Lords Sitting of 16 February 1956

Preamble
The House met at three of the clock, The LORD CHANCELLOR On the Woolsack.
Prayers
Several Lords—Took the Oath.

HOUSING SUBSIDIES BILL
Brought from the Commons; read 1a, and to be printed.

SUNDAY ENTERTAINMENTS ACT, 1932
THE JOTNT PARLIAMENTARY UNDER-SECRETARY OF STATE FOR THE HOME DEPARTMENT (LORD MANCROFT): My Lords, the three Sunday Entertainments Act Orders standing in my name on the Order Paper are in the usual form and of the usual content. There is nothing in them to which I think I need draw the attention of your Lordships, and accordingly I beg to move that the first Order be approved.
Moved, That the Order made by the Secretary of State for the Home Department, for extending section one of the Sunday Entertainments Act, 1932, to the Borough of Barnstaple, be approved.—(Lord Mancroft.)
On Question, Motion agreed to.
LORD MANCROFT: My Lords, I beg to move that the second Order be approved.
Moved, That the Order made by the Secretary of State for the Home Department, for extending section one of the Sunday Entertainments Act, 1932, to the Urban District of Matlock, be approved. —(Lord Mancroft.)
On Question, Motion agreed to.
LORD MANCROFT: My Lords, I beg to move that this Order be approved.
Moved, That the Order made by the Secretary of State for the Home Department, for extending section one of the Sunday Entertainments Act, 1932, to the Rural District of Wellington (Salop), be approved.—(Lord Mancroft.)
On Question, Motion agreed to.

AGRICULTURAL RESEARCH BILL
3.7 p.m.
Order of the Day for the Second Reading read.
THE JOINT PARLIAMENTARY SECRETARY, MINISTRY OF AGRICULTURE, FISHERIES AND FOOD (EARL ST ALDWYN): My Lords, I am moving the Second Reading of this Bill in the absence of my noble Leader, the Lord President of the Council, who, as your Lordships will know, is at present overseas. He would, I am sure, have liked to be able to introduce this Bill to, your Lordships himself, since he is the Minister responsible for the Agricultural Research Council to which it relates; but as the measures concerned are due to come into operation on 1st April next it has been necessary to go on with the Bill before his return.
Your Lordships will know the great debt that our farmers owe to the work of the Agricultural Research Council which, since its establishment in 1931, has steadily widened its activity until to-day its influence is great and far-reaching. I should like at this point to pay a tribute to the work of the noble Lord, Lord Rothschild, who is the present Chairman of the Council. He has contributed a great amount of drive and energy to the work of the Council and he combines in admirable measure all the qualities needed for that post. He is a scientist of great distinction and, at the same time, an experienced practical fanner. The earlier work of the Council also owes a great deal to his predecessor, the noble Earl, Lord De La Warr.
Because of the way agricultural research has gradually grown up in this country over the past 100 years or more, we have to-day a dual system whereby some research institutes are financed and administered directly by The Agricultural Research Council, while others are on the Vote of the Ministry of Agriculture, Fisheries and Food, although the Agricultural Research Council is responsible for their scientific policy and scientific direction. Following a recent report or the Select Committee on Estimates, the Government have decided that the financial and general administration of these institutes, as well as their scientific direction, should be unified under the Agricultural Research Council. The institutes

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transferred from the Ministry of Agriculture will, however, remain under their separate governing bodies, and the change will apply only to England and Wales; in Scotland, as recommended by the Royal Commission on Scottish Affairs, we think the balance of advantage lies in preserving the status quo, and the institutes now on the Vote of the Department of Agriculture for Scotland will accordingly remain on that Vote.
The change proposed is one of administration only, and no new Statute is necessary in order to carry it out. But one important result of the change will be a transfer of the responsibility for some £2,300,000 expenditure from the Ministry of Agriculture to the Agricultural Research Council, which will raise the Council's expenditure, at present on the Treasury Vote, from about £1,200,000 to about £3,500,000. This is almost a threefold increase—though of course it represents no increase in the total charge on public funds—and we think the time has now come to make the Agricultural Research Council directly responsible to Parliament for its own expenditure.
We propose to do this by the creation of an Agricultural Research Fund, into which the money voted by Parliament will be paid direct, as a grant-in-aid. This method will enable us to avoid turning the Agricultural Research Council into an ordinary Government Department, which would have meant that certain of the Council's scientific staff would have had to become civil servants. The Council's funds will no longer be on the Treasury Vote but will now be on a separate Vote for the Agricultural Research Council, whose Secretary will accordingly appear before the Public Accounts Committee as accounting officer for the new Fund. In this way adequate Parliamentary control will be secured without any loss of independence on the part of the Council.
So much for the main purpose of this short Bill. Apart from this, the only provision to which I should like to direct your Lordships' special attention is that in Clause 1 (1). The Agricultural Research Council was not set up by Statute but operates under a Royal Charter, a copy of which has been placed in the Library in case any noble Lord should wish to refer to it. The oppor-
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tunity is being taken in Clause 1 (1) of the Bill to give the Council for the first time the statutory duty of being responsible for the organisation and development of agricultural research. The Council will, as now, be subject to the Privy Council Committee for Agricultural Research, which is to be reconstituted so as to consist of the Lord President of the Council, the Minister of Agriculture, Fisheries and Food and the Secretary of State for Scotland. In this way the two agricultural Ministers will be closely associated with the Lord President in the supervision of the Council's work.
I hope that I have said enough to show that this Bill, which represents a minor and somewhat technical piece of financial legislation, need not arouse controversy. It forms part of a reorganisation of the arrangements for agricultural research which is desirable in the interests of good administration. The scientific independence of the Agricultural Research Council, which we all recognise to be essential in the interests of good research, will not be in any way affected by the changes, and we look forward to the fruitful continuation of their most valuable work. I therefore beg to move that this Bill be read a second time.
Moved, That the Bill be now read 2a.—(Earl St. Aldwyn.)
3.14 p.m.
THE EARL OF LISTOWEL: My Lords, we on this side of the House welcome this Bill very warmly and regard it as a contribution to sound administration, as well as to agricultural research. I am sure the noble Earl will agree that it is really a historical accident—the fact that the Agricultural Research Council was born only in 1931—that is largely responsible for the present division of responsibility for research between the Council and various Government Departments. If the Council had been born some years earlier the whole story might have been quite different. It is certainly high time that the administration of the research institutes in England and Wales was unified under the one appropriate authority.
I should like to join the noble Earl opposite in paying a tribute to the work of the scientists in the research institutes, and also to the way in which this
work has been directed by the Agricultural Research Council, under the chairmanship of my noble friend Lord Rothschild

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who, as the noble Earl said, is himself a Fellow of the Royal Society and a distinguished scientist, and whose energy and knowledge have given it a fresh impetus. I enjoyed, as I am sure the noble Earl opposite now enjoys, my visits in times past to research institutes when I was in the Department, although I must confess that I sometimes found the explanation of the experiments that were going on clearer to those who conducted them than it was to me. We were all agreed that the scientists in the past have made British agriculture what it is and that its future will largely depend upon their discoveries.
I should like to make only two brief comments on the Bill. I am sorry that it has been found necessary to leave the management of the agricultural research institutes in Scotland in the hands of the Scottish Office. It is true that the Agricultural Research Council will supervise the work of these institutes and advise the Agricultural Department of the Scottish Office about research programmes, and about expenditure on research, but it does not follow by any means that this advice, excellent as it may be, will be followed. Surely, it would be an advantage if the Council were to have executive authority in Scotland as it will have, when this Bill has been passed into law, in England and Wales. Moreover, the administrative economies of unification would obviously be larger if unification was complete. This decision is, of course, a concession to local patriotism, but I cannot help feeling that it does more credit to the feelings of our Scottish neighbours than it does to their well-known common sense. I have no doubt that that is a controversial statement, and I suppose I shall have the opposite view put by those noble Lords who voice the sentiments of Scotland so eloquently on other occasions. I agree that the decision may be necessary—indeed, it may be indispensable—in the present climate of opinion, but perhaps one clay that climate may change.
My only other comment is about the financing of research. Scientific research, as we all know, takes a long time. There is no field of activity where forward planning is more essential. There might, therefore, be some advantage in treating the Agricultural Research Council like the universities and giving it a long-term grant, say for five years, instead of an
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annual grant. Of course, we should be guided in this matter by the wishes of the Agricultural Research Council. It is for the Council to say whether it wants a long-term grant or is satisfied by the present proposal of an annual grant. I should like to ask the noble Earl whether he can accept the principle of a longterm grant, and whether the period of the grant could be altered administratively or whether it would require further amending legislation.
There is one final question I should like to put, arising out of the noble Earl's opening remarks about the responsibility of the noble Marquess the Leader of the House, who, as Lord President of the Council, has a general responsibility for scientific research. If noble Lords on either side of the House wish to put clown Questions about agricultural research, will they be answered by the noble Earl, Lord St. Aldwyn, in his capacity as the Minister responsible in your Lordships' House for agriculture, or will they be answered by the noble Marquess, in his capacity as the supervisor of research generally in the country?
3.20 p.m.
EARL ST. ALDWYN: My Lords, as regards the noble Earl's first point, I feel that, in view of the fact that he is an Irishman and I am an Englishman, we had better leave Scottish affairs to those more closely connected with that area North of the Border. The noble Earl also raised the point about there being advantage if the Agricultural Research Council could have their vote on a quinquennial basis. So far as I know, the work of the Research Council has not suffered as a result of the system of annual grants which has operated up to now but if the Agricultural Research Council should come to thy; conclusion that with the new responsibilities which they have now been given there would be some advantage in their knowing the level of their grants for a period of five years, then I am sure my right honourable friends would consider carefully any proposal along those lines. As to who would answer questions about the Agricultural Research Council and its work, as the noble Earl realises, the Lord President of the Council is responsible. I imagine that he would answer in this House. He, being in this House, must have an agent in the other place, and that position is

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now held by my right honourable friend the Minister of Agriculture, Fisheries and Food.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

COPYRIGHT BILL [H.L.]
3.22 p.m.
Order of the Day read for the Bill to be further considered on Report.
THE SECRETARY OF STATE FOR COMMONWEALTH RELATIONS (THE EARL OF HOME): My Lords, there are a great many Amendments still to the Copyright Bill. I thought it might be for the convenience of your Lordships to say that we do not intend to ask the House to sit later than seven o'clock or some such hour to-night, if that will suit noble Lords opposite, because we can return to this Bill on Tuesday. But we should like to make such progress as we can.
Clause 9:
General exceptions from protection of artistic works
(3) The copyright in a sculpture or work of artistic craftsmanship which is permanently situated in a public place, or in premises open to the public, is not infringed by the making of a painting, drawing, engraving or photograph of the work.
(4) The copyright in a work of architecture is not infringed by the making of a painting, drawing, engraving or photograph of the work.
(7) The making of an object of any description which is in three dimensions shall not be taken to infringe the copyright in an artistic work in two dimensions, if the object would not appear, to persons who are not experts in relation to objects of that description, to be a reproduction of the artistic work.
LORD MANCROFT: My Lords, I am glad to inform the House that we begin our deliberations to-day on a wholly uncontroversial note. This Amendment, No. 40, is purely a drafting Amendment. It goes with the second half of Amendment No. 41. I beg to move.
Amendment moved—
Page 13, line 34, leave out from ("a") to ("which") in line 35 and insert ("work to which this subsection applies").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT LORD MANCROFT moved to add to subsection (3):
"or the inclusion of the work in a cinematograph film or in a television broadcast.
This subsection applies to sculptures, and to such works of artistic craftsmanship as are mentioned in paragraph (c) of subsection (1) of section three of this Act."
The noble Lord said: My Lords, there is not much point of controversy in this Amendment, either. The first part of it ensures that copyright in sculptures and in certain classes of works of artistic craftsmanship which are permanently situated in public places or in premises open to the public is not infringed by their inclusion in a cinematograph film or television broadcast. The clause as drafted permits, as indeed did the Act of 1911, photographs of them to be taken without infringement. Your Lordships will agree that this present Amendment is a logical extension.
Your Lordships may remember that Amendment No. 8, which we discussed earlier, makes it an infringement to include in a television broadcast an artistic work in which copyright subsists. This is a new provision, made in order to meet an Amendment which was moved in the Committee stage deliberations. The intention of our present Amendment and the other Government Amendments to Clause 9 is to see that reasonable exceptions are allowed in the application of this new aspect of the copyright in artistic works. I hope your Lordships will regard as a logical extension of this provision the application to films of the provision in subsection (5) of Clause 9, as well as to television broadcasts and to the other acts mentioned in the subsection as printed. An Amendment was moved during the Committee stage by the noble Lord, Lord Archibald (who I am sorry to hear is
still unwell), which sought to allow "fair dealing" with an artistic work when it was incidental to the making of a film. This Amendment was withdrawn by the
noble Lord when I gave him a promise that his point would be borne in mind when we came to redraft Clause 9. The present Amendment, together with Amendment No. 42, which we shall consider in a moment, I hope will meet Lord Archibald's point. I beg to move.
Amendment moved—
Page 13, line 37, at end insert the said words.—(Lord Mancroft.)
LORD SILKIN: My Lords, I need only say that, so far as I am able to speak for my noble friend, the Amendment seems to meet the point he had in mind. We are glad of the Amendment.
LORD DOUGLAS OF BARLOCH: My Lords, there is just one question which I should like to ask the noble Lord. Would he give some illustrations of the kind of things which are intended to be covered by paragraph (c) of subsection (1) of Clause 3?
LORD MANCROFT: My Lords, what we have in mind, both with this Amendment and with the succeeding Amendment, and, in fact, with all the Amendments concerning artistic works which are in copyright, is this. If you decide to use as the background to your film or television broadcast a work of art which is in copyright—a picture a sculpture which is there for some length of time and obviously for some purpose—then we think that copyright should attach to it; but if, in the course of your film or your television broadcast, you casually pick up a piece of sculpture in the street or in a building (wherever it may be) and it is purely an ephemeral picking up, then we say "No." That is the distinction we are trying to draw. It is not easy to draw a firm line between the two. Anything to do with "fair dealing" clauses is equally difficult. The line is now fairly clearly drawn, so that, when a work is definitely used, copyright attaches, and when it is
casually referred to by the film camera or by the television camera, it does not do so. I agree there may occasionally be a difficult case to decide, but, on the whole, that is a fair distinction. That is the purpose of these Amendments.
On Question, Amendment agreed to.
LORD MANCROFT LORD MANCROFT moved to add at the end of subsection (4):
"or the inclusion of the work in a cinematograph film or in a television broadcast.
(5) Without prejudice to the two last preceding subsections, the copyright in an artistic work is not infringed by the inclusion of the work in a cinematograph film or in a television broadcast, if its inclusion therein is only by way of background or is otherwise only incidental to the principal matters represented in the film or broadcast."
The noble Lord said: My Lords, this Amendment is on the same subject. The first part of it ensures that the copyright in a work of architecture is not infringed
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by including it in a cinematograph film or a television broadcast. As I was explaining to the noble Lord, Lord Douglas of Barloch, this is regarded as a reasonable exception to the new right against televising artistic works in which copyright subsists. The already existing exception as to photographs of works of architecture is extended to films and broadcasts of such works. Similarly, the proposed new subsection (5) provides that, in addition to the exceptions already granted, an artistic work in which copyright subsists may be included in a cinematograph film or in a television broadcast, provided—and this is the point I have just been making—that it is done only incidentally or by way of background. The difficulties which would confront the broadcasting authorities and film makers if they were forced to seek out the owners of the copyright in every artistic work which may incidentally be caught by their cameras can easily be foreseen. Deliberate use for entertainment purposes of an artistic work is one thing. Its incidental picking up is quite a different matter. I beg to move.
Amendment moved—
Page 13, line 40 at end insert the said words.—(Lord Mancroft.)
LORD DOUGLAS OF BARLOCH: My Lords, I am sorry but the noble Lord did not answer the question which I asked him. I understand what the purpose of this series of Amendments is, but what I asked him was to give some illustration of the kind of artistic work which is referred to in Clause 3 (1) (c).
LORD MANCROFT: My Lords, I am sorry I have not made myself clear to the noble Lord. I will give again, if I may, the same example that I cited at the Committee stage, when we had a similar discussion. I am sorry I have not checked the actual name of the film, but I remember well a film some years ago in which a long scene of a quarrel between the hero and the heroine took place in front of Epstein's statue of Rima in Hyde Park, the statue which is a memorial to Hudson, the naturalist. Whether it was
the sight of the statue which was causing the argument or not I cannot remember, but the statue figured prominently and for a considerable time in that scene. As I imagine that the statue must have been under copyright then and would still be now, that is the

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type of work to which the noble Lord is directing his question. It did not constitute an accidental picking up. If the noble Lord is keenly concerned about this matter I will find more examples for him, but that struck me then, as it does now, as being the type of case where copyright might very well be infringed.
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, the next three Amendments are drafting and consequential Amendments. I beg to move Amendment No. 43.
Amendment moved—
Page 13, line 42, leave out ("or photograph") and insert ("photograph or cinematograph film").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this Amendment is also consequential. I beg to move.
Amendment moved—
Page 13, line 43, leave out ("either of the two") and insert ("any of the three").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this Amendment, too, is consequential. I beg to move.
Amendment moved—
Page 13, line 44, leave out ("or photograph") and insert ("photograph or film").—(Lord Mancroft.)
On Question, Amendment agreed to.
3.33 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved to leave out subsection (7). The noble Lord said: My Lords, I have considerable difficulty in understanding just what is intended to be covered by subsection (7). It says that the making of an object in three dimensions is not to be taken to infringe the copyright in an artistic work in two dimensions, if the three-dimensional object would appear to persons who are not experts to be a reproduction of the artistic work. Let us take a simple case: the plans for the erection of a building are in two dimensions; the building itself is in three dimensions. Does one need to be an expert to recognise that the building is a reproduction in three dimensions of something that is in two dimensions? If that is so, then the copyright of the architect in his drawings is not protected. Of
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course, if it is obvious to the man in the street that the reproduction is based upon the same thing in three dimensions as it was in two, then the architect is protected. Surely the expert is entitled to some protection for his expertness and should not depend upon whether or not the man in the street recognises that his copyright has been infringed. I beg to move.
Amendment moved—
Page 14, line 4, leave out subsection (7).—(Lord Douglas of Barloch.)
LORD SILKIN: My Lords, I would only say to the noble Lord, Lord Mancroft, who I believe is to reply, that subsection (7) is a provision of which no draftsman would feel particularly proud. There may be some point in it, but it is certainly not clear from the clause itself, and I would respectfully suggest that it requires further consideration. The criterion as to whether or not a member of the public would recognise that it was an infringement is clearly one which it would be quite impossible to satisfy. If it is desirable to have something of this sort in the Bill it would surely be better if this particular subsection were taken away and there were put in its place something which it would be much easier to carry into effect.
THE LORD CHANCELLOR (VISCOUNT KILMUIR): My Lords, I am sorry to disappoint the noble Lord, Lord Silkin, by depriving him of the eloquence of my noble friend Lord Mancroft, on this Amendment, but I shall do my best to deal with the points that have been put forward. If I understood the noble Lord, Lord Douglas of Barloch, he has really two points. He wants to know, first, what we are doing; and, secondly, why we have selected these words with which to do it. Lord Silkin supported the second point even more strongly than the first. May I go back a little in order to help Lord Douglas of Barloch on this point? Under the Act of 1911, "maps, charts and plans" were classified as literary works. We thought that this was illogical, and we therefore changed the classification so that under this Bill they are artistic works. If Lord Douglas of Barloch follows me he will note the definition of "drawing" in Clause 42.
We feel, however—and in this we share the view of the Copyright Committee which your Lordships will find expressed

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in paragraph 258 of their Report—that when a design, for example, a wiring diagram, is used in the constructional or functional field, while the wiring diagram itself may properly have copyright protection, that protection should not extend so as to give the copyright owner more protection that he could get under the Registered Designs Act, 1949. In the case of industrial designs registered under that Act, the protection is limited. Perhaps if I quote from Section 1 (3) it will help the noble Lord to understand where we get these words. Section 1 (3) of the Act limits protection to
"feature of shape, configuration, pattern or ornament applied to an article by any industrial process or means, being features which in the finished article appeal to and are judged solely by the eye, but does not include a method or principle of construction, or features of shape or configuration, which are dictated solely by the function which the article to be made in that shape or configuration has to perform."
That is where we get the conception contained in this subsection (7): "judged solely by the eye." To translate that into practical matters of life, in our view it is not reasonable to say, if I may take my own example, that the wireless set is an infringing copy of the wiring diagram on which it is based; on the other hand, a doll which is a copy of a well-known strip-cartoon figure can reasonably be said to reproduce that figure, and hence to be an infringement. This subsection is intended to provide for that distinction and we feel that it serves a useful purpose.
With great respect to the argument of the noble Lord, Lord Douglas of Barloch, which I followed as closely as I could, I think that in those circumstances, when we are attuning our minds to the immensities of Mickey Mouse or Felix the Cat, it is the appeal to persons who are not experts which is more material than that to others, however great their expertise. I know that both noble Lords who have spoken on this point have given great attention to it, and I want, if possible, to satisfy them as to our reasons for introducing it into the Bill. They may have thought that the provisions of Clause 10 make the subsection unnecessary since, under that clause, if an artistic work is applied industrially it loses its copyright protection in the field in which it is applied. But the present Rules governing when industrial application takes place speak of the design being "reproduced on more than fifty single
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articles." Noble Lords will find that in the Copyright (Industrial Designs) Rules of 1949. Assuming that the rules to be made under Clause 10 follow the pattern of the existing Rules, if the wireless set of my example is not reproduced fifty times, the wiring diagram would not be "applied industrially" within Clause 10, and accordingly the set would be, if this subsection were not in the Bill, an infringing copy of the diagram. I am sorry to have bored your Lordships with what are rather technical matters, but as the noble Lords had taken some trouble to try to find the reason of this clause I thought it only right to put it to them at a little length. I hope that in view of what I have said the noble Lord will not press his Amendment.
LORD DOUGLAS OF BARLOCH: My Lords, I certainly shall not press this Amendment. I am indebted to the noble and learned Viscount for the explanation, and I have no desire to see Mickey Mouse mixed up with questions of copyright. But before ask lease to withdraw my Amendment I would just say that subsection (7) is drawn in such wide terms that it seems, on the face of it, as if it might cover architectural works; and I am not certain that the non-expert would tell that the three-dimensional work of architecture was the same thing as the drawings. I am sure that that is a detail which the noble Lord will look into. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 10 [Special exception in respect of industrial designs]:
LORD MANCROFT: My Lords, this is only a drafting Amendment and I beg to move.
Amendment moved—
Page 14, line 27, leave out from ("is") to ("it") in line 29 and insert ("executed by or with the licence of the owner of that copyright and is registered under the Registered Designs Act, 1949 (in this section referred to as the Act of 1949') on the application of the person who for the purposes of that Act is the proprietor of the design.").—(Lord Mancroft.)
LORI CAWLEY: My Lords, I feel some diffidence in speaking on this Amendment, but as one who has everyday experience of the Registered Designs Act, 1949, I must say that I find it extremely confusing. Under the Act a design may be applied to an article, or a

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registered design may be infringed; but, so far as I know, one cannot "execute" a registered design. The usual practice when obtaining a registered design at the Patent Office is to take photographs of the article which is to be registered and to supply those photographs to the Registrar of Designs. I should like to ask the noble Lord whether the taking of photographs of the article in which artistic copyright subsisted would be "executing" the design. If it is not, the Amendment will be completely nugatory.
LORD MANCROFT: The noble Lord, Lord Cawley, has me at a slight disadvantage because Amendment No. 47 is purely a drafting Amendment and he has spoken to the substance of the clause and has raised a very technical point on which, I am sorry to say, I am wholly unable to express an opinion. I should like time to look at this point more carefully to see whether I can give him a more satisfactory answer at a later stage.
LORD CAWLEY: My point is not really on the substance of the clause, but refers to the use of the word "executed" which is used in the drafting Amendment but not in the 1949 Act.
On Question, Amendment agreed to.
Clause 12:
Copyright in sound recordings
(3) Copyright subsisting in a sound recording by virtue of this section shall continue to subsist until the end of the period of twenty-five years from the end of the calendar year in which the recording is first published, and shall then expire.
(5) The acts restricted by the copyright in a sound recording are the following, whether a record embodying the recording is utilised directly or indirectly in doing them, that is to say,—

(a) making a record embodying the recording;

(b) causing the recording to be heard in public;

(c) broadcasting the recording.

(6) The copyright in a sound recording is not infringed by a person who does any of those acts in relation to a sound recording, or part of a sound recording, if—
LORD JESSEL LORD JESSEL moved, in subsection (3), to leave out "twenty-five" and insert "fifty.' The noble Lord said: My
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Lords, on the third day of the Committee stage of this Bill, the noble Lord, Lord Archibald, moved an Amendment substituting fifty years for twenty-five years as the period of copyright protection for films. The noble Lord, Lord Mancroft, when he came to reply, accepted the Amendment and said, "Whether twenty-five years or fifty years is the proper period is a debatable point." The Copyright Committee, in their Report in October, 1952, also took this view, for in paragraph 89 they said:
"We are by no means satisfied that the term of fifty years protection is justified either for a gramophone record or for the cinematograph film."
Then they went on to say:
"We attach some importance to maintaining a reasonable period for the protection given against copying of records, films et cetera and in making recommendations in connection with performing rights in records, films et cetera we recommend the same term of protection should operate."
Now, I am not going to argue that there is anything magical about the period of fifty years or that it is even an ideal one. All I say is that films and gramophone records should be treated alike. When we were discussing Clause 12 of this Bill at the Committee stage, no mention at all was made of the twenty-five year period of protection for gramophone records because we were far too busy discussing the wider and more important principles raised on subsections (1) and (2) of Clause 12. Incidentally, it appears to me that in regard to subsection (2) of Clause 12 Her Majesty's Government have done nothing to alter the existing situation under which 50 per cent. of the gramophone records manufactured in this country are now deprived of copyright protection. Your Lordships may remember that Lord Lucas of Chilworth made a powerful speech and. I think, a strong case urging that copyright protection should be given for every sound recording published in this country. I must say that I got the impression that Her Majesty's Government were going to do something about it, but I have looked at the Bill as it now stands and I cannot see that anything has been done at all. I hope that perhaps at some stage during this debate the noble and learned Viscount the Lord Chancellor will say a word or two on this matter, if it is possible.
I am afraid I have digressed a little, because what I have said is not, strictly speaking, the argument in favour of my I Amendment, to which I will try to return. When we discussed films, several noble Lords made speeches supporting Lord Archibald's Amendment and quite rightly stressed the permanent value of such films as Hamlet, and Henry V. They said that those films would continue to be revived for many years to come and even suggested that perhaps fifty years was not enough. I submit that the same arguments are just as strong in favour of gramophone records. The reproduction of rare works of music, the recordings of famous artistes, as years go by give a complete record of musical history. This is of great cultural value. But it is a costly business to make records so accurately and so perfectly that they gain the approval of the composer or the great singer, which they have to do before they can be published.
I think it is fair to say that the longer period of fifty years is to the advantage more of a composer than to a manufacturer of the records. It enables the composer to make a better bargain when arranging terms with the manufacturer. Also, in regard to gramophone records we have the additional safeguard of Clause 8, if I dare mention it in the presence of Lord Faringdon. Lord Douglas of Barloch and Lord Conesford said on Tuesday that they thought that this clause was probably put in as a protection against monopoly. The British phonographic industry has made a great contribution to the export business of this country, and I think it will continue to do so. It seems to me unfair that it alone should be singled out for reduction in the length of the period of protection which it has up to now enjoyed. So I hope that Her Majesty's Government will accept my Amendment and thereby do justice by putting gramophone records on the same basis as films. I beg to move.
Amendment moved—
Page 16, line 27, leave out ("twenty-five") and insert ("fifty").—(Lord Jessel.)
3.50 p.m.
LORD DOUGLAS OF BARLOCH: My Lords, I hope that this Amendment will not be accepted. I think we made a great mistake when we gave a period of fifty years protection instead of twenty-five to cinematograph films. Certainly the case of gramophone records does not
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justify it. The only reason for giving copyright to a recording is that in order to make the recording the manufacturer has to incur initially a considerable degree of expenditure in payment of artistes and in other ways, and if any other manufacturer after that had been done were allowed immediately to copy the record—which he could do easily and cheaply—he would be depriving the original manufacturer of some or all of the opportunity of recouping his initial capital expenditure.
We are not here dealing with the question of protecting creative artists; we are dealing here only with a pure commercial question: whether it is right to give protection to the manufacturer of gramophone records or similar devices in order that there would be a reasonable period within which he should have the opportunity to recoup his initial expenditure. I do not believe for a single moment that any intelligent manufacturer of gramophone records produces a single record in respect of which he does not expect to become recouped long before the expiration of twenty-five years. He would not be conducting his business upon a sensible and rational basis unless he expected to be recouped long before that. It may be true that the life of some of his records is twenty-five years or more, and that there will still be a demand for them; but that is not the basis upon which this protection is given. It is not a question of whether there will be a continuing demand for this particular thing or not. If it were so, the duration of copyright in all successful works could be prolonged indefinitely. But that is entirely contrary to the spirit of our law with regard to these matters, which intends in all cases to limit the life of a monopoly which is granted. In this particular ease there is surely no ground whatever for extending the life of the monopoly beyond a period that is commercially reasonable, and twenty-five years seems to be more than ample for the purpose.
LORD FARINGDON: My Lords, I rise for only a few moments in order to express disagreement with the noble Lord. Lord Douglas of Barloch. I do so with a great deal of hesitation because he always supports his views with such cogent and persuasive arguments. But I find myself in disagreement with him on

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this occasion and in agreement with Lord Jessel when he pointed out that the view expressed by the Copyright Commission was that there is a great deal in favour of having a single length of period of copyright. Lord Archibald, when he obtained an extension of copyright in the case of films, made, I thought, a very good case, in that he claimed that the maker of a film—in this case it might be an individual, not a gramophone company—should be given what might reasonably be deemed at least copyright during his own life. I am unable to accept the view of Lord Douglas of Barloch who seems to consider that after a certain length of time anyone ought to be allowed to "pirate" anyone else's work. Frankly I cannot agree with him.
Lord Jessel pointed out that, thanks to the effect of your Lordships' action—against my advice to your Lordships' House and in spite of my efforts to persuade your Lordships otherwise—when you passed Clause 8 yesterday, a person will not be prevented from making new recordings of a particular piece of music, On the contrary he can make them from the moment when the first recording is made. Therefore, the reduced period of copyright seems to me to be a provision for allowing "pirating" of a particular recording after twenty-five years. As I have said, there is nothing sacrosanct about fifty years; but I think that as fifty years has been fixed in other cases, there is, as Lord Jessel has said, a very good case for making it general.
VISCOUNT BRIDGEMAN: My Lords, since we on this side of the House are faced with the choice of supporting one or other of the two noble Lords opposite who have spoken, I must say that I find myself in complete agreement with Lord Faringdon. I really was unable to follow the construction which Lord Douglas of Barloch put on the whole affair by suggesting that as between films and recordings commercial factors were different and therefore the difference should be reflected in legislation. Since commercial factors may change from time to time, I should think that a most dangerous way of legislating. I must say that nothing which Lord Douglas of Barloch said convinced me that there was a case here for saying that what was sauce for the goose was not sauce for the gander.
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May I, like Lord Jessel, just say that in my view the whole of the clause as it stands is in a far from satisfactory state from the point of view of the phonographic industry. I think it would be a disappointment to that industry if the noble Lords in front of me did not think fit to put down some Amendment reflecting some of the arguments used on the Committee stage on Clause 12. In fact, I had it in mind to put down some Amendment upon this myself, but, on reflection, it seemed to me that there was still a good deal of misunderstanding which there was not time to remove by putting down an Amendment at this stage, and therefore that it would be far better if a little more time were allowed for consultations, which I hope will take place, between the representatives of the industry and the representatives of the Government. For that reason, and not because I am satisfied with the present position, I did not put down an Amendment. Apart from the Amendment of the noble Lord, Lord Jessel, I feel that it would be better to leave the matter as it stands and give time for both sides to understand each other better than they do, before the Bill goes to another place.
LORD SILKIN: My Lords, perhaps I ought to attempt to pour oil on the troubled waters as between my two noble friends.
The case which the noble Lord, Lord Jessel, made was simply that because films have had their period extended to fifty years, gramophone records should have the same. I do not think that it follows in the least. There may be quite different considerations as between the two industries. It would have been better if the noble Lord had explained the merits of this extension, apart from the desire for uniformity. This is not a matter on which I or any other noble Lord would feel very strongly.
LORD JESSEL: My Lords, the Copyright Committee said so, and I regard them as far more authoritative than myself.
LORD SILKIN: My Lords, it would have been useful to have had the case presented to us. At the moment I see no justification for the same period being applied to the two different interests. There may be a case—I do not know—but the noble Lord did not make it; therefore, I cannot feel that he has a

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particular case on merit. But having said that, I do not think that this is a matter on which we shall seek to divide the House and I shall listen with great interest to the reply.
LORD CONESFORD: My Lords, I should like tentatively to support this Amendment. I supported the noble Lord, Lord Archibald, when he proposed an Amendment to extend the period in the case of films, and a period of fifty years was granted. There is nothing to indicate that the Copyright Committee thought that a different period should apply in the two cases. One cannot say definitely whether they would have found it possible to draw a distinction, but the paragraph in their Report suggests the same period. The noble Lard, Lord Douglas of Barloch, asked why the period should be extended in the case of records, but surely that is not the question. The question is: why should it be cut down? In the case of films we are giving a wholly new right, but in the case of records the right exists already. Speaking from memory, I think the effect of the Bill without this Amendment is to cut down the period which exists under the present law. I think that that is, in part, an answer to the noble Lord, Lord Silkin, who asked what was the justification. It is this. In the case of films we are giving a wholly new right and in the case of records we are prescribing a new period. So far as I am aware, there is nothing in the Copyright Committee's Report to suggest that a different period should apply in the two cases and if your Lordships' House decided, for good reason, to put the period at fifty years in the case of films, I submit that we should do the same in the case of records, unless some argument, with which I am not at present familiar, constitutes an objection, in which case it will no doubt be pointed out by the noble Lord who replies.
4.5 p.m.
LORD MANCROFT: My Lords, I must return my noble and learned friend's compliment and apologise for depriving the House of the pleasure of listening to his oratory. This is an important Amendment which goes to a fundamental point. I am sorry that I find myself in the position of pouring a little troubled water on the oil. I derive no satisfaction from seeing that the ranks opposite are divided, because I am sorry to say that division
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will shortly be apparent on this side. Your Lordships will be well aware that the effect of Lord Jessel's Amendment would be to extend the period of copyright in a recording from twenty-five to fifty years. I must say at once that if this Amendment be accepted there can be no particular point, at least no point I can defend, in maintaining the twenty-five years' period for photographs and broadcasts. My noble friend Lord Jessel recalled that the Copyright Committee drew attention to the disparity in the period of protection given under the Patents and Registered Designs Acts and that given under the Copyright Act, and recommended that gramophone records, cinematograph films and photographs, which in their view were largely the products of technical skills and industrial methods, should enjoy protection for only twenty-five years. That draws attention to the obvious comparison of sixteen years under the Patents Act and the fifteen years' maximum under the Registered Designs Act.
As your Lordships will remember, on the Committee stage the noble Lord, Lord Archibald, argued persuasively that a film was a new artistic creation; and I was so impressed with that argument, and with the logic with which it was developed, that I agreed that we should extend the film period from twenty-five to fifty years. I could not help feeling at the time a certain amount of foreboding, and muttering to myself about the "thin ends of wedges." Here is the wedge. The case for the extension to fifty years for gramophone records will probably be argued, if I understand your Lordships correctly, on two fronts. The first is that the leading solo artistes who make these records enjoy a royalty on their sale and their earning life will be reduced. The second is that the record manufacturers add their own artistic contribution to a recording. The noble Lord, Lord Jessel, has argued both points, and they had already been put to us by the Incorporated Society of Musicians.
The argument on the first point takes the form that the royalties from records form a valuable addition to the income of the solo artistes during their working life, and an income even more valuable to them when their performing days are over; and it is argued that twenty-five years is not long enough to span the period from recording to the artiste's

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death, whereas fifty years would probably do so. I might add that the arrangements for payment on a royalty basis are understood to apply only to artistes, but Phonographic Performance Limited collects over the period of copyright and makes some payment ex gratia to the Musicians' Union. The same argument could be applied, of course, to the income which an inventor receives from a patent, and it does not necessarily follow that the royalty income from a recording inevitably ceases when the copyright expires. In any case, this does not appear to be a copyright matter in the strict sense. However, for what it is worth, the term over which royalties are to be received by a solo artiste from the record manufacturer might be shorter than a period of copyright or longer, depending on the contract. But when copyright has expired, it must be accepted that there is a possibility that other companies might "dub" the record without any payment to the artiste, and that the record so "dubbed" could be detrimental to his reputation as an artiste, and it is not unlikely that the original recording company would insist that the royalty payment should cease.
The chief beneficiaries from an extended period of copyright and this is the point I want to emphasise; it has been made before, but it is important—would none the less be the record manufacturers, both on account of their sales and the collection of fees for performing rights through Phonographic Performance Limited. They will claim that they make an independent artistic contribution in their recordings, but that I would beg leave to doubt. A "recording" is the recording of a performance. It is quite true—and we all agree on this—that a very high degree of technical skill is employed, both in making the recording and in the subsequent manufacture of the record, and that, particularly in the former operation, musical knowledge of the potentialities of the record is obviously involved. For instance, a performance given by a full orchestra in a public hall might make an indifferent record for playing on a gramophone; it might be necessary, for example, to reduce the size of some of the orchestra—vary the strings, reduce the brass and so forth. But surely, this is scarcely equivalent to the production of an original musical work. It remains primarily a
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technical process, calling, as do so many technical processes, for a high degree of skill. That is where I draw the distinction between the making of a record and the making of a film, in which undoubtedly, as the noble Lord, Lord Archibald, convinced us, a high degree of artistic as opposed to technical skill is also involved.
So far, therefore, as the case for extensions rests on the claim of the record manufacturers, I do not think it is at all strong, and I am afraid I must resist it. The collections made by P.P.L. are themselves the subject of criticism, and the ex gratia contributions that P.P.L. makes to musicians out of those collections do not make a strong case for a fifty years' protection. The crux of the question is, therefore, the solo artiste. Of course, he or she will be an object of sympathy, but the number of such artistes is small, their position is not substantially different in principle from that of inventors, their protection is not necessarily dependent on the term of copyright, and the question is whether the monopolistic protection at the expense of the general public ought to be continued. I do not want to labour this point further. I hope I have said enough to prove to your Lordships that there is a real distinction between the technical aspects of the recording and the artistic aspect, which we recognised when we granted the artistes the fifty years: and on that fundamental distinction I am afraid we must stand.
LORD JESSEL: My Lords, I am not prepared to go to the stake for gramophone records, any more than the noble Lord, Lord Mancroft, is prepared, as he said on Committee stage, to go to the stake for films. Therefore, with your Lordships' permission, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.15 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved, after subsection (3) to insert:
"(4) Copyright in a sound recording made by a manufacturer by virtue of the provisions of section eight of this Act shall expire at the same date as the copyright in the sound recording giving rise to the manufacturer's rights expires."
The noble Lord said: My Lords, it will be remembered that Clause 12 of the Bill provides for compulsory licensing of the right to record, and once a composer of

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a musical work has given anybody permission to record it other manufacturers can take advantage of that in order to make recordings; and apparently that continues to be so throughout the time of the composer's copyright protection, during his life and for fifty years after his death. Under this clause copyright is given in a recording for a period of twenty-five years. By the combined effect of the two clauses it follows that manufacturers could, without reference to the composer, go on making records which would be subject to copyright protection until the end of his life, and until the end of fifty years after that, and then they would still continue to have protection for another twenty-five years. Surely, there ought to be some termination to this protection. Why should the manufacturer, under the compulsory licensing provision, be enabled to get a longer life than the original manufacturer, whom the composer expressly authorised to manufacture records?
Let me borrow from the argument which the noble Lord, Lord Mancroft, used in reference to the previous Amendment. If we take the case of a patent, which is also a form of monopoly sanctioned by law in order to encourage intellectual achievement and the development of manufactures, while there are there, it is true, compulsory provisions, it is impossible for the duration of the protection to be extended beyond the life of the patent, at any rate. I suggest that there is good ground for saying that the compulsory licensing provisions should come to an end at the same time as the copyright in the original recording which gave rise to them. I beg to move.
Amendment moved—
Page 16, line 28, at end insert the said subsection.—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, I confess that I have some difficulty in seeing how the Amendment moved by the noble Lord, Lord Douglas of Barloch, comes in under Clause 12. I could understand it if its purpose were to achieve an immediate reconciliation with the noble Lord, Lord Faringdon, and make an attack on Clause 8, because it seems to me that if it were accepted it would have the result that any recording made by a manufacturer under the powers of Clause 8 would expire at the same time as the original recording which
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was made under the composer's explicit authority. But I have some difficulty in seeing why these two should be related in regard to the present clause.
Clause 12 provides that a copyright shall subsist in every sound recording if the maker is a qualified person, and the copyright in the recording vests in the maker. My difficulty is that I do not see why every qualified maker of recordings should not have exactly the same period of protection for his recording as every other. Every record manufacturer makes a new recording and goes to the expense of engaging an orchestra, paying the appropriate royalty to the composer and setting in motion the production of his records. To me this has nothing whatsoever to do, so far as the period of protection is concerned, with the date on which the composer first gave his sanction to the recording of his work. I submit to your Lordships that each and every recording is entitled to protection for the same period, if any recordings are entitled to protection at all. On this point I should hope that I would have the support of my noble friend Lord Jessel, on account of the argument that he has put forward with regard to the position of the industry as a whole.
If your Lordships will allow me to transgress and deviate for a moment, as the noble Lord, Lord Jessel, hoped I would, I would say to him—and I shall do so quite briefly, because it is strictly not relevant to this;point—that with the Bill in its present form it will still be possible for the industry to obtain the protection the noble Lord desires, though, I admit, by a slightly roundabout way. That is, if an Order in Council is made under Clause 29, extending fully the protection given by Clause 12 to American sound recordings, or possibly if an Order in Council is made under Clause 29 extending Clause 12 to Canada, and if the Americans can publish simultaneously in Canada or even again, where Orders in Council are laid making this Bill part of the law of the Colonies, the Americans can publish simultaneously in one of these. I should not like the noble Lord, Lord Jessel, or my noble friend Lord Bridgman, to think that we have not considered this point. I personally think that it is a method in which the protection could be given, and I do not see the difficulties about simultaneous

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publication, which I have tried to consider. I want to say that only because I should not like my noble friends to think that, after the discussion on the Committee stage, I had not paid attention to this point in coming to the House to-day.
On the point which is now before the House—that is, whether, in the circumstances that we are now discussing, the person who is permitted by Clause 8 to make a second recording should not get a fair run for his records for the usual period—I have tried to show your Lordships why I cannot accept it. I am sure that your Lordships will as a whole accept loyally the decision on Clause 8, and will not try by an underground passage to undermine that decision on this clause. Therefore, I would ask the noble Lord, Lord Douglas of Barloch, not to press the Amendment now before the House.
LORD DOUGLAS OF BARLOCH: My Lords, I am not going to press this Amendment. I quite agree that this proposition is an arguable one. All I wanted to do was to try to restore to the composer some fraction of the rights which have been taken away from him by Clause 8. However, I see that my effort is unsuccessful, and therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.22 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved, in subsection (5), to leave out paragraphs (b) and (c). The noble Lord said: My Lords, paragraphs (b) and (c) give a copyright protection in respect of causing a recording to be heard in public or broadcasting a recording. I do not wish to go over in detail what I said a few minutes ago, about the fundamental basis upon which copyright protection is granted to the manufacturer of records, except to say that it is to prevent his initial capital outlay from becoming abortive through somebody else manufacturing records. That is the protection which he is given by paragraph (a). His copyright is infringed if somebody else makes a recording embodying the recording he has made. Paragraphs (b) and (c) are quite irrelevant; they have nothing whatever to do with preventing somebody else from making a recording. They have to do only with the question of how the recording is to be used after it has been made
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and after it has been purchased from the manufacturer of the record, which is precisely the purpose for which he makes the record.
These paragraphs do not go to protect the composer if there is copyright in the musical composition, because his right is already maintained by Clause 2 (5), which gives him copyright protection against his music being performed in public or being broadcast. Therefore, this is not necessary for protection of the composer, and neither is it necessary for the protection of the manufacturer, because the only protection which he deserves, and to which he is entitled, is that which is given in the preceding paragraph—the protection against somebody else making a record embodying his particular recording. I beg to move.
Amendment moved—
Page 16, line 36, leave out paragraphs (b) and (c).—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, the effect of this Amendment would be that the only protection given to the maker of a sound recording would be against copying. The manufacturer would have no rights as regards the playing in public and broadcasting of his records. I am grateful to the noble Lord, Lord Douglas of Barloch, for raising this matter because it gives me the opportunity of summing up to your Lordships, if I may put it in that way, where we stand on this point, which gave great difficulty to the Copyright Committee and has given difficulty to many of your Lordships.
Your Lordships will recall that the Copyright Committee were disturbed by the state of affairs regarding the performance of records in public which had developed under the existing law. The noble Lord, Lord Lucas of Chilworth, drew attention to it as far back as the Second Reading, and many of your Lordships have drawn attention to it since. As I see it, the concern of the Committee, which has found reflection in your Lordships' House, was over five points: first, the arrangements under which the permission of the maker of the record was given; secondly, the fees fixed and the conditions attached when the permission was given; thirdly, the cases when it was not given at all; fourthly, the arbitrary way in which the whole thing was done, and, fifthly, the way voluntary organisations in the social welfare field appeared

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to suffer particularly. I think that is a fair summary of the troubles that have been expressed in your Lordships' House. The Committee recognised and recommended that the maker's right as regards public performance of his records should continue, but they also recommended the establishment of machinery to prevent abuse of that right. That has been created in the shape of the tribunal, and again, splitting up the functions of the tribunal, it has power, first, to reduce licence fees, secondly, to alter licence conditions and override refusal of a licence, and thirdly, to deal specially with voluntary organisations. That was the recommendation, and so the Bill provides.
But at the Report stage, we are going further than that, and I want to point it out to your Lordships because we are reducing the field in which the right applies. Amendment No. 53, which I shall be moving later in this clause, deals with performances in residential premises and for clubs run for good causes. The
Amendment which I shall move after Clause 36 (Amendment No. 113) deals with performances in schools. I hope that in both these matters the Government have met the feeling of the House. That is what we have tried to do. What does that leave? The performances which remain are of more or less a commercial nature—for example, at dances and in broadcast programmes—and for them I think it is reasonable that the recording companies should continue to get a fee, subject always, as I have explained, to the restraining hand and power of the tribunal.
I have tried to give your Lordships a fair picture of the position. May I say this—and I hope your Lordships will not think that I say it with any desire to get an easier passage of this Amendment; I say it with a sense of pride in what your Lordships' House has done. At the end, the position that I am putting to-day is better by far than the position before this Bill was introduced. It is also considerably better than the position when I had the honour to introduce the Bill to your Lordships' House. While I know that it does not fit everyone's views, it does fit the general sense of your Lordships' House on a matter on which there are not Party differences, though there are differences of conception and of approach. On the whole, I hope that your Lordships will feel that this is a
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good result on an extremely difficult point, and that the noble Lord, Lord Douglas of Barloch, having, as I say, properly and helpfully raised it again, will not press this Amendment, in view of what I have said.
LORD DOUGLAS OF BARLOCH: My Lords, I shall not press this Amendment but I will say quite clearly that the Amendments to which the noble and learned Viscount has referred, which have been put down on behalf of the Government, constitute a considerable improvement on the provisions of the Bill as they stood before. However, before withdrawing this Amendment, I say that the noble and learned Viscount has not met the argument of principle which I raised with regard to this matter: that it was going far beyond the protection which is reasonably necessary in order to secure the manufacturing rights. This is creating a monopoly profit for the benefit of manufacturers, far beyond what is necessary in order to enable them to be recouped for initial capital expenditure. Nevertheless, as the Amendments which will be moved later constitute a great improvement, I shall not press this particular Amendment.
Amendment, by leave, withdrawn.
4.35 p.m.
LORD SILKIN LORD SILKIN rose to speak on an Amendment submitted by Lord Alexander of Hillsborough, to add to subsection (5):
Provided that a recording as is mentioned in paragraph (b) shall be deemed not to be heard in public if—

(a) the object of the performance of the recording is to afford social amenities to residents in hotels, boarding houses or similar residential promises at which no charge is made for admission to the performance, or

(b) the performance is not made for profit other than profit to be devoted to charitable or religious purposes or purposes beneficial to the community."

The noble Lord said: My Lords, in the regretted absence of my noble friend, Lord Alexander of Hillsborough, I should like to say a word on this Amendment. It is an attempt on the part of my noble and learned friend Lord Jowitt and of the noble Lord, Lord Lucas of Chilworth, and others (of which I am not one) to draft what we understood to be the general sense of the House at the end of the discussion on this provision in Committee. I think it is a good Amendment.

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It generally expresses what we all had in mind, but I am bound to say that Amendment No. 53, which is to be moved by the noble and learned Viscount on the Woolsack, is even better. In those circumstances—and I shall not hesitate to say the opposite when I think so—I do not propose to move this Amendment. I think that Amendment No. 53, in fact, carries out what we all had in mind at the end of the debate on this subject at the Committee stage.
4.37 p.m.
LORD SILKIN LORD SILKIN moved, in subsection (6), after paragraph (b) to insert:
"(c) the object of the performance of the recording is the reproduction of music which is incidental to the use of amusement devices on fairgrounds or amusement parks where no charge is made for admission to the ground:"
The noble Lord said: My Lords, it is felt that those who cater for the amusements of the young on fairgrounds or amusement parks should have the small concession set out in the Amendment. It is that, where the reproduction of music
which is the subject of copyright is purely incidental to the use of the amusement devices on fairgrounds or amusement parks, and where no charge is made for admission to the ground, it should not be regarded as an infringement of the copyright. There is little one can say either in favour of or against this Amendment. The object that we wish to achieve is quite simple. It is an additional exemption to those which are to be moved under Amendment No. 53. It falls very much in the same ground: no charge is being made for admission. I do not think this is a very big matter, and I hope that the Government will see their way to accept this Amendment. I beg to move.
Amendment moved—
Page 17, line 3, at end insert the said paragraph.—(Lord Silkin.)
LORD MILNER OF LEEDS: My Lords, in supporting my noble friend Lord Silkin, I perhaps ought to declare an interest, in that my firm have been connected for some years with showmen or the Showmen's Guild. This is a matter which concerns them a great deal. The point is, of course, that the music emanating from roundabouts and that sort of thing is, as my noble friend said, purely incidental to the various attractions which one knows exist on a fair-
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ground. As my noble friend has said, no charge is made for admission to such a fairground, and it is frequented a great deal by children for free entertainment In some senses, this Amendment has a stronger claim than Amendment No. 53 which is about to be proposed by the noble and learned Viscount on the Woolsack. By that Amendment, it is proposed, quite properly, to relieve hotels and places of that sort from the payment of copyright fees. Everyone, I assume, who goes into a hotel pays for refreshment, accommodation or something of that sort. But there are many hundreds, if not thousands, of persons who go to fairgrounds to enjoy the excitement of the gaiety and who do not use a "dodg'em" machine or go on a roundabout or, indeed, spend any money at all.
This music is an old and traditional feature of fairgrounds in this country. Many of us can remember the old days of the steam organ, followed by the electric organ; and nowadays the music is provided by records. I ought perhaps to say that I am told that those who run such things as fairground devices are not nowadays in a happy financial position —they have not taken it upon themselves to increase charges and so on. Whilst I would not claim that the payment of fees in respect of copyright on records would be a fatal, or, indeed, a serious or onerous burden, it would be an additional factor to be added to those many factors which now go to the cost of running the various amusement devices on fairgrounds. Costs have risen steeply and this might be the last straw to break the camel's back. I do not think there is much more that I can say, other than to emphasise that the music is free and is purely incidental to the principal attractions, in the nature of roundabouts and so forth, for which payment is made. In those circumstances, I hope that your Lordships may think it right to exempt mechanical devices of this description—mechanical music on fairgrounds —from copyright fees.
LORD CONESFORD: My Lords, I trust that this Amendment will not be accepted. I say that not from any lack of sympathy or friendship for those who provide fairs—in fact, I am rather fond of them—but because I think that this is entirely wrong in principle. It is really to say, that because the provision of amusement is a good thing, therefore those who provide it should be exempted

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from the law of copyright. If we once begin to introduce that sort of conception —that because we like the activities of certain people using copyright material, therefore they ought not to be bothered by the private rights of those people who enjoy copyright—we shall be introducing a principle which is quite wrong. I think, therefore, that this Amendment should fail.
The subsequent Amendment, which will, I believe, command the universal support of this House, is on quite different lines. I do not want to anticipate what will be said on the subsequent Amendment but the principle behind it is, in effect, that certain things shall not be treated as public performances. But there is no doubt that what is aimed at in the Amendment now before the House could not be more public. Therefore, although I sympathise with what both noble Lords opposite have said as regards their friendly feelings for those in whose interests this Amendment is moved, it is contrary to every principle of law, and therefore I think the Amendment should fail.
THE LORD CHANCELLOR: My Lords, it racks my heart not to be able to accept this Amendment, because it was introduced and supported by two speeches which brought back all the old nostalgia of the fairground which I am sure every one of your Lordships has had in his time. I feel all that sympathy but, on the other hand, I do not think that I can accept this Amendment—either on the principle which was enunciated by my noble friend Lord Conesford a moment ago, or on the criterion which I put before your Lordships as what is broadly commercial and what is not. I should say that the use of recordings on the fairgrounds and amusement parks (and I suppose the same principle would have to apply to amusement arcades) is part and parcel of the technique and the business methods of the proprietors of these shows, and the use of recordings there cannot, I think, be compared to their use in such places as small hotels and residential establishments as part of the amenities provided by the establishment for their guests.
I would ask the noble Lords who supported this Amendment to consider this fact: if records were allowed to be freely
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used in the circumstances which they contemplate, it would be almost impossible to justify the continuance of any performing right whatsoever. If one took the case of using records for public dances they would, I think, be in at least as strong a position. As I say, I feel most sympathetic to the ideas behind this Amendment, and if again your Lordships would allow me to use the words of the song which used to be popular in my early days, called These Foolish Things, the noble Lord will remember that one verse referred to "a fairground's painted swings." I shall always honourably associate Lord Silkin and Lord Milner of Leeds when hear that song again; further I cannot go.
LORD SILKIN: My Lords, if we had plenty of time I would gladly take up the challenge of the noble and learned Viscount and argue the difference between a dance, where people pay for admission and where the music is not incidental but an important part of the function, and the fairground. But in view of the charming way in which the noble and learned Viscount has refused this Amendment, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
4.46 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, after subsection (6) to insert:
"(7) Where a sound recording is caused to be heard in public—

(a) at any premises where persons reside or sleep, as part of the amenities provided exclusively or mainly for residents or inmates therein, or

(b) as part of the activities of, or for the benefit of, a club, society or other organisation which is not established or conducted for profit and whose main objects are charitable or are otherwise concerned with the advancement of religion, education or social welfare,

the act of causing it to be so heard shall not constitute an infringement of the copyright in the recording:
Provided that this subsection shall not apply—

(i) in the case of such premises as are mentioned in paragraph (a) of this subsection, if a special charge is made for admission to the part of the premises where the recording is to be heard; or

(ii) in the case of ouch an organisation as is mentioned in paragraph (b) of this subsection, if a charge is made for admission to the place where the recording is to be heard, and any of the proceeds of the charge are applied otherwise than for the purposes of the organisation."

The noble and learned Viscount said: My Lords, this is the Amendment which I mentioned to your Lordships and to which one or two of your Lordships have already referred. It gives effect to my acceptance in principle of Lord Lucas of Chilworth's Amendment in Committee, which classified as "not in public" (and therefore not in breach of copyright) two categories of performance of sound recordings. The object is to allow reasonable facilities for performance of recordings. The Amendment deals only with the performing right in the recording: that is, it avoids the need for the licence from P.P.L., of which we have heard so much. It does not deal in any way with the composers' rights. Lord Lucas of Chilworth's classification has generally been retained. The first category is performance in premises "where persons reside or sleep", and is dealt with in the Amendment in paragraph (a) and part (i) of the proviso. These words of course include hotels. But we felt that, if residential hotels should be exempt, so should such places as nursing homes, Y.M.C.A. hostels and in fact all residential establishments. I think your Lordships will approve of that extension. The limiting words are
"part of the amenities provided exclusively or mainly for residents."
This will allow for the presence of the odd non-resident: for example, that shadowy figure which came into the debate in Committee, Aunt Jane's nephew, will be able to come in and listen without any illegality. As in Lord Lucas of Chilworth's Amendment, no charge may be made for admission.
Lord Lucas of Chilworth's second category was performance not made for profit, other than profit to be devoted to charitable or religious purposes or purposes beneficial to the community. The latter words are insufficiently precise, as I think I pointed out on the Committee stage. They might, for example, permit any public-house or restaurant to provide facilities for dancing to the gramophone, and if these were free they would be within the exemption. Obviously, this is more than Lord Lucas of Chilworth appeared to intend. The relevant parts of the Amendment (paragraph (b) and part (ii) of the proviso) cover only performances in or for non-profit-making
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clubs and societies, whose objects are mainly charitable or the advancement of religion, education or social welfare; that is, the group which already appears in subsection (6) of Clause 27. As I pointed out, when a charge is made for admission, all the proceeds must go to the club. To limit that would, we think, invite abuse. As I dealt with the general purposes and tried to sum up the general position a very short time ago, I hope that with that explanation which I have given of the actual terms of the Amendmen, your Lordships will accept it. I beg to move.
Amendment moved—
Page 17, line 10, at end insert the said subsection.—(The Lord Chancellor.)
LORD BURDEN: My Lords. I should like to thank the noble and learned Viscount the Lord Chancellor for this Amendment. It goes a long way to meeting some of the points which were put up both on the Second Reading and in other ways. But I think it will be important to see that too narrow a definition is not put on education or social welfare. They are left, I take it, undefined, and it will, I suppose, depend upon the good sense of people to interpret those categories in a common-sense way. But, as I read the Amendment, it seems that adult education societies, the Workers' Educational Association or the Universities' Tutorial Classes, will be able, subject, of course, to anything due to the rights of the composers, to use records or things of that kind without an embargo being placed on them by, for example, Phonographic Performance Limited or any other similar body. But, by and large, apart from those points, I think the Amendment is a good one, and I thank the noble Viscount for it.
THE LORD CHANCELLOR: Would your Lordships allow me the licence just to answer the point raised by the noble Lord, Lord Burden? Education as he knows well, is thoroughly covered by authority and is always in the charitable field. I cannot imagine anything but a wide interpretation being given to the words "social welfare," although that point is not so well covered by existing authority as education. Therefore I do not think he need feel troubled on the points which he has raised.
On Question, Amendment agreed to.
Clause 13:
Copyright in cinematograph films
(3) Copyright subsisting in a cinematograph film by virtue of this section shall continue to subsist until the end of the period of fifty years from the end of the calendar year which—

(a) in the case of a film which is registrable under Part III of the Cinematograph Films Act. 1938, includes the date on which the film is registered thereunder, or

(b) in any other case, includes the date on which the film is first published,

and shall then expire:
(5) The acts restricted by the copyright in a cinematograph film are—

(a) making a copy of the film;

(b) causing the film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to he heard in public;

(c) broadcasting the film.

(6) Where by virtue of this section copyright has subsisted in a cinematograph film, the doing, after that copyright has expired, of any such act as is mentioned in paragraph (b) of the last preceding subsection shall not constitute an infringement of any copyright subsisting by virtue of Part I of this Act in any literary, dramatic, musical or artistic work.
LORD MANCROFT LORD MANCROFT moved, in subsection (3) to leave out all words from "section" down to the end of paragraph (b), and to insert:

"(a) in the case of a film which is registrable under Part III of the Cinematograph Films Act, 1938, shall continue to subsist until the film is registered thereunder, and thereafter until the end of the period of fifty years from the end of the calendar year in which it is so registered;

(b) in the case of a film which is not so registrable, shall continue until the film is published, and thereafter until the end of the period of fifty years from the end of the calendar year which includes the date of its first publication, or, if copyright in the film subsists by virtue only of the last preceding subsection, shall continue as from the date of first publication until the end of the period of fifty years from the end of the calendar year which includes that date".

The noble Lord said: My Lords, we now pass to a different subject, namely copyright in cinematograph films, and I have to move a series of Amendments which I hope are fairly uncontroversial, although I am afraid that one or two of them, at least, are rather technical. They are put down in order to meet various points which were raised by the noble Lord, Lord Archibald, on the Committee stage of this Bill. He, speaks of course, with
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great technical knowledge on this subject, and was able to point out certain matters during the Committee stage debates where uncertainty or obscure wording was, in his opinion, confusing the issue. This certainly applies to the first three Amendments to this Clause, Nos. 54, 55 and 56.
The main Amendment is intended to clear up some misunderstanding which arose about the effect of the wording of subsection (3) as it now appears in the Bill. Lord Archibald was concerned particularly about the duration of copyright in those films which are not subject to registration under the Cinematograph Films Act and may never be shown in public. There also appeared to be some doubts — I think unfounded — as to whether these films would enjoy copyright protection at all. The Amendment provides explicitly, first, that in the case of a film registrable under the Cinematograph Films Act copyright subsists from the making and expires by reference to the date of registration; and, secondly, that in the case of other films copyright subsists from the making and expires by reference to the date of publication. "Publication" is defined as
"the sale, letting on hire or offer for sale or hire, of copies of the film to the public."
Thus a privately taken sub-standard film will remain in copyright indefinitely unless its maker does any of these things: it will, in fact, be on all fours with any unpublished literary work—diaries, letters and so on—in this respect. The Amendment makes no difference in practice to what would have been the result under the present subsection (3), but I hope it will clarify the position to the satisfaction of the noble Lord, Lord Archibald, and your Lordships. I beg to move.
Amendment moved—
Page 17, line 32, leave out from ("section") to end of line 38.—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: I beg to move Amendment No. 55, which is consequential.
Amendment moved—
Page 17, line 44, leave out ("period of copyright shall be") and insert ("copyright shall continue to subsist until the end of").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords. I beg to move Amendment No. 56, which is also consequential.
Amendment moved—
Page 18, line 3, at end insert ("and shall then expire.").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, I beg to move Amendment No. 57, which is a drafting Amendment.
Amendment moved—
Page 18, line 4, after ("provisions") insert ("of Part VI").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, Amendments No. 58 and No. 59 are intended to honour an undertaking which was given by my noble and learned friend upon the Woolsack to Lord Archibald in the course of the Committee stage of the Bill. Lord Archibald was concerned lest our original draft was too wide and covered the case of a film made by one person and financed by another, if the financing of films was that other person's business. He was also anxious to provide that if parties wished to make alternative arrangements as to ownership, they should be free to do so. The wording, therefore, of our Amendment No. 58 is intended to meet Lord Archibald's first point, and the wording of the second, I think, now clears up the difficulty about the second point. I beg to move Amendment No. 58.
Amendment moved—
Page 18, line 10, leave out from second ("or") to first ("the") in line 11 and insert ("for use in connection with those goods or services").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, I beg to move this Amendment.
Amendment moved—
Page 18, line 11, leave out from ("person") to ("to") in line 12 and insert ("in the absence of any agreement to the contrary, shall be entitled, subject to the provisions of Part VI of this Act").—(Lord Mancroft.)
On Question Amendment agreed to.
5.0 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved, in subsection (5) (b), to substitute "and" for "or." The noble Lord said: My Lords, this Amendment is directed towards the provisions which appear in
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subsection (6) of this clause. That subsection provides that when the copyright in a cinematograph film has expired it will not be an infringement of any copyright subsisting under Part I of the Bill in any literary, dramatic, musical or artistic work to do either of two things—to cause a film, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public. It seems to me that this is going rather far. There may be independent copyright in the literary part of the film; and there may be independent copyright in the musical part of the film. If those two things can be separated in the way in which paragraph (b) provides, when the copyright in the film has expired the copyright of the composer of the musical work, for example, can be infringed with impunity by causing the sound portion of the cinematograph film to be used. I cannot believe that that is intended: it is entirely contrary to the whole spirit of this Bill. For this reason I am moving to substitute "and" for "or," so that the two parts of the film will be covered. The use of both parts together, when the copyright in the film has expired, will become open and will not be an infringement, although the use of them separately will be. I beg to move.
Amendment moved—
Page 18, line 18, leave out ("or") and insert ("and").—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, I do not know if the noble Lord, Lord Douglas of Barloch, has appreciated the effect of Amendment No. 62 standing in the name of my noble friend Lord Mancroft. If he will look at that, he will see that, under that Amendment the film is to include "any sound track associated with the film "—that is, a sound track which is issued by the maker for use in conjunction with the pictures. The effect of this will be that the pictures and the appropriate sound track will be deemed to constitute one whole—as indeed they should be, and as I think Lord Douglas of Barloch desires—thereby avoiding any difficulties over the different periods of protection in a recording pure and simple and a cinematograph film, as defined to include the appropriate sound track. I think that covers the real gist and pith of the fears of Lord Douglas of Barloch. The effect of the Amendment which he has proposed

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would be that showing the film as a silent film would not constitute an infringement of the film copyright; nor would playing the sound track by itself and apart from showing the pictures at the same time. I think the more satisfactory way of dealing with the matter is as we have chosen to do in our Amendment. I believe that the fears of the noble Lord are unfounded. Therefore, this time I am not—as I have so often done—asking him to withdraw his Amendment because I cannot meet this point: I ask him to withdraw the Amendment because I think we are meeting it.
LORD DOUGLAS OF BARLOCH: My Lords, I did notice Amendment 62, which is down in the name of the noble Lord, Lord Mancroft, and I recognised that it had some bearing upon this subject. But it appeared to me still to be quite inconsistent with the combined effect of subsection (5) (b) and subsection (6). I still remain unconvinced about this matter: I still think it is inconsistent. After all, it cannot negative the express language of paragraph (b) which says that the acts restricted by the copyright are:
"causing the film, in so far as it consists of visual images to be seen in public, or in so far as it consists of sounds, to he heard in public:"
That separates the two things, despite what is said in Lord Mancroft's Amendment. And when we come to subsection (6), as to what happens when the copyright in the film expires, it says expressly that when it has expired the doing
"of any such act as is mentioned in paragraph (b) … shall not constitute an infringement of any copyright …"—
shall not constitute an infringement, not of the copyright in the film, because that has expired, but of the copyright
"in any literary, dramatic, musical or artistic work"
which may be incorporated in the film. Therefore, it seems to me still that it enables infringements of, for example, a composer's rights to take place. I admit that this is not a very easy matter of construction, and on that ground I will withdraw the Amendment. But I am going to ask the noble and learned Viscount who sits on the Woolsack to look at the matter again.
THE LORD CHANCELLOR: My Lords, if your Lordships will allow me to say so. I shall be happy to look at this
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matter again. And I shall look at it, of course, in the light of dealing with the substance of what the noble Lord has said, and not with regard to the effect, in a rather difficult position, of what approximates to a double negative. I will look at the substance of what he said, and I am grateful to him for having consented to withdraw his Amendment.
Amendment, by leave, withdrawn.
5.10 p.m.
LORD SILKIN LORD SILKIN moved to leave out subsection (6). The noble Lord said: I beg to move this Amendment on behalf of my noble friend, Lord Archibald. We have in a way already discussed subsection (6) of Clause 13. My proposal is to delete it altogether. As has been appreciated from what has been said, copyright in a film consists of the literary work and the musical work. Generally speaking, they are composed by two different people. As the clause stands, at the expiration of the copyright of the film the copyright in both the music and the literary work comes to an end. The purpose of this Amendment is to ensure that the copyright in these two parts of the film should separately continue for the normal period provided for in the Bill. I think your Lordships will appreciate that both the words of a film and the music may each be serious works. I need only mention 'the music of The Third Man which has now become a very popular piece of music regardless of the film itself. No doubt your Lordships will be able to think of the speaking parts of films: for instance, of Richard III, which is an adaptation of Shakespeare—at least, I believe it is— and which may well have considerable literary merit. In both cases it seems wrong that the copyright should come to an end simultaneously with the copyright of the film itself.
I think the two sections should be treated separately ant on their merits, and allowed to run their normal course. I appreciate that there may be a certain amount of inconvenience in the copyright of separate parts coming to an end at different times, but I do not think it is a serious inconvenience and I see no reason why we should object to being inconvenienced if we are doing justice. I recognise Lisa that fifty years is a long time and that the extension of the period to fifty years makes the point somewhat less important than it was when the

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period was twenty-five years. Nevertheless, I hope that in the interests of justice this subsection will be deleted, or alternatively that something will be done in some other way to meet the point I have made. I beg to move.
Amendment moved—
Page 18, line 21, leave out subsection (6). —(Lord silkin.)
THE LORD CHANCELLOR: My Lords, I dealt with this point on Committee stage in the sitting of December 6, and I have little to add to what I said then. May I put the matter in this way? The film as a film now has a copyright of fifty years, after which it comes into public domain, finishing the copyright entirely in the film as a film. If it is shown at a cinema or at a village institute in the country after fifty years have expired, the author of the original story could not object to its being shown. This in no way lessens the author's rights to his story. All it does is to protect those who show the film in public from an action by the author of the original book. That may still be an arguable point, but I think that the noble Lord, Lord Silkin, recognised that it becomes largely academic when we have enlarged the period to fifty years, which makes the period in dispute such a small one that I do not think the noble Lord need lose any sleep over the position of authors. We want to make the position clear now that we are establishing these rights for films, and this subsection does so. If, on reflection, the noble Lord, Lord Silkin, has doubts. I will see that my right honourable friend the President of the Board of Trade reconsiders the matter before it leaves another place: but I would ask the noble Lord not to press his Amendment.
LORD SILKIN: My Lords, I can assure the noble and learned Viscount that I shall not have sleepless nights on account of this Amendment. I moved it on behalf of my noble friend Lord Archibald. What will happen to him I cannot say. I have done my best to put his case, and now beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD MANCROFT LORD MANCROFT moved, after subsection (6), to insert—
"(7) In the case of any such film as is mentioned in paragraph (a) of section thirty-five of the Cinematograph Films Act, 1938
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(which relates to newreels), the copyright in the film is not infringed by causing it to be seen or heard in public after the end of the period of fifty years from the end of the calendar year in which the principal events depicted in the film occurred.
(8) For the purposes of this Act a cinematograph film shall be taken to include the sounds embodied in any sound-track associated with the film, and references to a copy of a cinematograph film shall be construed accordingly:
Provided that where those sounds are also embodied in a record, other than such a soundtrack or a record derived (directly or indirectly) from such a sound-track, the copyright in the film is not infringed by any use made of that record."
The noble Lord said: My Lords, this Amendment is largely connected with news-reels. The Cinematograph Films Act, 1938, provides that:
"films consisting wholly or mainly of photographs which, at the time when they were taken were means of communicating news"
are not registrable. The intention of the Amendment is to provide that these films may be publicly shown without infringement after a readily ascertainable date. Always assuming that the distribution of news-reel turns to the exhibitors is "publication" within the meaning of the clause—they would not be distributed to the general public in any event and they might therefore be deemed to be "unpublished" and consequently in perpetual copyright—it will not be easy to ascertain precisely when this distribution occurred. But the date of the event will be a matter of ascertainable fact; and as at a future date the re-showing of films of past events of general and historical interest may be important—indeed, is now becoming of some importance—we propose that fifty years after the event depicted, a news-reel film may be shown without infringing the performing right.
The purpose of the new subsection (8) is in part to clarify the drafting and in part, by the proviso, to deal with something of which we became aware after the Committee stage. There should be one copyright, and one only, in a cinematograph film to cover both the picture and a sound-track "associated with the film." The principle is already contained in subsection (5), which we have been discussing. It becomes important to state this position clearly now that there is a different term of protection for recordings and for films. It is possible for a sound recording to be made, for commercial records to be made from that I recording and for the same recording to

1085
be used subsequently as a sound track for a film. The proviso makes it clear that these commercial records are not an infringement of the copyright in the film unless they were made from the film's sound-track itself. I beg to move.
Amendment moved—
Page 18, line 26, at end insert the said sub-sect ions.—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT LORD MANCROFT moved in subsection (7), to leave out from "film," where that word first occurs, to "otherwise" and insert:
"means any production recorded on material of any description (whether translucent or not) so as to be capable of being shown as a moving picture."
The noble Lord said: My Lords, I am afraid that this Amendment is extremely technical. It is a revised definition of what constitutes a "cinematograph film" and has been occasioned by some doubts which have been expressed about whether the original definition is adequate, particularly having regard to possible technical developments. Your Lordships will remember that the 1911 Act has lasted some forty-five years. Many technical developments have occurred since 1911 and no doubt many further technical developments will occur during the life which this Act will enjoy as well. As your Lordships may possibly know, it is no longer essential to use sensitised film for producing moving pictures. By the use of magnetic impulses the light images can he recorded on magnetic tape, which can thereafter be used to produce the "moving picture" of the cinema. This was probably catered for in the original definition since the process would involve the use of the cinematograph camera. But it is possible even now for a person to receive television signals on a magnetic tape without any use of a camera, so that the signals, when received and recorded—not, it will be noted, in the form of pictures—can be used with a suitable apparatus to give an exhibition of the television broadcast. This operation would probably put the product outside our present definition of a "cinematograph film," though, of course, the tape would give a moving picture.
The fact is, as I said, that we are dealing with a range of processes which are in active scientific development, and it seems unsafe to word the definition in
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such a way as to indicate any process by which the end product, to use the current jargon—that is, the moving picture—has been secured. We must keep to the idea that the "production" is first recorded on something material, otherwise we should run the risk of confusing films with television; and we mist keep the concept of the moving picture made visible to an audience from this recorded production. But, as I say, we are legislating probably for a long time ahead, and we cannot guess what technical developments there may be—and I myself should certainly not understand them if somebody else could guess them for me. Accordingly, the definition, as now drafted, makes no reference to cinematography or any other process, but concentrates on the essential characteristics of the "movie"—namely, a production recorded on some material capable of being shown as a moving picture. II apologise to your Lordships if that gets a little near to Lord Westbury's definition of an archdeacon as one who exercised archidiaconal functions, but it is the best I can do to clear up a possible misunderstanding. I beg to move.
Amendment moved—
Page 18, line 28, leave: out from ("film") to end of line 30 and insert the said new words.—(Lord Moncroft.)
On Question, Amendment agreed to.
LORD MANCROFT LORD MANCROFT moved, in subsection (7) to leave out all words after "public" and insert:
"'copy in relation to a cinematograph film, means any print. negative, tape or other article on which the film or pal of it is recorded, and references in this Ac: to a sound-track associated with a cinematograph film are references to any record of sounds which is incorporated in any print, negative, tape or other article on which the film or part of in so far as it consists of visual images, is recorded, or which is issued by the maker of the film for use in conjunction with such an article.
(10) References in this section to Part III of the Cinematograph Films Act, 1938, shall be construed as including references to any enactments for the time being in force amending or substituted for the provisions of the said Part III."
The noble Lord said: My Lords, in the course of the debates on the Committee stage the noble Lord, Lord Archibald, asked what was the meaning of the words "making a copy of the film" in paragraph (a) of subsection (5), which he apparently found ambiguous. My

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noble and learned friend the Lord Chancellor replied that they were intended to cover making a print of a film. This Amendment, taken in conjunction with the new definition of a cinematograph film which I have just laboured to explain to your Lordships, is intended to make it clear that "making a copy" does mean making an actual copy of a print (which would usually be a positive, although the word "print" has technical meanings in the film world) of a negative, or a tape recording of the film. It does not mean an "imitation of the film" (presumably an original film of a similar production, although the noble Lord, Lord Archibald, did not go further in clarifying his reference to this), although, if the "imitation" were sufficiently close it might lay the imitator open to an action for infringement at the suit of the owner of the script, who will probably, but not necessarily, be the same person as the owner of the film copyright.
The Amendment also amplifies the meaning of "sound track." Sound tracks are quite frequently "dubbed"; that is to say, made independently of the pictures and subsequently married to them. There may be for the same picture more than one sound track made in different languages and "dubbed" accordingly. Our Amendment makes it clear that any sound track issued by the maker for use with the film is to be regarded as part of that film. With regard to subsection (10), the Cinematograph Films Act, 1938, has only two more years to run, and, since the date of registration under the Act is of importance under this clause, it is accordingly necessary to provide for the future. The wording of this subsection is. I hope, self-explanatory. I beg to move.
Amendment moved—
Page 18, leave out lines 37 to 39 and insert the said new words.—(Lord Mancroft.)
LORD DOUGLAS OF BARLOCH: My Lords, I should like to draw the attention of the noble and learned Viscount on the Woolsack to this Amendment and the explanation which the noble Lord, Lord Mancroft, has given of it in regard to the separation of the sound-producing part of a film from the rest of a film, and the acknowledgment that is here of the independent existence of a sound track. I should like him to bear that in mind in
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considering the Amendment I moved earlier to subsection (5).
On Question, Amendment agreed to.
Clause 14:
Copyright in television broadcasts and sound broadcasts
(4) The acts restricted by the copyright in a television broadcast or sound broadcast are the following acts, if done by utilising the broadcast in question either directly or indirectly, that is to say,—
(c) in the case of a television broadcast, causing it, in so far as it consists of visual images, to be seen in public, or, in so far as it consists of sounds, to be heard in public:
LORD MANCROFT: My Lords, the next Amendment is a drafting Amendment. I beg to move.
Amendment moved—
Page 19, line 27, leave out from ("are") to end of line 29.—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved, in subsection (4), to leave out paragraph (c). The noble Lord said: My Lords, this is an Amendment dealing with the subsection which defines what the meaning of copyright in a television broadcast or sound broadcast is; it is the provision which restricts the rights of other people and constitutes the copyright. Television in itself, of course, involves causing matter to be seen, and broadcasting involves causing sounds to be heard, and they are heard in public, because they are available to anybody who chooses to pay for a licence in order to listen to them. It is, therefore, a contradiction in terms to say in this paragraph (c) that the act restricted is the broadcast itself. More than that, if this paragraph is inserted, one of the conceivable consequences of it might be to enable the British Broadcasting Corporation or the I.T.A. to exact from any person in this country a fee for looking at or listening to the broadcast which was emitted, and thereby create a private right, as against the publicly regulated right which now exists when one purchases from the Post Office a licence to receive such broadcasts.
Of course, it may be said that there is no particular danger of this arising at the present moment, when there are only two broadcasting organisations in this

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country. But nobody can tell what may happen in the future with the technical development of this art, and it might well happen that there could be in this country as many broadcasting stations as there are, let us say, in the United States of America. If there arose out of this provision the opportunity of charging listeners a fee in addition to that which is charged by the Post Office, the consequences might be extremely curious, and possibly dangerous. I beg to move.
Amendment moved—
Page 19, line 38, leave out paragraph (c).—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, the effect of this Amendment would be to remove the performing right in television broadcasts, and that is a serious matter. Again, I wonder if the noble Lord, Lord Douglas of Barloch, would wish to press strongly for the elimination of the television exhibiting right when he has duly considered the restriction now proposed by the Government Amendment No. 67 to Clause 14, as a result of which only the exhibition of television programmes to paying audiences is made an infringement. Has the noble Lord considered, if I may interrogate him in the most friendly way, whether it could be agreed that the right should disappear altogether, so that in cinemas, theatres or public halls, television programmes could be shown to paying audiences for the profit of whoever organised the showing? I mentioned in the Committee stage that the sports promoters and the broadcasting authorities had made concessions, and they have now made a concession in agreeing to the reduction of the right originally proposed. I do not see how one could reasonably expect them to go further in that direction and go contrary to the recommendations of the Copyright Committee itself.
I have listened with great interest to the prophetic part of the speech of the noble Lord, Lord Douglas of Barloch, as to the future of television, and I should be the last person to deny that in this respect the mantle of Elijah has fallen squarely on his shoulders. He may be right in that. I would say that, however right he may be, and however undesirable what he has in mind may be, there are strong arguments for it, which I recognise fully. But we have to deal with the present situation, which is to secure for the public
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the best programmes. I feel that we have to preserve the right in order that we can come to a practical arrangement with regard to outside, and especially sporting, broadcasts. With regard to the drafting aspect of his Amendment, I shall be pleased to look into that, and if we can make any improvements, of course we shall do so. With that, and what I have said about our own Amendment, I shall again ask him not to press his.
LORD DOUGLAS OF BARLOCH: My Lords, I readily acknowledge that the subsequent Amendment in the name of the noble Lord, Lord Mancroft, constitutes a considerable improvement in the Bill and goes quite a long way to meet the point which I have raised. As the noble and learned Viscount has acknowleged that there is a point of principle in this which deserves to be watched, I am quite content to leave it like that and to withdraw my Amendment.
Amendment, by leave, withdrawn.
5.34 p.m.
LORD MANCROFT LORD MANCROFT moved, in subsection (4), to add to paragraph (c):
"if it s seen or heard by a paying audience"
The noble Lord said: My Lords, we now conic to Amendment No. 67, which I think is if not the most important in our long list of 150-odd Amendments on the Marshalled List, at least the most significant. Somehow I feel that I should not have much difficulty in persuading your Lordships to accept it. It removes the cause of the strongest opposition to the new performing right in television broadcasts by making the right applicable only where the television programme is shown to paying audiences. "Paying audiences" is defined in Amendment No. 71, and I think it might be convenient, since the two march so closely together, if I were to say a word about that Amendment now.
Your Lordships will remember that we had a lengthy battle over this matter on the Committee stage, and both sides of the House felt strongly about it. This Amendment might also be given the subtitle of, "The vindication of the Scarborough landlady," because it was her interests which were so much to the forefront of your Lordships' arguments. The trouble with which we were faced was the control of these small seaside boarding-houses or public houses which

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had a television set and which gave performances to the inhabitants or the passers-by and their friends, and people who resided there permanently or looked in occasionally. The way has been cleared for making this substantial change by the fact that the Association for the Protection of Copyright in Sport have now agreed that they will not press for the performing right to be applicable to all public showing as they had done at an earlier stage of the Bill. The sports promoters' representatives have said that, after full consideration and after looking over the arguments advanced in the Committee stage of this Bill, they have come round to the view that the only practical course is to limit the right so that it applies solely to paying audiences; and the B.B.C. and the I.T.A. are prepared for their part to accept this change. I am sure your Lordships will view that with considerable satisfaction.
As to paying audiences, they are dealt with somewhat later, in Amendment No. 71. This tries to define what a paying audience is for the purposes of the television exhibiting right. The main requisite is that some or all of the audience have paid for admission to the premises, or part of the premises, in which the programme is shown. Paragraph (a), however, is worded so as not to catch persons who might be said to have paid for admission merely because they are paying for their stay in an hotel or nursing home. Paragraph (b) prevents an obvious form of evasion whereby nonresidents could be charged a higher price, say, for a dinner at which a broadcast was to be shown, instead of being charged for admission to the show.
Your Lordships may be worried that the wording will not exempt social clubs since members would not be admitted to the club unless they had paid a subscription, and it may be argued that they were admitted for payment. It is our intention to exempt clubs of all kinds —from West End clubs to youth clubs—where watching television is an extra amenity and not the sole or main purpose for which the subscription is paid. What this Amendment amounts to is this. The visitors in the back parlour of the Scarborough landlady's boarding-house are exempt, and so are the casual visitors in the public-house who happen to watch television coming through. But if a
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person goes to a hotel where, for instance, a big boxing match is being televised, and is charged extra, that is a different matter entirely. We have now made that distinction perfectly clear. That was what was troubling your Lordships, and I hope you will agree that we have come to a thoroughly satisfactory conclusion. I beg to move.
Amendment moved—
Page 19, line 41, at end insert ("if it is seen or heard by a paying audience").—(Lord Mancroft.)
LORD SILKIN: My Lords, if this is a vindication of the Scarborough landlady, it is even more a vindication of your Lordships' House. I feel that your Lordships' House is seen at its best when we find that, as a result of a rather acrimonious controversy in the Committee stage, the effect is that we arrive at a reasonable compromise, not only among ourselves but among those who are concerned. The noble Lord, Lord Mancroft, said that all those who were concerned with television showing sporting events and so on, in consequence of having read what was said in this House, were prepared to adopt a different attitude. It gives one some feeling of satisfaction to think that all the dreary hours that some of us spend here are not entirely wasted, and to know that there are people in the country who take the trouble to read what we say and are even influenced by it. I am delighted that this Amendment
has been moved by Her Majesty's Government. I am sure they have done the right thing, and I think they have done it in a fairly ingenious way and that it will be effective.
I have some doubts, however, about paragraph (b) in Amendment No. 71. We have not come to that yet, but it may save a little time, since the noble Lord has referred to it, if I do so as well. I doubt very much whether, where a television performance of special interest is taking place, the price of drinks will not be a little higher than it otherwise would be. I do not know that anyone will complain very much about that if the subject matter of the television is of special interest, but I am not at all sure that the Amendment entirely covers the possibility of special charges being made for drinks, or even for a meal. We can take that when it comes. I shall be interested to see the first case fought on this particular point. I would

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suggest, however, the possibility of taking just one more look at it to see whether it is effectively covered. We are not dealing with that at the moment; we are dealing with Amendment No. 67. I have great pleasure in giving it all the support we can from this side of the House.
LORD DERWENT: My Lords, may I say one word, in view of the fact that on the Committee stage of this clause I not only opposed the Government in speech but voted against them? May I say that I think the course that Her Majesty's Government have now adopted is obviously and eminently satisfactory. I know that the Hotels Association think that they have been very well treated. They had a feeling that they were being unduly harshly treated, and now they feel that all is well. May I be allowed to go so far as to thank Her Majesty's Government, on behalf of that body of ladies near whom I live and in whom I am very interested—the Scarborough landladies.
LORD SALTOUN: My Lords. I, too, should like to thank Her Majesty's Government for the reassurance about television and broadcasts in private clubs. It was a matter which was occasioning some uneasiness to friends of mine. I am glad to receive that reassurance.
LORD MANCROFT: My Lords, I should be churlish if I did not thank the House for giving this clause—
LORD SILKIN: Can the noble Lord speak again without leave of the House?
LORD MANCROFT: I think I have a right of reply without asking the leave of the House, but, whether T have it or not. I should like to ask the House for permission to thank them for the cordial way in which they have received this Amendment. We will look at the wording of paragraph (b) in Amendment No. 71, if the noble Lord, Lord Silkin, is not happy about it. That point had occurred to us, too. We had paid particular attention to it, and we thought we had successfully overcome it. However, if we have not, we will look at it again. I am also grateful to the noble Lord, Lord Derwent, since he really was the inventor of the Scarborough landlady. The noble Lord, Lord Lucas of Chilworth, tried to change it to the Blackpool landlady but it is too late a stage in the Bill to start changing landladies. I hope that the
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noble Lord and the landladies will be satisfied with it.
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this Amendment is solely for the purpose of clarification. It is connected with Amendment No. 65, with which we have already dealt. I beg to move.
Amendment moved—
Page 19, line 43, at end insert:
"(5) The restrictions imposed by virtue of the last preceding subsection in relation to a television broadcast or sound broadcast made by the Corporation Or by the Authority shall apply whether the act in question is done—

(a) by receiving the broadcast, either directly front the Corporation or she Authority, as the case may be, or as relayed from a broadcast relay station, or

(b) by receiving the broadcast as rebroadcast by any person other than the Corporation and the Authority, whether the reception thereof is direct or front a broadcast relay station, or

(c) by making use of any film, record or other article on which the broadcast in question has been recorded, whether it was so recorded directly from a reception of the broadcast or otherwise."—(Lord Mancroft.)

On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this is solely a drafting Amendment. I beg to move.
Amendment moved—
Page 20, line 11, leave out ("the original or").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, on this Amendment I have nothing to add to the remarks I have already addressed to your Lordships. I will formally move the Amendment.
Amendment moved—
Page 20, line 16, at end insert—
("(7) For the purposes of paragraph (c) of subsection (4) of this section, a television broadcast shall be taken to be seen or heard by a paying audience if it is seen or heard by persons who have been admitted to the place in which, or in part of which, the broadcast is to be seen or heard, and either—

(a) have been so admitted for payment, otherwise than as residents or inmates in that place, or

(b) have been so admitted subject to an obligation to purchase goods or services at prices which exceed the prices usually charged at the place it question and are partly attributable to the facilities afforded for seeing or hearing the broadcast").—(Lord Mancroft.)

LORD DOUGLAS OF BARLOCH: My Lords, it is rather a pity that the Government have attempted to paint the lily by putting in this further Amendment. If only they had left it in the simple form in which it stood previously, it might have been much easier to understand the position. Let me ask the noble Lord what is meant, for example, by the word "inmates." It is a word which is used commonly with regard to people who are in mental hospitals or places of that kind. Does it cover a member of a club, for example, who does not reside in the club but merely comes in occasionally? This needs a little consideration. I am not so sure that the Amendment has simplified the position; possibly, it has made it somewhat more complicated.
LORD FARINGDON: My Lords, may I add a question to the noble Lord? He said, and I think we are all glad to hear him say it, that there was no intention that this subsection should apply to clubs. Is this made clear anywhere either in the Bill or in his Amendments.
LORD MANCROFT: No, my Lords, it is not. I must confess that I have a slight doubt about that. The noble Lord, Lord Saltoun, first raised the point of the club. I have looked at it carefully and quite appreciate that members of clubs, for whom we have every intention to cater, could be thought to be excluded from the two words "residents" or "inmates." I know one or two clubs to which Lord Douglas of Barloch's definition of "inmate" might possibly apply, but not strictly within the terms of the Bill. However, if the noble Lord will allow me, I will look at that point, which is a legitimate one, to see if I cannot tidy up the draftsmanship of paragraph (a) of subsection (7) to make it quite clear, as is our intention, that members of clubs should be included.
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, Amendments Nos. 72 and 73 are both only drafting. I beg to move.
Amendments moved—
Page 20, line 18, leave out ("or visual images together with sounds").
Page 20, line 18, after ("television") insert ("together with any sounds broadcast for reception along with those images.")—(Lord Mancroft.)
On Question, Amendments agreed to.
LORD MANCROFT LORD MANCROFT moved, after Clause 14 to insert the following new clause:
"Special provisions as to broadcasts of sound recordings and cinematograph films
.—(1) Where a sound broadcast is made by the Corporation or the Authority as mentioned in subsection (1) of the last preceding section, and a person, by the reception of that broadcast, causes a sound recording to be heard in public, he does not thereby infringe the copyright (if any) in that recording under section twelve of this Act.
(2) Where a television broadcast is made by the Corporation or the Authority as mentioned in subsection (1) of the last preceding section, and a person, by the reception of that broadcast, causes a cinematograph film to be seen or heard in public—

(a) he does not thereby infringe the copyright (if any) in that film under section thirteen of this Act, in so far as the Corporation or the Authority, as the case may be, or a person deriving title from them, is the owner of that copyright;

(b) in so far as a person who is neither the Corporation or the Authority, as the case may be, nor a person deriving title from them, is the owner of that copyright, any assignment made or licence granted by that owner, or a predecessor in title of his, in pursuance of which the broadcast was made, shall be taken to have included the grant, by the person making the assignment or granting the licence, of a general licence to all persons, who might cause the film to be seen or heard in public by the reception of the broadcast. to do so without infringing the copyright under section thirteen of this Act.

(3) If, in the circumstances mentioned in the last preceding subsection, the person causing the film to be seen or heard as therein mentioned infringed the copyright in the film under section thirteen of this Act, by reason that the broadcast was made without such an assignment or licence as is mentioned in paragraph (b) of the last preceding subsection,—

(a) no proceedings shall be brought against that person under this Act in respect of his infringement of that copyright, but

(b) it shall be taken into account in assessing damages in any proceedings against the Corporation or the Authority, as the case may be, in respect of the copyright in the film, in so far as that copyright was infringed by them in broadcasting the film.

(4) References in this section to the doing of any act by the reception of a sound broadcast or television broadcast are references to the doing of that act by any of the means specified in paragraphs (a) and (b) of subsection (5) of the last preceding section."
The noble Lord said: My Lords, this is a matter of some importance. When a person causes a sound, or television broadcast to be heard or seen in public, as your Lordships are now well aware, several rights may be involved. First, there is the author's right—for example,

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the right of the composer of any music forming part of the broadcast; secondly, there are the rights of record maker or film maker in any recorded material used in the broadcast; and, finally, in relation to television only, there is the right of the broadcasting authority itself. It is perfectly obvious that this multiplicity of rights is an undesirable embarrassment to the person who wishes to make public use of the broadcast. What is more, there is the difficulty that he cannot know, as he listens to or watches the broadcast, whether or not recorded material is being used. What he may imagine to be a live performance may in fact be a telefilm or a sound recording. He may, in the case of television, have a licence from the broadcasting authority and imagine that he is therefore safeguarded from proceedings, only to find that what he is showing is a film and he is therefore infringing the rights of the film copyright owner, who may not be the same person as the owner of the television right. This Amendment is therefore designed to simplify the position and to throw on to the broadcasting authority the full burden of securing the necessary authorities from the copyright owners of gramophone and film rights whose material is to be broadcast.
I should make it clear at the outset that the author's rights are unaffected by this clause. Nothing in it derogates from the right of the composer of music to demand a fee for the performance in public of his work, whether performed live or by means of a broadcast. But, by virtue of subsection (1), a person knows that he may perform sound radio in public without fear of infringing the rights of the owner of any sound recordings (gramophone records and the like) incorporated in the programme. Subsection (2) provides that when a film is televised, showing that film in public does not infringe the copyright in the film—although it may, of course, if done without a licence, infringe the broadcasting authority's copyright.
Paragraph (a) deals with the case in which the broadcasting authority is itself the owner of the film copyright—for instance a tele-film made by the B.B.C.— and paragraph (b) deals with the case where some other person is the owner. In the latter case, although the film copyright owner is deprived of his right to
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collect money from the person showing the television programme in public, he is free to strike such a bargain with the broadcasting authority for the right to use his film as will recompense him.
Subsection (3) deals with the case when a film is broadcast without the permission of the film copyright owner. The person showing the broadcast has, of course, no means of knowing whether or not that permission has been obtained. This subsection therefore enacts that that person does not infringe; but in proceedings against the broadcasting authority, the damage suffered by the film copyright owner by reason of the public use made of the broadcast is taken into account. Subsection (4) makes it clear that the exemption conferred by this clause on a person performing a broadcast in public extends to cases in which he receives it through a relay company or as rebroadcast, as well as when he receives it direct. I hope that these explanations will serve to clear up some misunderstandings that have occurred in the past and will now put the matter beyond doubt. I beg to move.
Amendment moved—
After Clause 14 insert the said new clause.—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 15 [Copyright in published editions of works]:
5.55 p.m.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved to add to the clause:
"(5) The provisions of this section shall not apply in respect of any edition which is out of print."
The noble Lord said: My Lords, here we come to one of those cases in which this Bill creates a new copyright. In this particular instance, it creates a copyright in what is called is published edition of a literary, dramatic or musical work. The object of this clause is to prevent the edition from being reproduced by means of a, photographic process which is now commonly in use and is installed pari passu with the ordinary printing processes in the works of a great many printers—a process of reproduction which is technically known as off-set printing.
The copyright created by this clause has nothing to do with artistic creation or anything of that kind—it is not a question of that nature at all; it is a

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copyright in the type-setting, as for example, the Bill which we are considering at this time. And even if there were no copyright whatsoever in the text or literary matter, it would prevent it from being produced by means of the process of off-set printing. Of course, it could be said that this is parallel to the copyright which has been given to musical records; that it is for the purpose of preventing the initial capital expenses of the printer in setting up the type, from being "pirated" by somebody else by means of this process. But to my knowledge, the process has been in use now for at least twenty or thirty years, and is absolutely common. All this Bill appears to do is to restrict the rapidity with which it will come into use, and to be putting a spoke in the wheel of industrial progress.
However, let us assume that there is a certain amount of case for this, on the ground that it does prevent the capital expenditure of the printer in setting up his type from being "pirated"; then at any rate, the provision should be effective only so long as the publisher (because, remember, the copyright is given to the publisher and not to the actual printer of the book) is able to supply conies of the edition which he has printed. After he has sold out the whole of the edition which he has printed, quite clearly he must have covered his capital outlay upon the undertaking and have made the profit which he expected to make, after which point, at least, there should he no further restriction upon reproducing a book by means of the offset process.
Incidentally, if the right is not limited in that way, which is the purpose of my present Amendment, it will have a detrimental repercussion upon authors, because presumably the off-set printing process is somewhat cheaper. After the first edition, let us say, which the author has contracted with a publisher to publish, has been exhausted, if the right which he has given to the publisher has been confined to that one edition, he is debarred from the opportunity of making a greater profit out of his literary work upon the second edition by the ability to avail himself of the off-set process, because the copyright in the first edition, so far as that is concerned, has been vested in the publisher. He is there given
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a monopoly, and he will say to the author "I am not going to give you the benefit of this at all. I have the copyright in the off-set method of reproducing this book, and I intend to take it for myself." That is the effect of the provision, unless at any rate, it is limited in the manner which I am suggesting—namely, that it shall apply only so long as copies of the edition are in print but that, after that edition has become exhausted, this protection should cease. I beg to move.
Amendment moved—
Page 21, line 7, at end insert the said subsection.—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, I find some difficulty in forming the same view of, and drawing the same conclusion from, the words "out of print," as the noble Lord. Lord Douglas of Barloch, because his theme is that when a book or musical score is out of print, there can be no objection to the practice of off-set printing. I do not think that that is the case. A book which is out of print one day, may not be out of print on another. The publisher may be getting ready for a second edition, and probably will be making these preparations if the first sells out quickly. It is only by reference to the orders that he receives that the publisher can judge whether a second edition should be issued. So far as I can judge, the noble Lord's Amendment would have the effect of giving to the off-set printer a free hand to "cash in" on a highly successful piece of book production and give him a bonus from someone else's industry and ability. I regret that I cannot in these circumstances accept the Amendment.
LORD DOUGLAS OF BARLOCH: My Lords. I am sorry to hear that, and I am a little surprised that the noble and learned Viscount has not provided any explanation of why this clause comes into the Bill at all, because it is entirely anomalous. This is a purely industrial and commercial question and has nothing to do with copyright whatsoever. With all respect, let me point out once more that this is a right which is given to a publisher in respect of the type-setting of a book, which, in the vast majority of cases, has been done for him by a commercial printer; and that commercial printer has been paid by the publisher for printing the edition, and when the edition has been exhausted everybody has

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had the opportunity to make the profit anticipated. In the case of non-copyright books, it is always the risk of a publisher that somebody else will produce an edition of that book at any time. That is part of the risk which the publisher takes in publishing non-copyright material, and he is bound to take it. What he is trying to safeguard himself against here is the possibility of somebody producing a new edition by means of a cheaper process. As I have said before, I can see an argument so long as his edition is not exhausted, and he has not had the opportunity of earning the profit which he anticipated; but if it has been exhausted I fail to see the argument. I am extremely regretful that the noble and learned Viscount has not accepted this Amendment.
On Question, Amendment negatived.
LORD DOUGLAS OF BARLOCH: My Lords. I have already explained in moving the previous Amendment the purpose of Amendment 76, which I now move, and therefore I am not going to detain the House by explaining it again.
Amendment moved—
Leave out Clause 15.—(Lord Douglas of Barloch.)
THE LORD CHANCELLOR: My Lords, the noble Lord has stated his objections. I dealt with the clause in moving the Second Reading of the Bill, but out of deference to the noble Lord, and also out of deference to the constant attention he has given to this Bill. I will, if it will not trespass on the time of the House, say very shortly the reasons why this clause is in the Bill. It is a new conception and it implements the recommendations of the Copyright Committee which are contained in paragraphs 308 to 310 of their Report. It is intended to cover a technical development, which is comparatively recent, by means of which it is possible to reproduce books and music scores by a photographic process as though they had been type-set, and the Publishers' Association represented to the Committee that there was a genuine risk that publishers would find their typographical layout "pirated" by other unscrupulous publishers without the latter going through any of the laborious and expensive methods of typesetting, or the like, which are essential for the preparation of the original edition—I repeat, of the original edition, because I think that underlines what I was saying
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to your Lordships a few moment ago. It is a right against copying by a particular method, and there is and will be nothing to prevent a publisher of work out of copyright from imitating the layout of the pages printed by a trade rival provided he does not do so by this photographic means.
I should ask the noble Lord, Lord Douglas of Barloch, to consider that one of the aspects of this matter which it is easy to overlook is the "pirating" of musical scores which are very expensive to set up. The proposed period of copyright in the typographical arrangement is twenty-five years, as for other quasi-commercial objects of copyright. I do not think that is unreasonable. It is limited to these special circumstances and I hope that, in view of whit is stated by the Committee and the evidence given by the publishers, we shall keep the clause in the Bill.
LORD DOUGLAS OF BARLOCH: I do not propose to detain the House. I know the Copyright Committee recommended this provision, but committees are not infallible. I merely draw attention to the fact that this may easily become a precedent for quite a series of interesting developments which will impede industrial progress. For example, it is now possible in the wireless industry to construct an electric circuit by means of a quasi-photographic process instead of by the more laborious means of using a whole lot of wires and connecting them up. That is no doubt extremely hard lines upon the people who are doing the thing in the more expensive and difficult way; but that is part of the penalty which arises out of industrial progress which manufacturers have to compete with. However, it is perfectly clear that I shall not make any progress with this Amendment, and, therefore, I am going to withdraw it.
Amendment, by leave, withdrawn
Clause 16:
Supplementary provision:7 for purposes of Part II
(6) Where by virtue of this Part of this Act copyright subsists in a sound recording, cinematograph film, broadcast or other subject-matter, nothing in this Part of thin Act shall be construed as affecting the operation of Part I of this Act in relation to any literary, dramatic, musical or artistic work, from which that subject-matter is wholly or lardy derived; and copyright subsisting by virtue of this Part of

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this Act shall be additional to, and independent of, any copyright subsisting by virtue of Part I of this Act:
Provided that this subsection shall have effect subject to the provisions of subsection (6) of section thirteen of this Act.
(7) The subsistence of copyright under any of the preceding sections of this Part of this Act shall not affect the operation of any other of those sections.
LORD DOUGLAS OF BARLOCH LORD DOUGLAS OF BARLOCH moved, in subsection (6), to leave out "and independent of." The noble Lord said: This is an Amendment to a clause which contains a number of supplementary provisions to Part II, and this particular subsection provides that where copyright subsists in a sound recording, a cinematograph film, and so on, nothing in this Part of the Act shall be construed as affecting Part I—that is the Part of the Act which relates to the major copyrights in literary, dramatic or musical works, from which the subject matter of the recording or film is derived. Then it goes on:
"and copyright subsisting by virtue of this Part of this Act shall be additional to, and independent of, any copyright subsisting by virtue of Part I of this Act:"
It is the words "and independent of" which cause me serious perplexity. It is undoubtedly an additional copyright, but to say that it is "independent of" appears to be a contradiction of what has gone before and to give it a right which could, possibly, supersede the right of the author or composer of the original work. I move this Amendment, therefore, for the purpose of seeking a little clarification. I beg to move.
Amendment moved—
Page 22, line 11, leave out ("and independent of").—(Lord Douglas of Barloch.)
6.10 p.m.
THE LORD CHANCELLOR: My Lords, may I say at once that I gladly agree to look into this again as a matter of drafting, in view of what the noble Lord, Lord Douglas of Barloch, has said. Having regard to his last sentence, may I say shortly what is the object of the clause? The object and the effect of subsection (6) of the clause is to make it clear that the copyright in such things as records and films is additional to and independent of the authors' and composers' copyright in books, plays or music incorporated in the records of films. We have directed a great deal of our attention to films. Lord Archibald induced
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the House to enlarge the time of the copyright of films because he persuaded us that the film was a new, artistic creation entitled to special consideration in that regard. But no one in the House wanted the position of the film to result in derogation in any way of the position of the author or musician who contributed. As I have said, what we are trying to do is to make clear that copyright in records and films is additional to and independent of the authors' and composers' copyright in books, plays or music incorporated in them.
I am sure the noble Lord, Lord Douglas of Barloch, does not 'wish a composer to lose his rights when his work is recorded or filmed. If it was his intention to put that forward he would have moved to delete the whole subsection. But if he is doubtful about the drafting of it, and if he thinks there will be some subsidiary or esoteric effect of the words "and independent of" which I have not noticed, I will consider it again. If I find that it has some sinister effect on the Bill I shall be pleased to try to put it right. That is all I can promise now. I hope that, upon that assurance, the noble Lord will be content not to press the Amendment.
LORD DOUGLAS OF BARLOCH: My Lords, I am quite happy with that assurance and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD MANCROFT: My Lords, this Amendment is consequential on the Amendment, to which your Lordships have just agreed, inserting a new clause after Clause 14. I beg to move.
Amendment moved—
Page 22, line 17, at end insert ("under which copyright can subsist.").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 18:
Rights of owner of copyright in respect of infringing copies, etc.
(4) In this Part of this Act "infringing copy"—

(a) in relation to a literary, dramatic, musical or artistic work, or to such a published edition as is mentioned in section fifteen of this Act, means a reproduction otherwise than in the form of a cinematograph film,

(b) in relation to a sound recording, means a record embodying that recording,

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(c) in relation to a cinematograph film, means a copy of the film, and

(d) in relation to a television broadcast or a sound broadcast, means the original or a copy of a cinematograph film of it or a record embodying a sound recording of it,

being (in any such case) an article the making or importation of which constituted an infringement of the copyright in the work, edition, recording, film or broadcast; and "plate" includes any stereotype stone, block, mould, matrix, transfer, negative or other appliance.
LORD MANCROFT: My Lords, this is only a drafting Amendment. I beg to move.
Amendment moved—
Page 24, line 21, leave out ("the original or").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT LORD MANCROFT moved, in subsection (4), to leave out "or importation." The noble Lord said: My Lords, Amendments 81 and 82 really go together. Clause 18, as your Lordships will see, gives a copyright owner rights in respect of conversion and detention of an "infringing copy." Under the clause as it stands, "infringing copy" in respect, for example, of a literary work, is defined as a reproduction of the work
"being a reproduction the making or importation of which constituted an infringement of the copyright in the work."
When the goods are made in this country, understand, no difficulty arises. But when the goods are imported, the owner will have to prove that the person who imported them knew that they infringed the copyright. The reason is that under subsection (2) of Clause 5 it is an infringement of copyright in a literary work for any person, without the licence of the copyright owner, to import an article into the United Kingdom if to his knowledge the making of that article constituted an infringement of that copyright, or would have constituted such an infringement if the article had been made in the place into which it is also imported. This knowledge may not be at all easy to prove and, even if it can be done, it seems an unnecessary burden by comparison when the goods were made here, when knowledge of the infringement is not necessary. I hope your Lordships will agree that these Amendments remove this anomaly. I beg to move.
Amendment moved—
Page 24, leave out ("or importation").(Lord Mancroft.)
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this Amendment is consequential. I beg to move.
Amendment moved—
Page 24, line 26, after ("broadcast") insert ("or, in the case of an imported article, would have constituted an infringement of that copyright if the article had been made in the place into which it was imported ").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 19:
Proof of facts in copyright actions
(5) Where in an action brought by virtue of this Part of this Act with respect to a literary, dramatic, musical or artistic work it is proved or admitted that the author of the work is dead,—

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

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

LORD MANCROFT LORD MANCROFT moved in subsection (2) to leave out "to be the author of the work." The noble Lord said: My Lords, we have put down Amendments 83 and 84 with the intention of meeting what I understood to be the point behind the Amendment which was moved by the noble and learned Earl, Lord Jowitt, on the Committee stage. Subsection (2) of Clause 19 raises a presumption, in the case of a literary, dramatic, musical or artistic work, that, where a name purporting to be that of the author appeared on the copies of the work as published or, in the case of art artist, appeared on the work when it was made, the person whose name so appeared if it was his true name (or a name by which he was commonly known) is the author of the work. These two Amendments add, in effect, a further presumption that he is also the first owner of the copyright. That is to say, the onus would be on the opponent to prove that the work was made under a contract of employment or in other circumstances would have vested the copyright in some

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person under Clause 4. The noble Lord, Lord Silkin, has already spoken up manfully on behalf of his absent friend, Lord Archibald. I hope he will be able to tell me, on behalf of his absent and learned friend, Earl Jowitt, that this meets the point which worried the noble and learned Earl on the Committee stage. I beg to move.
Amendment moved—
Page 25, line 7, leave out ("to be the author of the work").—(Lord Mancroft.)
LORD SILKIN: My Lords, as the noble Lord, Lord Mancroft, probably knows, I have no means of easy access to my noble and learned friend Lord Jowitt, who is very far away. I have looked at these Amendments, however, and, so far as I can judge, they do meet the point which he raised. I am much obliged.
On Question, Amendment agreed to.
LORD MANCROFT: My Lords, this Amendment is consequential. I beg to move.
Amendment moved—
Page 25, line 8, at end insert—
("(a) to be the author of the work, and
(b)to have made the work in circumstances not falling within subsection (2), subsection (3) or subsection (4) of section four of this Act ").—(Lord Mancroft.)
On Question, Amendment agreed to.
LORD CHORLEY LORD CHORLEY moved, in subsection (5), to leave out ("Where"). The noble Lord said: My Lords, this Amendment and the next go together. They form two of four Amendments, moved on Committee stage by my noble and learned friend Lord Jowitt, which the noble and learned Viscount the Lord Chancellor undertook to look at, so that we had no discussion on them. The noble Lord, Lord Mancroft, has accepted two of them in effect. Presumably these two have been looked at and the noble Lord did not like them so much as the other two. I should like to know his reasons. The object of the four Amendments was to get rid of a procedural difficulty of proof by establishing presumptions in favour of authors who had to enforce their rights in infringement actions.
It has been the experience of the Performing Right Society, which exists to assist authors to enforce their rights,
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that in legal proceedings what are called by lawyers "formal traverses" give rise to considerable difficulties and a great deal of expense and loss of time, in that authors have to appear in court to give formal evidence that they are the authors and hold the copyright which they claim has been infringed. This results from the formal traverses put in, as the noble and learned Viscount knows, by every counsel in preparing a defence more as a matter of form than for any other reason. This type of action gives rise to hardship especially as the point is not normally met by costs. I am informed that, more often than not, in this type of action the unfortunate author gets no costs out of the defendant, who is usually a man of straw. When we consider that this type of infringement often occurs in another part of the Commonwealth, and much higher expenses result from that, we must agree that, if it is possible, to do something for the author by giving him the advantage of a presumption, that ought to be done.
Subsection (5) as it stands contains what I think we shall all agree is a most sensible innovation. In the case of an author who is dead, it is presumed that he is the author of the original work unless the defendant can prove to the contrary. There seems to be no reason why a precisely similar presumption should not be introduced in favour of the living author, who is as much concerned to enforce his rights as the executor of an author who is dead. By these two Amendments we should put the living author in the same position as the author who is dead. If it is a question of a really substantial infringement, then rights have to be proved in the ordinary way, but the Amendments, in the way they have been drafted, do not alter that position. They are intended to deal with the position of formal traverses. I beg to move.
Amendment moved—
Page 25, line 32, leave out ("Where").—(Lord Chorley.)
THE LORD CHANCELLOR: My Lords, it is always unattractive to think of people being held up by the technicalities of pleading, but we have to look at the position which is actually envisaged by these Amendments. First of all, it is envisaged that in an action for infringement of copyright in a literary, dramatic,

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musical or artistic work, whether the author was dead or alive, two presumptions would be raised in favour of the plaintiff. The first is that the work was an original work, and the second, that, if the plaintiff is alleging that a specific publication was a first publication of the work and that it took place in the country and on a date specified, that that publication was the first publication and did take place in that country and on that date. As the noble Lord, Lord Chorley, pointed out, we are putting in these presumptions in the case where the author is dead. I agree that that is reasonable. In order to prove that a work has copyright protection it must be shown that it was original and it may have to be shown that it was first published in circumstances which confer protection. If the author is not dead, only the author himself can say positively that his work was original and not copied from another work, and only a person who owned the right to publish the work from the beginning can say when it was first published. Clearly, where the author is dead, it is justifiable to raise in the plaintiff's favour presumptions as to these matters; but where the author is alive, is it justifiable to raise these presumptions in the plaintiff's favour and to throw on to the defendant the onus of proving that the work was not an original work and that it was not first published in circumstances which confer protection?
What troubles me is this: the postulation on which we are proceeding is that the plaintiff is bringing an action for infringement. I thought I detected, from the last words of the noble Lord, that he conceded that, where there was a substantial question, it would be almost essential for the plaintiff to go into the witness box to deal with these points. I should have thought that if it was a question in which these two points became a technical stage in proof, and not a matter in issue, they could have been dealt with by giving notice to admit the facts or by interrogatories, although that may not be so profitable. I hope the noble Lord will give this matter further thought because, though I am anxious to help people against difficulties which are caused by the technicalities of the law, I am not anxious to infringe a cardinal principle like that of the onus of proof and to put a heavy burden on the defendant to an action, unless I am quite
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sure that the circumstances justify it. At the moment I am not sure.
LORD CONESFORD: My Lords, I hope that the noble Lord, Lord Chorley, will not press this, amendment, because, as my noble and learned friend the Lord Chancellor has pointed out, it is difficult to see why, if the matter in dispute might be the originality of the work, the plaintiff who brings an action should have presumed in his favour what may be a matter of considerable dispute. I should have thought that the only possible defence of such a provision would be to avoid the great difficulty caused in the case where the author is dead—a matter very properly dealt with in the Bill as it stands. I wonder whether the noble Lord, Lord Chorley, can point to any precedent in any branch of the law where, in the case of the plaintiff being alive, a matter which he has to prove is laid down by law as presumed in his favour.
LORD DOUGLAS OF BARLOCH: My Lords, the discussion of this Amendment is a little difficult, because the two cases which are dealt with in paragraphs (a) and (b) are far from being upon the same footing. I cannot see that there is any great objection to a presumption—which, of course, is a rebuttable presumption—that the work is an original work. After all, we have just passed, in subsection (1), a presumption that the person whose name appears upon the work is the author of it. We are therefore virtually admitting that there is a presumption that it is an original work: if he is not the author of it, somebody else is the author of it. I do not see any real objection to there being an initial presumption that the work is an original one. I should have thought it was rather rare to have a copyright case in which proceedings were taken for infringement of a work which was, merely a copy of somebody else's work. We are all familiar with cases of the other kind, in which an author takes proceedings against somebody for copying his work, but I should think that this is extremely rare—in fact. I cannot call a case to mind. I is true that there are certain branches of the law in which certain things are presumed, and this appears to be perfectly reasonable, since we have already granted the presumption that the person named is, in fact, the author.

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The other matter dealt with in this subsection is, of course, on a totally different footing. With respect to my noble friend Lord Chorley, there cannot reasonably be a presumption about the date of publication of a work, or, for example, that it was first published in a certain country, because a work may be republished on many occasions, and it may be published in various countries; and in some cases that might give rise to rights of copyright while in others it might not. I would suggest that there is a case for giving a presumption, whether the author is alive or dead, that it is an original work. Incidentally, in regard to paragraph (b), I would draw attention to the fact—and this may become of greater importance now that we are proposing to give copyright to editions of works—that there is no provision at all in this Bill requiring an author or a publisher to put a date of publication upon something which is published. To my mind, that is an omission which ought to be remedied. It is not entirely germane to this point, but it is a general question which I respectfully suggest ought to be considered.
LORD CHORLEY: My Lords, I appreciate the sympathetic way in which the noble and learned Viscount on the Woolsack has approached this Amendment. I appreciate, too, the difficulty that the noble Lord, Lord Conesford, pointed out: that it involves, to some extent, an infraction of the ordinary rule of procedure. But it is only following up another infraction—in fact, a series of infractions, because of the two cases to which my noble friend Lord Douglas of Barloch referred, which the Government have already accepted and we have passed. I rather thought that I should be told that I had pretty well got all I was asking for in these earlier Amendments, because they, too, infringe the ordinary principle of pleading to which the noble Lord, Lord Conesford, has referred. When my noble friend Lord Douglas of Barloch says that the second of these matters, that in paragraph (b), is on an altogether different footing from the one about the original work, dealt with in paragraph (a), the answer to that is that in this Bill we are, in fact, establishing a presumption in the words of paragraph (b) in the case where the
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author is dead. There is no difference in principle whatever between the case where the author is dead and the case where he is alive, as I am sure the noble Lord, Lord Conesford, would agree.
LORD CONESFORD: As the noble Lord says that, I should have thought that there was this great distinction: that if he is alive, there is no earthly reason why he should not go into the witness box and say what the facts are; but if he is dead, that is very difficult.
LORD CHORLEY: if he is dead, as in any other case, his executors have to produce proof in the ordinary way which is done in the courts every day, as the noble Lord knows. The whole object of this is to attempt to temper the wind to the shorn lamb. Experience shows that cases in which the originality of the work, for example, is seriously challenged, are few. Experience shows that it is a case of formally traversing, which gives rise to a tremendous amount of expense and waste of time. The sort of case where there is often a real dispute is the case where the author has assigned his copyright to more than one person. There a dispute may arise between the first assignee and another person who claims that he too has an assignment. In that type of case, which does arise, and which may give rise to real controversy at law, it is perfectly right that the necessary proof of originality, and that sort of thing, should be given in the ordinary way, as it is in any other action at law. I can see that there is a difficulty here, and if the noble and learned Viscount on the Woolsack will assure me—as I am sure he will—that if he can find some method of getting over this, he will, I do not wish to press the Amendment. I have made the point which, to my mind, is one of some substance.
LORD MANCROFT: My Lords, before my noble and learned friend replies, I should like to clear up one small point, which is not germane to the argument of the noble Lord, Lord Chorley, but which was raised by the noble Lord, Lord Douglas of Barloch—namely, the difficulty of the date. The noble Lord drew attention to the fact that there is no compulsion in the Bill for the date of publication to be inserted in a book. It can be most annoying to pick up a book and not be able to discover the date of

1113
publication. I think the point is largely, though not wholly, met by the 1952 Copyright Convention. I would remind the noble Lord that it provides that any contracting State which under its domestic law requires as a condition of copyright compliance with formalities, such as registration or manufacture or publication in that contracting State, shall regard these requirements as satisfied in respect of the works of other Convention countries if at the time of first publication all the copies of the work bear a symbol consisting of the letter "c" in a circle, accompanied by the name of the copyright proprietor and the year of first publication. That, I think, nearly meets the noble Lord's difficulty.
LORD DOUGLAS OF BARLOCH: Only in the case where the author intends to publish elsewhere.
LORD NIANCROFT: That is true.
LORD SILKIN: My Lords, as everyone has said, this is a difficult question and one upon which there is no obligation upon every one of us upon this side of the House to agree with everybody else on this side. We can all take different views about it if we desire. The real thing with which my noble friend Lord Chorley is trying to deal is the case where there is no substantial dispute about paragraphs (a) or (b) of the clause. In those eases, I should have thought that the balance of convenience was that these questions should not be assumed unless the contrary is proved; where there are, as he says, merely formal denials.
The sort of case which the noble Lord, Lord Conesford, has in mind—and I think he is quite right to bring such cases before us—is that in which there is a substantial dispute. Then it would be unjust to have these facts which are in dispute assumed against the defendant. Whether those two points of view can be reconciled or not by a form of words, I do not know. I should think it is extremely difficult to say by any legislation whether a denial is merely a formal denial or whether it is a genuine denial. Obviously, if the noble and learned Viscount will look at the point again, to see whether it is possible to do substantial justice by putting the onus of proof upon the defendant where these matters are merely formal denials but, on the other
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hand, requiring the plaintiff to prove his case where the defendant genuinely disputes it, so much the better. If he would do that I think that would satisfy all of us. For myself, if he undertakes to look at it and finds that he is not able to find a form of words which would meet both cases, and one has to come to a decision either in favour of the clause as it stands or the Amendment, I am hound to say I should prefer the clause as it stands, since it is generally the duty of the plaintiff to prove his case.
THE LORD CHANCELLOR: My Lords, I am grateful to the House, and especially to the noble Lord, Lord Chorley, for the reasonable and helpful way in which this point has been debated. I shall certainly look at it again. Like the noble Lord, Lord Silkin, I see Lord Chorley's point. Where the real dispute is between two assignees as to who has an assignment, then it seems unfair that the defendant assignee should be able to put them to proof of this point and perhaps get the other party arbitrarily to do it. I should like to have a look at it, and also at the rules of court, to see how far they go in the matter, because it might be that something it the nature of a notice to admit facts might be helpful, or. Indeed, it might be worth considering whether we should tighten them up in that regard. I hope the noble Lord, Lord Chorley, will be content with that.
LORD CHORLEY: I am very content to withdraw my Amendment.
Amendment, by leave, withdrawn.
THE LORD CHANCELLOR: I assume that the noble Lard will not move the next Amendment which goes with it.
LORD CHORLEY: No.
Clause 21 [Provision for restricting importation of printed copies]:
LORD MANCROFT: My Lords, Clause 21 already provides for the payment of fees to the Customs by a copyright owner who requests them to prevent the importation of infringing copies. The purpose of this Amendment is, on a purely technical point of accounting, to give the Customs statutory directions for bringing to account money so received by them. I am sure your Lordships will be happy to assist the Customs in keeping their books in order. I beg to move.
Amendment moved—
Page 28, line 36, at end insert—
("(6) For the purposes of section eleven of the Customs and Excise Act, 1952 (which relates to the disposal of duties), any fees paid in pursuance of regulations made under this section shall be treated as money collected on account of customs.")—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 23:
General provisions as to jurisdiction of tribunal
23.—(1) Subject to the provisions of this Part of this Act, the function of the tribunal shall be to determine disputes arising between licensing bodies and persons requiring licences, or organisations claiming to be representative of such persons, either—

(a) on the reference of a licence scheme to the tribunal, or

(b) on the application of a person requiring a licence either in accordance with a licence scheme or in a case not covered by a licence scheme.

6.45 p.m.
LORD SILKIN LORD SILKIN moved, in subsection (1) (b), after "scheme" to insert "or proposed licence scheme." The noble Lord said: My Lords, we are now dealing with Part IV of the Bill, which deals with tribunals. Under Clause 22 the tribunal has been set up, and Clause 23, which I am seeking to amend, deals with the jurisdiction of the tribunal. It provides that the tribunal shall determine disputes arising between licensing bodies, which are defined later on, and persons requiring licences, on the reference of a licence scheme to the tribunal. I want to insert the words, "or proposed licence scheme."
The purpose of the Amendment—and it has been discussed on Committee stage; therefore it is not necessary for me to go into the whole case in detail—is to enable a licensing body which has tried to negotiate the scheme with the persons requiring a licence (who have put up proposals which they have not been able to agree) to submit this proposed scheme to the tribunal for its decision. The justification for that is that the licensing bodies feel that the alternative of imposing a scheme, and then requiring persons who desire the licence to appeal against the imposition of the scheme, is embarrassing to the licensing body. They feel that if it is a genuine dispute it is more satisfactory to both parties that the licensing body should not be in the position of having to formulate something
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definitely and then have it determined by the tribunal. In the last resort, it is largely a psychological question. If the clause stands as it is, the licensing body will always be in the position of coming before the tribunal and having their decisions appealed against by persons requiring a licence. They feel that they would rather come before the tribunal and ask them to adjudicate on the proposals which are submitted before a final decision has been made by them.
Your Lordships may think that this is not an important point, but it is one to which the licensing bodies attach considerable importance. I know that objections were raised to this on the Committee stage. One is that such a decision on a proposal would not necessarily bind other licensing bodies, if there were any. Weighty as that may be, it surely is not conclusive, because each decision is given on the basis of the particular facts and it is not intended that the decision should be other than an individual decision. Therefore, no decision can be regarded as binding upon other applicants for a licence. It seems to me that that in itself is not a justification for the tribunal's not dealing with proposals as against final decisions.
There is also the suggestion that it might create a burdensome amount of work for the tribunal. It might, but, on the contrary, it might lighten the burden of the tribunal by giving an indication of the way in which their minds are working, causing the parties to get together. I feel that this is a matter which requires further consideration than it was possible to give to it in Committee. As I have said, the licensing bodies attach considerable importance to being in a position to submit a proposed licensing scheme to the tribunal. I hope Her Majesty's Government will be able to regard this Amendment with sympathy.
Amendment moved—
Page 29, line 33, after ("scheme") insert ("or proposed licence scheme ").—(Lord Silkin.)
LORD FARINGDON: My Lords, I rise here because this is really exactly the same point as my Amendment to the next clause. In fact, I have nothing to add to what has been said by the noble Lord, Lord Silkin, who has put the case admirably. This is really a public relations point. It would be undesirable that the licensing authority should become unpopular. As the

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Bill stands at present, I fear that they may always be on the defensive and come to be regarded as obstructive and as the side in the argument which is always making things difficult. If they were enabled to go to the tribunal just before a scheme was actually promulgated, if they could go when they found it was impossible to reach an agreement with the persons requiring or desiring licences, then I believe that this public relations position would be for them enormously improved. If I may say so with great respect, I do not think it is just to say, as has been suggested, that there would be a great many appeals against such a verdict. Indeed, there might be, but I do not think there would necessarily be any more than there would he in the conditions at the moment prescribed in the Bill.
It seems unlikely that in any case all the objectors to a scheme will be represented by a single body, and, if they are not, there are bound to be other persons or bodies who may later on wish to contest a scheme which has been authorised by the tribunal. Naturally, they would be fairly unlikely to do so, because the first fence will have gone and, for a certain time, the scheme will remain in force. I do not see that that, in fact, alters the position or that the position would he altered if the scheme were put up to the tribunal before it was promulgated. I would suggest that such an arrangement would be fairer to the licensing authorities and better for their public relations.
THE LORD CHANCELLOR: My Lords, I appreciate what the noble Lord, Lord Faringdon, has called the public relations side to this problem because I know the fear has been expressed that bodies like the Performing Right Society will always be the defendants and, as the noble Lord,. Lord Faringdon says, will appear to be always on the defensive, which is an unpleasant psychological position in which to feel oneself. I am wondering whether it will always be so. Of course, there is nothing in the terms of the Bill which would prevent any of the licensing bodies from going before the tribunal with the request that the tribunal should modify some order which they had previously made. It has not been unknown in the past for the collecting societies to raise their tariffs, but there is no good reason to assume that, even
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after art order by the tribunal, when a suitable time has elapsed, some licensing body will not go before the tribunal and ask them to revise the tariff.
That, however, only partly meets the point. I tried to put the difficulties which I saw when the noble and learned Earl, Lord Jowitt, raised the point on the Committee stage. I think there is substance in the difficulties which I put forward, because the negotiations might be protracted, disputes might arise at all stages and the tribunal might be involved. If, at some later date, a body of would-be licence holders were not represented during the free negotiations between the licensing body and the organisation, the tribunal would run the risk of finding their advice or efforts prejudicing further applications made to them. That is a real point. I confess that I have not been able to find anything that would help the noble Lords. I am interested in what they have said to-day but I am afraid that: I cannot advise the House to accept their suggestion. I am sorry that I cannot go further because they have both been so reasonable throughout this Bill, but I cannot go further than promise consideration of this point. If we can find a way of helping, we shall do it in another place. All I can say to-day is that, so far as I am concerned, I realise the importance of the psychological point in a way that I did not on the Committee stage. Therefore I will have another try. I am sorry I cannot help further.
LORD DOUGLAS or BARLOCH: My Lords, this is a difficult point. I do not feel strongly about it one way or another. There is this to be said: that, as the Bill is at present drafted, it is possibly somewhat more flexible than it would be if this Amendment were carried. It seems to me right that the licensing bodies, who, after are in a strong position as compared with the potential licensees, should have an onus put upon them, in the first place, to formulate a licensing scheme—that is the proposal in the Bill as it stands. The less organised possible licensees will then discover in practice where the shoe pinches and will be in a much better position then to come to the tribunal and make their complaints if they find that a complaint is justified. That seems to tie the argument for the position as it stands, and there is a lot to be said for it.
LORD SILKIN: My Lords, I agree with my noble friend that at this time of the night, after so many hours, it is difficult to feel strongly about anything except that we ought to stop. But, of course, there are two sides to this question, as there are to everything. I am quite content to leave it with the noble and learned Viscount, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.0 p.m.
LORD SILKIN LORD SILKIN moved, after subsection (1), to insert:
"(2) An appeal shall lie to the High Court on a point of law arising out of a decision of the tribunal, but subject as aforesaid, the decision of the tribunal shall be final.
Any such appeal shall be at the instance of any party to the dispute, and shall be made within such time and in such form and shall be heard in such manner as may be prescribed by rules made from time to time by the Lord Chancellor."
The noble Lord said: My Lords, I think I can move this Amendment with considerable brevity; it really speaks for itself. It is the well-known question as to whether there should be an appeal to the High Court against the decision of the Performing Right Tribunal on a point of law. This Amendment provides that there should be, and I think most noble Lords will agree. The doubt that some of us may have is whether it would be possible to find a point of law; there is the further point, that everyone would wish that there should be a speedy decision and finality, and an appeal to the High Court on a point of law may considerably delay a decision where a decision is urgent. How to reconcile an appeal on a point of law to the High Court with speed and finality, I do not know. I do not think that this Amendment does it, but I believe that there ought to be this right of appeal. It may be that the noble and learned Viscount will consider that some Amendment to this Amendment is required but I shall content myself if the noble and learned Viscount will accept the Amendment in principle. I beg to move.
Amendment moved—
Page 29, line 36, at end insert the new sub-section.—(Lord Silkin.)
THE LORD CHANCELLOR: My Lords, as your Lordships may remember,
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this is a point which gave me considerable trouble when it was raised in Committee. I have every predilection for an appeal to the High Court on a point of law. However, I had doubt about the delaying effect that it might have in those circumstances, especially if there was a dispute as to a broadcast that was to be considered on, say, August 15, when it might be difficult to obtain a Vacation judge. I should still like to have another look at the drafting of the matter because I am anxious to get it quite right. I follow the course which the noble Lord has suggested, accepting it in principle. As I have indicated, I have some misgivings about the matter but, balancing on the one side the misgivings, the question of delay, and on the other side, the principle about which we are all, wherever we sit, anxious—that the subject should have the advantage of the best legal assistance he can get—I feel that the Lord Chancellor ought to give way on the first point of his doubt as to time, and support the placing of an appeal before a court of law. Perhaps the noble Lord will accept my assurance that we accept his argument in principle, and as soon as we can we will find the most appropriate words. When I do find them I will let him know. I cannot promise that it will be before the Bill leaves this House, but I will do my best.
LORD SILKIN: My Lords, I accept with thanks the noble and learned Viscount's assurance, and I beg leave to withdraw my Amendment.
Amendment, by leave, withdrawn.
LORD MANCROFT: My Lords, it has been agreed that we should adjourn at about this hour. Amendment 90 is a purely drafting Amendment, as are Amendments 94, 95 and 96. If the noble Lord, Lord Faringdon, has decided to say no more on his Amendments, as I gather is the case, I should like formally to move Amendment No. 90 so that we can end the proceedings in a spectacular hand canter. I beg to move.
Amendment moved—
Page 30, line 46, at end insert ("and references to giving an opportunity to a person of presenting his case are references to giving him an opportunity at his option, of submitting representations in writing, or of being heard, or of submitting representations in writing and being heard ").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 24 [Reference of licence schemes to tribunal]:
LORD FARINGDON LORD FARINGDON had given notice of his intention to move, in subsection (1), to omit all words from the beginning of the subsection down to paragraph (a), and to insert instead:
"(1) Where, at any time while a licence scheme is in operation, or a proposed licence scheme is being negotiated, a dispute arises with respect to the scheme or the proposed scheme between the licensing body operating or proposing to operate the scheme and—."
The noble Lord said: My Lords, in deciding not to move my Amendment, I should like to say a word of thanks to the noble and learned Viscount the Lord Chancellor. I am most grateful to him for his extremely sympathetic approach to this matter. I appreciate that it is a difficult point.
LORD MANCROFT: My Lords, this is both a drafting and a consequential Amendment. I beg to move.
Amendment moved—
Page 31, line 25, leave out from first ("to") to ("shall") in line 27 and insert ("the parties to the reference an opportunity of presenting their cases respectively").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 25 [Further reference of scheme to tribunal]:
LORD MANCROFT: My Lords, I beg to move this Amendment.
Amendment moved—
Page 32, line 35, leave out from first ("to") to ("shall") in line 37 and insert ("the parties to the reference an opportunity of presenting their cases respectively,").—(Lord Mancroft.)
On Question, Amendment agreed to.
Clause 26 [Applications to tribunal]:
LORD MANCROFT: My Lords, this Amendment, too, is both drafting and consequential. I beg to move.
Amendment moved—
Page 33, line 39, leave out from first ("of") to ("and") in line 40 and insert (" presenting their cases respectively:,").—(Lord Mancroft.)
On Question, Amendment agreed to.