COPYRIGHT BILL [H.L.]

HL Deb 21 February 1956 vol 195 cc1152-202

4.6 p.m.

Further considered on Report (according to Order).

Clause 27 [Effect of orders of tribunal, and supplementary provisions relating thereto]:

LORD MANCROFT

My Lords, I am happy to say that to-day we start our deliberations with a completely uncontroversial Amendment, which is designed to make it clear that the performer who relies on an order of the tribunal must have paid the charges, or given an undertaking to pay, before the performance actually takes place. The present wording "he has paid" in Clause 27 might be taken to mean that he need only pay before infringement proceedings are started. We want to avoid the risk of infringement lasting for some considerable time before the performer is asked to pay. That seems to have happened in the past in similar circumstances, and that is an undesirable thing against which we must guard. I beg to move.

Amendment moved— Page 34, line 35, leave out ("he has paid") and insert ("at the material time he had paid").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment and Nos. 99 and 100, which go with it, are designed to meet a point raised on Committee stage by the noble Lord, Lord Lucas of Chilworth, which I thought had merit and ought to be dealt with. Under Clause 27 as it stands a person who gives a public performance in circumstances covered by order of the tribunal is saved from infringement only if he has paid the charges, whereas it may not be possible to ascertain the charges before the performance takes place—for example, if the fee is to be so much per seat sold. These Amendments provide that in such circumstances the performer cart give an undertaking to pay the charges when ascertained. I think that meets the point which the noble Lord had in mind. I beg to move.

Amendment moved— Page 34, line 36, leave out from ("or") to end of line 37 and insert ("if at that time the amount payable could not be ascertained, he had given an undertaking to the licensing body to pay the charges when ascertained")—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is consequential. I beg to move.

Amendment moved— Page 35, line 2, leave out ("or tendered payment of them").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is also consequential. I beg to move.

Amendment moved— Page 35, line 4, at end insert ("or, if the order so provides, has given to the licensing body an undertaking to pay the charges when ascertained,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment and No. 102, which goes with it, are of some importance. The first Amendment is designed to make it clear that the conditions to which the tribunal must have regard (and by which they are therefore bound) are conditions imposed by the promoters of the event. For example, if a boxing promoter made it a condition that there should be no public performance within five miles of the scene of the event, the tribunal could not overrule this condition. On the other hand, we do not want the tribunal to be bound by conditions imposed on a broadcasting authority by performers in its studios. Your Lordships will remember the complaints made in the debate in Committee about the actions of the Musicians' Union in relation to the public performance of gramophone records, which no one wants to have repeated in the field of television. These words express our intentions more clearly than the words they replace. The second Amendment makes clearer the intention of the proviso to subsection (4), which is that the tribunal should not be required to have regard to any charges agreed between the promoter and the broadcasting authority, whether those charges are to be imposed by the authority on its licensees or are to be paid by the authority to the promoter, I beg to move.

Amendment moved— Page 35, line 12, leave out from ("to") to ("and") in line 15 and insert ("any conditions imposed by the promoters of any entertainment or other event which is to be comprised in the broadcasts").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is consequential. I beg to move.

Amendment moved— Page 35, line 21, at end insert ("or in so far as they relate to payments to be made to the promoters of any event in consideration of the grant of facilities for broadcasting").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment and Amendments Nos. 104 and 105 are, purely drafting Amendments, and they are consequential on Amendment No. 53 on the scope of the performing right in sound recordings. I beg to move.

Amendment moved— Page 35, line 27, leave out ("to which this subsection applies") and insert ("such as are mentioned in paragraph (b) of subsection (7) of section twelve of this Act").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment, as I have said, is consequential. I beg to move.

Amendment moved— Page 35, line 36, leave out subsection (6).—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment, too, is consequential. I beg to move.

Amendment moved— Page 35, line 41, leave out ("Subsection (5) of this section") and insert ("The last preceding subsection").—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 28 [Extension of Act to Isle of Man, Channel Islands, colonies and dependencies]:

LORD MANCROFT

My Lords, this Amendment and Amendment No. 107 are drafting Amendments, and they are consequential on Amendments which were moved to Clause 12 on the Committee stage, under which the copyright in the sound recording may depend on first publication. I beg to move.

Amendment moved— Page 36, line 43, after ("of") insert ("a sound recording or").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is consequential. I beg to move.

Amendment moved— Page 37, line 1, leave out paragraph (d).—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 32 [Denial of copyright to citizens of countries not giving adequate protection to British authors]:

THE LORD CHANCELLOR (VISCOUNT KILMUIR) moved to omit all words in Clause 32 after "country" (where that word first occurs), and to insert instead: fail to give adequate protection to British works to which this section applies, or fail to give such protection in the case of one or more classes of such works (whether the lack of protection relates to the nature of the work or the country of its author or both), Her Majesty may make an Order in Council designating that country and making such provision in relation thereto as is mentioned in the following provisions of this section. (2) An Order in Council under this section shall provide that, either generally or in such classes of cases as are specified in the Order, copyright under this Act shall not subsist in works to which this section applies which were first published after a date specified in the Order, if at the time of their first publication the authors thereof were—

1. (a) citizens or subjects of the country designated by the Order, not being at that time persons domiciled or resident in the United Kingdom or in another country to which the relevant provision of this Act extends, or
2. (b) bodies incorporated under the laws of the country designated by the Order.

(3) In making an Order in Council under this section Her Majesty shall have regard to the nature and extent of the lack of protection for British works in consequence of which the Order is made. (4) This section applies to the following works, that is to say, literary, dramatic, musical and artistic works, sound recordings and cinematograph films. (5) In this section— 'British work' means a work of which the author, at the time when the work was made, was a qualified person for the purposes of the relevant provision of this Act; 'author', in relation to a sound recording or a cinematograph film, means the maker of the recording or film; 'the relevant provision of this Act', in relation to literary, dramatic and musical works means section two, in relation to artistic works means section three, in relation to sound recordings means section twelve, and in relation to cinematograph films means section thirteen, of this Act. The noble and learned Viscount said: My Lords, the purpose of the clause is to enable protection in this country to be withheld from citizens or subjects of countries which do not adequately protect the works of British authors. This Amendment has two objects. The first is to extend the scope of the clause so as to include sound recordings and cinematograph films. This is necessary since these are to have copyright protection if first published here (or in another country to which the relevant sections apply) regardless of the nationality of the author.

The second object is to provide for more flexible operation. It may well be that another country will give adequate protection to most classes of British works but not to one class—the distinction might turn on the nature of the work, or on the country of its author, or on both. The clause as it stood (and Section 23 of the Act of 1911, on which it was based) would have allowed only of withholding protection from all works of nationals of such a country. This might have resulted in action by us disproportionate to the extent of the lack of protection of works of our authors in the other country. Moreover, if the other country were a Convention country, our Convention obligations would have prevented us from taking action under this clause against failure to fully protect copyright material not covered by the Convention but protected here. For example, we could not have used the provision against the sound recording of a Convention country which did not protect our sound recordings (which are not Convention-bound), since our Convention obligations would require us to protect other works of that country's nationals. The Amendment therefore provides, in effect, that each class of works may be dealt with on its own and an order may be made denying protection to a particular class of works of nationals or companies of a particular country.

If I may just ask your Lordships to look at the details for a moment, subsections (1) and (2) provide for the separate consideration of separate classes of works. Paragraph (b) of subsection (2) introduces companies, because sound recordings and films are normally made by companies and not individuals, as your Lordships are aware. Subsection (3) provides that the extent of the lack of protection is to determine the extent of action under the clause. Subsection (4) introduces sound recordings and films, while subsection (5) provides the definitions. I beg to move.

Amendment moved— Page 39, line 24, leave out from ("entry") to end of line 36 and insert the said new words.—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 33:

Assignments and licences in respect of copyright

(5) Any agreement in writing, signed by or on behalf of the owner of any copyright, whereby the owner purports to coffer on another person an exclusive licence in respect of the copyright shall he construed as a partial assignment of the copyright to that person in respect of the matters to which the agreement relates.

LORD MANCROFT

My Lords, this is a drafting Amendment. The subject matter of subsection (3) will now be covered by the second Amendment to Clause 43. I beg to move.

Amendment moved— Page 40, line 12, leave out subsection (3).—(Lord Mancroft).

On Question, Amendment agreed to.

4.18 p.m.

LORD DOUGLAS OF BARLOCH moved to leave out subsection (5). The noble Lord said: My Lords, subsection (5) has the effect of automatically converting every agreement which purports to be a licence into an assignment of copyright. I do not know what the object of this provision can possibly be, but it is going to produce great difficulties for owners of copyright who desire to deal with their copyright by means of licences. It is, I think well known—and probably it is very well known indeed to noble and learned Lords who are concerned with piloting this Bill through your Lordships' House—that it is not possible in an assignment to have an effective provision for the payment of royalties, because once the copyright has been assigned to anybody, he may, in turn, assign the copyright to somebody else; and it is impossible to produce an effective covenant to pay the royalties which will become binding upon the further purchaser of the assigned right of copyright. It is therefore usual, under the law as it stands at present, where royalties are being reserved in an agreement for exploiting the copyright of some work, that the transaction is effected by means of a licence and not by means of an assignment.

This is a matter which has been considered by the courts on various occasions, and there is one case which I believe is particularly well known which was decided in 1919. In that case it was held that the attempt to impose upon a subsequent purchaser the obligation to pay royalties was inoperative. The learned judge who gave the decision in that particular case went on to point out that it was not possible to protect the right of the owner of the copyright by means of a charge upon the assigned right of copyright and, consequently, any attempt to reserve royalties might be completely defeated. I cannot see what good reason there can be for introducing a provision of this nature. It appears that there are many cases in which it is quite impossible to fix a reasonable lump sum as payment for the right which is assigned. It is far more to the advantage of the author, and it may well be far more to the advantage of the publisher, that the agreement should provide for the payment of royalties periodically, and I do not see why freedom of contract should be interfered with in this matter. I beg to move.

Amendment moved— Page 40, line 20, leave out subsection (5).—(Lord Douglas of Barloch.)

THE LORD CHANCELLOR

My Lords, may I first of all tell the noble Lord, Lord Douglas of Barloch, what our intention is by this provision, and then make a suggestion which I hope will at any rate meet him for to-day. As the noble Lord will remember, subsection (2) of Section 5 of the Act of 1911 provides that, in addition to assigning the copyright, the copyright owner may grant any interest in the right by licence. I am not clear, and those who advise me are not clear, as to the effect of, and the need for, that provision in the 1911 Act. But it does, in fact, produce considerable confusion between the licence which grants an interest in the copyright—that is, the property—and the ordinary licence, whether it be written or oral, expressed or implied, which simply signifies the consent of the copyright owner to someone performing the work in public or doing some or all of the other acts restricted by the copyright but grants no interest—that is, some form of property right—in the copyright.

The scheme of the present Bill is that, apart from devolution on death or by operation of law, interests in the copyright shall be disposed of solely by assignment, but—and I point this out to the noble Lord, Lord Douglas of Barloch—the assignment may be either absolute or partial. But the licence will represent the consent of the copyright owner to the doing of an act restricted by the copyright. I ask the noble Lord, Lord Douglas of Barloch, to appreciate that that would be getting rid of an element of confusion and improving the clarity of our copyright law. Subsection (5) is consequential on the decision to dispense with the conception of a licence which grants an interest in the copyright, as I have mentioned. I would also point out that it implements the Copyright Committee's recommendation in paragraph 276, that an exclusive licensee should be able to sue for infringement. If the proposed Amendment were made, this recommendation of the Committee would not be implemented.

That is the general position. I wanted the noble Lord to appreciate what we had in mind. I ought to say this in order to be completely frank with your Lordships' House. We have had some representations from the Law Society about the drafting of this subsection and of subsection (8) of the clause, and we are still in correspondence with them about it. Therefore we are quite prepared to reconsider the drafting of the clause, and it may be that, when that has been done, some of the fears of the noble Lord will be removed. I am sure it can be arranged without difficulty that this point could, if necessary, be raised in another place, because by that time we should have had the full views of the Law Society. Therefore, I would ask the noble Lord not to press his Amendment to-day. I thought I should inform your Lordships clearly of the intention of the clause and this subsection, and ought to say that I believe some provision to carry out that intention is essential for the better working of the copyright law.

LORD SILKIN

My Lords, before my noble friend replies to the suggestion of the noble and learned Viscount, I wish to ask a question about this provision. We have defined in subsection (8) the exclusive licence and we also see a reference to a partial licence. But there seems to be nothing in this clause which explains the difference between the two, and what is the effect of a partial licence as against an exclusive licence. I wondered whether the noble and learned Viscount could say that that is one of the matters he will look into. There is a lack of clarity, at any rate. Although the Bill distinguishes between the two, by separate definitions, we are given no explanation of the effect of the distinction.

THE LORD CHANCELLOR

My Lords, if your Lordships will allow me, I will certainly look into that matter. If I may say so, the noble Lord, Lord Silkin, has made a point which clearly deserves attention, and I will certainly see that it is looked into before the Bill reaches another place.

LORD BURDEN

My Lords, there is one further point, about which I may be entirely wrong, but I should like to know the meaning of the word "partial." I take it that a copyright cannot be assigned impartially and that it does not mean that the person who is made the assignor is partial to the person to whom the copyright has been assigned. Does it mean that it has been assigned in part? Could we get the proper English in the redrafting?

THE LORD CHANCELLOR

My Lords, if I may speak again, with your Lordships' tolerance, the noble Lord, Lord Burden, has correctly interpreted the matter; and if he thinks it doubtful, I shall certainly look at it. It is always easy to find a lack of clarity, but whether it will be as easy to find clarity I do not promise. However, I will do my best.

LORD CHORLEY

My Lords, I should like to say a word about this subsection. I am not altogether convinced by the argument of the noble and learned Viscount that it is necessary to have this rather confusing partial assignment introduced into copyright law for the purpose of making the law clearer. It seems to me that the effect may well be to make it more confused. It is no doubt possible that, by the time the discussions with the Law Society have taken place, some rather clearer expressions will have been found which clear up the point. Quite apart from that, it seems to me that there is here a serious inroad on the rights of the author. At an earlier stage, when I was moving Amendments to this Bill which were intended to assist the essential technological development of this country, on which our very industrial life for the next years is going to depend, the noble Lord, Lord Mancroft, resisted them on the basis that we were whittling away the rights of authors. Here we have a much more serious inroad, in my submission, in the rights of the author. After all, if an author decides that what he wants to do is to grant a licence—which is clearly a much more limited legal transfer (if one can call it a legal transfer) than is an assignment—surely that is as far as he ought to be compelled to go. Here, by the clause itself, we are compelling him to make an assignment which, even if it is a partial one, I should have thought, as a matter of law, conveys considerably greater rights than does the licence and may well cause the author to give away more than he intended to do. In those circumstances, I suggest that this is a serious whittling away, much more serious than the one to which the noble Lord, Lord Mancroft, was objecting the other day, and that the best course would be to adopt the Amendment of the noble Lord, Lord Douglas of Barloch, and omit this subsection altogether.

4.32 p.m.

LORD DOUGLAS OF BARLOCH

My Lords, I will respond to the request which the noble and learned Viscount has made, that I should withdraw this Amendment. I was not aware that there had been any conversations or that representations had been made by the Law Society. I presume that they are directed to the same point which I have raised, which is, indeed, a very well known conveyancing point and is mentioned in leading textbooks upon this subject. I understand the explanation which the noble and learned Viscount has given, that this is intended to implement a recommendation of the Copyright Committee that a licensee should be invested with powers which would enable him to sue an infringer, but I must confess that it did not cross my mind that that was its purpose. That certainly would have been a most elusive deduction to make from it.

I am convinced that in trying to effect that purpose a serious injury is being done to the owners of copyright, who would be far happier not to have the recommendation of the Copyright Committee to which the noble Lord has referred implemented than to have it implemented by this method, which destroys the rights which they have hitherto enjoyed and which are, in my submission, absolutely essential for the protection of an author, artist or composer, in order that he shall be able to make the most advantageous bargain for remuneration for his work. I would respectfully suggest that the recommendation of the Copyright Committee should be carried out by means of an express provision that in the case of a licence, or at any rate in the case of an exclusive licence, the licensee should have the power to sue. That could be effected by simple and express language which would produce this consequence. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 36:

Provisions as to Crown and Government Departments

36.—(1) Where an original literary, dramatic, musical or artistic work is made by or under the direction or control Her Majesty or a Government department,—

1. (a) if apart from this section copyright would not subsist in the, work, copyright shall subsist therein by virtue of this subsection, and
2. (b) in any case, the copyright in the work shall vest in the Crown.

LORD MANCROFT moved to leave out the proviso to subsection (4) and insert: where the work in question is an engraving or a photograph, the copyright shall continue to subsist until the end of the period—

1. (a) in the case of an engraving, of fifty years, or
2. (b) in the case of a photograph, of twenty-five years,

from the end of the calendar year in which the engraving or photograph is first published. The noble Lord said: My Lords, Amendments to Clause 36, which deals with Crown copyright, have become necessary by reason of the Amendment which this House made earlier in the Bill in relation to the term of copyright in photographs and cinematograph films. As your Lordships may remember, I said at the Committee stage that our object is to place Crown copyright as nearly as possible on the same basis as copyright owned by private individuals. The first Amendment, No. 111, makes Crown copyright in photographs and engravings run not from the date of making but from the date of publication. In relation to photographs, it follows, as your Lordships will probably note, the Amendment which we made to Clause 3—that is, Amendment No. 6. Privately-owned copyright in engravings has always run from the date of publication and the Crown is being brought into line in this respect. As your Lordships will see, that will have some considerable effect on, say, Stationery Office publications, and so on.

With regard to the Second Amendment, No. 112, your Lordships will remember that in Committee we accepted an Amendment to make privately-owned copyright run for fifty years. I said then, in answer to the noble Lord, Lord Archibald, that we should have to look at this clause again in the light of that decision. This Amendment makes the term of Crown copyright in films and records identical with that of copyright in private hands. Under the Bill as drafted, the term of twenty-five years copyright in privately-owned sound recordings ran from the date of issuing records to the public, whereas Crown copyright in recordings ran from the date of making the recording. This anomaly also is now cured. I beg to move the first of these two Amendments, No. 111.

Amendment moved— Page 42, line 41, leave out from beginning to end of line 4 on page 43 and insert the said new words.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, I beg to move this Amendment which is consequential.

Amendment moved— Page 43, line 12, leave out from ("subsist") to end of line 15 and insert ("for the same period as if it were copyright subsisting by virtue of, and owned in accordance with. section twelve or, as the case may be, section thirteen of this Act.")

On Question, Amendment agreed to.

4.38 p.m.

THE LORD CHANCELLOR moved, after Clause 36 to insert the following new clause:

Use of copyright material for education

".—(1) Where copyright subsists in a literary, dramatic, musical or artistic work, the copyright shall not be taken to be infringed by reason only that the work is reproduced, or an adaptation of the work is made or reproduced—

1. (a) in the course of instruction, whether at a school or elsewhere, where the reproduction or adaptation is made by a teacher or pupil otherwise than by the use of a duplicating process, or
2. (b) as part of the questions to be answered in an examination, or in an answer to such a question.

(2) Nothing in the preceding subsection shall apply to the publication of a work or of an adaptation of a work; and, for the purposes of section five of this Act, the fact that to a person's knowledge the making of an article would have constituted an infringement of copyright but for the preceding subsection shall have the like effect as if, to his knowledge, the making of it had constituted such an infringement.

(3) For the avoidance of doubt it is hereby declared that, where a literary, dramatic or musical work—

1. (a) is performed in class, or otherwise in the presence of an audience, and
2. (b) is so performed in the course of the activities of a school, by a person who is a teacher in, or a pupil in attendance at, the school,

the performance shall not be taken for the purposes of this Act to be a performance in public if the audience is limited to persons who are teachers in, or pupils in attendance at, the school, or are otherwise directly connected with the activities of the school.

(4) For the purposes of the last preceding subsection a person shall not be taken to be directly connected with the activities of a school by reason only that he is a parent or guardian of a pupil in attendance at the school.

(5) The two last preceding subsections shall apply in relation to sound recordings, cinematograph films and television broadcasts as they apply in relation to literary, dramatic and musical works, as if any reference to performance were a reference to the act of causing the sounds or visual images in question to be heard or seen.

(6) Nothing in this section shall be construed—

1. (a) as extending the operation of any provision of this Act as to the acts restricted by copyright of any description,
2. (b) as derogating from the operation of any exemption conferred by any provision of this Act other than this section

(7) In this section 'school'—

1. (a) in relation to England and Wales, has the same meaning as in the Education Act, 1944;
2. (b) in relation to Scotland, has the same meaning as in the Education (Scotland) Act, 1946, except that it includes an approved school within the meaning of the Children and Young Persons (Scotland) Act, 1937; and
3. (c) in relation to Northern Ireland, has the same meaning as in the Education Act (Northern Ireland), 1947;

and 'duplicating process' means any process involving the use of an appliance for producing multiple copies."

The noble and learned Viscount said: My Lords, I ask your Lordships to agree to this Amendment. As you will see, this is an Amendment, drafted as a single clause, intended to cover the points raised in Committee primarily on behalf of local education authorities. I do not think your Lordships would desire me to go through all the points that were raised at the Committee stage but I have pleasure in seeing that the noble Viscount, Lord Bridgeman, is here, and the noble Lord, Lord Burden, also. Therefore I would inform them that I had in mind the speeches which they made. I think that the speakers were interested in four main points: first, to provide that when either master or pupil copied in class a copyright work, whether it was a literary, an artistic, or a musical one, he should not in so doing be deemed to infringe the copyright; secondly, that similarly inclusion of a copyright work in an examination paper should not constitute an infringement; thirdly, that there should be some exemption in favour of performance of copyright works in schools; and fourthly and finally, that the education authorities should be empowered to make records or films, or to copy television broadcasts for subsequent use in schools.

Most of the points that were referred to in debate fall within paragraphs (a) and (b) of subsection (3) of this clause. The position is that while in theory these acts would constitute infringement of the author's copyright, it is inconceivable that any copyright owner would ever be likely to institute proceedings against school authorities or the individual teacher or pupil because of such infringement. It is also certain that acts of this kind must take place in every school and in every country where there is any organised system of education. In view of the representations which have been made, it is the Government's intention to meet the educational authorities, and the first subsection of the new clause has been drafted accordingly.

Your Lordships will note that the exemption is not confined to schools, but covers a reproduction made by teacher or pupil—and then I call your Lordships' attention to these words otherwise than by the use of a duplicating process —in the course of instruction whether at a school or elsewhere. The inclusion of the words otherwise than by the use of a duplicating process may require some explanation. If a provision of this kind, which undoubtedly involves invasion of the rights of authors, composers and artists, is to be made statutory, it is necessary that its limits be closely defined. That was the sort of point had in mind when, during the Committee stage, I said that your Lordships might well have to consider whether a statutory definition might not be less advantageous in the long run than the present position. What the noble Lords who supported the Amendments on Committee stage were anxious to secure was that the day-to-day work in the classrooms should go on unimpeded. That, I think, is covered, but that is a very different matter from authorising, by means of a statutory exemption, the reproduction of copyright material on what could be a very wide scale for use in classes. That is why we have had to put in these words: otherwise than by the use of a duplicating process. If we had not these words, if the duplicating process were allowed, an exemption in such wide terms would inevitably be at the expense of authors, composers and artists. It could well develop into a serious inroad on their rights, particularly as the clause is drawn to cover all courses of instruction.

I have to say this: that, if we had not that provision, if we were challenged with having failed to comply with our Convention responsibilities, it would be difficult to see how such a challenge could honestly be met. I must also tell your Lordships that the Publishers' Association—because one has to look at the other side of the sheet—are already somewhat concerned at the growing tendency of some education authorities to copy copyright works for scholastic purposes. I am supported in this matter by what the noble and learned Earl. Lord Jowitt, said in his speech on December 1 [OFFICIAL REPORT, Vol. 194, col. 1058], when he wanted to do nothing to interfere with the rights of authors and composers. Your Lordships will remember his words. They are, he said, people who have given us much that makes life worth living, and we ought to be most careful not to erode their rights more than we need. I have dealt with that point because it is essential that your Lordships should see that we have tried to keep the balance here.

May I turn for one moment to the questions which arise from the performance of copyright works and copyright material. The questions raised by the performance of copyright works are rather more intricate than those raised by mere reproduction in the course of instruction. I am given to understand that neither the Performing Right Society nor Phonographic Performance Limited have ever charged any fee for the performance of copyright material for the genuine tuitional work of the schools, and I am given to understand that the B.B.C. would make no charge either. Some fear has been expressed that, while this may be the position at present, it has been adopted as a matter of policy and without waiving any of the rights, whether the basic rights of author or composer or the secondary right of the record manufacturers or of the B.B.C. However, it gives us a starting point. So far as the new clause is concerned, it is proposed to provide that, where a literary, dramatic or musical work is performed in class or before an audience limited to persons who are teachers or pupils in attendance at the school or are otherwise directly connected with the activities of the school and by teachers or pupils in the school, such a performance shall not constitute a performance in public, thereby giving statutory authority to the present position.

Your Lordships will note that in this subsection we have considered it necessary to limit the exemption to schools as defined in the new clause. I recall that the noble Viscount, Lord Alexander of Hillsborough, put in a word for the activities of such bodies as the co-operative societies, the Workers' Educational Association and the youth clubs. I have also had to bear in mind the performances of copyright works in, for example, the universities or such places as the Royal Academy of Dramatic Art or the Royal Academy of Music. The conclusion we have reached is that there is a real difference in practice between the standing of schools as defined in the new clause and the other institutions, and between such things as school concerts or what happens in the classrooms of schools and the performance of copyright material by these other organisations. In the nature of things, a school is a close corporation, but it would obviously be impossible to apply the same strict rules to a performance by the Oxford University Dramatic Society as to a school society; and, while I do not want to appear unsympathetic to the activities of such bodies as the youth clubs, I cannot ignore the fact that their activities are not so clearly and strictly tuitional, nor is their membership so well defined, as those of schools. I am sure that any proposal to extend the field of the exemption from performing rights beyond what we are proposing in the present clause would be represented as contrary to Article 11 of the Brussels Convention, which explicitly gives to authors the exclusive right of authorising the public presentation and public performance of their works.

There is one point on which I remind your Lordships once again, and that is that, should these rights be enforced in too strict a way, the tribunal provides a means whereby the disputes could be settled and an appropriate charge fixed. Your Lordships will see that the appropriate subsections of the clause as drafted are made to apply not only to the basic right of authors and composers but also to the rights in sound recordings and cinematograph films.

I now come to say one word on the representations which were made that local authorities should be empowered to make extracts from records, television broadcasts or cinematograph films for the purpose of subsequently giving suitable performances in the course of instruction. Again, I have to say that such a power would be in flat contradiction to the terms of the Brussels Convention. I refer noble Lords first of all to Article 11 bis, and again to Article 13, under which the rights of recording or diffusion of copyright works are made the exclusive rights of the authors of those works and the authors are given the right to demand and receive payment for such recording. I am clear that if such a provision as has been suggested were to be written into the Bill, we should have no defence whatsoever if we were subsequently challenged on our action by another Convention country. Accordingly, we have not been able to see our way to meeting this request, and from the point of view of the test which the noble and learned Earl, Lord Jowitt, laid down at the beginning of our discussions on this Bill—that if it is contrary to the Convention, the matter should not be pressed—I ask your Lordships not to press it to-day. I am sorry to have detained you so long, but this is one of the most important matters that arose in the course of our discussion, and I want your Lordships to realise that I have given it great thought.

I want now to say one word about the references which have been made to the collecting societies. I should not like the impression to remain that there are a large number of these societies. As a matter of fact, in this domain there are three only: the Performing Right Society, which exercises the composer's right in the public performance of his work; secondly, Phonographic Performance, Limited, which exercises the right of the record manufacturers; and, finally, the society which exercises another right of the composer, namely, that of authorising the recording of a copyright work which, as I have reminded the House, is a right explicitly protected by Article 13 of the Brussels Convention and which must be without prejudice to the author's right to obtain just remuneration, if it is going to be in accord with the Convention. My Lords, I should have hoped that it would have been possible for the various educational bodies to come to terms with these collecting societies in such a way as to reduce whatever area of friction may be left, and I hope that that will be done.

In drafting this Amendment I have tried to consider everything that was said in the course of our long discussions— and not a moment too long—during the Committee stage. I hope that your Lordships will feel that I have met the feeling of the House. As I understood the feeling of the Committee, it was that I should keep as just a balance as I could between the needs of education and the rights of authors and composers, and that I should do as much as possible for education without putting us in the position of being wrong in our Convention responsibilities. That is what I have tried to do. I am sure that many of your Lordships could have done it better, but I hope that your Lordships will believe that I have tried to carry this out to the best of my ability and that your Lordships will approve of the result. I beg to move.

Amendment moved— After Chose 36 insert the said new clause.—(The Lord Chancellor.)

4.54 p.m.

LORD SILKIN

My Lords, in the course of his remarks the noble and learned Viscount assumed that other noble Lords could have carried out the task which he undertook to carry out better than he has done it. The fact is that there is only one Amendment to this new clause, and I am not at all sure that my noble friend Lord Chorley is going to move that. Nevertheless, the fact remains that, while the noble and learned Viscount has done his best to carry out the undertaking he gave on the Committee stage, there still remain a number of points upon which he has not entirely satisfied some of us. I do not propose to go through the whole of the new clause, a most important clause, on different aspects of which some of my noble friends may have something to say.

I myself always have in mind the words of the noble and learned Viscount, that we must hold a balance between the rights of the author and the convenience of the local authorities, and the advantages of assisting education so far as possible. Nevertheless, there is one provision that I particularly want to bring to the attention of the noble and learned Viscount, because I think that he might have gone a little further in that direction—I refer to the proposed new subsection (3) (b). I am sure we do not want to impose upon educational authorities, and particularly upon schools, any kind of obligation to make elaborate arrangements for the payment of fees in respect of something that is quite occasional. I have in mind a school performance on prize day, where normally the scholars are assembled and where, in the case of, say, primary schools, a few parents—possibly parents of the limited number of prize-winners—are invited to attend. If no parents are invited, then the performance is exempt—it is not a performance in public if it is limited to persons who are teachers in, or pupils in attendance at, the school. But if it so happens that a few parents attend, then the performance at once becomes subject to the payment of a fee. I feel that somehow it ought to be made quite clear that such a performance at the ordinary school prize-day, where no fees are charged, should be exempt from this provision.

I had an attempt at putting down an Amendment, but circumstances made it impossible for me to do so in sufficient time. As I feel that the noble and learned Viscount has gone some considerable way to meeting us, I think it might be better to leave this matter to another place—I am sure they will have a good deal to say about it. But I feel that it should be possible to go this little bit further in that direction. Whether we should go beyond the school, to include the university and adult education, is an aspect upon which some of my noble friends may have something to say. I have an open mind on it, and I feel that the noble and learned Viscount has made a strong case against extending this beyond the ordinary school. But within the field of the school itself, while I appreciate that it may well be that none of the societies will be pernickety if there happens to be an odd parent about the place when a school prize distribution takes place, nevertheless I do not think it should be left entirely to their discretion as to whether or not a fee is demanded. I hope that the noble and learned Viscount will give some encouragement to the idea that, in another place, the provisions of subsection (3) of this new clause will be somewhat enlarged so as to cover the performances that I have in mind.

LORD BURDEN

My Lords, as the noble and learned Viscount has said, with other noble Lords I raised this question on the Committee stage of the Bill. I should like first to thank the noble and learned Viscount for the time and attention he has given to this very important matter. I raised the point at issue at the instance of the Association of Municipal Corporations, of which I happen to be one of the Vice-Presidents. And I am bound to say that that Association, recognising our international obligations and following the friendly and helpful consultations which have taken place, feel that Her Majesty's Government and the Lord Chancellor have gone as far as they reasonably can be expected to go in the circumstances. I wish again to thank the noble and learned Viscount the Lord Chancellor, not only on behalf of that Association but also on behalf of the teachers, in view of the load which it has taken off them, and, not less, on behalf of the children who will benefit by the operation of this clause. Finally, I think it is only right to say a word or two in appreciation of the attitude which the Performing Right Society, Phonographic Performance Limited, and the other Society concerned have taken up in this matter. It is a reasonable and a right view. On that point, may I say that I hope their generosity will not be wasted; that when our young people grow to youth and manhood they will benefit by the instruction they have had in the schools, and that they may provide evidence of the benefit of these provisions. I once more thank the noble and learned Viscount.

5.3 p.m.

VISCOUNT BRIDGEMAN

My Lords, as my noble and learned friend on the Woolsack knows, the County Councils Association, like the Association of Municipal Corporations, are much interested in this new clause. I am glad to be able to say, as the noble Lord, Lord Burden, has just said, that this Amendment goes a long way to meet the points raised by the local education authorities. I know that they are most grateful for the provisions of the clause and for the great trouble taken by the noble and learned Viscount, the Lord Chancellor, and his advisers, in putting the new clause before the House. One might say what a good omen it is that the County Councils Association and the Association of Municipal Corporations are together in this important matter. Let us hope that in discussions on local government, which I am sure we shall have in your Lordships' House before long, they may remain so. The noble Lord, Lord Silkin, has mentioned some of the points on which the local authorities' organisation thought that the noble and learned Viscount who sits on the Woolsack might have gone a little further. It is true that they had at first hoped that it might be possible to go a little further, but I feel sure that they have been satisfied on those points where they, like Her Majesty's Government, were advised that the Brussels Convention prevented any further steps in that direction. So far as the county councils are concerned, they accept that position. They would not expect, or indeed wish, the Government to go further than they fairly may, having regard to their obligations under the Brussels Convention.

There were one or two other points. I am not sure how far the Brussels Convention applies to matters such as the extension to adult education, and I believe that local authorities' youth clubs were mentioned in this connection. It may be that that would be right, but, for my part—and I am speaking personally now—I appreciate that when concessions of this sort are made, a line has to be drawn. I should be very doubtful whether it would be possible to find a better place to draw the line than has been found in this Amendment. Take, for example, the question of local authorities' youth clubs. I should take a very dim view if certain concessions were made to youth clubs which were not made to voluntary youth organisations such as the Boy Scouts, the Boys' Brigade and so forth. Likewise, I feel that once we come to adult education—I am thinking of an adult college in Shropshire, with which I have some connection—the range of activities is there so wide that it would be almost impossible to find a formula which would do what they wanted and yet keep within the Brussels Convention and protect the legitimate rights of the people who own the copyright. For all these reasons, I feel that, from this side of the House, we should welcome the Amendment which we now have before us. It may be that there are some small points which can be attended to in another place. I feel sure Her Majesty's Government have dealt very fairly with the points put up by local authorities, and I repeat that I am sure they will he most grateful.

5.7 p.m.

LORD CONESFORD

My Lords, may I first apologise to the noble and learned Viscount the Lord Chancellor, because I was unable to be in the House at the beginning of the speech which he made in moving this Amendment. I was glad to hear from the speech of the noble Lord, Lord Burden, and from that of my noble friend Lord Bridgeman, that they welcomed this Government Amendment. I think that the Lord Chancellor can lake pride in the fact that he has so justly steered a middle course between two extremes, either of which would have excited severe opposition. I took no part in the Committee stage on these various Amendments but, had I done so, it would have been in opposition to some of the Amendments which were put forward on behalf of the educational authorities. I hope the noble Lord, Lord Burden, will accept it from me, since he knew me as a University Member, that that was not from any lack of belief in education, but because I believe that it is a complete fallacy to say that, because education, or something else, may be a good thing, therefore those who are engaged in it should be exempt from the law of copyright. I believe that to be a complete non sequitur. If such a principle were followed, it would lead to disastrous consequences.

I think the Lord Chancellor has avoided these dangers in this new clause. I would add that, had he gone any further than he has, there would be very considerable objections. The noble and learned Viscount the Lord Chancellor said that he considered the interests of the educational authorities on the one hand and of the authors and composers on the other. When he mentioned authors and composers, he was not, I think, intending his list to be complete. There are other people we should not forget, namely, publishers. Publishers, I think, would have a legitimate grievance under the general principles of the law of copyright if the clause went further than it does. I welcome the clause wholeheartedly and I hope that the Government will beware of going further in concessions.

LORD DOUGLAS OF BARLOCH

My Lords, I will not re-echo compliments which have been paid upon this very fair compromise. There is just one small point of drafting in the last line of the clause which defines "duplicating process" as one "for producing multiple copies." The word "multiple," I believe, means "consisting of many parts." That is certainly not what is meant here. It is a process for producing a considerable number of copies but not copies of a complex character.

5.11 p.m.

LORD CHORLEY

My Lords, when this matter was discussed on Committee stage, I suggested to the noble and learned Viscount, who had promised to look at the whole matter, that he should give special attention to the problem of educational work in the universities. I was glad to hear from him that he had done so. In the earlier part of the clause it is provided that copies which are made under subsection (1) can be made for a wider purpose than teaching work in schools. He pointed out that he had added the words "or elsewhere," which would cover the work done in universities, and to that extent I am grateful to him. But I was disappointed when he said that he could not see his way to include universities in Clause 3, which is limited to schools. I had intended to put down an Amendment in order to bring universities within the ambit of that clause, but I have not been able to complete inquiries as to how far this work is done in universities. My own work, which is concerned with law teaching, does not come within this at all, and I was unable to get replies to my inquiries in time to be satisfied that this sort of teaching work is of such importance as to justify the inclusion of universities within these privileges. However, having now had a good deal of information, I am satisfied that this sort of teaching is done in important departments in the universities—in the language and music departments—and therefore it is a great deprivation to them that this right is confined to schools.

I was a little surprised that the noble and learned Viscount said that one of the considerations which had induced him not to grant this privilege to universities was that the activities in universities were so much wider than curricular activities. He referred to the Oxford University Dramatic Society. It is a students' society and exists inside the university. While it is not part of the educational work of the University in a technical sense, from the wide, cultural point of view it is educational activity. I am sure that the noble and learned Viscount could have found a formula which would have put that on one side and enabled the actual teaching work carried on in the faculties of our universities to have the same benefit as is conferred here upon schools.

I would draw the noble and learned Viscount's attention to the narrower wording suggested in the next proposed Amendment, No. 114, which I have put down. If he could think of this matter again and possibly have it dealt with in another place, the words "educational curriculum" might provide him with a test to enable him to assist the universities in this way. I should add, with regard to Amendment No. 114, that I am satisfied that, if this privilege is confined to schools, the words which the noble and learned Viscount has used are sufficient for that purpose, and I do not propose to move that Amendment. I hope that the noble and learned Viscount will be able to look at the use of this educational work in universities because I can assure him, from inquiries I have made, that it is a matter of substantial importance.

LORD SOM̃ERS

My Lords, I should like to join other noble Lords in thanking the noble and learned Viscount for the clear and lucid way in which he has set forth this valuable new clause. I think it is a tribute to its perfection that there is only one Amendment set down to it, when we consider that there are 155 Amendments throughout the entire Bill. There is one point apropos what was said by the noble Lord, Lord Silkin, about which I should like to speak. I am a little divided about this matter, because I have been both a composer and a director of music at a school therefore I look at it from both points of view. I cannot think that it would be desirable for concerts at a school where the public are admitted to be considered as part of school activities, because often the public are admitted in large numbers, as was the case at the school where I vas; and I feel certain, as a composer, that I should not like my work to be performed at what was more or less a public concert without getting my rights for it. That may sound rather self-interested, but I think it is reasonable.

I would ask the noble and learned Viscount to clarify this point for me purely for information. Often when performing orchestral works, where there is an incomplete orchestra, orchestral parts have to be copied for instruments not included in the original score, and in some cases a new arrangement has more or less to be made of the complete work for an orchestra not provided for by the composer. For a purely private educational performance that would not constitute a breach of copyright, but if the new orchestral arrangement were performed at one of these concerts where the public were admitted and the parts had been copied without the composer's consent, would that constitute a breach?

THE LORD CHANCELLOR

My Lords, I must ask your Lordships' indulgence for speaking for a short time. With regard to the point raised by the noble Lord, Lord Somers, he must not take anything that I say in answer to his beguiling flatteries as representing the opinion he will receive when he ultimately takes his case to your Lordships' House sitting in its judicial capacity, but I can give him without any compunction my advice, which is the same as Punch's advice to the young man about to marry—"Don't." I advise the noble Lord not to take the risk he suggests. I should like to say how grateful I am to your Lordships for the reception which this clause has received and for the kind things your Lordships have been good enough to say. I am sure that the noble Lord, Lord Silkin, realises the difficulties about prize-givings, because they vary so greatly. The noble Lord has probably a greater experience of prize-givings than any of your Lordships, but we all have had a varied and considerable experience: one might almost say it is an occupational risk of members of your Lordships' House. That is the difficulty. The noble Lord, Lord Silkin, knows that I am not being flippant about that important point. The difficulty is in distinguishing between what might be two or three mothers coming into a country school and the cases, of which both he and I know, of prize-givings when over a thousand people attend, many of them members of the public. Therefore I just put our difficulties to the noble Lord.

I am not going to detain your Lordships further. All the points that have been raised in the debate to-day will be considered. I will consider, too, the point which the noble Lord, Lord Chorley, has raised about differentiating between the instructional side in a university and—I almost said the pleasurable side, but it would be unfair to use the word "pleasurable" in contra-distinction to "instructional"—the society side of it, like O.U.D.S. I do not know whether we shall be able to get any further because, as I said, it is a difficult balance to draw; but I promise the noble Lord that I will consider it. I do feel that your Lordships—because this is a conjoint effort on the part of all your Lordships—have made a great improvement in the Bill, and I hope that it will be of service to education. I should like once again to express my gratitude to your Lordships for what you have said.

On Question, Amendment agreed to.

5.22 p.m.

LORD MANCROFT moved, after Clause 36, to insert the following new clause:

Special provisions as to public records

".—(1)Where any work in which copyright subsists, or a reproduction of any such work, is comprised in—

1. (a) any records belonging to Her Majesty which are under the charge and superintendence of the Master of the Rolls by virtue of an Order in Council under section two of the Public Record Office Act, 1838, and are open to public inspection in accordance with rules made under that Act, or
2. (b) any public records to which the Public Records Act (Northern Ireland), 1923, applies, being records which are open to public inspection in accordance with rules made under that Act,

the copyright in the work is not infringed by the making, or the supplying to any person, of any reproduction of the work by or under the direction of any officer appointed under the said Act of 1838 or the said Act of 1923, as the case may be.

(2) In the preceding subsection 'records'—

1. (a) in paragraph (a) of that subsection has the same meaning as in the Public Record Office Act, 1838;
2. (b) in paragraph (b) of that subsection has the same meaning as in the Public Records Act (Northern Ireland), 1923.

(3) Any reference in this section to the Public Records Act (Northern Ireland), 1923, shall be construed as including a reference to that Act as for the time being amended or re-enacted (with or without modifications) by any enactment of the Parliament of Northern Ireland."

The noble Lord said: My Lords, we come now to quite a different matter. This new clause makes special provision as to public records. All records belonging to Her Majesty, as I think your Lordships probably know, are placed under the charge and superintendence of the Master of the Rolls—and I am glad to see the noble and learned Lord in his place this afternoon. The Master of the Rolls thus becomes the Custodian of State papers, including, for example, the records, files and papers of Government Departments, who deposit those which are of permanent administrative value or are likely to prove of historical interest in the Public Record Office. These papers then, in the main, become open to public inspection in the Public Record Office after a lapse of time.

These files and records inevitably include letters and memoranda written by outside persons and sent to the Department concerned; without these the files themselves would be useless and unintelligible. Although these documents belong to the Crown, the copyright in them may not, and probably does not. It is the duty of the Public Record Office to make all these records available, and not merely is the Public Record Office a centre of historical study and research into the documents which are deposited there for this very purpose but the facilities are much used by other Governments, particularly the United States of America and Commonwealth Governments. In copying these papers, which I must emphasise are State papers, it is impossible to separate the few in which the copyright does not belong to the Crown from the majority where the copyright does belong to the Crown. This Amendment gives protection from possible infringements to the Public Record Office in carrying out their functions and in supplying, reproductions of documents, under the charge and superintendence of the Master of the Rolls, in the course of the ordinary functions of the Public Record Office. I hope that this Amendment meets with the approval of your Lordships. I beg to move.

Amendment moved— After Clause 36 insert the said new clause.—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 37 [False attribution of authorship]:

LORD MANCROFT

My Lords, this Amendment and Amendment No. 117 go together; they are not much more than drafting Amendments. They are concerned with this problem of false attribution of authorship. The two Amendments make clearer our intentions. The offender's knowledge should not go to the fact that a person's name has been affixed to a work, but to the fact that the work bears a name which is not that of the true author. As I say, they are really moved only for clarification. I beg to move.

Amendment moved— Page 44, line 2, leave out ("to the offender's knowledge").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is a consequential Amendment. I beg to move.

Amendment moved— Page 44, line 3, after ("affixed") insert ("if to the offender's knowledge that person is not the author of the work,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT moved, after subsection (3) to insert as a new subsection: (4) In the case of an artistic work which has been altered after the author parted with the possession of it, the said restrictions are contravened, in relation to the author, by a person who in the United Kingdom, without the licence of the author,—

1. (a) publishes, sells or lets for hire, or by way of trade offers or exposes for sale or hire the work as so altered, as being the unaltered work of the author, or
2. (b) publishes, sells or lets for hire, or by way of trade offers or exposes for sale or hire a reproduction of the work as so altered, as being a reproduction of the unaltered work of the author,

if to his knowledge it is not the unaltered work, or, as the case may be, a reproduction of the unaltered work, of the author. The noble Lord said: My Lords, this Amendment is intended to cure a defect in the clause as it now stands. Subsection (2) makes it a contravention falsely to affix to a work the name of a person as being its author contrary to the facts. It also makes it a contravention to publish, sell, distribute or perform such works under the false name if to the offender's knowledge the alleged author is not, in fact, the author of the work.

But this subsection does not deal with a situation which can arise in the case of a picture or other artistic work—namely, that after the artist has parted with it he finds that it has been altered and, in the altered form, is being published or sold as his unaltered work. No alteration of name will have taken place, so that subsection (2) would not apply—indeed, the artist may well have signed the picture before parting with it. But, as I am sure your Lordships will agree, the artist's reputation may well be put in jeopardy by passing off the altered work as though it were unaltered. This Amendment follows a provision which already appears in the Fine Arts Copyright Act, 1862, which this clause is intended to supersede. It seems odd that this state of affairs should obtain, but I am told that it happens quite frequently, and it seems obviously necessary that this provision should be put in for the protection of the artist's reputation. I beg to move.

Amendment moved— Page 44, line 17, at end insert the said subsection.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is a consequential Amendment. I beg to move.

Amendment moved— Page 44, line 18, leave out ("two") and insert ("three").—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 38:

Amendments of Registered Designs Act, 1949

38.—(1) In section six of the Registered Designs Act, 1949 (under which the disclosure of a design in certain circumstances is not to be a reason for refusing registration), the following subsections shall be inserted after subsection (3):— (4) Where copyright under the Copyright Act, 1955, subsists in an artistic work, and an application is made by, or with the consent of, the owner of that copyright for the registration of a corresponding design, that application shall not be refused, and the registration of such a design shall not be invalidated, by reason only of the prior publication of that work, or of the making of copies thereof, other than copies in the making of which the design was applied industrially. (5)In the last foregoing subsection" artistic work" has the same meaning as in the Copyright Act, 1955, and "corresponding design" has the same meaning as in section ten of that Act; and any rules made by virtue of subsection (4) of that section (which relates to rules for determining the circumstances in which a design is to be taken to be applied industrially) shall apply for the purposes of the last foregoing subsection.

LORD MANCROFT moved, in subsection (1) to leave out all words from the second "that" in the proposed new subsection (4) down to "which relates" in the proposed new subsection (5), and to insert instead: design shall not be treated for the purposes of this Act as being other than new or original by reason only of any use previously made of the artistic work, unless the previous use consisted of or included the sale, letting for hire, or offer for sale or hire of articles produced by applying the design industrially, other than articles of a description specified in rules made under subsection (4) of section one of this Act. (5) Any rules made by virtue of subsection (4) of section ten of the Copyright Act, 1956. The noble Lord said: My Lords, this Amendment and Amendments Nos. 121 and 122 really go together: they are, I am afraid, a little technical. Their purpose is to make clearer our intentions regarding Clause 38 and to ensure that a design shall be "new and original," within the meaning of the Registered Designs Act, 1949, and hence registrable as an industrial design, notwithstanding any use to which it has been put otherwise than in the course of applying the design industrially and marketing the articles to which it has been so applied, always provided that the articles are not among those listed in the Rules made under Section 1 of the Registered Designs Act as being more appropriate to copyright protection.

For example, suppose an artistic work is used as a book jacket and as such it is displayed, advertised, sold, and perhaps even shown on television. Since book jackets are listed in Rule 26 of the Designs Rules, the owner of the copyright ought not to lose his opportunity to register his work as an industrial design should he later wish to do so. Supposing he later decides to use the design for wallpaper, he should be permitted to apply for registration up to the moment when he markets wallpaper to which the design has been applied. But after that moment his design should cease to be registrable. What is intended, in short, is that a copyright owner should lose his opportunity to register his work as an industrial design when, but not before, he loses copyright protection for it in the industrial field in question. Doubts have been expressed to us whether the clause as drafted achieved its object satisfactorily, and these two Amendments are intended to clear up this rather technical but, I think, useful point. I beg to move.

Amendment moved— Page 45 line 17, leave out from ("that") to ("which") in line 27 and insert the said new words.—(Lord Mancroft.)

VISCOUNT ALEXANDER OF HILLS-BOROUGH

My Lords, I looked at the clause and I looked at the Amendments, and I could not see much harm in them, but the more the noble Lord explained the object of the Amendments, the more I began to doubt. Naturally my mind turns at once to domestic industry. And when it comes to wallpapers and book covers we should remember that the book covers produced by an artist may be of a floral design, or something of that kind, and simply copies made by an artist from old specimens of artistic representations of flowers. That design is registered, and the poor wallpaper manufacturer, who may produce a design almost exactly the same, will always be wondering whether or not some new design is something from the archives and registered as being a book cover. That seems a most extraordinary situation. I hope I am not being unfair in drawing attention to the point, but I should like to see some reasonable protection to ensure that a man who makes a considerable amount of wallpaper for the market is not going to have cases proceeding against him all the time for using a registered design from a place where he would not think of looking.

LORD MANCROFT

My Lords, this is a technical point, and I do not think the noble Viscount has quite understood what we are trying to protect. If he looks carefully at what I have said, he may see that the difficulties which he foreshadows are not the ones with which I have been trying to deal. I am trying to deal with a situation where a man transfers his work from one medium to another. It has been in the range of copyright and he then changes its nature from, say, a work of art, such as a book cover, into an industrial design. That is the only point with which we are dealing. We are not dealing here with the point the noble Viscount is worried about. I will look at it and see that we have not produced a situation of the kind that is worrying him.

VISCOUNT ALEXANDER OF HILLS-BOROUGH

I should like to know whether there has been contact, through the Government Departments dealing with this matter, with the wallpaper manufacturers to see what they think about it.

LORD MANCROFT

I do not think the wallpaper manufacturers are in any way worried about this point. The man we are worrying about is the man who wants to change a design from a book cover, for instance, into a registered commercial design, which is an entirely different thing in law. That is all we are worried about.

VISCOUNT ALEXANDER OF HILLS-BOROUGH

Then my wallpaper illustration is a fair one.

LORD MANCROFT

The noble Viscount and I are looking at it from quite different points of view. I am looking at it from the point of view of the artist to make sure that he has fair treatment in the change of the nature of his design. However, I will look at the noble Viscount's point.

VISCOUNT ALEXANDER OF HILLS-BOROUGH

I have been retired from business now for many years, but at one time I knew something about wallpapers and the various designs. I should not like the manager of a department always to be in "a bit of a sweat" to know whether or not there has been a new registration of an industrial design that has come from some other artistic design on a book cover years before. Perhaps the noble Lord will look into the point.

LORD MANCROFT

I certainly will. I have some slight knowledge of the wallpaper business for family reasons, and so far as I understand the situation, I do not believe that difficulty arises.

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is a consequential Amendment. I beg to move.

Amendment moved—

Page 45, line 36, leave out from ("that") to ("and") in line 40 and insert ("the design, at the time when it was registered, was a corresponding design in relation to an artistic work in which copyright subsisted under the Copyright Act, 1956; (b) that, by reason of a previous use of that artistic work, the design would not have been registrable under this Act but for subsection (4) of section six of this Act.")—(Lord Mancroft.)

On Question, Amendment agreed to

LORD MANCROFT

My Lords, this, also, is consequential. I beg to move.

Amendment moved—

Page 46, line 7, leave out from beginning to first ("the") in line 13 and insert— ("(a) that the design at the time when it was registered, was a corresponding, design in relation to an artistic work in which copyright subsisted under the Copyright Act, 1956; (b) that, by reason of a previous use of that artistic work, the design would not have been registrable under this Act but for subsection (4) of section six of this Act; and (c) that").

—(Lord Mancroft.)

On Question, Amendment agreed to

LORD MANCROFT

My Lords, this Amendment is really only for purposes of clarification. This subsection inserts into the Registered Designs Act, 1949, definitions of "artistic work" and "corresponding design" in order that those words shall bear the same meaning in that Act as they do in this Bill. I beg to move.

Amendment moved—

Page 46, line 19, at end insert— ("(5) In subsection (1) of section forty-four of the said Act of 1949 (which relates to the interpretation of that Act)—

1. (a) after the definition of 'article' there shall be inserted the words 'artistic work has the same meaning as in the Copyright Act, 1956'; and
2. (b) after the definition of 'copyright' there shall be inserted the words corresponding design has the same meaning as in section ten of the Copyright Act, 1956'.")—(Lord Mancroft.)

On Question, Amendment agreed to.

Clause 39:

Unauthorised broadcasting of performances

39.—(1) In the Dramatic and Musical Performers' Protection Act, 1925, the following section shall be inserted after section three: 3A. Any person who, otherwise than by the use of a record or cinematograph film, knowingly broadcasts a performance of any dramatic or musical work without the consent in writing of the performers shall be guilty of an offence under this Act, and shall be liable on summary conviction to a fine not exceeding fifty pounds. (3) In section four of the said Act of 1925 (which relates to the interpretation of the Act) the following words shall: be added at the end of the section: The expression 'consent in writing of the performers' means consent in writing given either by the performers themselves or by the person who, as manager or otherwise, made the arrangements for the performance on behalf of the performers;

LORD FARINGDON

My Lords, I rise to put briefly what is, in fact, a brief point. It is one which I raised at the Committee stage, when the noble and learned Viscount the Lord Chancellor promised to look into it. Its object is simply to extend the copyright to variety artistes, whose work, I understand, is not included under the present phrase, "performance of any dramatic or musical work." The words which I wish to insert are the words which are in the draft. Universal Convention, and I hope the noble and learned Viscount will now be able to give me an answer. I beg to move.

Amendment moved— Page 46, line 25, leave out ("performance of any dramatic or musical work") and insert ("recitation, presentation or performance").—(Lord Faringdon.)

THE LORD CHANCELLOR

My Lords, we have given some thought to the point which the noble Lord, Lord Faringdon, has raised, and it is right that I did promise consideration, and that consideration has been given. As the noble Lord is aware, the draft Universal Convention which he has in mind is, I think, the text drawn up in Rome of a possible future Convention on what are known as droits voisins—that is, the rights neighbouring on copyright and those which it has been suggested should be enjoyed internationally by performers, gramophone-record makers and broadcasting authorities. I think it is fair to say—and I hope the noble Lord agrees—that the text is still very much a first draft and is unlikely to be adopted in its present form.

The reason why the Bill speaks of the performance of a work is in order that the law may be as clear as possible on this point. If we were to speak, as the Amendment does, of "recitation, presentation or performance"—not, I ask your Lordships to note, of a work, but quite generally—I am not at all sure how far it would take us. "Presentation" would include such things as the Lord Mayor's Show and Trooping the Colour; and every player taking part in a sporting event is probably giving a performance, for the adjective "performance" covers very much. We should thus be providing that it was an offence to televise such things as the Lord Mayor's Show or an athletics meeting at the White City without getting the consent of each and every participant. I am not arguing the point. I concede that there may well be a case for giving a variety artiste whose turn consists of a specialised act the same rights as actors and musicians, even if the turn is not the performance of a work. But I say quite frankly—and I hope the noble Lord, Lord Faringdon, will accept this as being the result of consideration and not an excuse for its absence—that it is very difficult to find the right words without going too far.

My noble friend Lord Mancroft and my honourable and learned friend the Parliamentary Secretary to the Board of Trade had a meeting on January 19 with representatives of three bodies whom I will not name—not for any sinister reason, but one does not like bringing names in unnecessarily; they were the bodies representing the persons involved—and they promised to submit by January 26 a memorandum on the points that had been raised, which included the points raised in this Amendment, and, if your Lordships will allow me to say so, in the next Amendment in the name of the noble Lord, Lord Faringdon. We have not yet had the memorandum and therefore have not been able to give full consideration to the questions, because we should like to know what they have in their minds. Therefore I hope that in those circumstances the noble Lord, Lord Faringdon, will not press this Amendment, on my undertaking that the matter will receive consideration in another place and that when we get the memorandum we will really get down to it and have another effort to try to find the words. I am sorry, because I did promise to consider it. Therefore I put the full facts before the House and I hope in the circumstances that the noble Lord will not press this Amendment at this stage.

LORD FARINGDON

My Lords, I can only thank the noble and learned Viscount for his reply and for the consideration he has promised to give. Clearly if the persons whom one wishes to benefit cannot make their case known in time it does not seem to me that they can have much complaint if their case is neglected. However, the noble and learned Viscount has promised to give consideration to their case, and with that I am more than satisfied. I gratefully accept that assurance and withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD FARINGDON

My Lords, I beg to move this Amendment and I take the opportunity of asking the noble and learned Viscount what is purely a drafting question. This Amendment is not phrased in exactly the same way as it was at Committee stage. I have made a certain addition intended to meet the case where there is perhaps a large orchestra of whom all the members might not have given an authority in writing to their manager or agent. I have made an addition and I should be greatly interested if the noble and learned Viscount could tell me what he thinks about it.

Amendment moved— Page 46, line 39, leave out from beginning to the end of line 40 and insert ("is authorised by the performers to give it and gives a warranty that he is so authorised when making arrangements for the performance;").—(Lord Faringdon.)

5.42 p.m.

THE LORD CHANCELLOR

My Lords, if I may say so, the noble Lord, Lord Faringdon, is getting very near indeed to what I think is right. His Amendment now says is authorised by the performers to give it and gives a warranty that he is so authorised when making arrangements for that performance. That still leaves it that he must, in fact, be authorised. I am inclined to think—I should like to put it frankly to the noble Lord, Lord Faringdon, for his consideration—that that goes too far, because it gets everyone into difficulties when he is not authorised. If the person, however (to adopt Lord Faringdon's own words), "warrants that he is authorised" then, if he is not, he would be subject to an action, broadly speaking, for breach of warranty of authority. Therefore I think we are getting very near together. I would ask the noble Lord not to press the Amendment at this stage and we will see whether we can find words which will satisfy him when the Bill goes to another place.

LORD FARINGDON

I am grateful to the noble and learned Viscount. I am glad to hear we are approaching one another on this point. I think there is a genuine point here. With the permission of the House, I withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 40 [Savings]:

LORD MANCROFT

My Lords, this Amendment safeguards existing rights and privileges conferred on the Crown and on other persons under particular Acts not repealed by the Bill. There are two examples which come to mind. The first is the provision in the Public Record Office Act, 1838, which enables copies of certain records to be made, printed and published. Then, again, there are the special rights of the General Medical Council to publish and sell the British Pharmacopœia. There may be other provisions here and there on the Statute Book which we have not yet brought to light but which obviously ought to be covered, and that is what this Amendment intends to do. I beg to move.

Amendment moved— Page 47, line 12, at end insert ("and nothing in this Act shall affect any right or privilege of the Crown or of any other person under any enactment (including any enactment of the Parliament of Northern Ireland), except in so far as that enactment is expressly repealed, amended or modified by this Act").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is purely a drafting Amendment. I beg to move.

Amendment moved— Page 47, line 20, leave out from ("no") to end of line 23 and insert ("copyright, or right in the nature of copyright, shall subsist otherwise than by virtue of this Act or of some other enactment in that behalf.")—(Lord Mancroft.)

On Question, Amendment agreed to.

VISCOUNT ALEXANDER OF HILLS-BOROUGH

My Lords, I do not want to make a speech on this Amendment because this was one of the matters the Government promised to look into to see whether there could be a remedy. I should like to know what the position is now, and to get the statement I move the Amendment.

Amendment moved—

Page 47, line 23, at end insert— ("(6) No proceedings shall be taken under this Act in respect of the operation of a television receiver in a shop or shop window, provided that such exhibition is solely concerned to assist in the sale of television receivers.")—(Viscount Alexander of Hillsborough.)

LORD MANCROFT

My Lords, I should have thought that the Amendment is now really no longer necessary, in view of Amendment No. 67, which we have already covered, the effect of which, as your Lordships will remember, is that it is the showing of television programmes to paying audiences which constitutes infringement. I should have thought that the noble Viscount's point is covered by that.

VISCOUNT ALEXANDER OF HILLS-BOROUGH

I am much obliged by the statement. On that basis I withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 42 [Interpretation]:

LORD MANCROFT

My Lords, this is merely for clarification. The first Amendment, No. 129, brings the definition of broadcast relay station into the subsection containing the general definitions. The expression is now used in the new subsection (5) added to Clause 14 as well as in Clause 42. I beg to move.

Amendment moved—

Page 48, line 18, at end insert— ("'broadcast relay station' has the meaning assigned to it by section nineteen of the Television Act, 1954").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment, No. 130, refers back to a subject which we touched on as long ago as Amendment No. 1. By this Amendment the position of lectures, addresses, speeches and sermons is dealt with on the same lines as under the 1911 Act, by making it clear that delivery of a lecture is performance of the work. As I think was painted out by my noble and learned friend on that Amendment, this relates to written lectures and does not purport to confer copyright in oral works, protection for which raises a number of difficult questions. I beg to move.

Amendment moved— Page 49, line 1, leave out from ("performance") to ("and") in line 4 and insert ("includes delivery, in relation to lectures, addresses, speeches and sermons, and in general, subject to the provisions of subsection (3) of this section, includes any mode of visual or acoustic presentation, including any such presentation by the operation of wireless telegraphy apparatus, or by the exhibition of a cinematograph film, or by the use of a record, by any other means").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is a consequential Amendment. I beg to move.

Amendment moved— Page 50, line 6, leave out from ("station") to ("or") in line 7.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD DOUGLAS OF BARLOCH moved, in subsection (3) (a) after "station" to insert: in so far as the broadcast programme originates in the United Kingdom. The noble Lord said: My Lords, this subsection as it stands provides that the operation of a broadcast relay station shall not be taken to constitute performance of a work in which copyright exists. So far as broadcast relay stations are used for the purpose of relaying programmes which emanate from the B.B.C. or the I.T.A., I presume that the question of the author's or composer's copyright is sufficiently protected by the arrangements which are made by owners of copyrights with those two authorities; but there is nothing to prevent a broadcast relay station from picking up broadcasts which emanate from other broadcasting stations. They may re-relay over their wires to their customers programmes derived from some foreign broadcasting station and that station may be broadcasting works in which some author or composer has copyright in this country. In that case, the author's copyright may be infringed by the broadcast relay station and, if this subsection is passed in its present form, it does not appear that the owner of the copyright would have any remedy whatsoever. I am, therefore, proposing to put in by way of Amendment a limitation that this is to apply only in so far as the broadcast programme originates in the United Kingdom. I beg to move.

Amendment moved— Page 50, line 6, after ("station") insert the said words.—(Lord Douglas of Barloch.)

5.52 p.m.

THE LORD CHANCELLOR

My Lords, I appreciate what the noble Lord, Lord Douglas of Barloch, has in mind: that, if the works of a copyright owner in this country are broadcast by the B.B.C. or the I.T.A., the owner can obtain due payment from those authorities, but if those works are broadcast by a broadcasting authority abroad, the copyright owner may find it difficult or impossible to obtain due payment from that authority. That might be taken further on consideration of the position of the relaying operator. If reception of those works in this country should be made available by relay operation, the relay company might become the payer and make payment to the copyright owner, although he would have no rights against other people who received the programme direct on their sets. I do not think that that would be fair because it would be tantamount to penalising the accessible relay company instead of the guilty broadcasting authority. The true answer is that, in any case, the foreign broadcasting authority, certainly if it is in a Berne Convention country, will already have made a payment for the composer's benefit for permission to broadcast the work. That, I think, is the real answer. If, on further consideration, the noble Lord still has any doubt on that point perhaps he will communicate with me, and I will then look into it again before the Bill reaches another place, but I wanted to answer at once what seemed to me the most important aspect of the Amendment.

I would point out that the Amendment, as drafted, would exclude from the provisions of Clause 42 the distribution by relay companies of programmes broadcast by the B.B.C. or the I.T.A. under Eurovision or other arrangements made with overseas broadcasting agencies, as well as those received direct from companies abroad. I do not suppose for a moment that the noble Lord, Lord Douglas of Barloch, intended that. Therefore, in view of this difficulty which arises under the form of his Amendment and my promise to look into any further doubts that he may have, I hope the noble Lord will not press it at this stage. I am sure he could arrange that the matter he raised in another place if these doubts still exist and are not solved by any action on the part of the Government.

LORD DOUGLAS OF BARLOCH

My Lords, I am much obliged to the noble and learned Viscount. I accept the criticism he has made of the drafting of this Amendment. It is perfectly true that it does not cover the particular contingency which he has mentioned, and therefore it is defective. On the general question, I should like to point out that it is quite conceivable that a broadcast programme may be diffused in some country where reciprocal rights of copyright do not exist and where, therefore, an English copyright owner's rights can be infringed with impunity. In that case, it is perfectly clear that he could never get any redress against the broadcasting station which broadcast his work. Secondly, I would point out, with respect, that the right of an owner of copyright in this country is a right to prevent his work from being performed or reproduced in this country without his permission; and the person who does that, in the circumstances I have postulated, is the broadcast relay company: that is the active agent. It may take advantage of something which has been done by some foreign company, but that would not, hut for the existence of this clause, have prevented there being an infringement. In exactly the same way, if somebody imported into this country a gramophone record which had been made abroad and used it here, he might quite easily infringe the author's copyright in this country. It would be no answer to that to say that, in the country where the record was made, what was done was perfectly right. It is in this country that the infringement takes place, and it is in this country that the author ought to have his remedy. That is the reason why I put down this Amendment, but I accept with pleasure the assurance which has been given, and ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 43 [Supplementary provisions as to interpretation]:

LORD MANCROFT

My Lords, this Amendment is little more than drafting. I beg to move.

Amendment moved— Page 51, line 6, leave out from second ("in") to ("shall") in line 7 and insert ("any other country,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

This is an Amendment designed to make clear who is to be the owner of the copyright when the copyright has been split or partially assigned. It is only a drafting Amendment. I beg to move.

Amendment moved—

Page 51, line 42, at end, insert— ("(5) In the case of any copyright to which (whether in consequence of a partial assignment or otherwise) different persons are entitled in respect of the application of the copyright—

1. (a) to the doing of different acts or classes of acts, or
2. (b) to the doing of one or more acts or classes of acts in different countries or at different times,

the owner of the copyright, for any purpose of this Act, shall be taken to he the person who is entitled to the copyright in respect of its application to the doing of the particular act or class of acts, or, as the case may be, to the doing thereof in the particular country or at the particular time, which is relevant to the purpose in question and, in relation to any future copyright to which different persons are prospectively entitled, references in this Act to the prospective owner of the copyright shall be construed accordingly.")—(Lord Mancroft.)

On Question, Amendment agreed to.

Fourth Schedule [Appointment of Television Copyright Organisations by British Broadcasting Corporation and Independent Television Authority]:

LORD MANCROFT moved to add to Paragraph 5: (2) An organisation appointed for the purposes of this Schedule shall not authorise any other organisation or person, other than any person in their employment under a contract of service, to negotiate or act for them, or for the Corporation or the Authority, with respect to the granting of licences in respect of rights to which this Schedule applies. The noble Lord said: Paragraphs 4 and 5 of the Fourth Schedule prevent the B.B.C. and the I.T.A. from assigning their television performing rights except to an organisation appointed for the purposes of the Schedule, and from employing anyone to grant licences for them except a person in their own employment or any such organisation. The purpose of these provisions is to prevent the situation arising in which applicants for licences may have to apply to a multiplicity of licensing bodies. The Copyright Committee, your Lordships may remember, considered that this should be avoided. The Amendment is designed to give effect more fully to this intention and, I think, closes all loopholes. It prevents the licensing organisations from themselves using some other organisation or person—except, of course, their own employees—for granting licences on their behalf or on behalf of the B.B.C. or the I.T.A. I beg to move.

Amendment moved— Page 56, line 39, at end insert the new subsection.—(Lord Mancroft.)

On Question, Amendment agreed to.

Fifth Schedule [Transitional provisions]:

6.1 p.m.

LORD MANCROFT

My Lords, this is also a drafting Amendment. It is designed to deal with the term of copyright in existing photographs, and is consequential on Amendment No. 6. I beg to move.

Amendment moved—

Page 57, line 11, leave out paragraph 2 and insert— ("2. In relation to any photograph taken before the commencement of section three, subsection (4) of that section shall not apply, but, subject to subsection (3) of that section, copyright subsisting in the photograph by virtue of that section shall continue to subsist until the end of the period of fifty years from the end of the calendar year in which the photograph was taken, and shall then expire.")—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, Amendment No. 138 goes with Amendments Nos. 139 and 140. They deal with the first ownership of copyright in existing works and works made in pursuance of existing contracts. They are really drafting Amendments consequential on the Amendments which we made to Clause 4 of the Bill. The position under the 1911 Act is retained in respect of such works. I beg to move Amendment No. 138.

Amendment moved— Page 37, line 18, after ("section") insert ("or in subsection (4) of that section.").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is consequential. I beg to move.

Amendment moved— Page 57, line 20, leave out ("or paragraph (c)").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this too is consequential. I beg to move.

Amendment moved— Page 57, line 21, after ("section") insert ("or in subsection (3) of that section.").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, the noble Lord, Lord Archibald, whose continued absence through illness is a great loss to us at this stage of the Bill, moved an Amendment on the Committee stage which was designed to provide that, in relation to existing films, the makers shall be deemed to be "the author." Existing films enjoy copyright (when they enjoy it at all) as dramatic works and, as I told the noble Lord at the time, it is not clear who is "the author" of such a film. To resolve the doubt retrospectively, one way or the other, might deprive someone of his existing rights. This Amendment, therefore, provides simply that whoever was "the author" under the Act of 1911, continues to be treated as such notwithstanding any changes made by this Bill. We can and have resolved the doubt for future films, but we cannot fairly do so for films already made. I beg to move.

Amendment moved— Page 59, line 45, at end insert ("and the person who was the author of the work for the purposes of the Act of 1911 shall be taken to be the author thereof for the purposes of the said provisions as applied by this paragraph.").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is about individual pictures—that is, "stills." These "stills" forming part of cinematograph films will not in future enjoy a separate copyright as photographs, but this will not apply to "stills" forming part of films made before the commencement of this Bill, which will continue to enjoy the same protection as photographs taken before its commencement. These Amendments, Nos. 142 and 143, provide accordingly. I beg to move.

Amendment moved—

Page 60, line 1, leave out from beginning to ("as") in line 5 and insert— ("The provisions of this Act shall have effect in relation to photographs forming part of a cinematograph film made before the commencement of section thirteen").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is consequential. I beg to move.

Amendment moved— Page 60, line 7, leave out sub-paragraph (2).—(Lord Mancroft.)

On Question, Amendment agreed to.

6.4 p.m.

LORD MANCROFT moved, in subparagraph (1) of paragraph 27, to leave out all words after the first "work" and to insert: any document or event which—

1. (a) was made or occurred before the commencement of that provision, and
2. (b) had any operation affecting the title to copyright in the work under the Act of 1911, or would have had such an operation if the Act of 1911 had continued in force,

shall have the corresponding operation in relation to the copyright in the work under this Act: Provided that, if the operation of any such document was or would have been limited to a period specified in the document, it shall not have any operation in relation to the copyright under this Act, except in so far as that period extends beyond the commencement of the provision of this Act by virtue of which copyright subsists in the work. (2) For the purposes of the operation of a document in accordance with the preceding sub-paragraph,—

1. (a) expressions used in the document shall be construed in accordance with their effect immediately before the commencement of the provision in question, notwithstanding that a different meaning is assigned to them for the purposes of this Act; and
2. (b) subsection (5) of section thirty-three, and subsections (1) and (3) of section thirty-four, shall not apply.

(3) Without prejudice to the generality of sub-paragraph (1) of this paragraph, the proviso set out in paragraph 6 of the Sixth Schedule to this Act (being the proviso to subsection (2) of section five of the Act of 1911) shall apply to assignments and licences having effect in relation to copyright under this Act in accordance with that sub-paragraph, as if that proviso had been re-enacted in this Act. (4) In relation to copyright under this Act in a sound recording or in a cinematograph film, the preceding provisions of this paragraph shall apply subject to the following modifications, that is to say,—

1. (a) in the case of a sound recording, references to the copyright under the Act of 1911 shall be construed as references to the copyright under that Act in records embodying the recording, and
2. (b) in the case of a cinematograph film, references to the copyright under the Act of 1911 shall he construed as references to any copyright under that Act in the film (in so far as it constituted a dramatic work for the purposes of the Act of 1911) or in photographs forming part of the film.

(5) In this paragraph 'operation affecting the title', in relation to copyright under the Act of 1911, means any operation affecting the ownership of that copyright, or creating or transferring an interest, right or licence in respect of that copyright.

The noble Lord said: My Lords, this Amendment is also a drafting Amendment and relates to assignments, licences and bequests of a date prior to the passing of this Bill, and events such as deaths or bankruptcy which occurred before that date. Its elect is to give these documents and events the same effect on copyright under this Bill as they had, or would have had, en the 1911 Act copyright, if that Act had continued in force. This was the intended effect of the paragraph in the Bill as introduced; and the purpose is merely to bring out this intention more clearly and precisely. I beg to move.

Amendment moved— Page 61, line 24, leave, out from beginning to end of line 38 on page 62 and insert the said new words.—(Lord Nlancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment and Amendments Nos. 146, 147 and 148, all go together. They are consequential on the changes in Clause 36 relating to Crown copyright. They affect existing works the copyright of which is owned by the Crown. The first relates to photographs, the second to sound recordings, the third to cinematograph films and the fourth to individual photo-graphs forming parts of cinematograph films. The existing position is, in each case, as nearly as possible maintained. I beg to move.

Amendment moved—

Page 62, line 47, end insert— ("31. Subsection (4) of section thirty-six shall apply in relation to photographs made before the commencement of that section as if the proviso to that subsection were omitted.")—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is consequential. I beg move.

Amendment moved— Page 62, line 50, leave out from ("if") to end of line 51 and insert ("for the period mentioned in that paragraph there were substituted the period of fifty years from the end of the calendar year in which the recording was made.")—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is consequential. I beg to move.

Amendment moved— Page 63, line 4, leave out ("such a cinematograph film which") and insert ("a cinematograph film made as mentioned in that subsection, but before the commencement of section thirty-six, if it").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is consequential. I beg to move.

Amendment moved— Page 63, line 8, leave out from ("in") to end of line 11 and insert ("relation to photographs forming part of such cinematograph film the provisions of subsections (1) to (4) of section thirty-six (as modified by the last preceding paragraph) shall apply as they apply in relation to photographs not forming part of a cinematograph film").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this is purely a drafting Amendment. I beg to move.

Amendment moved— Page 63, line 31, leave out from first ("to") to ("references") in line 32 and insert ("copyright under the Act of 1911, and, in relation to copyright under that Act,").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment deals with rights in works made before July, 1912. The Act of 1911 increased considerably the term of copyright in many cases and made provision for how the increased terms should be apportioned between assignor and assignee under assignments which had earlier taken place. This Amendment is designed to preserve the existing position in respect of such works. I beg to move.

Amendment moved—

Page 64, line 24, at end insert— ("38. Without prejudice to the generality of sub-paragraph (1) of paragraph 27 of this Schedule,—

1. (a) any right which, in accordance with paragraph (a) of the proviso to subsection (1) of section twenty-four of the Act of 1911, a person would, if this Act had not been passed, have had in relation to the right conferred by the Act of 1911 in respect of a work shall be exercisable in relation to the copyright in the work under this Act;
2. (b) subject to the exercise of any such right, any copyright subsisting in the work by virtue of this Act shall revert to the author or his personal representatives, as the case may be, on the date on which the right conferred by the Act of 1911 would have so reverted if this Act had not been passed; and
1200
3. (c) any interest of any other person in that copyright which subsists on that date by virtue of any document made before the commencement of the Act of 1911 shall thereupon determine.").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT moved to add to paragraph 38: (4) In relation to photographs taken before the commencement of section three, and to sound recordings made before the commencement of section twelve, the definition of 'qualified person' in subsection (5) of section one shall apply as if, in paragraph (b) of that subsection, for the words 'body incorporated under the laws of' there were substituted the words body corporate which has established a place of business in'. 39.—(1) The provisions of the two next following sub-paragraphs shall apply where—

1. (a) immediately before the date on which any provisions of the Act of 1911 (in this paragraph referred to as 'the repealed provisions') are repealed in the law of the United Kingdom by this Act the repealed provisions have effect as applied by an Order in Council made in respect of a foreign country under section twenty-nine of the Act of 1911; and
2. (b) no Order in Council under section twenty-nine of this Act, applying any provisions of this Act in the case of that country, is made so as to come into force on or before that date.

(2) The repealed provisions, as applied by the Order in Council under section twenty-nine of the Act of 1911 (or by that Order as varied by any subsequent Order thereunder), shall continue to have effect, notwithstanding the repeal, until the occurrence of whichever of the following events first occurs, that is to say—

1. (a) the revocation of the Order in Council under section twenty-nine of the Act of 1911;
2. (b) the coming into operation of an Order in Council under section twenty-nine of this Act applying any of the provisions of this Act in the case of the foreign country in question;
3. (c) the expiration of the period of two years beginning with the date mentioned in the preceding sub-paragraph.

(3) For the purposes of continuing, varying or terminating the operation of the repealed provisions in accordance with the last preceding sub-paragraph, and for the purposes of any proceedings arising out of the operation of those provisions in accordance with that sub-paragraph, all the provisions of the Act of 1911 (including the power to revoke or vary Orders in Council under section twenty-nine of that Act) shall be treated as continuing in force as if none of those provisions had been repealed by this Act. (4) In relation to a country in respect of which an Order in Council has been made under subsection (3) of section twenty-six of the Act of 1911 (which relates to countries therein referred to as self-governing dominions to which that Act does not extend), the preceding provisions of this paragraph shall apply as they apply in relation to a foreign country, with the substitution, for references to section twenty-nine of the Act of 1911, of references to the said subsection (3).

The noble Lord said: My Lords, for a body corporate to acquire copyright in photographs or records it was sufficient, under the Act of 1911, that it had a place of business in this country. By the first part of this Amendment, this position is preserved in respect of existing photographs and sound recordings. The new Paragraph 39 preserves existing Orders in Council under Section 29 of the 1911 Act conferring copyright protection on foreign works until either the Order in Council is revoked or the Order in Council under Clause 29 of this Bill is made giving protection to works of the foreign country in question, or the expiration of two years from the repeal of the provision in question. The point is this. It is not certain whether it will be possible to make the new Orders in Council under Clause 29 in every case so as to come into force at the time of this Bill. Should it not prove possible, this will provide protection for foreign works during such interim as there may be. Orders in Council made under subsection (3) of Section 26 of the Act, 1911, are also preserved. In fact, the only such Order now in force is one originally made in relation to Eire when it was a Dominion; this is still operative notwithstanding that Eire has since become the Republic of Ireland. I beg to move.

Amendment moved— Page 64, line 47, at end insert the said subparagraph and paragraph.—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is purely drafting. I beg to move.

Amendment moved— Page 65, line 12, after ("Act") insert ("(a)").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment is consequential. I beg to move.

Amendment moved—

Page 65, line 16, at end insert—("and (b) where, for those purposes, any of those provisions is to be treated as reenacted in this Act, it shall be treated as if it had been so re-enacted with the substitution, for the word 'this Act', wherever the reference is to the passing or the commence- ment of the Act of 1911, of the words 'the Copyright Act, 1911'.").—(Lord Mancroft.)

On Question, Amendment agreed to.

LORD MANCROFT

My Lords, this Amendment relates purely to a point of construction. No matter of controversy arises. I beg to move.

Amendment moved—

Page 65, line 16, at end insert— ("42. Without prejudice to the operation of any of the preceding provisions of this Schedule—

1. (a) any enactment or other document referring to an enactment repealed by this Act shall be construed as referring (or as including a reference) to the corresponding enactment of this Act;
2. (b) any enactment or other document referring to copyright or to works in which copyright subsists, if apart from this Act it would he construed as referring to copyright under the Act at 1911, or to works in which copyright subsists under that Act, shall be construed as referring (or as including a reference) to copyright under this Act, or, as the case may be, to works or any other subject-matter in which copyright subsists under this Act
3. (c) any reference in an enactment or other document to the grant of an interest in copyright by licence shall be construed, in relation to copyright under this Act, as a reference to the grant of a licence in respect of that copyright.")—(Lord Mancroft.)

On Question, Amendment agreed to.

6.8 p.m.

LORD MANCROFT

My Lords, we now come to the last Amendment on the Marshalled List, and I am happy to inform your Lordships that it is non-controversial. I should like to take this opportunity of thanking your Lordships for so patiently bearing with us in the speed at which we have been going during the last quarter of an hour. I can only express the hope that we have not left undone something vital. I beg to move.

Amendment moved—

Page 65, line 34, at the beginning insert— ("(1) In this schedule 'photograph' has the meaning assigned to it in the definition set out in paragraph 9 of the Sixth Schedule to this Act, and not the meaning assigned to it by section forty-two. (2)").—(Lord Mancroft.)

On Question, Amendment agreed to.