COMMONS AMENDMENT (Hansard, 30 October 1956)

§ LORD MANCROFT
My Lords, we now pass on to a completely different subject. Clause 8 deals with special exception in respect of records of musical works. If I may. I will discuss Amendments Nos. 13, 14, 15, 17, 18 and 19 together. The principle of Clause 8—the right, once the copyright owner has permitted the recording of a work. for others to record it on payment of a prescribed royalty—was discussed frequently during the consideration of the Bill in both places. It was not without controversy in its time and roused the displeasure of both the noble and learned Earl, Lord Jowitt, and the noble Lord, Lord Lucas of Chilworth. These Amend are concerned not with any change of principle. but with making more precise the details of the provision for how the system is to work. They are designed to meet two basic points. First, the owners of the copyright in a work is entitled to exploit his rights territory by territory, and, indeed, the rights for different territories to which the Act extends may be in different hands the exploitation of the rights in one territory ought not to prejudice their subsequent exploitation in another. To meet this point, the Amendments make the clause operate territory by territory.
The total effect of these Amendments, with the second part of Amendment No. 20, is that: either making in or importation into a territory, with consent, will give rise to a right to make in that territory, but that neither making nor importation will give rise to a right to import. This generally gives some further help to the composer, and I am certain that it will meet with your Lordships' approval. I beg to move that the House doth agree with the Commons in the first of these six Amendments.

§ LORD LUCAS OF CHILWORTH
My Lords, it may be for the convenience of your Lordships if I make any comments I have to make on Clause 8 on the first Amendment. Again, I do not want to weary your Lordships by going over the old battleground, but I was against this principle when the Bill was first introduced into your Lordships' House; and the passage of time has hardened, not 1155 softened, my view. To my mind, the principle in this clause is a complete breach of the fundamental principle that the author and the composer shall have full and sole authority to authorise the reproduction of the creations of their minds. What happens? The noble Lord has said that once a composer has given his consent to the reproduction of one of his works on a gramophone record, anybody, without his consent—he does not have to ask permission: all he has to do is to tell the composer that he is going to do it—can reproduce that work. Admittedly, royalty has to be paid—when it can be collected.
This goes along quite smoothly when the big recording companies are concerned, where they catalogue their products. In 1911, there were only one or two recording companies, but now there are hundreds—"mushroom" concerns, concerns of no stability, who live by pirating the work of the author. The clause in the Bill does not prohibit the manufacture of these spurious records—and spurious they are; it prohibits only their sale; and as they are never put on the market for sale, it is very difficult to trace them. These small manufacturers bring a matrix into this country from a foreign country and make thousands of records, on the same basis as some of the library societies sell books. I have been told—I cannot bring proof to bear so your Lordships will have to take this statement at its face value—of the manufacture of records up to 10,000 for which not a penny has been paid in royalties. because the sale of the records could never be traced and proved. That is what happens when erosion goes too far.
The noble Lord, Lord Mancroft, and all your Lordships, will have read a letter in The Times on this subject. The argument in favour of this clause, and against my argument, is that of monopoly. But, as The Times said, that argument has been carried a little too far; because, while you allow an author to give a monopoly to a publisher, and you allow a journalist to give a monopoly on his writings to a newspaper, you do not allow a composer to give a monopoly of the reproduction of his work to a record company. Perhaps the composer does not want it. I should think that 1156 he would be foolish to try, because the more records he can have made of his work, so long as they are legitimate, and he gets his fees for them, the better for him. His fee is 6¼per cent. per record, a matter of small change per record. I agree, but, taken as a whole, one of the main sources of the composer's income. And, as I say. he can have his work pirated, because the recording companies need not ask for consent, but need only tell him they are going to do it, and then it is up to the composer, through the highways and byways, to try and ferret out where these records have been sold.
I was hoping that at this late hour the noble Lord, Lord Mancroft, would give us some explanation, after all the arguments that have been waged upon this subject, as to why the Government want to stick to this exception—and it is an exception. It is against the fundamental principle running right through the Brussels Convention. and now right through this Bill. which is that the author and composer shall have the sole right to authorise. If it is monopoly, will the noble Lord say so? I know that his reply to me may be that the Brussels Convention allows the covenanting countries to introduce legislation in their own Legislatures to prevent monopoly. I should have thought this was something that the natural sequence of events would have prevented: in other words. the composer's desire that his work. so long as it was a credit to him in its reproduction. should be reproduced as often as it could be.
I have tried to state the case as fairly as I can. I can only repeat the protest that I have uttered, that we of the Opposition were given these 114 Amendments on Saturday afternoon. If I could have had them earlier, I might have put down an Amendment here: but with our lack of experts on this subject, I could not do it in the time available. The noble Lord, Lord Mancroft, may not be able to speak again on this Amendment, but perhaps the noble and learned Viscount on the Woolsack will say something to placate those who feel strongly on this point. This is the last opportunity before this Bill gets on to the Statute Book (possibly it is the last opportunity for another fifty years, because I doubt whether we shall be able to amend the Copyright Bill in this country for another fifty years—it is fifty I years ago since the last) for anything to 1157 be said that may give some comfort to these people. Men of the calibre of those in the composing world in this country do not make the statements as those made in the letter to The Times, and to the Press in general, unless they feel sincerely about this. This is not a Party matter but, in my view one of ethics, and I hope the noble and learned Viscount on the Woolsack will respond to my invitation and at least say something to those folk to make them feel that they have been given a better deal and that the Government have not quite gone right away from the principle that I have enunciated.

§ EARL JOWITT
My Lords, may I add one wore, with the proviso that I have not followed this matter since the last discussions, and, therefore, may be entirely inappropriate in what I say? If I am, if the noble Lord, Lord Mancroft, would indicate it, I will at once sit clown. I understand—and I am quite satisfied in this—that there are many distinguished musicians in this country who, in considering whether they will allow their works to be performed, do not consider merely the money they are going to get but also the method, style and quality of the person who is to perform their works. I do not profess to have the musical knowledge to deal with this subject adequately, but there are many eminent musicians in this country to-day, and there are musicians who, perhaps, are not quite so eminent. Into which category you would place these various people I do not know. There are, for instance, Moiseiwitsch, Rubinstein and Liberace. I can conceive that a distinguished musician might be willing to have his work performed by one of those three, yet not wiling to have it performed by another.
Do I understand that, if an eminent composer—I will not mention names; we can all think of eminent composers in this country—decided to allow one of these people to perform his work, no doubt taking the greatest interest and trouble about it, it follows that thereafter, having allowed a particular pianist to perform his work, he is bound to allow any other pianist to perform his work? If so, that does seem to me—and this is not a Party matter at all—a monstrous injustice. If I am talking to the point on this thing at all. and if that is the effect of this clause, I do beg the Government not to do it, 1158 because there is nothing to be said for it and there is not a single person in this House, on whatever side of the House he may sit. who would desire that to be so. If I am talking "in order," as it were, on this clause, and if that is the effect, I beg the Government, even though it be the last hour, to think again and prevent that being done. Surely, there should be some exception to deal with cases of this sort. For that reason I hope the Government will do something to prevent what regard as a grave injustice.

§ THE EARL OF SWINTON
My Lords, how far would the noble and learned Earl carry that? He has talked of musicians. and certainly there is a slightly different interpretation by one pianist as against another. But, after all, can you deal with musical authorship separately from other authorship? Of course one might have a distinguished person in other ranks of life playing a tune which might give great popularity to it. But I want to ask the noble and learned Earl: is it possible to distinguish musical works from other works? The noble and learned Earl himself is an author of no mean merit, and presumably the same rule would have to be applied to literary authorship as to musical authorship. Anybody from Thackeray to the late Lord Chancellor—or, should I say, from the late Lord Chancellor to Thackeray—writes something which a large number of people want to read in public. More and more people seem to react less and less, and to look at television more and more. It is rather a good thing that there should be these readings, and quite a number of good classical authors, both modern and ancient, are now read upon the B.B.C If you were to lay down that a musical composer may say, "Only so-and-so can play my music for broadcasting," are you going to say also, "only so-and-so shall read the works of an author in whom there is still a copyright"? I can see a good deal of difficulty in carrying this quite as far as the noble and learned Earl wishes.

§ EARL JOWITT
I suppose you can reserve copyright when you write a play. or anything of that sort. I should have thought that, without prejudicing your copyright, you ought to be able to allow some particular person, if you like on some particular occasion, to perform the 1159 work without giving the corresponding right to all persons on all occasions to perform the work.

§ THE EARL OF SWINTON
I see.

§ LORD MANCROFT
My Lords, I am sorry to be a spoil-sport, but this discussion has nothing whatever to do with the Amendment. The noble and learned Earl, Lord Jowitt, and my noble friend Lord Swinton are talking about a matter which we discussed at great length on other stages of the Bill, and which I know is a matter of violent controversy, upon which people feel strongly, and about which I myself happen to feel strongly. But I will not give my view at great length again, because it has nothing whatever to do with the Amendment. At this stage of the Bill, when we are trying to deal with the Commons Amendments, we cannot go charging up that battlefield again, and I hope your Lordships will allow this simple Amendment to go through.

§ LORD LUCAS OF CHILWORTH
My Lords, this was my only chance of speaking on this matter. because there is no Amendment down which alters the principle. I thought it was such an important matter, charged with such public interest, that, although, as I said at the outset, I could do nothing to alter it. or nothing to stop it. I expressed the hope that the noble and learned Viscount on the Woolsack would give reasons that might satisfy the eminent composers of this country, who have protested publicly about the principle, so that they may be able to rest assured for the next fifty years at least that there is some justice in what the Government want to do. If I have been out of order in all this, I apologise, but I thought it was worth trying.

§ THE LORD CHANCELLOR (VISCOUNT KILMUIR)
My Lords, I do not wish to detain your Lordships for more than a moment. I am afraid that it would be wide of the purpose of this Amendment, and. indeed, would be difficult for us, to add much to what was said before. The noble Lord, Lord Lucas of Chilworth, got near the kernel of the matter when he mentioned the monopoly which he and I discussed at length in another context. Therefore, I am afraid I cannot help him, enjoyable though it 1160 might be for him and me, if not for the remainder of your Lordships. There is only one sentence of the noble Lord's to which I take grave exception. He said that he was not an expert in this matter. Anyone who says that the noble Lord is not an expert in copyright will receive an emphatic denial from the noble Lord, Lord Mancroft, and myself.