement if this new Amendment is adopted, 901 but it is very desirable that the law shall be quite clear on what the legal position will be in the absence of such an agreement. On that point I think there will be agreement in every quarter of the House. What the law should provide in such a case is what would probably be intended by the parties in the absence of a particular agreement, and my own view is that the Government Amendment is successful. They are right in embodying in the law what would be the general intention of most parties except where they chose to come to a particular agreement.
I rise only because I wish to point out to the Government two points on which I think the drafting may require to be looked at again. I know how much consideration is given to these matters, and therefore I speak with great hesitation and real modesty in calling attention to what may be possible defects in the drafting as it stands. There are two points which occur to me. The first arises under subsection (3) of the Government's Amendment. The words areSubject to the last preceding subsection, where, for a consideration in money or money's worth, a person commissions the taking of a photograph.…I have little doubt that the position that the learned draftsman has in mind is that of the "money or money's worth" going to the photographer, but I doubt very much whether that is what the subsection says. It says:…where, for a consideration … a person commissions.…It is quite possible, it seems to me that the photographer might in certain cases (I think we can imagine them) offer money to a person to commission him to take the photograph. It does not say "the taking, for a consideration, of the photograph" it says "commissions for a consideration." I do not wish to labour the point but I think there may be a point that the draftsman would like to look at again.
My other point on the drafting relates to the proposed new subsection (6) which says:The preceding provisions of this section shall all have effect subject to the provisions of Part VI of this Act.I have little doubt that that would be so whether subsection (6) were there or not. I wonder whether it is intended to put in something similar in other clauses. 902 Otherwise, I imagine, there might be some danger of its being held that the specific mention of Part VI in this particular clause would make its omission rather significant in those clauses where it was not specifically mentioned. Let me say at once that I can conceive that I may be completely wrong on this point—for this reason: that it may be that Part VI has such a peculiar relevance to this particular clause that there is a real point in mentioning it here, although there would not be any reason to mention it in other cases. Therefore, without making too much of either of my points of drafting, I think it might be worth while for the Government to look at their wording again.
§ 3.37 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, the noble Lord who has just spoken has certainly raised an extremely interesting point in his last remarks, because Part VI of this Bill provides that an assignment of copyright must be in writing. The clause with which we are dealing at present provides for an automatic assignment of copyright by the author to the publisher of a newspaper or magazine or other periodical. Does it then follow that, in order that the provisions of this clause shall take effect, the bargain would first have to be reduced into writing? I understood that one of the objects of this clause was to deal with those cases in which the bargain was concluded by word of mouth, without anything in writing, and that it was intended in such a case to convey the copyright front the author to the publisher. So far as I am concerned, I disagree in toto with that principle. I do not agree with the noble Lord that that is the kind of bargain which an author contemplates in those circumstances: I do not believe it for a moment.
Supposing that some person is rung up by the editor of the Much-Binding Advertiser and asked for an article of 250 words to be published in it at the price of a guinea, does he automatically envisage that he is thereby conveying to the proprietor of that journal the right to publish his article in any newspaper or periodical not only in this country but all over the world? I cannot believe for a moment that that is the kind of thing which the ordinary member of the public would imagine that he was doing. I know that in certain circumstances there is a 903 presumption of law that a British subject is supposed to know the whole of the law of England or Scotland, as the case may be, but even the noble and learned Viscount who sits on the Woolsack would not say that he knew every provision of the law; he may know where to find the provisions of the law, but he certainly does not carry them all in his mind.
This is not the kind of provision which I think the ordinary person will know anything about at all. Therefore I say it is quite unfair to the untutored indivdual that he should have imposed upon him an obligation that the copyright in his literary work, so far as it relates to publication in newspapers and other periodical publications, shall be automatically conveyed to the person who commissions an article from him. After all, as I think the noble Lord, Lord Mancroft, admitted when we discussed this matter on the Committee stage, the publishers and newspaper proprietors are much more likely to know what the law is and to be in a position to protect themselves if they want to do so, and it is open to them to stipulate, when they commission an article, that they are buying the copyright in it. Why should they not do so? Why should this be automatically written into the contract without the volition of the person who writes the article? If the publisher seeks more extensive rights to publish than only in the particular journal for which he has asked that the article be written, let him stipulate for it. Then it will be brought home clearly to the mind of the author what he is doing, and he will be able to consider whether or not he should do it.
§ LORD CHORLEY
My Lords, we are really dealing with a basic point here, and I do not offer any apology for adding some words to what has already been said by the noble Lords, Lord Silkin and Lord Douglas of Barloch, although it may be that I shall repeat something of what they have said. There is here, in my submission, a fundamental breach of the whole theory of copyright. The basis of copyright is that the author owns his original work, and I think that that is accepted not only in this country, but all over the world. The fact that the work was commissioned is really neither here nor there in regard to this matter. Much of the finest original work that there has ever 904 been done has been commissioned work. Almost the whole of the work of Mozart was commissioned; and a great deal of the finest literary work produced by our great novelists, such as Dickens, has been commissioned work. It is true that the inroad which is made in this Bill is confined to a comparatively small area—that of newspapers and periodicals—but, even so, much of the most valuable literary work, particularly of modern times, has been commissioned for newspapers and periodicals. I need not refer to many cases, but a great deal of the work of Rudyard Kipling was commissioned in that way, and that of one of our finest living authors, Mr. Somerset Maugham. It is, I think, characteristic of modern times that more and more original work is commissioned for newspapers and periodicals. So here we are dealing with what is in some ways, perhaps, the most important matter raised in this Bill.
The basic proposition—and this is accepted all over the world—is that the author should have the copyright in the original work which he has done, unless he assigns it, or agrees to assign it, to somebody else. This basic and fundamental principle is broken by this clause, although it is not as bad as it was when it first came before your Lordships' House. But, in my submission, there is still a serious breach. I think it probably originated in an error made by the Copyright Committee of 1951 who, without having effective evidence before them, ran away with the idea that anybody who was writing for a newspaper or periodical knew quite well that his work would be syndicated in the way that has been described. But those who know much more about these things and who are in the thick of it say that that is altogether wrong; and this point has been forcibly and trenchantly put by the noble Lord, Lord Douglas of Barloch, with whose views I entirely agree.
It is for this reason that at a later stage I shall move to delete paragraph (b) altogether, which would then preserve the situation as it existed at Common Law, which, I submit, is the right position: that if the author's original right in his own work is to be removed, it must be removed by means of an express agreement with the person who is to get it. And it would not only preserve the Common Law position in this country, but would preserve the international 905 position as it is accepted all over the world. Here we are in danger of putting on to our own Statute Book a breach of international understanding. I recognise that the Government have conceded something in this new Amendment and that the actual difference between us at the present time is on this question of syndication, which, of course, is an important one. The principle is involved, and also the practical problem of syndication. If the Government refuse to give way on the matter of principle, as an alternative I have put down an Amendment which attempts to deal with the syndication matter.
Here I echo what has been said by the noble Lord, Lord Douglas of Barloch: that the situation in connection with syndication is obviously tremendously weighted in favour of the newspaper proprietor or the proprietor of a periodical. If he has the right to syndicate—and this is a right which can be, and is, used all over the world—an article which is written for a local newspaper in England may well be produced in New Zealand, Australia, Canada and elsewhere, and, as the noble Lord, Lord Douglas of Barloch, said, the wretched author may have received a sum like one guinea for being exploited in this way. If that is the situation, it should be expressly provided for in the terms of the contract which he signs, so that he realises what he is doing I believe the noble Lord, Lord Mancroft, admitted on the Committee stage that the whole advantage is with the newspaper proprietor, and in this connection the difference between contracting in and contracting out is obviously an important one from the practical point of view. We ought to see to it that the man is made to enter into an express contract, by means of which he gives up his rights, if that is what is intended. If the author is to give away his syndication rights, then I submit he should do so expressly. It is ridiculous to suppose that if the copyright passes by Statute—as it will if this clause of the Bill is passed into law—the author will, in effect, be getting more out of it. He will not. That is a theoretical supposition which I am sure everybody will agree will not be carried through in practice. Therefore, my Amendment No. 13 is designed to preserve the syndication rights of the author; and on that, if 906 the Government will not give way, I will ask your Lordships to divide.
§ 3.50 p.m.
§ THE LORD CHANCELLOR
My Lords, I am again grateful to your Lordships for the most interesting discussion which we have had on this problem, and I do not deny that it has difficulties. We have tried to find the true balance in what is a difficult matter, and I would remind noble Lords who have spoken what my noble friend Lord Mancroft said when he introduced this Amendment: that our proposals which are now before your Lordships go further to help the authors than did the recommendations of the Copyright Committee. I think the noble Lord, Lord Chorley, would agree with that point. So we have taken steps in what those of your Lordships who have criticised this Amendment would say is the right direction. The question is, have we gone far enough? The main point of the noble Lord, Lord Silkin, was with regard to syndication, and I suggest that that is the point to which your Lordships should address your minds.
I think we can put on one side the well-known writer who has reached a certain stage in his career, because he will undoubtedly make his arrangements through a literary agent and provide for the various points that may arise. I should think—I must say that I am speaking without knowledge on this point—.that that would meet most of the fears of the noble Lord, Lord Chorley, with regard to a short story writer like Kipling, the late Sir Arthur Conan Doyle or Mr. Somerset Maugham, who, I agree, did produce for periodicals in their early stages. But the time would very soon come when they would deal with it on a basis on which they were unlikely—and after all one must look at the balance of probabilities in this matter—to be victimised. A more difficult case, and one which I should like to put before your Lordships, is that mentioned by the noble Lord, Lord Silkin, of the ordinary contributor to a paper who is rung up and asked for an article. I am somewhat biased in the matter, because practically every time that that has happened to me it has been a political article I have been asked for; and I always feel that the greater publicity any words of mine get, the better the purpose for 907 which I am writing is being served, whatever the value of the article. But I do not want to ride off on any subsidiary point.
The real point about the newspaper article, which is the gist of the matter before us, is that a newspaper commissions an article in order that the newspaper will have the exclusive rights in that article. On balance, I do not think that is an injustice. Broadly, one would expect that if one were asked for an article for a newspaper which was part of a chain, whichever chain it was, it might be used by the rest of the chain of that company. I base that, first of all, on the broad point that newspapers as a whole depend on the exclusive nature of their features, and I should have thought that that was a fair thing to take as your starting point because, of course, it can always be corrected by contract.
Take it the other way. Without the provision we have made it would be perfectly possible for a free-lance journalist—and I am completely sparing in the adjectives I apply, because it is a matter in which everyone will make his own judgment—to send an article to the Daily Telegraph, for example, and then send the same article, or practically the same, to the Scotsman, the Belfast News Letter or some other paper, and maybe, get away with it once or twice, and similarly do it with more widespread newspapers. As I say, one has to try and keep the balance in the matter. Therefore, we have come to the conclusion that we have advanced a considerable way, because we have reserved to the author the full rights of book, play, film and broadcast, which are extremely important nowadays. That is the general position, and I ask your Lordships to see that when it is a matter of balance the result can never suit everyone. Each of us has his individual view and would probably want the balance tilted a little more the other way. But in this general problem we have attained an equitable solution.
May I say one word about the speech of my noble and learned friend Lord Conesford? He is well known to his friends as being not only a speaker of English undefiled himself, but, if I may say so, an ever refilling cistern of criticism of those who defile English. Therefore I listened with great respect to his criticism of the drafting and the language 908 of subsection (3) of the Amendment. I promise him that we shall consider that matter and see that we complete the linguistic purification that it deserves. He has Gilbertian support for the basis of his thesis. I seem to remember some lines in The Gondoliers:A sum in additionThey pay for permissionTo say that they make for the Duchess.Therefore, I will see that on that basis his point is looked into.
With regard to the noble Lord's other point, I am afraid we do think it necessary, in these special circumstances, to make the reference to Part VI. That point has been considered, but I will look at it again if the noble Lord wishes. I have put my point to your Lordships. I appreciate that this is a field where reasonable men can take different views and see that the perfection on balance should lie in a different way. What I do say to your Lordships is that we have tried hard to get a reasonable solution. I think our solution is right, and I hope that on reflection your Lordships will feel that it is fair and will not press the suggestion of altering it.
§ 3.58 p.m.
My Lords, I am always impressed by everything the Lord Chancellor says, but it seemed to me that he based his argument on a false analogy, because he talked about a free-lance journalist who might send his article to the Daily Telegraph and to the Scotsman. The noble and learned Viscount must be aware that any free-lance journalist who was found to be distributing his articles in such a way that they appeared in several papers on the same day would be unlikely to receive many future orders from newspaper editors. It seemed to me that that was slightly beside the point. I say this with every possible hesitation and diffidence, but what we are talking about is not the free-lance journalist who sends his article to one paper—I am assuming it would be one paper; I do not know that he would send it to more than one—but a case where the article is commissioned. I agree with the noble and learned Viscount that where the article is commissioned from Mr. Somerset Maugham or somebody of that standing, no doubt his interest will be looked after. He will have had a wealth of experience on which to base his business activities. But, when Mr. Somerset 909 Maugham was an unknown writer of short stories from whom an editor commissioned a story, he may well not have appreciated that, in writing a short story for one newspaper, he was giving all the rights in all newspapers and magazines in the future, arid, of course, his syndicated rights through the associated Press, to the editor who had ordered that article or short story.
Therefore, I suggest that here it may be difficult to find the correct words, though I do not think it is by any means impossible. But, in any case, the residuary right, about which the noble Lord, Lord Mancroft, talked on the Committee stage, should begin where the original publication for which the work is commissioned has taken place, and the commissioner has used the article or short story for the purpose for which he ordered or commissioned it. Thereafter, I would suggest that the copyright should revert to the author. I hope that Her Majesty's Government will reconsider this point and draw the line a little more sharply in favour of the author, who is always in these matters the weaker protagonist.
§ 4.2 p.m.
§ LORD CHORLEY
My Lords, on a point of order, would your Lordships allow me to intervene for a moment? I have Amendments down to the Amendment standing in the name of the noble Lord, Lord Mancroft. I wonder whether or not I should move them now.
§ LORD MANCROFT
My Lords, may I suggest that this would be a useful course. I think we have exhausted the arguments over the whole field and we know what it is we have to decide: do we have caveat auctor or not? We are now considering Amendments standing in my name, that we should approve Amendments Nos. 9 and 11. Then, if noble Lords opposite feel strongly on this point and wish to challenge it further, they could do it elsewhere—perhaps on Amendment No. 12 to be moved by the noble Lord, Lord Chorley—without any unnecessarily complicated discussion and continuation. Before that is done, I must, of course, ask the House to agree to my Amendments, Nos. 9 and 11, being put to the House.
§ LORD SILKIN
My Lords, I think that is right. We think that Amendments Nos. 9 and 11 are, to a certain extent, an improvement in the Bill. They ought to be 910 put to the House. I take it that they will then be subject to amendment on the basis of the Amendments put down.
§ LORD DOUGLAS OF BARLOCH
If I may have leave to speak, may I say that it is proposed to exclude by Amendment No. 10—
LORD DOUGLAS OE BARLOCH
I think I have some rights. It would be much better, if I may respectfully suggest it, to deal with Amendment No. 9. I was then going to withdraw Amendment No. 10 in order to shorten the discussion; then we should come to Amendment No. 11
§ THE LORD CHANCELLOR
There is only one suggestion that I put to the Mouse. The Amendments in the name of the noble Lord, Lord Chorley, are Amendments to the Amendment in the name of the noble Lord, Lord Mancroft. Therefore, before we decide finally on the form of Lord Mancroft's Amendment, I suppose the noble Lord, Lord Chorley, should have the right to put his Amendments. Perhaps this will meet what is in your Lordships' minds: that we pass Amendment No. 9, which is introductory. The noble Lord, Lord Douglas of Barloch, has been good enough to say that he will withdraw Amendment No. 10. The noble Lord, Lord Mancroft, will then move Amendment No. 11, and, on that, the noble Lord, Lord Chorley, will move one of his Amendments to that of the noble Lord, Lord Mancroft, on which he has indicated that, as at present advised, he wants to divide the House. We will dispose of that and then pass to Amendment No. 11. I think that then our troubles on this part of the Bill are over. Would that meet with your Lordships' approval?
§ THE LORD CHANCELLOR
I will put Amendment No. 9, because that is introductory. I gather that there is no opposition.
§ On Question, Amendment agreed to.911
§ THE LORD CHANCELLOR
I am grateful to the noble Lord. Will the noble Lord, Lord Mancroft, formally move Amendment No. 11?
§ LORD MANCROFT
My Lords, I beg formally to move Amendment No. 11. I do not know if the noble Lord, Lord Chorley, wishes to move his Amendment.
§ Amendment moved—
Page 4, line 39, leave out subsections (2) to (4) and insert:
("(2) Where a literary, dramatic or artistic work is made for the purpose of publication in a newspaper, magazine or similar periodical, and is so made either—
(3) Subject to the last preceding subsection, where, for a consideration in money or money's worth, a person commissions the taking of a photograph, or the painting or drawing of a portrait, or the making of an engraving, and the work is made in pursuance of that commission, the person who so commissioned the work shall be entitled to any copyright subsisting therein by virtue of this Part of this Act.
(4) Where, in a case not falling within either of the two last preceding subsections, a work is made in the course of the author's employment by another person under a contract of service or apprenticeship, that other person shall be entitled to any copyright subsisting in the work by virtue of this Part of this Act.
(5) Each of the three last preceding subsections shall have effect subject, in any particular case, to any agreement excluding the operation thereof in that case.
(6) The preceding provisions of this section shall all have effect subject to the provisions of Part VI of this Act.").—(Lord Mancroft.)
§ LORD DOUGLAS OF BARLOCH
My Lords, I want to say a few words about the Amendment which has been moved by the noble Lord, Lord Mancroft, and which is, I agree, some improvement upon the clause as it was originally drafted; but I wish to disagree with the view which has been expressed by the noble and learned Viscount on the Woolsack that one is faced with a dilemma in this case 912 and that the Government have been endeavouring in the drafting of this clause to hold a balance. That seems to me entirely to ignore the fact that it is perfectly open to the proprietor of a newspaper to make an express stipulation to the person who writes an article that he, the newspaper proprietor, is to have all the newspaper and periodical rights which exist in it. Why should not this particular case be one in which the terms of a contract should be written out beforehand? It is perfectly true that the well-established author, who has by hard practice become well accustomed to this kind of business, probably employs a literary agent and gets the fullest protection for his literary efforts that the law is able to afford him. Undoubtedly, those people are well able to look after themselves. The point at issue here is not that. They will do so in any case, whatever is written into this Bill. It is those who are inexperienced in these matters who deserve to have protection as compared with the more experienced people who are in the habit of commissioning articles for newspapers or periodicals. That is the real point.
§ LORD CHORLEY
My Lords, in view of the fact that the noble and learned Viscount on the Woolsack has made it perfectly clear that the Government will not accept Amendment No. 12, I do not propose to move it, but I will move Amendment No. 13. The substitution of the word "such" for the word "any" limits the right of the commissioner, the newspaper or the magazine proprietor, as the case may be, to publication in the particular journal, newspaper or magazine for which the work is commissioned and leaves the syndication rights with the author. That is the object of this Amendment. I think I have explained it sufficiently in my earlier speech; therefore I will content myself with moving it formally. I beg to move.
Amendment to the Amendment, moved—
Line 14 of the amendment, leave out ("any") and insert ("such").—(Lord Chorley.)
§ LORD MANCROFT
My Lords, I have nothing more to say and therefore I do not propose to say it. We have exhausted this argument completely; there are no further facts to lay before the House and no further arguments to be advanced. I suggest that since we are not able to agree on it we disagree in a different way.
§ On Question, Whether the said Amendment to the Amendment shall be agreed to?
§ Resolved in the negative, and Amendment to the Amendment disagreed to accordingly.
§ 4.19 p.m.
§ LORD CHORLEY moved as an Amendment to the Amendment, to leave out subsection (4). The noble Lord said: My Lords, this is quite a different point but it is one which is only slightly less, if any less, in importance, than the one which we have just been discussing. The Amendment is to leave out the new subsection (4) which is taken from the old Bill but is put into a different place. It is quite true that this subsection comes from the Copyright Act, 1911, which altered the Common Law rule, under which, as has been indicated more than once in these discussions, the author has a copyright in the work which he has produced. No doubt this amendment of the Common Law rule was designed to protect a master who employed a servant to write or to compose for him under his personal supervision and direction. Limited in that sort of way it would be a perfectly reasonable qualification of the original legal position.
§ The words used—it is true, of course, that they come from the 1911 Act, and they have not, in fact, so far as I know, given rise to any litigation are:914
§ Their Lordships divided—
§ Contents, 25; Not-Contents, 50.913
|Baldwin of Bewdley, E.||Chorley, L.||Lawson, L.|
|Limerick, E.||Crook, L.||Mathers, L.|
|Listowel, E.||Darwen, L.||Milner of Leeds, L.|
|Lucan, E. [Teller.]||Douglas of Barloch, L.||Morrison, L.|
|Douglas of Kirtleside, L.||Quibell, L.|
|Addison, V.||Faringdon, L.||Rathcreedan, L.|
|Alexander of Hillsborough, V.||Greenhill, L.||Sherwood, L.|
|Henderson, L.||Silkin, L.|
|Burden, L. [Teller.]||Kershaw, L.||Winster, L.|
|Kilmuir, V. (L. Chancellor.)||Aberdare, L.||Geddes, L.|
|Aldenham, L.||Gifford, L.|
|Cholmondeley, M.||Amherst of Hackney, L.||Hampton, L.|
|Balfour of Inchrye, L.||Hawke, L.|
|Ferrers, E.||Bennett of Edgbaston, L.||Hayter, L.|
|Fortescue, E. [Teller.]||Burnham, L.||Jessel, L.|
|Haddington, E.||Carrington, L.||Kilmarnock, L.|
|Onslow, E. [Teller.]||Cawley, L.||Leconfield. L.|
|St. Aldwvn, E.||Chesham, L.||Luke, L.|
|Selkirk, E.||Clitheroe, L.||Mancroft, L.|
|Swinton, E.||Coleraine, L.||Melchett, L.|
|Conesford, L.||Palmer, L.|
|Bridgeman, V.||Cornwallis, L.||Rochdale, L.|
|De L'Isle, V.||Craigmyle, L.||Rockley, L.|
|Falmouth, V.||Derwent, I,.||Salter, L.|
|Goschen, V.||Digby, L.||Sandford, L.|
|Leathers, V.||Forbes, L.||Strang, L.|
|Soulbury, V.||Freyberg, L.|
in the course of the author's employment…
Those words cover a much wider ground than the sort of ground I have indicated, and it is at any rate arguable, as I indicated at the Committee stage, that they cover the work produced by a university teacher in the course of his work at a university, or a schoolmaster—a history master, perhaps, employed at a school who produces a valuable textbook on history—a medical practitioner employed by the National Health Service, or a solicitor who is employed as a managing clerk in a firm of solicitors and who may have great experience of the Rent Restrictions Acts and produces a textbook on that difficult and complicated subject. If the provision goes as far as that, I submit it is all wrong.
§ I invited the Government at the Committee stage to look at this matter, as they had in fact given an undertaking to consider the whole of Clause 4 again, and to put it right. I have had no explanation whether they think the view I have put forward is, legally speaking, a completely impossible one. The more I thought about it, the more it seemed to me that there was a good deal in it. As I said on the Committee stage, your Lordships' House in its judicial capacity has 915 on a number of occasions considered such an expression as "in the course of employment" and has given a pretty wide construction to it—certainly I think a good deal wider construction than that of "work produced under the personal supervision and direction of the master," which, I submit, is as far as we are entitled to go in cases of this kind. I have attempted to deal with this situation in the first of my two Amendments, Amendment 14, by moving for the complete deletion of subsection (4) in Lord Mancroft's Amendment. But, as I said a minute or two ago, I appreciate that there is a case for altering the Common Law rule, providing that it is done to a very limited extent. Therefore, in the case of Amendment 15 I have attempted to achieve my object in a different way—that is, by the limitation contained in the words "and as a specific duty under such contract." I am sorry that Amendment 15 is not put down as an Amendment to Lord Mancroft's Amendment: owing to a little unintelligence on my part, it has been put down as an Amendment to the clause as it originally stood. I hope your Lordships will allow me to regard it as an Amendment to subsection (4) of the Amendment as moved by the noble Lord. I beg to move.
Amendment to Amendment moved—
Line 23 of the Amendment, leave out subsection (4).—(Lord Chorley.)
§ LORD MANCROFT
My Lords, as the noble Lord, Lord Chorley, rightly says, these two Amendments, Nos. 14 and 15, are in a way linked, but I think we shall get into confusion if I try to deal with both together. I should like to address myself briefly to Amendment 14 first. I can assure Lord Chorley that we have looked carefully at the point which he made about this particular subject on the Committee stage. I am sorry we cannot see our way at all to meet him in the manner he wishes on this particular Amendment. Subsection (4) of this clause follows the existing law under the Act of 1911. It provides that in the ordinary case the copyright in works made by employees in the course of their employment vests in the employers. This case is not peculiar to copyright; in fact it follows the normal pattern of our general law. In the field of patents, for example, the relative rights of master and 916 servant are, generally speaking, the same as those in this subsection. That is as a result of the Common Law and not of Statute. But to repeal this statutory provision of the law of copyright would, having regard to the words of subsection (1), produce quite different results in these two fields. On the whole we feel that that would be thoroughly undesirable, and I am afraid I cannot hold out any hope for the noble Lord in regard to this particular Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
LORD CHORLEY moved, as an Amendment to the Amendment, in paragraph (a) of subsection (2), after "apprenticeship" to insert:
and as a specific duty under such contract,
The noble Lord said: My Lords, I beg to move this Amendment formally. I regret that I cannot accept Lord Mancroft's explanation as to the Common Law position in regard to this matter: I should not have thought that it was as he stated. But even if it is, I do not agree with him that it is a reasonable one. I have put to him a number of cases in which I think the consensus of opinion of every right-thinking person would be to the effect that the author should be entitled to the copyright. It would be quite absurd to suggest that a solicitor's managing clerk who produced a textbook on the Rent Restrictions Acts should lose the copyright to his employers. If they wish to pre-empt the work of those they employ, they should bargain for it in the terms of the contract of employment. It is true that if, during the course of a man's work in a scientific establishment, he gets to know of secret processes which go on there he is, very properly, under a Common Law duty not to make use of those processes in the interests of anyone but the employer who employs him. This type of case, however, I suggest is as different from that as chalk from cheese, and if the matter goes forward in its present state a real injustice will have been done. I beg to move.
Line 9 of the Amendment, after ("apprenticeship") insert the said words.—(Lord Chorley.)
§ LORD MANCROFT
My Lords, I hope that the noble Lord's fears are unfounded. Let us look at the position as he envisages it under Amendment 15. What he is seeking to do is to add after the words "contract of service or apprenticeship" the words "and as a specific duty under such contract." I must confess that I was a little uncertain, when I first saw the Amendment, what exactly the noble Lord intended to do. As the clause is drafted the employer gets the copyright only if the work was made by the employee "in the course of his employment." Those words are sufficient, I should have thought, to ensure that copyright in a work made by an employee in his spare time: on a matter unrelated to his employment shall go to the author, rather than to the employer. If we were to accept the Amendment it might mean that the copyright in a specific engineering drawing made by a man whose contract said simply that he was to he employed at a given salary as an "engineering draftsman" would vest in the man and not in his employer, on the grounds that the contract did not make specific mention of the drawing or type of drawing in question. I believe that the fears of noble. Lords are unfounded. The situation as we see it is perfectly satisfactory. I am sorry that I cannot accept the noble Lord's Amendment.
§ LORD SILKIN
My Lords, it strikes me that there is no difference of substance between the noble Lord, Lord Mancroft, and my noble friend Lord Chorley. As so often happens, an Amendment put down from this side which we think meets a specific difficulty turns out, on the analysis which the Government are able to give it, not quite to do the trick. I freely admit that my noble friend's Amendment may be criticised in the way in which the noble Lord, Lord Mancroft, criticised it, but we need to make certain that the case which both noble Lords have in mind—that an apprentice or servant who does a piece of work not related to his normal employment—should have the benefit of copyright; that it should not go, automatically to the employer. The words "in the course of his employment" have given considerable difficulty to the legal profession and have been a source of considerable remuneration to them in the past. Therefore, it is important, once we have agreed on what he have in mind, to make sure that the words used are 918 adequate. I am not so certain as the noble Lord, Lord Mancroft, that the words in the Bill are adequate. I should be content if the Government would look at these words again to see whether or not they are sufficient and, having heard this debate, I would accept their ruling.
§ THE LORD CHANCELLOR
My Lords, I will gladly do that. As Lord Silkin knows, in another connection I had considerable experience of argument arising out of the words "in the course of his employment", and I have no doubt about the words here, but if he or the noble Lord, Lord Chorley, has any doubt, I will willingly look at them again; and if I find there is any doubt I will ask that consideration be given to this in another place. But that is the position in which I find myself to-day. I shall have a look at the point again with great pleasure, and in those circumstances, I ask the noble Lord not to press his Amendment.
§ LORD CHORLEY
My Lords, I am glad to have that assurance from the noble and learned Viscount. I am greatly relieved to find that he does not seem to think there is any difficulty here and beg leave to withdraw my Amendment.
§ Amendment to the Amendment, by leave, withdrawn.
§ On Question, Amendment agreed to.
§ Clause 5 [Infringements by importation, sale and other dealings]:
§ 4.35 p.m.
§ LORD SILKIN moved, in subsection (5), to leave out "of public entertainment" and insert "that is normally used for public gatherings." The noble Lord said: My Lords, this Amendment deals with the position of a person who permits his premises to be used for a performance in public of a work which is the subject of copyright. Clause 5 (5) provides that such a person has a responsibility for ensuring that no work produced on his premises is an infringement of copyright, but certain limitations are laid down. One limitation is that the premises have to be a place "of public entertainment"; another is that the person must be acting for profit. On Committee stage we sought to eliminate the second condition, though now, on reflection and just to show that we are reasonable, we are not pressing that point. We do, however, come back to the point of what is a place "of public 919 entertainment." We think that these words unduly limit the responsibility of the owners of premises.
§ There are places which are frequently used for the purpose of musical or dramatic performances but which cannot be classified as places of public entertainment. The common case is the kind of place I happened to be in last night: the Seymour Hall, in Marylebone. I should not call that a place of public entertainment: it is a hall which is used for varied purposes. It is used for public entertainments, but for other purposes as well, and I feel that the definition would not cover such a place. I see no reason why the owners of such a hall, and of many other municipal and public halls, where an infringement of copyright might take place and where they rent the hall at a profit, should not be equally responsible for an infringement as the owners of places commonly accepted as places of public entertainment.
§ Again I do not think that the difference between us is considerable. I believe all noble Lords will agree that where a person habitually uses a place for profit and for performances he should have the same responsibilities as a person who is using a place described as a place of public entertainment. I think that the words of my Amendment, "normally used for public gatherings," describe the kind of place I have in mind. If it is normally used for public gatherings and does not come within the proviso—that is, where no profit is made—it seems to me that the owner of such a place should be under the legal responsibility of ensuring that any performance that takes place in his premises where public gatherings are held does not constitute an infringement of copyright. With a view to getting the Government's reply on this point, I beg to move.
Page 6, line 23, leave out ("of public entertainment") and insert ("that is normally used for public gatherings").—(Lord Silkin.)
§ THE LORD CHANCELLOR
My Lords, I do not think there is anything between us in intention here. We all want to take out of the mischief of the subsection private premises of which the owner could not be expected to know about copyright infringements, but to leave within its scope the lessees of halls 920 available for commercial letting who may reasonably be expected to know about the liabilities, even though they do not set every day or even most days. I agree with the noble Lord that it is quite possible that the expression "a place of public entertainment" does not make that entirely clear. If I may be frank with him, I am not happy about the wording of his Amendment, because it is doubtful whether the words, "a place that is normally used for public gatherings," would cover theatres and cinemas, which clearly should be included, because the phrase "public gathering" suggests to my mind public meetings, assemblies, receptions and functions of that kind. Therefore, I hope the noble Lord will accept my undertaking that we will continue to work diligently in this matter until we find the best phrase, and I will let him know as soon as we have found the phrase. I hope we shall be able, in another place, to make an Amendment that will satisfy him. It is rather difficult to get just the right nuance. I assure him that we are as anxious as he is to get the clause exactly right.
§ Amendment, by leave, withdrawn.
§ Clause 6:
General exceptions from protection of literary, dramatic and musical works.
(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 reproductions of it in the form of a record or of a cinematograph film, the copyright in the work is not infringed by his making such a reproduction of the work solely for the purpose of broadcasting the work:
Provided that this subsection shall not apply if—
LORD DOUGLAS OF BARLOCH moved to add to subsection (3):
and consists merely of short extracts from the work.
The noble Lord said: My Lords, this is an Amendment to subsection (3) of Clause 6. This provision is, I think something new in our copyright law and has been devised to deal with something which naturally was no: contemplated when the Copyright Act, 1911, was passed; because, at that time, there was no such thing as broadcasting and even cinematography was not n early so highly developed as it is at the present time. Nobody wants to prevent a reasonable use of copyright material from being made in broadcasts or cinematograph films which are disseminating news in the same way that a newspaper would disseminate news. But this case is very different indeed from the case which is dealt with in subsection (2), with which we are all very familiar and which permits fair dealing with a literary, dramatic or musical work for the purpose of criticism or review. In that case it is very well known that in so doing it is not permissible to reproduce the whole or substantial portions of the work which is being reviewed or criticised.
§ Under subsection (3), however, it could easily happen that the news broadcast or the cinematograph film might contain the whole of the work which was the subject of copyright. For example, suppose it is a broadcast or cinematograph sound film which shows a military review, or something of that kind, in the course of which troops are marching to music, the whole of a piece of music might be broadcast incidentally as part of something which purported to be merely news. That is an illustration which shows that some restriction ought to be imposed upon the new right which this subsection is creating. Therefore I am suggesting, as a reasonable compromise, that the matter which is broadcast should consist merely of short extracts from the work which is the subject of copyright. With that explanation I beg to move the Amendment.
Page 7, line 6. at end insert the said words.—(Lord Douglas of Barloch.)
§ THE LORD CHANCELLOR
My Lords, I appreciate the doubts which the noble Lord, Lord Douglas of Barloch, has had, but I am afraid that I cannot adept the noble Lord's Amendment. It is true that, as I understand it, the Amendment has pride of ancestry in that he has based himself on the wording of the Act of 1911, which, however, was appropriate only to newspaper summaries. Bu': as your Lordships appreciate, and as the noble Lord himself does, the present subsection is in accordance with the recommendations of paragraph 41 of the Report of the Copyright Committee and it covers also broadcasting and newsreels, and I therefore doubt whether the words that he proposes to insert would be appropriate.
I think the noble Lord would agree that it is impossible to produce a watertight statutory definition of what constitutes "fair dealing" or, for that matter, of what constitutes a "work"; but I agree—and I think this is a point we have to consider—that in conveying news of a current event, either by broadcasting or in a newsreel, it might be impossible to remove such background music as a full verse of a song. I would suggest to the noble Lord that any deliberate and excessive use of copyright material could scarcely be described as "fair dealing" within the meaning of this clause and that the copyright owner would probably find his remedy in subsection (1) of clause 43. As the noble Lord knows, an extract which is not a substantial part of a work does not infringe copyright. I would remind him of the position in a case with which I am sure a lawyer of his experience is familiar—what I may call the Colonel Bogey case, where the film showed the opening of school buildings and the band of the school O.T.C. played twenty bars of Colonel Bogey. That was held to be an infringement. I do not think we ought to encourage things of that sort, or to make it so difficult as to require people to get rid of backgrounds in order to avoid the fear of proceedings. 1 think the matter ought to be left fairly broadly, and I suggest that the words of the noble Lord, however well-intentioned, would not help in those circumstances. therefore I would ask him not to press his Amendment.
§ LORD DOUGLAS OF BARLOCH
I appreciate that this is a point of considerable difficulty and I feel considerably reassured with this provision as it stands. In view of what the noble and learned Viscount has said, therefore, I am quite content to withdraw this Amendment.
§ Amendment, by leave, withdrawn.
§ 4.50 p.m.
§ LORD DOUGLAS OF BARLOCH moved to omit subsection (7). The noble Lord said: My Lords, subsection (7) deals with the making of a record of some work for the purpose of broadcasting it. In its origin I believe that the subsection is due to something which appears in the International Copyright Convention dealing with what were then called "ephemeral recordings." We all know that it is quite common and convenient for the British Broadcasting Corporation to make a record of something which is to be broadcast not at the time when it is made but at some later time. Nobody would want to prevent that from taking place and, in my opinion, no legislation would be needed in order to enable it to take place. But what is covered here is something which is considerably wider, because it enables a broadcasting authority, whoever it may be, to make a record of the work which is to be broadcast and at some future time to broadcast it, not once or twice but, for example, every day, or more than once a day, for twenty-eight days. If the broadcasting authority wish to do that they ought to make a contract to that effect.
§ Let the authority explain clearly to the owner of the copyright precisely what rights they want. Presumably, that is something which they can arrange quite easily. There is no reason why this provision in subsection (7) should be written into the copyright law of this country when it is perfectly open to the B.B.C. or the I.T.A., as the case may be, to make a contract with the author permitting them to make a recording and stipulating the number of occasions upon which that recording shall be used. This provision gives them the opportunity to make a recording and, as it stands, to re-record it within twenty-eight days, and to go on re-recording it for as long as they please. But, quite apart from whether or not the subsection does that, it seems to me that this is something 924 which should not be automatically written into every contract. If the broadcasting authority want the right to make a recording, as they frequently do, let them stipulate expressly with the owner of the copyright what is required. I beg to move.
Page 7, line 38, leave out subsection (7).—(Lord Douglas of Barloch.)
§ LORD SOMERS
My Lords, I cannot help feeling that this is a necessary Amendment. As the noble Lord, Lord Douglas of Barloch, has pointed out, it is quite possible to make a recording from a recording and to go on doing so ad infinitum. In any case, who is going to make quite certain that the record has been destroyed; and by what means is he to make certain? Further, even if one has to leave it that it is destroyed, one knows that within twenty-eight days it is possible to give a good many performances of that record, and it seems to me that the composer of the work which is recorded should receive the reward for the number of performances given. I feel that to leave subsection (7) in will leave the composer defenceless against a number of performances for which he gets no reward whatsoever.
§ THE LORD CHANCELLOR
My Lords, this is a matter which was discussed on the Committee stage, and I should like to deal with the points that have been raised against this subsection as I see them. The first, as it was put before, and is put to-day by both Lord Douglas of Barloch and Lord Somers, is that the copyright owners cannot check whether the broadcasting authorities have done the necessary destruction—in fact, I think it was suggested earlier that they might be able to build up a library of these recordings. Of course, that is possible. I have made inquiries, however, and I am told there has been no suggestion that the broadcasting authorities have failed to destroy the recordings in the past, and I see no reason why they should change and be less mindful of their responsibilities in the future. I am optimistic enough to think that we have grounds for believing that they will play the game and be mindful of their responsibilities. If I am taking an unduly optimistic view of human nature, and a more cynical one is appropriate, then I 925 would remind my noble friend Lord Somers that the only object of making a library of the recordings would be to play them again, and on that the default would become obvious and their wrong doing would be manifest to the world.
I would also remind noble Lords that it is only by recording a performance at a time convenient to them that the services of many eminent artistes and actors can be made available for broadcasting at all, and I do not think anyone in your Lordships' House would wish to deprive the public of their enjoyment in this way. I think my noble friend Lord Somers would agree that, were it not for this provision, it would be impossible for many artistes to perform for broadcasting, and the public would lose a great deal of enjoyment. There is this point, also, if I may go back to tin: fundamentals in the matter: that both the mechanical right and the performing right are originally vested in the author or composer, and without his consent there can be no broadcasting at all, whether of a live or a recorded broadcast. Therefore, he or his agent is in a position to stand out for what he considers to be proper remuneration. I do not think anyone is likely to be damnified by wrongful action on the part of the authorities—as I say, we have no evidence of it up to now—and as the system has obvious merits from the point of view of the ordinary viewer or listener, I would ask the noble Lord not to press an Amendment which might cause difficulties in a sphere of great importance to the enjoyment of the public.
§ LORD DOUGLAS OF BARLOCH
My Lords, I understand very well what the noble and learned Viscount has said. I have made no aspersion whatsoever upon the B.B.C. or the I.T.A. What I have said is on record, and can be read tomorrow. It is nevertheless true that laws are made not only for those who play the game, but also for those who do not. To say that there has been no difficulty with regard to this matter in the past is not at all to the point, because this provision has not existed in the law in the past; and if the B.B.C. or the I.T.A. have acquired from an owner of copyright the right to record and then to broadcast some work in which copyright exists, they have obtained it by means of an express contract. Indeed, this sub-section 926 with which we are dealing starts off by saying:Where by virtue of an assignment or licence a person is authorised to broadcast a literary, dramatic or musical work …If the person has an assignment to do so, it has got to be in writing. Why on earth should not the B.B.C. or the I.T.A., when they put part of the contract into writing, also put the rest of the contract into writing and state expressly and clearly what are the rights they wish to acquire?
The noble and learned Viscount referred also to the question of proper remuneration. But under this clause it is quite impossible for the owner of the copyright to know beforehand what is the proper remuneration, because he will not know upon how many occasions his work is going to be broadcast from the recording which is made. If the rights are conferred in an assignment, then no doubt there will be some express provision saying that it is intended to broadcast the work on one, two or whatever the number of occasions may be; and then the author of the copyright will have an opportunity of making a stipulation with regard to remuneration which will properly reward him for the right which he is assigning. These are serious considerations to owners of copyright, and although I will accede to the request which has been made to me to withdraw this Amendment, because I do not want in any way to be obstructive, at the same time I ask the sponsors of this Bill to look carefully at the position again.
§ Amendment, by leave, withdrawn.
LORD MANCROFT moved, in subsection (7) (b), after "made" (where that word first occurs) 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: My Lords, this Amendment may be faintly familiar to your Lordships. It is, of course, on roughly the same subject that we have just been discussing. I put it down on the Committee stage of this Bill, and it came before your Lordships' House very late one evening. For some reason, which I cannot accurately remember, it was never moved, so I must now repair that omission. The subsection as drafted makes the broadcasting authority destroy the record or film within twenty-eight
days of its making. I understand that sometimes it is the practice, when an artiste in a series of broadcasts is going abroad, to record 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 instead that the time should start to run 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. I think your Lordships will appreciate that that is a reasonable insurance. I beg to move.
Page 8, line 3, after ("made") insert the said words."—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD MANCROFT
My Lords, this is little more than a drafting Amendment. Subsection (5) (f) of Clause 2 makes it an infringement, for example, of a book to reproduce a play made from the book. By this Amendment it is made clear that fair dealing with the play will not constitute an infringement of the copyright in the book of which that play is an adaptation. I beg to move.
§ Amendment moved—
Page 8, line 7, at end insert—
(" (8) The preceding provisions of this section shall apply to the doing of any act in relation to an adaptation of a work as they apply in relation to the doing of that act in relation to the work itself.")—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ 5.7 p.m.
LORD SILKIN moved, after subsection (7) to insert:
(8) Where a person is authorised to make a reproduction of a literary dramatic or musical work in the form of a cinematograph film by virtue of an assignment or licence made or granted before and subsisting at the date on which any other person is authorised to broadcast that work, and such other person (apart from the last preceding subsection) would not be entitled to make such a reproduction of it, no such reproduction of the work made by that other person for the purpose of broadcasting it shall be so broadcast on more than one occasion during any such period as is mention in paragraph (b) of the proviso to the last preceding subsection.
The noble Lord said: My Lords, I am moving this Amendment on behalf of my noble friend Lord Archibald, who is unfortunately ill and who has to-day entrusted me with the task. In this
Amendment we are covering much the same field as we have just been discussing. I do not want to go over the same ground again, but this Amendment is intended to cover the case where an author, on the one hand, gives broadcasting rights and, at the same time, rights by way of television, and, on the other, assigns the film rights.
§ Under the clause as it stands, broadcasters have a right to make a film for the purpose of broadcasting. It may well be that this film will conflict with the film rights which the author, quite legitimately, has granted to somebody else. The film right is, of course, associated only with the broadcast (I think that is quite understood), and is so stated in the subsection. But the author may suffer because of the so-called competition between the film which is used for the television and the film rights which he has given elsewhere. For instance, the public, having seen the film on television, may find it so unsatisfactory as to be deterred thereafter from going to see the film. There may well be a conflict between the two. The suggestion is that if it is necessary to make a film for the purpose of television, then it should be used once only; and that is the proposal in the Amendment which I am moving. We do not quarrel with the idea of a film being made, as provided for in subsection (7), purely for the purpose of television. If it is used once only, that at any rate minimises the damage which may be done subsequently in connection with the showing of the film.
§ It may be said that these are matters which can be provided for in a contract. Perhaps they can, but I would point out, first, that there are a large number of existing contracts which cannot be made retrospective and where the difficulties that I have suggested may well arise. Secondly, even for the future, I think it much better that the law should be perfectly clear and that only the one showing on television should be permitted in cases where there is a film and where the film rights have been licensed elsewhere. I have no doubt that the noble Lord, Lord Archibald, would have put the case much more forcibly and clearly than I have been able to do, but I hope that the noble and learned Viscount who is to reply appreciates the point of this Amendment. I beg to move.929
Page 8, line 7, at end insert the said subsection.—(Lord Silkin.)
§ 5.12 p.m.
§ THE LORD CHANCELLOR
My Lords, I am sure your Lordships will agree that, although we are all sorry that the noble Lord, Lord Archibald, cannot be with us, the noble Lord should be pleased by the advocacy which has been put forth on behalf of his Amendment. It raises a point of some interest on which, again, I think there can be some differences of view. If I might put the position as I understand it (although I think the noble Lord, Lord Silkin, has done that already) under subsection (7), where a person is authorised to broadcast a copyright work the authority is deemed to include also an authority to make a record or film of that work for the purpose of subsequent broadcasting, but the reproduction is required to be destroyed within twenty-eight days. No provision is made for the number of times the work may be broadcast within that period. That is really the question. The noble Lord does not object to the making of the film—he knows that that may well be a necessary step—but he wants the number of times limited, Let us take an example and try to visualise the circumstances. Suppose that a film-maker has acquired the right to make a film of, for example, a play, and that the B.B.C. subsequently obtain tine right to broadcast the play. If the B.B.C. made a telefilm then, under Lord Silkin's Amendment, they would be allowed to give only one performance of the telefilm. The point that we have to try to judge is the danger of a turn of a broadcast play made in the form of a telefilm being "plugged" so that it might have an effect on the film itself.
Applying only my own knowledge of life, I should have said that there was very little danger of a film being spoiled even if—which again is unlikely—there were many performances within the twenty-eight days. Your Lordships should remember that a telefilm in these circumstances is not a copy of the film that is shown in the cinema it is a film made by the B.B.C. team, with different actors, and, of course, with different treatment of the subject. I am sure that some of your Lordships have shared my disappointment, especially in my boyhood, at the treatment of favourite books when put into film form—often they are almost unrecognisable. The same applies even 930 to certain plays. The point here is that, the film having been treated in one way, its subsequent production for broadcasting—for television or for broadcasting, but in this case for television—as the noble Lord knows, requires an entirely different technique of production. I should not have thought there would be much danger of people who had seen the performance not going to see the spectacular Technicolor production of the film in the cinema. I should not like to go far along this line because things are so different, but certainly in light music, in song "hits", I am told that the "plugging" on the radio, especially in the United States, has generally been held to increase popularity rather than to decrease it, because it arouses an interest; but, as I say, the points are different and analogies are always dangerous.
The noble Lord, Lord Silkin, with the frankness which we always expect from him, gave away at once the position with regard to future contracts. Obviously, in the case of a film company—they are certain to be well-advised as to their legal rights—the future position they can deal with by the terms of the contract. The noble Lord, Lord Silkin, also raised the point as to existing contracts. Again, the number of existing contracts which are likely to be coupled with the over-use of the play within the twenty-eight days, I think he will agree, is likely to be relatively small. Out of respect to the noble Lord's very moderate and reasonable advocacy of the point, I have tried to deal with it fully, but I hope that in the circumstances he will not feel that this is a matter where we need make this limitation, which might well be a difficult one for the B.B.C., or indeed for a programme company—it is immaterial which. I hope that he and the noble Lord, Lord arehibald, will feel on consideration that their apprehensions are not justified, and that he will not press the Amendment.
§ LORD SILKIN
My Lords, I certainly shall not press the Amendment. I have heard the noble and learned Viscount. My noble friend Lord Archibald will no doubt read what he has said and if, when he feels better, he would like to carry the matter further, of course he is at liberty to do so. So far as I am concerned, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.931
§ Clause 7:
§ Special exceptions as respects libraries and archives
§ 7.—(1) The copyright in an article contained in a periodical publication is not infringed by the making or supplying of a copy of the article, if the copy is made or supplied by or on behalf of the librarian of a library of a class prescribed by regulations made under this subsection by the Board of Trade, and the conditions prescribed by those regulations are complied with.
(2) In making any regulations for the purposes of the preceding subsection the Board of Trade shall make such provision as the Board may consider appropriate for securing—
(a) that the libraries to which the regulation apply are not established or conducted for profit;
(e) that persons to whom copies are supplied under the regulations are required to pay for them a sum not less than the cost (including an appropriate proportion of the general expenses of the library) attributable to their production,
and may impose such other requirements (if any) as may appear to the Board to be expedient.
(3) The copyright in a published literary, dramatic or musical work, other than an article contained in a periodical publication, is not infringed by the making or supplying of a copy of part of the work, if the copy is made or supplied by or on behalf of the librarian of a library of a class prescribed by regulations made under this subsection by the Board of Trade, and the conditions prescribed by those regulations are complied with:
Provided that this subsection shall not apply if, at the time when the copy is made, the identity of the owner of the copyright in the work is known to the librarian or could by reasonable inquiry be ascertained by him.
§ 5.20 p.m.
LORD CHORLEY moved, in subsection (2), after paragraph (a) to insert:
(b) that a library shall not be deemed to be established or conducted for profit solely because it is owned or operated by a profit-making body;".
The noble Lord said: My Lords, this is the first of a series of Amendments to Clause 7, which is concerned with the provision of copies of copyrighted works in libraries, and I should like to make a few observations by way of preliminary consideration of the matters which are involved. The invention of photo-copying has been a very great boon to scholars and research workers, and over the last twenty years the libraries in which so much of the original work of scientists in particular has been placed have been taking advantage of the "fair dealing"
clause in the 1911 Act, which, as your Lordships remember, makes it no breach of copyright to make copies under fair dealing for purposes of research and private study.
§ There have been rather differing views taken by libraries as to how far they can go in regard to this matter, and evidently the framers of the present Bill felt that it would be useful to give a certain licence in support of the practice which has grown up over the last years in the libraries. The result is the present Clause 7. I am rather worried, however—and my worry is shared by the libraries, and by many scholars—whether, by making this matter explicit in Clause 7, something of the rights existing under the earlier law may not have been sacrificed. It is true that at the Committee stage the noble Lord, Lord Mancroft, gave me the assurance that in his view there was no derogation from the rights in regard to fair dealing established by the 1911 Act. I am glad to have that assurance; but, of course, a court of law may not necessarily take the same view as the noble Lord.
§ As the noble and learned Viscount on the Woolsack knows very well, there is a well-known rule of construction, in that when something is dealt with specifically in a Statute the general rights which may be established by other Statutes, or in an earlier part of the same Statute, must give way. It seems to those in charge of the libraries that, as a result of Clause 7, they may well be left in a less satisfactory position than they were in before Clause 7 appeared. I am therefore attempting, by one of my Amendments, to have it made perfectly clear that fair dealing should be clearly extended to include the doing for a student by a library of all those things which are fair dealing if he does them for himself. That is the object of one of the Amendments which I regard as most important. In the second place, I am anxious that the circumstances in which the photo-copying which is permitted by the Bill to libraries should be defined rather more widely than it is under the clause as at present drafted.
§ The Amendment which we are discussing, in fact, concerns one of the latter cases, in which I am anxious to get a rather wider view taken of the circumstances in which photo-copying can be legitimately carried out. The right under the clause as it now stands is confined 933 to non-profit-making libraries, such as those of the universities, the British Museum and others of that kind. Of recent times in regard to scientific work some of the big industrial concerns (of which I think Imperial Chemical Industries, Limited, is one that has been mentioned), have built up on specialised work what are from many points of view the finest libraries there are in this country. It is impossible for a scientific research worker, particularly a technologist, to carry out his work in a number of fields of scientific research without making use of the facilities which exist in the libraries of these great industrial concerns. While, no doubt, the concerns in question have formed these libraries for the purposes of their own business, the nation is under a real debt of gratitude to them for the work they have done. They employ librarians of the highest quality. The libraries are managed most efficiently, and have been put at the disposal of scientific research workers, and particularly of technologists, with great liberality.
§ At the present time we realise more and more that the whole industrial future of this country depends upon our technological progress, and I suggest to your Lordships that it is essential that the important, scientific libraries which are maintained by these industrial concerns should share in the privileges—if one can call them "privileges"—accorded by Clause 7. I say "if one can call them privileges" because the noble Lord, in answering me when I put forward this Amendment on the Committee stage, rather took the view that this was a privilege conferred on the library. But, of course, it is not that at all; the privilege is to the research worker, who is the one who benefits from being able to get this material from these libraries. Without the photo-copying method which he has been allowed to make use of during these last years, he would either have to go himself, possibly up to Cheshire, or send some qualified assistant up there to make a copy of the particular document or piece of research work which is in the library there. He would have to do that unless he could hive it photo-copied by the library, as they have done in the past.
§ My object is to offer a more simple method, to save the time and the trouble and money of the research worker, who may be working at the Imperial College in London, so that he himself does not 934 have to go all the way, possibly to Cheshire or to Durham, to the I.C.I. library, to obtain a copy for himself. This is a simple solution, and it is no more a real infringement of the copyright of the author than if one obtained a copy from the University Library in Manchester, Leeds or elsewhere. I think the noble Lord, Lord Mancroft, did not really appreciate the importance of this Amendment at the time when I moved it on the Committee stage. I hope, now that he has had an opportunity to consider how important it is from the point of view of the technological progress of the country, he will agree that this is an Amendment which the Government can accept. I beg to move.
Page 8 tine 23, at end insert the said paragraph.—(Lord Chorley.)
§ LORD MANCROFT
My Lords, I can assure the noble Lord, Lord Chorley, that I do appreciate the importance of this Amendment and the other Amendments on the libraries clause; but I do not think I can appreciate it from the same point of view as he does. I am afraid that this afternoon we are not often going to be nearer together than we were during the Committee stage of this Bill. The question of these librarians and the libraries is a difficult one, and somewhere a compromise has to be reached. Both on this and the other Amendments which are somewhat similar to it, it is most important that we should get one or two principles firmly in mind. First of all, it has been an immemorial right of the student to go and copy what he will from the library. The second point is that modern inventions, micro-filming and so on, have produced great changes in the approach to the whole idea of copying in libraries. Thirdly, we all know that books, particularly students' books, the books which a student is likely to want to copy, tend to be expensive. The fourth matter we have to bear in mind is the point of view of the poor author, the man who writes these scientific and technical books and who is entitled to at least some consideration, just as the student is also entitled to his consideration.
What I complained about during the Committee stage was that the whole of the bias of Lord Chorley's arguments was against the author and whittled away she rights of the owner of the copyright in 935 what we regarded as an almost intolerable degree. I am afraid this Amendment is a very good example of trying to do something with the best possible intentions but with unsuccessful results. I am certain that the noble Lord's intention is only to benefit searchers after knowledge and truth, but the way he would do this would be very much to the detriment of the author of the works and additionally to the publisher. If this idea were carried so far, these people might well find that so much had been taken away from them by reason of the libraries setting themselves up almost in competition that there would, to use a popular term, be no future in writing scientific or technical books at all.
Just see what the noble Lord is seeking to do here. The Copyright Committee recommended that the new protection to be given should be restricted to "nonprofit making bodies," and indicated the libraries of universities, of Government Departments and of local authorities, as those they had in mind. They were unwilling to go further with additional prejudice to the income which a copyright owner has a right to expect. That is a point about which they felt very strongly. The place where most private students or individual industrialists would find the work they wanted to copy would be those public libraries. The proposed Amendment would make possible the approval of many other libraries not usually open to the public at large—for example, the libraries of the big industrial companies to which Lord Chorley has referred. When arguing his case last time, the noble Lord supported his Amendment by asserting that great industrial organisations freely place their libraries at the disposal of scholars, as he has reminded us again this afternoon. But the fact remains that access to them is a matter of grace and favour. They are not on all fours with the other libraries.
The great risk to the copyright owner is that under cover of this Amendment the industrial organisations could arrange for taking copies of such articles as they might think to be of use or of interest to sections of their staff, and for circulating them. I have a suspicion that one or two firms probably do that already and run the risk of actions for infringement. Therefore, if the Amendment 936 were approved, an industrial firm would have the right to take a periodical, photograph some drawing or diagram in it, take off some 500 copies and circulate these copies amongst their employees. That would be a very serious inroad into the rights of the author. To legalise a practice of this kind would be a grave injustice to author and publisher alike, since it could not fail to reduce the circulation of the papers or periodicals thus exploited and so reduce the incentive of the rightful fruits of labour to both author and publisher. It would be an unjustifiable invasion of copyright protection and an indefensible repudiation of our Convention obligations.
If it is argued that the noble Lord is of opinion that his Amendment is merely an enabling one, all I can say is that once on the Statute Book there would be pressure to make use of it in the way I have indicated. I am sorry that Lord Lucas of Chilworth is not in his place to-day. Time and again during the Committee stage he fought that which he regarded as erosion of the author's rights. I am afraid that the Amendments which Lord Chorley moved on the Committee stage, and which he is moving again to-day on the subject of libraries, are a very considerable erosion of the author's rights. I think we have taken adequate steps to safeguard the rights of the students and also to safeguard the rights of the libraries. Equally, I think we must take adequate steps to safeguard the rights of the author. I am certain that we should not be doing so if we approved the Amendments which Lord Chorley is putting forward. I am therefore sorry to say that we cannot possibly accept this Amendment.
§ 5.36 p.m.
§ LORD DOUGLAS OF BARLOCH
My Lords, I am delighted to hear the noble Lord, Lord Mancroft, so vigorously defend the rights of the author. But let me draw his attention to what it is that Clause 7 deals with. It deals with articles in periodical publications, and we have recently passed a clause which automatically confers copyright in those articles upon the publisher. The author no longer has any copyright left in them. So why should the noble Lord be so considerate at this particular juncture about infringement of the author's copyright? It is no longer the author's 937 copyright; it has become the publisher's copyright. And more than that. After all, the whole point of the provisions in this clause is, as everyone who has done research is well aware, that periodical publications go out of print very rapidly, and it becomes impossible to buy back numbers for the purpose of study. Therefore, recourse has to be had to libraries in which a file is kept of these periodical publications, and there one must make a copy or, alternatively, have a photostat copy made. It seems to me that where that is done the author can have little complaint, especially as he has automatically parted with his copyright in the vast majority of cases under the provisions which we have already agreed to incorporate into this Bill.
There is, however, I admit, a point of difficulty in the precise wording of the Amendment which my noble friend, Lord Chorley, has moved. When he says that this may extend to libraries owned or operated by a profit-making body, I have no doubt that he has in mind—as indeed he indicated very clearly in his speech—those cases in which libraries of research material are maintained as an incident in the conduct of some business, and not the case in which someone deliberately sets out to create a library for the purpose of making a profit out of supplying photostat copies under the provisions of this clause. That, indeed, would certainly be something quite reprehensible. But where a library is in existence, has been in existence for a long time, and may contain rare publications, that is a somewhat different matter. Though, personally, I should have thought that most matter which was copyright in this country was probably obtainable in public libraries, these specialised libraries of commercial firms would be more likely, I should have imagined, to have rare copies of foreign publications which were not readily available in this country. In that case, presumably, the question of copyright might not arise; but even in that case it might arise if the copyright was safeguarded by means of international convention. There is a point here in connection with the Amendment which my noble friend has moved, and it is certainly not entirely disposed of by the arguments which the noble Lord, Lord Mancroft, has put forward.
§ LORD CHORLEY
My Lords, I am grateful to the noble Lord, Lord Douglas of Barloch, but I suggest that if there is any difficulty about the wording, it can be, got over by the regulations which the clause provides to be made by the Board of Trade. I do not mind this matter being tightened up by means of regulations, provided that the use of the libraries of big industrial concerns can be secured, as is the case of university libraries. I am afraid that the noble Lord, Lord Mancroft, has taken an unrealistic view of this problem. Nobody is keener on the rights of authors thin I am; but it is all very well to use that as a sort of shibboleth in dealing with the constructive proposition contained in this Amendment. The noble Lord talked about text-book writers having their rights nibbled away, but this Amendment is not concerned with text-books. There is no difficulty about getting at the text-books which are in all the university libraries.
What we are concerned with are special collections made by big industrial concerns. For example, on certain aspects of chemistry the library of periodical literature built up by a firm like Imperial Chemical Industries, Limited, is better than any which the universities can build up, as it consists not only of all the periodical literature of this country, but of periodical literature from all over the world. For anybody working on a particular aspect of industrial chemistry, it may be vital, not merely for industrial progress but for defence work, upon which this country's life may depend, to have access to such a collection. It is not a question of protecting an author of a text-book or anything of that kind; it is a question of enabling research workers —at the Imperial College, say—to use the libraries of industrial concerns, just as they use their university libraries, the British Museum and other important public libraries. The noble Lord is conjuring up all sorts of piracies which have never taken place under the present system and which there is no real reason to suppose would take place in the future, for the purpose of preventing the use of these libraries in a way which I am certain is in the country's interest. I am sorry that the noble Lord is taking this view. I hope it may even now be possible to get this important matter put right in another place. In the meantime, I am 939 afraid I have no recourse but to ask your Lordships to allow me to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD CHORLEY had given notice of his intention to move, in subsection (2) (e), to leave out all words from "cost" down to "attributable." The noble Lord said: My Lords, the noble Lord, Lord Mancroft, has gone some small way towards meeting this Amendment. I imagine that he would not have put down his Amendment if that were not as far as he was prepared to go, and I think it would save your Lordships' time if I did not move my Amendment.
§ LORD MANCROFT moved, in subsection (2) (e), to leave out "an appropriate proportion of" and insert "a contribution to." The noble Lord said: My Lords, I am grateful to the noble Lord, Lord Chorley, for not moving Amendment No. 24, and I hope he will realise that this is a small crumb I am able to give him: I am not in a very receptive mood this afternoon towards the noble Lord's suggestions. The Amendment is intended to meet a point raised on Committee stage on the wording of subsection (2) (e). I promised the noble Lord that I would look at it, particularly at the words requiring the librarian to include in his charge an "appropriate" proportion for general expenses of the library. The noble Lord was afraid that that might call for elaborate costing and bookkeeping. But, of course, it is not the intention of the clause to allow librarians to make copies at "give away" prices and to enter into competition with publishers. We have had representations on this matter from librarians and libraries, and I hope that we have now reached a reasonable compromise and have set at rest what doubts there may have been about this clause. I beg to move.
Page 8, line 35, leave out ("an appropriate proportion of") and insert ("a contribution to").—(Lord Mancroft.)
§ On Question, Amendment agreed to.
§ LORD CHORLEY had given notice of his intention to move, in subsection (3), to leave out "literary, dramatic or musical." The noble Lord said: My Lords, I put down this Amendment 940 because the words in the clause did not seem to cover the copyright of diagrams and plans. When I moved a similar Amendment on Committee stage the noble Lord, Lord Mancroft, promised that he would look at it. When I first read the Amendment standing in his name, it did not seem to me that he had dealt with the point, but I now think that in an involved sort of way he has covered the point in one of his later Amendments. In the circumstances, I feel that this Amendment is not necessary and I shall not move it.
§ 5.48 p.m.
§ LORD CHORLEY moved, in the proviso to subsection (3), to leave out "identity" and insert "identity and address." The noble Lord said: My Lords, this Amendment and No. 28 go together. As the clause stands at present, it provides that if the identity of an author is known his leave must be obtained. It often happens that the identity of an author is known but that it is impossible to get in touch with him by ordinary means. In connection with pamphlets and theses deposited in university libraries it often happens that, ten or twenty years afterwards, an author has, in effect, disappeared, although his identity is known because his name appears in the publication. It is not for the librarian to find out where he is; it is for the man who wishes to have a copy made. At the present time some librarians are insisting that the author should be tracked down, but others have been taking what I might call a more realistic attitude: they send a request to the author, and if no reply is forthcoming within a reasonable time they assume that there is no objection to copying the work.
I am informed, and it seems obviously right, that to leave the matter purely on identity cuts down very greatly the value of the provisions of Clause 7 in regard to authors in an important field, particularly in connection with scientific works, because much of the really valuable research which is done appears in theses prepared for doctorates of universities. It may be that after a short time the author in question cannot be traced at all easily, though his identity is perfectly well known. I think that to add the words "and address" to "identity" is common sense and reasonable; and then
to go on to say (as I propose by my next Amendment)
unless the owner of the copyright has failed to reply within a reasonable time to a request by the librarian or a person acting on his behalf for permission to make a copy.
dots the i's and crosses the t's and provides a reasonable solution for what is undoubtedly a practical problem of considerable difficulty. I beg to move.
Page 9, line 4, leave out ("identity") and insert ("identity and address").—(Lord Chorley.)
§ LORD MANCROFT
My Lords, this Amendment, again, I am afraid, seems to me to put the accent entirely in the wrong place. The noble Lord is putting the onus upon the author to say why his work should not be used without his permission. I feel that the onus should be upon the student, the librarian or the copier to say why he has not succeeded in getting permission. These two Amendments, Nos. 27 and 28, are in identical terms to the two Amendments which the noble Lord moved on the Committee stage. They would result in the librarian being able to copy without infringement if he did not know, and could not readily ascertain, both the name and the address of the copyright owner and if the copyright owner did not reply to an inquiry within a reasonable time. I wonder whether your Lordships noticed in The Times a few days ago a letter on this subject containing this very significant remark:A librarian does not normally supply photographs of copyright material unless the consent of the copyright owner has been obtained by the applicant.And very right and proper, too, my Lords. That seems to me the situation which ought to obtain.
Let us look at the effect of the noble Lord's Amendments. The effect of the first Amendment would be that if the librarian could claim that he did not know both the name and address of the copyright owner he could cheerfully copy his work without any infringement. He might know the author's name, his publisher's address, that the author was alive and was not prepared to give his consent to copying. Yet he would be free to copy if the author's actual address were not known. I am not sure whether the noble Lord would require disclosure of the actual number of the house and 942 the precise name of the street—perhaps that is carrying it too far. We have already received representations to the effect that the clause as now before the House already constitutes an invasion of the fundamental rights of the author, and I do not think this can possibly be denied. The author has the undoubted right not merely to be consulted before his work is reproduced but to authorise the reproduction. I do not think that this right should now be whittled away even by serving notice on the publisher, which I thought at one time might have been a possible way out of the noble Lord's difficulties.
As I said before, this clause is additional to, and does not derogate from, the fair dealing provision under which a student may himself copy for private study or research. But that is a very different thing from giving a librarian a prior right to invade the basic rights of copyright owners and to allow him to assume that those copyright owners authorise the reproduction of their works unless they themselves take active steps to protect themselves. That is the bit I do not like. A provision of this kind would, I think, strike at the root of the idea of the author's copyright, and I am afraid that I cannot accept the principle the noble Lord is seeking to establish.
§ LORD DOUGLAS OF BARLOCH
My Lords, while I have a good deal of sympathy with my noble friend Lord Chorley, there is a fundamental difficulty about his Amendment, and it arises simply from the fact that an owner of copyright in this country has the copyright vested in him automatically if he is the owner of the work, and it can be transferred later to somebody else by an assignment. There is no such thing in this country as a Register of Copyright. There is no Public Register to which anybody can go in order to find out the name and address of the author, and it is obviously quite impracticable to expect authors to protect themselves by serving notice upon all public libraries of what is their present address. That is the fundamental difficulty which arises in this case and which I think makes the proposal quite impracticable. On the other hand, the dangers of a provision of this kind I think can easily be exaggerated. Let us assume that the cost of a photostatic copy is one shilling a page. In order to get the whole of a book of two hundred pages one 943 would have to shillings or £10. would be a great find either a new of the book than expend two hundred I should think that it deal cheaper to try to or a second-hand copy to go to that expense.
§ LORD CHORLEY
I am sorry that the noble Lord has taken this view. I do not feel that he really appreciates the needs of research workers, and certainly does not attach to them the value which I am sure they ought to have.
§ LORD CHORLEY
I am not really disposed to thank him for his non possumus attitude in regard to this matter, and I am afraid that I cannot withdraw my Amendment.
§ On Question, Amendment negatived
LORD CHORLEY moved to insert the following subsection:
(5) The copyright in any work is not infringed by the making or supplying of a copy of the work or any part thereof by or on behalf of the librarian of any library if the making of that copy by the person to whom it was supplied would not constitute an infringement of the copyright therein
The noble Lord said: My Lords, this is the Amendment to which I referred during my preliminary observations in regard to this matter, in which I said that I was anxious that it should be made clear that fair dealing extended to the doing for a student by a library of all things which are fair dealing when he does them for himself. That is the effect of the proposed subsection (5).
§ At first sight, as the noble Lord, Lord Mancroft, pointed out when I moved this Amendment at the Committee stage, it seems to go rather a long way, because it refers to "a copy of the work". That would cover the whole work; but the sort of work with which one is particularly concerned in this sort of case is very often a dissertation or pamphlet which is produced by a scholar and which is deposited in a university library, where parts of it, or indeed the whole of it, may be of the greatest value to a research worker, technologist, or other worker of that kind, working at a university, an industrial scientific department, or, indeed, in one of the great Government research laboratories which are now making such important contributions to scientific progress. It 944 is rather absurd that it should be necessary for the man who is doing this work to travel all the way to Edinburgh or Exeter, or some considerable distance like that, in order to make a copy of this pamphlet or thesis, whatever it may be, when he could have it done for him by the photo-copying process.
The Amendment really does not go beyond that, because if your Lordships will look at its final words you will see that they are:
if it were done by the person to whom it was supplied would not constitute an infringement of the copyright therein.
The earlier words, which on their face look as though they are going rather a long way, are completely governed by those later words. Therefore this is really only a proposal to make available to the research worker the mechanical advantages of the modern photo-copying process, saving him a great deal of time, expenditure and trouble and possibly a journey to a library in a very distant part of the country. I should have thought it was so obviously right and sensible on the face of it that the noble Lord could hardly refuse to accept it; but, knowing him, I am afraid that my optimism is probably a little unjustified. It is therefore not with great expectations that I beg to move.
Page 9 line 14 at end insert the said subsection.—(Lord Chorley.)
§ 6.0 p.m.
§ LORD MANCROFT
My Lords, the noble Lord, Lord Chorley, a moment or two ago, indicated that he thought I was unsympathetically disposed towards students and the research scholar. I can assure him that nothing could be further from the truth. I should also like to assure the noble Lord that I have some sympathy for the rights of the author in this case, and that is the line that I have taken consistently throughout our debates on these Amendments. I think the noble Lord has a most exaggerated view of the balance that must be struck between the rights of the two parties. He has really come down with so much bias on the side of the student as to throw the whole of his case out of proportion, and. I think, unnecessarily so.
This Amendment is in identical terms with the one that the noble Lord moved 945 on the Committed stage, and I feel I must adopt the same attitude as I did then, when I am afraid I spoke rather strongly about it. I will not repeat my words and waste your Lordships' time by reiterating the arguments. I have not much to add, save perhaps to say this. As your Lordships appreciate, there is no limit, except the purely physical one, to what a student may himself copy under the description of "fair dealing" without being under any necessity to secure the consent of the copyright owner. That is the point that the noble Lord keeps on unconsciously glossing over. It is very easy in most cases to obtain the consent of the copyright owner. It is done, day after day, by hundreds of people, without great trouble, and usually in the case of students and bona-fide scholars at little expense. What the Amendment would result in is this: it would enable a library to photo-copy a whole volume without seeking the authority of the copyright owner in any way. A provision of this kind would obviously be far beyond the present concept of "fair dealing" and far beyond the purposes of the clause; it would be most unfair dealing and would inevitably produce protests that we were going outside the Conventions. I am afraid I cannot possibly accept this Amendment, any more than I could the one moved on the Committee stage.
§ LORD CHORLEY
My Lords, the noble Lord again takes a most unrealistic view of this problem. Can anybody in his right senses imagine a library that is going to copy out whole works at one shilling or two shillings a page, or whatever it may be—a work which can be bought easily in a bookshop for a pound or two? It seems to me that this is all part of the unrealistic attitude that the Government are taking up towards this problem. They do not seem to be able to adjust themselves to the conditions of modern life in regard to this matter. However, if the noble Lord is adamant, I suppose it is a waste of time my trying to make him understand what is needed. When it is realised that all the librarians who run these great university libraries, who are men of great responsibility, are satisfied that this type of provision is required, it seems a little absurd to suggest that reasonable people cannot be in favour of a proposal of this kind. However, as I say, I do not propose to 946 labour the matter further, and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD CHORLEY
My Lords, Amendments Nos. 30 and 31, are parallel with Nos. 27 and 28, which I have already moved and withdrawn; and I therefore do not propose to move these Amendments.
§ LORD MANCROFT
My Lords, this is little more than a drafting Amendment. The words that we propose to omit are unnecessary and might even be the cause of future trouble if they are retained, because subsection (3) of Clause 43 explicitly provides that no account is to be taken of any unauthorised publication in determining whether a work has been published or not. I beg to move.
Page 9, line 34, leave out from ("published") to ("and") in line 35.—(Lord Mancroft.)
VISCOUNT ALEXANDER OF HILLS-BOROUGH
My Lords, I have not troubled your Lordships at all to-day on these matters. I have listened carefully to my noble friend Lord Chorley, and while I have not agreed with all of his arguments, I have been much in sympathy with him in support of the library case. I rise now because I may not have another opportunity to say what I want to say. The municipal as well as the outside libraries are concerned about the effect of this Bill upon them. I did not hear from the noble Lord, Lord Man-croft, at any stage of the replies to the Amendments, an assurance that the libraries would not be in a worse or more restricted position with regard to this service to students, and the like, than they are at the present time. In fact (and on this I should like to have a clear understanding from the noble Lord who is in charge of the Bill) they may well be worse off than they were before, because we are putting in a new protection against that service to students. Would the noble Lord answer that question quite definitely, because that is what we want to understand clearly before this Bill goes to another place?
§ LORD MANCROFT
My Lords, I thought that I had already said that, but if I have not, I want to make it clear that there is no derogation from their present position. Having listened carefully to the arguments of noble Lords, I cannot see 947 how the libraries can possibly be put in a less advantageous and less fair position than they are in now. However, if the noble Viscount is worried, let me assure him of this. We have had amiable conversations on important matters before, and there is no reason why we should not have them again. If there is any important point which has not been covered and to which the noble Viscount thinks the libraries are giving anxious consideration, let him tell us all about it, and we will most certainly do what we can to help him and them. We have had some correspondence with the libraries, at all levels. I have had personal letters from the librarian of the Bodleian Library and other equally important libraries—if there is such a thing as an equally important library as the Bodleian Library—and I thought that we had met most, though not all, of their difficulties. We will look at this question again to make certain that nothing has gone wrong, and if the noble Viscount has any particular representations to make on behalf of municipal libraries we shall be happy to listen to them.
§ LORD SILKIN
My Lords, I am grateful for that assurance, because some of us are in this embarrassing position: that when we look at each individual Amendment we do not feel so convinced about it that we want to take it to a Division; but on the other hand, the cumulative effect on the minds of many of us is that of uneasiness; that there is a considerable restriction on what a librarian may do or what a student may do, and it seems to us to go beyond the point of fair dealing. It is difficult to put one's finger on a particular point, but it strikes me, at any rate, that the effect of all this is to impose some hardship. Therefore I welcome the proposal of the noble Lord that we should have amiable conversations about this to see whether we cannot alleviate the position.
§ On Question, Amendment agreed to.
LORD MANCROFT moved, after subsection (7) to insert:
(8) In relation to an article or other work which is accompanied by one or more artistic works provided for explaining or illustrating it (in this subsection referred to as illustrations'), the preceding provisions of this section shall apply as if—
The noble Lord said: My Lords, this new subsection deals with a point raised by the noble Lord, Lord Chorley, in Committee which I undertook to try to meet. The clause as drafted deals only with the copying of "literary, dramatic or musical" works; but as the noble Lord, Lord Chorley, pointed out, it frequently happens that a scientific article contains diagrams, charts or plans (artistic works, by definition) which are illustrative of the letter press and may even be essential for understanding it.
The Amendment of the noble Lord, Lord Chorley, was drafted to apply only to subsection (3)—that is, to copies of periodical literature. The point is a valid one and equally applicable to extracts from printed books. Accordingly, the new subsection has been drafted to apply over the whole content of Clause 7. The Amendment as drafted does not permit the copying of an artistic work as such, but it is not restricted to maps, charts or diagrams. It speaks, as your Lordships will see, of
… an article or other work which is accompanied by one or more artistic works provided for explaining or illustrating it …
which are described as "illustrations," and it is the copying of these illustrations as part and parcel of the article or extract which is made permissible. The copying of pictures as such should not be allowed —I hope your Lordships will agree with me on this point—as the reproduction of his work is often the most important factor in an artist's income. I hope that the noble Lord, Lord Chorley, and we can now leave this clause friends, because I have at least provided him with some-
thing for which he has asked. I only wish that I had been in a position to provide him with more. I beg to move.
Page 10, line 26, at end insert the said subsection.—(Lord Mancroft.)
§ LORD CHORLEY
My Lords, as I said when not moving my Amendment No. 26, it seemed to me that the noble Lord had in fact carried out his undertaking to do his best with this particular matter. Although this is a rather complicated clause, I feel, having studied it carefully, that the noble Lord has succeeded in doing, no doubt more effectively, what I had attempted to do. I am grateful to him, and I am glad to support his Amendment.
§ On Question, Amendment agreed to.
§ Clause 8:
§ Special exception in respect of records of musical works
§ 8.—(1) The copyright in a musical work is not infringed by a person (in this section referred to as "the manufacturer") who makes a record of the work or of an adaptation thereof, if—
- (a) records of the work, or, as the case may be, of a similar adaptation of the work, have previously been made for the purposes of retail sale, and were so made by, or with the licence of, the owner of the copyright in the work;
- (b) before making the record, the manufacturer gave to the owner of the copyright the prescribed notice of his intention to make it;
- (c) the manufacturer intends to sell the record by retail, or to supply it for the purpose of its being sold by retail by another person, or intends to use it for making other records which are to be so sold or supplied; and
- (d) in the case of a record which is sold by retail, the manufacturer pays to the owner of the copyright, in the prescribed manner and at the prescribed time, a royalty of an amount ascertained in accordance with the following provisions of this section.
(2) Subject to the following provisions of this section, the royalty mentioned in paragraph (d) of the preceding subsection shall be of an amount equal to six and one-quarter per cent. of the ordinary retail selling price of the record, calculated in the prescribed manner:
Provided that, if the amount so calculated includes a fraction of a farthing, that fraction shall he reckoned as one farthing, and if, apart from this proviso, the amount of the royalty would be less than three-farthings, the amount thereof be three-farthings.
§ 6.12 p.m.
§ LORD SILKIN moved to leave out Sub-section (1). The noble Lord said: My Lords. Clause 8 provides for the making of gramophone records by anybody who wishes to make them, once the making of a record of a musical work has been permitted. It is an extraordinary clause. It arises, I think, from a decision which was given in 1934, quite unexpectedly to most people, in favour of gramophone record manufacturers and which gave them a permission that certainly does not appear to have been contemplated under the original Act. In considering this clause, many of us would be in favour of removing entirely this automatic right of any gramophone record manufacturer to copy records which have already been made. My noble friend Lord Faringdon has an Amendment down to delete the whole clause, if such an Amendment is in order on the Report stage. At any rate, that is what we should like to do. My Amendment is merely to delete subsection (1), which deals with the offending question.
§ The noble Lord, Lord Mancroft, will remember that we had a long debate on this matter on the Committee stage. My noble and learned friend Lord Jowitt, and others of my noble friends, took the view that if we could not have the whole clause eliminated, at any rate this automatic right in respect of serious works of music should he removed. We had a long discussion on whether it was possible or not by Act of Parliament to define what was a serious musical work. The argument which my noble and learned friend put forward was that, while there would be no particular objection, he thought, to the automatic right to reproduce gramophone records of popular works (he mentioned jazz and light music) because, presumably, the more these works were reproduced the more popular the music became, and the more the composer was remunerated, there might be an objection on artistic grounds in certain cases to a reproduction because the reproduction might not satisfy the artistic views of the composer. My noble and learned friend gave several instances. Whilst I personally favour the complete exclusion of this provision, I recognise that there are certain difficulties. Just to indicate that I have them in mind, I will mention one. This has been the law for more than twenty years, and manufacturers of 951 records have legally been permitted to do this kind of thing. It is a little difficult suddenly, by Act of Parliament, to take away that right, but we feel that the point of view of the composer of serious music ought somehow to be met.
§ Perhaps your Lordships will not mind my speaking on the wider question and covering a number of Amendments, for it will save time. This Amendment is part of a series which are all designed to meet this particular question. The way in which we try to meet it is by defining indirectly what serious music may be—we recognise that it is difficult to define it directly. It has been found by experience that the type of music which a composer will not mind being reproduced ad libitum is the music which can be played on a gramophone record in about three and a half minutes. I agree that that is somewhat empirical, but it is based upon actual experience. Therefore, the gramophone record which takes four minutes to play is almost certain to be the type of record to which the objection that I have outlined might be made. We say that the provisions of this clause, which provide for unlimited reproduction rights, should be confined to records the playing of which occupies not more than four minutes.
§ That is an attempt to get over the difficulty of definition. If the Government have any better definition, or if any noble Lord has a better way of differentiating between serious and light music, we shall be happy to consider an alternative form of words. But it is because we feel that this differentiation is necessary —and I think the House had a great deal of sympathy with the view put forward by my noble and learned friend—that we feel that the clause ought to be amended. As I say, on the whole we feel that, in spite of the difficulties, the best way would be to delete the clause altogether. But if the Government feel that they cannot go as far as that, then they ought at any rate to make a further attempt to meet the difficulty which we all accepted as being a real one. I think the noble and learned Viscount, the Lord Chancellor, agreed that there was a point here for consideration. It is with a view to giving the Government an opportunity of meeting the point that I am moving Amendment No. 34.952
Page 10, line 29, leave out subsection (1).—(Lord Silkin.)
§ 6.20 p.m.
§ LORD SOMERS
My Lords, like the noble Lord who has just spoken, I feel strongly about this question. As the noble Lord says, the best plan would be to follow the advice of the noble Lord, Lord Faringdon, and leave out the entire clause; but, on the other hand, as the noble Lord, Lord Silkin, says, that may not be possible. The noble Lord in charge of the Bill has assured us that he has the interests of authors, and presumably composers also, very much at heart. I would ask him to consider this point in connection with the duplicating of records. As I pointed out before, it is easy to do that to-day: a record can be made from another with the greatest possible ease. Of course, the composer of the original record naturally gets the royalty from every record that is sold but, presumably, he will not get anything from the duplicated records sold, which will reduce considerably the sale of the original recording. It seems to me that this is scarcely in the interests of the composer.
I hardly agree with Lord Silkin that we can distinguish between serious and light music; and certainly the time factor does not cover it. I have been a composer of what may be called serious music for most of my life, but I would remind the noble Lord that there are a great many serious works that take a very short time to play. For instance, there are the Scarlatti sonatas, the Bach preludes and fugues, all of which could be played within three minutes. I do not want to draw a hard and fast line—there are so many cases on the borderline. I have often tried to define what could be called serious music and what could be called light music, and I have failed each time. So I think that, if this Amendment is to be accepted, it will have to be accepted for all music or none. I should like to stress the fact that the composer will lose considerably from his returns if these duplicated records are to be allowed without there being any infringement of copyright.
My Lords, it may be for the convenience of the House if I speak now, rather than at a later stage, when my own Amendment is 953 called. I am glad to have received so much support for my view that this is not a matter which affects one class of music rather than another. Of course, it affects the light music less than the serious music, because such music is ephemeral; and therefore, if it is recorded without the composer's permission, in many cases it is probably to his advantage. That is the difference. I am entirely in agreement with the noble Lord, Lord Somers, that the two classes are clearly and absolutely indefinable. The principle is one on which I think we shall have the support of the noble Lord, Lord Mancroft, who has assured us how enthusiastically and strongly he has, all through our debates, defended the rights of the author. On this occasion I should like to see him defending the rights of the composer.
This rule, which has nothing but forty disreputable years of existence to commend it, is an erosion of the composer's rights. It is more serious and more extensive than almost anything we have discussed since the original introduction of this Bill. Think what kind of reaction there would be if a similar rule were introduced into the literary world. Supposing the author who had sold his book to a publisher found that immediately after publication anybody else was allowed to produce an edition—think, incidentally, of the views of the original publisher—on paying a fixed royalty to the author. Obviously, such a situation would not be tolerated for a moment and none of your Lordships would suggest it. But, in fads, that is what is being suggested in this clause. This right of anybody to record, on payment of a standard royalty to the composer, a work which has been previously recorded is nothing less than the position which I have described in the case of authors.
Moreover, I am not profoundly impressed by the case made by Lord Silkin, based on the fact that this is now a long-established practice. That is true; but, as the noble Lord, Lord Somers, has said, it has now become so much easier to manufacture records and make new recordings that an entirely new position has arisen. Up to now, the firms in the record-making and recording world have been limited in number and of very important standing. There is every possibility that from now on recordings will 954 be made almost by individuals—certainly by little "fly-by-night" companies. I think the composer not only is exposed thereby to recordings of his works of which he will profoundly disapprove artistically, but will also be put in a position where, in all probability, he will not be able to collect even the royalty which this clause gives him. I hope that the noble Lord, Lord Mancroft, who has spoken so manfully in defence of authors, will also come to the defence of composers.
VISCOUNT ALEXANDER OF HILLS-BOROUGH
My Lords, I have listened with great interest to the case so far put. We, of this side of the House, have been appreciative of the consideration we have received in the various discussions on the Bill up to date, but as regards the failure to find just the kind of solution which the noble Lord, Lord Silkin, was taking up arising out of the original suggestion of the noble and learned Earl, Lord Jowitt, I feel that we must come to a clinch upon it to make sure that the point is carried over. If the noble Lord is unable to make any suggestions to meet us on this matter, I feel that the case put by the noble Lord opposite and by my noble friend is so incontrovertible in principle that something must be done about it. It may well be that, when we have had the reply from the Government, we shall prefer (I shall leave it to the noble Lord, Lord Silkin, to decide) to move to leave out the whole clause so as to get this matter really dealt with. Therefore, I hope that the noble Lord, Lord Mancroft, will meet us as far as he possibly can, and will do something to ease the situation of the composers and authors which has been so clearly put to the House.
§ LORD JESSEL
My Lords, before the noble Lord replies, we should like to be made aware of the exact position, because the noble Lord, Lord Somers, was not quite right when he said that these works could he copied for nothing. Surely, if other recordings are made of these works, they have to pay an agreed royalty. Do not let us get on to a false argument about the composer not receiving his money. What I may call the highbrow argument may appeal more to your Lordships—that is, that the composer only wants a record of his work as he likes it. There is a good deal to be said for that point of view. But I would submit that the 955 following things would happen. Suppose a record of the work was made which was greatly inferior to the first published work, made with the approval and consent of the composer, then one of two things would happen. On the one hand, few people would buy this record, which is only bought by connoisseurs—they are expensive records, and they are not going to be bought unless they are good; therefore, the composer's reputation would not suffer because the record would not be very much sold. On the other hand, if it was reasonably good and it sold in large quantities, he would get his royalties, and I think he would be well satisfied with that. I am afraid that is a rather mundane point of view, but there is no evidence that composers—we have had no names mentioned—really object to this, and I personally feel compelled to raise my voice in a different tone from that which we have heard up to now.
§ LORD DOUGLAS OF BARLOCH
My Lords, in reply to the noble Lord, I understand that the organisations which represent the composers do, in fact, object to these provisions. Presumably they know something about it, and this provision giving a right to record is quite anomalous in the whole law of copyright. It applies in no other case in which copyright exists. Authors of books or artists are not obliged compulsorily to give licences to people to republish their books or their works of art; it applies only to composers of music. It is perfectly true that this provision has existed in our law for more than forty years, because it was introduced by the Copyright Act, 1911. I know no more than anybody else what was in the mind of Parliament when that provision was inserted in the Act of 1911. But it is perhaps significant that it is the second subsection of Section 19, which is the section which created copyright in records and similar mechanical contrivances. No copyright of that kind had hitherto existed, and this was creating a right, not for the benefit of composers but for the benefit of manufacturers. I know that there is an argument by which it can be defended—whether it should be extended to a period of twenty-five or fifty years, is, of course, quite another story. But there is an argument in favour of protecting a manufacturer from having his capital expenditure "pirated" by the action of somebody else in actually 956 reproducing, by a mechanical process, the record which he has created.
I suspect that Parliament, when it added on this further provision about compulsory licensing, really intended to mitigate the effect of the monopoly which it was creating in favour of manufacturers and was not so much thinking about the rights of composers. I may be wrong in this surmise, but it is, at any rate, a conceivable explanation for the creation of this anomalous right. But whatever the origin of it may be, it is distinctly unfair. It is all very well for the noble Lord on the other side to say, "Ah, but the composer will get his money." He gets it under a completely arbitrary arrangement; it is not a free bargain made between him and the producer of the record. He may get more or he may get less than he had a reasonable right to anticipate if he had been in a position to make a free contract.
Moreover, the fact that once a composer has permitted a record of his work to be made, and that that enables any other manufacturer to make records of the same work and pay to him a statutory fixed royalty, may very well have the effect of hampering him in his original negotiations with a manufacturer of records, who will say to the composer, "I cannot pay you more than 6½ per cent.," or whatever the fee is, "because immediately this record has been published all my competitors will be free to make it on paying the statutory royalty of 6½ per cent." Therefore, the rights of the composer are infringed in a way in which nobody would ever dream of allowing the rights of an author or an artist to be infringed. Although this provision has existed for many years, there is no reason whatsoever why it should be continued.
§ LORD DERWENT
My Lords, before my noble friend replies, may I just ask him not to listen to the siren song of the noble Lord, Lord Silkin, in trying to differentiate in any way between good and bad music. Every noble Lord who has spoken on this particular point has had something adverse to say about jazz.
§ LORD DERWENT
Most noble Lords —I am corrected by the noble Lord, Lord Douglas of Barloch. To me, too, it is a frightful noise; but may I remind my noble friend that there are serious instrumentalists who are intensely interested in what they consider, probably rightly, to 957 be a new form of music. If he makes any attempt to differentiate between good and bad music, or serious and light music, it will lead to nothing but trouble.
§ LORD MANCROFT
My Lords, the noble Viscount, Lord Alexander of Hillsborough, has told me that he is not going to like what I say, even before I say it. That is not going to stop my saying it. Of course, this is a very difficult problem, as we are all well aware, but it is not quite as difficult as some noble Lords have made out, because it has nothing whatever to do with the Cawardine case. That is difficult enough in all conscience, but to put these two problems together and try to make the matter worse is not going to get us anywhere at all. It is not at all a case of black and white. It is not a case really of there being a vital principle at stake, and much of the accusation that has been levelled against this state of affairs has, I think, to be looked at from the broad point of view: that is, to see what the alternative will be if we take the advice of the noble Lord, Lord Faringdon, and strike out the clause altogether.
Your Lordships will remember that during the Committee stage the case against compulsory licensing was argued particularly with reference to serious music, but the first of the Amendments that we are discussing, Amendment No, 34, moved by the noble Lord, Lord Silkin, would apply to music of all kinds. The debate has ranged fairly far and wide over the whole of this clause, so I must ask your Lordships' pardon if I do not confine myself solely to his arguments but try to deal with some of the points that have been made, striking out further than Amendment No. 34.
It seems to me that the main considerations we must bear in mind are these: first, that the rights of the composer over recording were first recognised in the Berlin Convention of 1908. Up to that time, he had no rights whatsoever. Second, that in the United Kingdom, the Act of 1911, Section 19 of which includes the licence of right provision, has been operative over the whole period during which composers in this country have had the mechanical rights in their work. The third point is that over the forty-five years an industry has grown up on the basis of the Act of 1911 and the general public 958 have enjoyed records put out by competing companies, and the provision has rendered impossible the more harmful practices, such as tying up one composer to a particular recording company. The fourth consideration I should like your Lordships to bear in mind is that the clause, as drafted, makes provision for different rates to be fixed for different classes of music recorded. The licence of right has existed for a long lime now, and, so far as I know, the chief opposition to this state of affairs has come more from your Lordships' House than from the composers. There has been remarkably little opposition to this state of affair, as more than one noble Lord has pointed out, from the composers.
Lord Faringdon talked about the "mushroom companies" that are growing up. I expected him to make that point. The introduction of tape recording has resulted, perhaps it might be argued, in the establishment of a number of mushroom concerns who record for the benefit of individuals and clubs, and it might be thought that these concerns either ignore or wilfully avoid their obligations to pay royalties for so recording. This may or may not be true, but, in either event, it is not a situation that can be cured by copyright action. If a firm ignores its liability to pay the present statutory royalty for recording, there is no reason at all to assume that in the absence of a statutory royalty it would pay a negotiated royalty. In so far as this allegation is true, the people concerned are infringers, and they would be infringers irrespective of how the royalty is fixed, whether by Statute or as a result of negotiation and contract.
Let us now turn for a moment to Clause 8 as a whole and examine some of the difficulties lying there. Clause 8 as it stands contains generally the same principles as were contained in subsections (2) to (6) of Section 19 of the Act of 1911. There are slight modifications of procedure, but nothing which affects the main principles. The main principles were these; once a composer had agreed to allow his work to be recorded all other gramophone record manufacturers were similarly entitled to record it, and in such circumstances a royalty fixed under the terms of the Act was to be paid to the composer. I certainly will bear in mind as sympathetically as I can the pleas on behalf of the composer which 959 have been so eloquently voiced by the noble Lord, Lord Somers, to-day, just as much as I have tried to do in the case of the author—the more so, perhaps, in that, while I have never been an author, for the simple reason that I cannot write, I have myself been a composer. I composed a little work some years ago, and I received the princely sum of £3 17s. 6d. for it. Loking at that work again recently I came to the conclusion that I must have been overpaid.
It is quite impossible (and we have said this time and again) to distinguish between short and long—between under four minutes and over four minutes, between serious and non-serious. We tried hard when we were looking at this question after the Committee stage, but as Lord Somers has pointed out, one gets a perfect example in Chopin's Minute Waltz. You can get through that in just under three minutes. I can do it myself. That answers that side of the argument. But, as Lord Derwent and, I believe, other noble Lords have pointed out, there are certain things known as jazz classics. It is easy to make abusive remarks about jazz, but the lines between jazz, hot music, light music, serious light music, and so on, are very difficult to draw. If I may refer to one of the classics of jazz, George Gershwin's Rhapsody in Blue, I would say that that certainly is a work which could not be played in four minutes. I have taken these two extreme cases to show that this is an argument which cannot be carried any further. I do not think there is any means of trying to restrict —as Lord Faringdon may have been suggesting, when he wanted to knock out this clause—the compulsory powers in connection with short playing records.
It is also very difficult to argue about natural rights. The principle which it seems Lord Faringdon wishes to insist upon is, no doubt, that the composer's right over his music is an inherent one, as being a right over the product of his brains, and as such should be exercised by him unconditionally. It might be that if one was starting de novo, this right given to gramophone companies to make records of copyright works in certain conditions would not now be granted. I can see that point. If we were starting all over again we might possibly be advised not to put this into the law. That is a matter which can be argued either 960 way. But the fact remains that up to the date of the Berlin Convention of 1908, composers, within the terms of the Berne Union, had no rights whatsoever to authorise or to prevent the recording of their works, and it was not until the Act of 1911 that any mechanical rights were given to them at all.
Accordingly, the system provided for in Clause 8 is the only system under which composers have been entitled to receive earnings from the recording of their works, and it has been in force since 1911. During that time a large and progressive industry has been built up, and also during that time the public have had the advantage of free competition between record manufacturers in the recording of copyright music. Composers, for their part, have had the protection of rates fixed after public inquiry, and under the present clause it will be seen that powers are being taken to fix them generally or in relation to any one or more classes of records as may be considered just, and this can take care of long-playing records.
Finally, I think reference has been made to the argument based on the possibility that once the copyright owner had given his consent to recording by one particular company of his own choice all other companies, however indifferent their standards, are entitled to record, and that recordings of a low standard could he most detrimental to the composer's reputation. This argument has been stressed in the past mostly on behalf of eminent composers of major works, and I think it can be accepted that if really bad recordings of really bad performances of such works were to be put on the market they could be detrimental to a composer's reputation, although the more likely result would be that they would be regarded as detrimental to the reputation of the gramophone company marketing the records rather than to the composer. In so far as this argument is advanced in the case of, let us say, symphonies, no one can doubt that the market for such records is a limited and specialised one and that the buyers in that market—the price of records being what it is—are likely to be pretty discriminating. Also there is good reason to believe that in this part of the field it becomes most difficult to record without the co-operation of the music publisher who holds the orchestral parts. Accordingly, while in theory, at any rate, there is a potential 961 risk to the reputation of a composer from had recordings, the interests of the composer and the record manufacturer really go hand in hand, both being anxious to produce the best possible recording of the composer's works.
I repeat that I do not think this is an ideal situation, and if we were legislating all over again we might well think up something completely different. But it has a long and fairly respectable history behind it, and it has not caused very much trouble. I suggest that it should be perpetuated in the way which we now propose because—and this I must admit —we cannot think of anything better to put in its place.
§ 6.49 p.m.
§ LORD CONESFORD
My Lords, I intervene only because of the curious error made by the noble Lord, Lord Silkin, in moving this Amendment, when he said that he understood the clause to be the result of a legal decision which surprised many people and which was made many years after the Act was passed. It was clear from what he said that he had in mind the Cawardine decision made in December, 1933. That decision, as he truly remarked, has been the subject of a great deal of controversy. I shall not say anything about that decision now, because I said what I wished to say in my speech on the Second Reading of the Bill. That was, however, a decision about subsection (1) of Section 19 of the 1911 Act. What we are now considering are the subsequent subsections of Section 19 of that Act, and they have been in force and observed, as my noble friend Lord Mancroft has said, without any dispute from 1911 until now. So, whatever we might do if we were legislating afresh, the provisions that we are now considering were deliberately inserted in the Act of 1911; they have been known to be there, and have been acted upon ever since that Act first came into force.
The reasons that influenced the Parliament of 1911 to put in these provisions may be a matter of speculation but, as my noble friend Lord Mancroft pointed out, these provisions for the first time gave a copyright in this matter to composers. It may well have been thought that these provisions were to some extent a protection against monopoly, but they have worked with tolerable clearness and without much complaint and the Copy- 962 right Committee have advised that these provisions, with modifications, should continue. I therefore support what has been said by my noble friend Lord Mancroft and hope that the clause will not be deleted, as suggested. I should like to express my pleasure that the eminent musician who has spoken (I am not for the moment alluding to my noble friend Lord Mancroft) has ended for ever this rather snobbish suggestion that we should try to differentiate between different classes of music in this branch of the law. That seems to me to be as undesirable as it is impracticable I hope that this Amendment will not be pressed, and, if it is, that it will be defeated.
§ LORD SILKIN
My Lords, in withdrawing this Amendment, I do so not for the reasons on which I have just been invited to withdraw it, but because I think that the right course is to leave out the clause altogether. It is not snobbish to try to differentiate between good music and bad, but it looks as if it is impracticable. I accept, at any rate, that it cannot be done by differentiation based upon the time that recording takes. It may be done in some other way, but nobody has suggested any alternative and I have come to the conclusion that the right thing is to do away with this clause altogether. The noble Lord said that if we were legislating afresh, we probably should not have a clause of this kind. We are legislating afresh. We have an opportunity of remedying something that is wrong. Otherwise, there is no purpose in legislation. I would ask leave to withdraw this Amendment and I will not move Nos. 37 and 38, but if my noble friend Lord Faringdon decides to move No.:39, I will strongly support him.
§ Amendment, by leave, withdrawn.
§ LORD DOUGLAS OF BARLOCH moved, in subsection (1) (a), after "sale" to insert "in the United Kingdom." The noble Lord said: My Lords, as this clause stands at present, the right to make a recording of a musical work depends on a record having been made previously with the consent of the owner of the copyright. Therefore it would appear that if a recording has been made, with the consent of the owner of a copyright anywhere in the world to which his copyright applies, it will be open to a manufacturer of records in this country to make a recording here. It is possible that 963 the ownership of a copyright may be vested in various persons in various countries. It will be extremely difficult for a composer to deal with his work advantageously if he is to be subjected to provisions which will enable a recording to be made under these compulsory provisions in this country merely because he has authorised a record to be made in Canada or the United States, or in Spain or some other country in which he happens to have a copyright in his music. The legislation of every country ought to stand on its own feet, and rights which exist with regard to copyright in music ought to be related only to the copyright in the country concerned. Admitting the principle of compulsory copyright, let it at any rate be confined to the case in which the author has already agreed with a manufacturer to produce a recording in this country, and let the resultant compulsory copyright extend only to this country and nowhere else. That is the purpose of this Amendment and also of the subsequent one which stands in my name. I beg to move.
Page 10, line 35, after ("sale") insert ("in the United Kingdom,").—(Lord Douglas of Barloch.)
§ LORD MANCROFT
My Lords, the purpose of this Amendment is to provide that the compulsory licensing provisions of this clause should operate only if records of the work had previously been made for retail sale in the United Kingdom with the licence of the owner of the copyright. The first point I should like your Lordships to note is that "the owner of the copyright" does not mean a person who owns the copyright in that work in a foreign country, since "copyright" in the Bill means the copyright conferred by the Bill. It is only when records have been made with the licence of the owner of the copyright under the Bill that the licence of right provisions apply. If, therefore, what is worrying the noble Lord is the case of person A owning the copyright in a foreign country or a self-governing Dominion, and person B owning it in the United Kingdom, his Amendment is not well-conceived.
I agree that, as the Bill is drafted, when one person owns the musical copyright both here and in, for example, the United States, if he gives permission to an 964 American gramophone company to record for the American market, the United Kingdom gramophone manufacturers can avail themselves of the compulsory licensing provisions. Your Lordships may think that this is an unfortunate result. But it is emphasised that there is no question of the compulsory licensing provisions operating without the owner of the copyright conferred by the Bill having any chance to stop them. If he is really anxious to stop recording here, he must not give permission for the recording in America.
Again, suppose that the copyright owner, who may well be a foreigner, agrees that a given foreign gramophone company shall have the exclusive right to record his work, possibly stipulating that one group of foreign artistes shall have a monopoly in the performance. If we alter the Bill in the way this Amendment appears to suggest, the foreign company would have exclusive rights in the United Kingdom market, which it might well be inclined to exploit by importing records, and the public here would be deprived of competing recordings by United Kingdom record makers, for which it is one of the purposes of this clause to provide. Another difficulty about this Amendment as it stands is that when a manufacturer makes records he does not necessarily do so with any particular market in mind. I wonder whether the noble Lord might not like to consider these points, which I am afraid are of a complicated nature, and whether, having done so, he would wish not to insist upon his Amendment.
§ LORD DOUGLAS OF BARLOCH
My Lords, I have followed what the noble Lord has said, but I do not feel entirely convinced by his remarks. Apart from this provision for compulsory licensing of musical works, there is no other case that I know of in which copyright in each country does not stand upon its own feet, independent of the existence of copyright in other countries. I am not at all certain that the interpretation of this clause is as the noble Lord has said: that if the copyright is owned in another country by a different person from the person who owns it in this country, the making of a record in the other country will not enable a record to be made in this country. Even if he is correct about that, I rather think that 965 some subsequent parts of his argument, with regard to competition and so on, fall to the ground; certainly, they seem to be extremely dubious. I agree that the matter is far from simple, however, and I am willing to withdraw this Amendment so that the point can be considered further. And I will not move my subsequent Amendment.
§ Amendment, by leave, withdrawn.
§ 7.2 p.m.
§ LORD FARINGDON moved to leave out Clause 8. The noble Lord said: My Lords, I think there is one matter on which all sides of the House will probably he agreed, and that is that we have argued this particular problem to and fro and have probably said everything there is to be said. I can only hope that the arguments put from this side have been more convincing than those I have heard from the other side. The noble Lord, Lord Mancroft, has my sympathy; he is
§ LORD MANCROFT
My Lords, I think this might be a convenient time at which to break off this Report stage.
§ so persuasive that it must have been very tiresome for him to be supplied with such poor ammunition. In any case, I remain unconvinced. I know that my friends remain unconvinced, and I therefore beg to move the Amendment standing in my name.
Leave out Cause 8.—(Lord Faringdon.)
§ LORD MANCROFT
My Lords, I do not want the noble Lord's sympathy—though I thank hint for it just the same; it is his vote that I want. I hope that I have convinced him by the force of my arguments that we have right on our side, but if I have not, we must settle the matter elsewhere.
§ On Question, Whether the said Amendment shall be agreed to?
§ Their Lordships divided:—
§ Contents, 16; Not-Contents, 40.965
|Baldwin of Bewdley, E.||Chorley, L.||Kershaw, L.|
|Lucan, E. [Teller.]||Darwen, L.||Lawson, L.|
|Douglas of Barloch, L.||Milner of Leeds, L.|
|Alexander of Hillsborough, V.||Faringdon, L.||Morrison, L.|
|Greenhill, L.||Pakenham, L.|
|Burden, L. [Teller.]||Henderson, L.||Silkh, L.|
|Kilmuir, V. (L. Chancellor.)||Goschen, V.||Kilmarnock, L.|
|Soul bury, V.||Kinnaird, L.|
|Cholmondeley, M.||Luke, L.|
|Amherst of Hackney, L.||Mancroft, L.|
|Ferrers, E.||Bennett of Edgbaston, L.||Palmer, L.|
|Fortescue, E. [Teller.]||Blackford, L.||Ritchie of Dundee, L.|
|Gosford, E.||Carrington, L.||Rochdale, L.|
|Haddington, E.||Coleraine, L.||Rockley, L.|
|Onslow, E. [Teller.]||Conesford, L.||Salter, L.|
|Radnor, E.||Derwent, L.||Sandford, L.|
|St. Aldwyn, E.||Digby, L.||Strang, L.|
|Selkirk, E.||Freyberg, L.||Tweedsmuir, L.|
|Hacking, L.||Waleran, L.|
|Bridgeman, V.||Hawke, L.||Wolverton, L.|
|De L'Isle, V.||Jessel, L.|
Resolved in the negative, and Amendment disagreed to accordingly.