§ After Clause 38 insert the following new clause—
§ Broadcasts of sound recordings and cinematograph films, and diffusion of broadcast programmes
§ (".—(1) Where a sound broadcast or television broadcast is made by the Corporation or the Authority, and a person, by the reception of that broadcast. causes a sound recording to be heard in public, he does not thereby infringe the copyright (if any) in that recording under section twelve of this Act.
§ (2) Where a television broadcast or sound broadcast is made by the Corporation or the Authority, and the broadcast is an authorised broadcast, any person who, by the reception 1191 of the broadcast, causes a cinematograph film to be seen or head in public, shall be in the like position, in any proceedings for infringement of the copyright (if any) in the film under section thirteen of this Act, as if he had been the holder of a licence granted by the owner of that copyright to cause the film to be seen or heard in public by the reception of the broadcast.
§ (3) Where a television broadcast or sound broadcast is made by the Corporation or the Authority, and the broadcast is an authorised broadcast, any person who, by the reception of the broadcast, causes a programme to be transmitted to subscribers to a diffusion service, being a programme comprising a literary, dramatic or musical work. or an adaptation of such a work or an artistic work, or a cinematograph film, shall be in the like position, in any proceedings for infringement of the copyright (if any) in the work or film, as if he had been the holder of a licence granted by the owner of that copyright to include the work, adaptation or film in any programme caused to be transmitted by him to subscribers to that service by the reception of the broadcast.
§ (4) If. in the circumstances mentioned in either of the two last preceding subsections, the person causing the cinematograph film to be seen or heard, or the programme to be transmitted, as the case may be, infringed the copyright in question, by reason that the broadcast was not an authorised broadcast, —
- (a) no proceedings shall be brought against that person under this Act in respect of his infringement of that copyright, but
- (b) it shall he taken into account in assessing damages in any proceedings against the Corporation or the Authority, as the case may be, in respect of that copyright, in so far as that copyright was infringed by them in making the broadcast.
§ (5) For the purposes of this section, a broadcast shall be taken, in relation to a work or cinematograph film, to be an authorised broadcast if, but only if, it is made by, or with the licence of. the owner of the copyright in the work or film.")
§ 5.37 p.m.
§ LORD MANCROFT
My Lords, we now come to something of considerably more importance. Amendment 84 deals with two distinct matters. First, it brings back the provisions of the deleted Clause 15, under which, as your Lordships will remember, a person who receives broadcast programmes and causes them to be seen or heard in public is relieved from the need to obtain licences from record and film copyright owners (but not from the need to obtain licences from the owners of copyright in "works" under Clause 2 or Clause 3 of the Bill). This is done in order to protect people, showing these programmes in public, from having to obtain a multiplicity of licences, but the rights of owners of head copyright in 1192 works under Clause 2 or Clause 3 are not overridden in these two subsections because to do this would be contrary to the Brussels Convention.
Secondly, this clause deals with the position of rediffusion companies. Subsection (3) deals with the relaying of a programme (either sound or television) broadcast by the B.B.C. or I.T.A. (but only by those authorities). In so far as rediffusion companies only transmit to their subscribers programmes broadcast by these two authorities. (a) they do not infringe the head copyright in any "works" or films comprised in the programme in so far as the B.B.C. or 1.T.A. is the owner of that copyright, and (b) in so far as some other person is the owner of that copyright, the licence given by him to the B.B.C. or 1.T.A. to give the broadcast shall be deemed to include permission to relay their works or films. The background to this provision is that the B.B.C. and the I.T.A. settle with the head copyright owners on the basis of broadcast receiving licence holders, including subscribers to relay companies as well as users of sets which receive the programmes over the air. Thus the head copyright owners are in effect paid for the relaying of their works in the United Kingdom when they receive payment from the B.B.C. or I.T.A. for the licences which they give to the B.B.C. or I.T.A. to broadcast their works. It is for this reason that, by virtue of subsection (3), it will not be necessary for the relay companies to obtain separate licences to relay from the head copyright owners. The case where the head copyright owner has not given a licence to broadcast to the B.B.C. or I.T.A. is dealt with in subsection (4).
My noble friend Lord Teynham has on the Order Paper an Amendment to this Amendment. I think that he was in his place when I spoke on the first Amendment on the Order Paper and I am not going to waste time in delivering again the arguments which I advanced then, as did the noble Lord, Lord Lucas of Chilworth. I am certain that the noble Lord, Lord Teynham, has followed what has been said, and I will merely say that what I offered to your Lordships then by way of explanation should be regarded as being written into the observations I have just made, and I hope that my noble friend Lord Teynham will move his Amendment to the Amendment on that 1193 basis. I beg to move that the House doth agree with the Commons in the said Amendment.
§ Moved, That this House doth agree with the Commons in the said Amendment. —(Lord Mancroft.)
§ 5.41 p.m.
§ LORD TEYNHAM had given Notice of two Amendments to the Commons Amendment, the first being in subsection (3), line 2, to leave out "by the Corporation or the Authority". The noble Lord said: My Lords, with the permission of the House, I should like to speak to my two Amendments together. In the first place, I thiik I should make it clear that the two Amendments, taken together, would restore this new clause to the form in which it left the Standing Committee in another place, except, of course, for some minor Amendments which were inserted by Her Majesty's Government. The whole background of this clause is an extremely interesting one, and certainly very complicated, and I ask your Lordships to hear with me for a short time while I try to unravel it. The noble Lord, Lord Lucas of Chilworth, has partly dealt with it, but I do not think that he has fully covered the matter.
§ I would remind your Lordships that during the Report stage of this Bill in your Lordships' House the noble and learned Viscount who sits on the Woolsack gave an undertaking to consider a further question. What was this further question? It was one which appears to have arisen after some 300 Amendments had already been debated: the question of whether the relay services should be brought into the field of copyright. After the Bill left your Lordships' House, it received a Second Reading in another place, but no indication was then given by Her Majesty's Goverment that they might seek to amend the Bill in this particular. It was not until the Bill reached the Standing Committee in another place that Her Majesty's Government proposed sweeping Amendments which would have had the effect of making the relay of programmes an act restricted by copyright.
These Government Amendments were set down in spite of the fact that the Copyright Committee had dismissed the subject in one sentence. What did they say? They said:
We do not suggest any alteration in the present relationship between the Postmaster General, the B.B.C. and the relay services.
It is clear that here we have a statement with no qualification whatever, and in the clause it was quite clear what they in-mended. Then we heard the astonishing statement made by the Assistant Postmaster General in another place, which I quote:
It seems to me perfectly logical and proper that when a Bill is first presented, as this was, in another place," —
of course, he referred to your Lordships' House—
it should follow closely the recommendations of that Committee," —
presumably, he meant the Copyright Committee,"—
and that it should be the responsibility of this House "—
that is, another place—
to decide when any additions or subtractions should be made to some of the general principles recommended by the Copyright Committee.
I very much deprecate these remarks, which I venture to suggest must have been made without realisation of the constitutional position and which are almost an insult to your Lordships' House. A great deal of time was spent on this Bill, and we in your Lordships' House are certainly under no obligation whatever to follow closely the recommendations of the Copyright Committee—or, in fact, of any other committee.
§ As I have said before, the Government Amendments put before the Standing Committee in another place proposed to make the relay of programmes an act restricted by copyright, in spite of the Report by the Copyright Committee. The whole question was debated at considerable length by the Standing Committee, and finally a compromise Amendment was agreed. which laid down that the principle of copyright which was to apply to the B.B.C. and the I.T.A. should apply equally to any foreign broadcast, subject to the safeguard, from the point of view of the author, that it would be a breach of copyright by the relay company if a programme relayed by them had, in fact. been broadcast in breach of copyright. On Report stage in another place, Her Majesty's Government introduced Amendments which, in fact, have negated the decision of the Standing Committee. I think that it is true to 1195 say that during a three hours' debate in another place not a single speaker spoke in favour of the Government's Amendments, yet eventually they were inserted in the Bill.
§ What have the Government's Amendments, which are before your Lordships to-day, done? Their effect is that relay companies must obtain and pay for a licence to relay a foreign—I repeat, foreign—broadcast, unless they can prove that the broadcaster has paid a fee not only in respect of broadcasting but also in respect of the relaying of that broadcast. I suggest that this provision would be most unfair to the relay services, because it would penalise the relay companies instead of the guilty party—the foreign broadcasting authority. At the time of the passage of the Bill through your Lordships' House, I would say that this appeared to be the view of the noble and learned Viscount who sits on the Woolsack, but it would seem that he has changed his mind.
I submit that my Amendments fully cover the interests of authors and composers. The position is that authors and composers already receive from the broadcasting authority fees in relation to the broadcast of their works, whether by relay or by ordinary licence. The new clause, as it stands, would result in the payment by the British relay companies of those fees for which the foreign broadcasting stations have hitherto accepted responsibility. They always have done in the past why not in the future? It would certainly not involve further remuneration to authors, but would transfer to the British relay companies a liability which is properly that of the broadcaster. Only recently—I think it was on October 26 a letter appeared in The Times,
under the signature of the chief executive officer of the Performing Right Society, which said:
Our members would be quite happy if the provision of the existing law was left unchanged.
I can assure your Lordships that that proposition would certainly be acceptable to the relay services, though, on the other hand, they are quite prepared to accept the new clause with the Amendments, the first of which I now beg to move.
§ Amendment to the Commons Amendment moved—1196
§ Subsection (3), line 2, leave out ("by the Corporation or the Authority").—(Lord Teynham.)
§ LORD LUCAS OF CHILWORTH
My Lords, would the noble Lord be kind enough to answer one question? Under his Amendments, where would the composer or author obtain his redress, if his work were relayed in this country via a foreign broadcast and not by the B.B.C. or I.T.A.?
§ 5.50 p.m.
§ THE EARL OF SWINTON
My Lords, before I say a few words to your Lordships on this subject, I wish to make it quite plain that I have a modest personal interest in this matter. I happen to be a director of a relay company, but fortunately that company has a good many other interests and a certain number of resources and is, therefore, I think, able to sustain assaults, however invidious, perhaps more adequately than some others can. I should not have intervened to take part in this debate on that account alone. I should not take part were I not convinced that the decisions which your Lordships took in the long debates in this House when the Bill was introduced were entirely right, and that now a grave injustice is being proposed. not merely or chiefly to some 300 relay companies, but what to me, and I think to your Lordships, and, as it appeared. to many in another place, is much more important. to 1 million or more families who use this service. From the long debates we had some months ago your Lordships are probably familiar with the relay system, and some of you who are more fortunately situated may take advantage of it in your apartments. This relay system is, in fact and in law, an alternative receiving system to the ordinary radio sets which most people have. There are upwards of 1 million subscribers to this service in all parts of the country, mostly people in modest circumstances, who like to make weekly payments and who value the service which is given, and particularly value it in those regions where the reception of ordinary sets is not wholly satisfactory.
The Bill, as it was introduced here and as it was passed on to another place after long debate, left the law with regard to relay companies, whether they relay something originated at home or overseas, as it has stood for thirty years. It was 1197 explained to us when the Bill was before us previously that its primary object was to ratify—I do not know whether I 'use the correct legal term—or to make effective in our domestic legislation in this country the Brussels or Berne Copyright Convention. This Convention is now some years old, and in order to make sure that the Bill should properly represent the findings and the terms of the Convention, Her Majesty's Government, quite rightly, appointed an expert Copyright Committee, the Gregory Committee, to consider the matter. As was explained to us in this House, that Committee was composed of, among others, high legal authority, including Mr. James, a well-known author on copyright law, who I am told is one of the leading authorities on copyright in this country. That Committee, who did not use unnecessary verbiage in their Report (that I highly commend, and I wish their example was more universally followed), heard full legal evidence on the whole position of relay companies, and heard the present President of the Law Society, and reported that no change was required in the law. That was accepted, as one would expect, as good law in this House when the Bill was introduced.
I would ask your Lordships to observe this. As this Amendment comes to us from another place, it does not come as an Amendment which is proposed in order to give effect to the Copyright Convention. On the contrary, those of your Lordships who have read the debate in another place will have seen that, for the purposes of the debate, the House was invited to assume that the Convention was fully satisfied by the Bill as it left Committee. But they were asked—and it was not unreasonable—to decide on its merits and in equity, and not on legal grounds, what ought to be done. This issue, which was discussed in this House, was debated fully in Committee in another place, and the Standing Committee in another place sustained the view which your Lordships had expressed when you sent the Bill down.
That decision of the Standing Committee of the House has now been reversed by a narrow majority on Report in another place. As my noble friend Lord Teynham said, it is noticeable, not only that the whole Labour Party took one view (it is interesting to find that when the Labour Party have become united in another place disunion appears 1198 to be breaking out in their ranks here; my noble friend Lord Lucas of Chilworth will have to be careful about whether he gets nominated as Minister of Transport in the next Labour Administration) but that in that long debate which took place on the Report stage in another place no speaker from any quarter of the House, except the two Under-Secretaries of State who were put up to state the Government's case, supported the Amendment which my noble friend Lord Man-croft is now commending to your Lordships. I know that I may he told by the noble and learned Viscount on the Woolsack that when you want to get Business through the other place the Whips do not encourage Back Benchers to make speeches. But he and I were Ministers in another place for quite a long time, and we both know well that when a Minister is batting on a sticky wicket—and this was a peculiarly sticky wicket—one is extremely anxious to secure some vocal support from the Benches behind one.
To-day this House is asked to reconsider and change its previous decision on the merits. I would ask your Lordships to observe certain facts. This Amendment does not in any way affect relays in the United Kingdom made from broadcasts from the B.B.C. or I.T.A. In the second place, it does not concern broadcasts originated by British relay companies in the Commonwealth or elsewhere—they are not allowed to originate in this country. Where these relay companies originate programmes they have always paid, and paid in full, for any copyright they use, and I have never heard that there was any dispute or objection by any author or any copyright society.
Let us be quite clear what this Amendment does. It imposes, and imposes only on relay companies in the United Kingdom, and, therefore, on their subscribers, an. obligation which is not imposed on any owners of ordinary radio sets, who can quite easily pick up a programme—an obligation to pay an extra fee which they do not pay to-day when they pick up and relay a foreign broadcast. Your Lordships will observe whom it is to benefit. It is not the British author, because in ninety-nine cases out of a hundred a British composer broadcasts in this country. What are picked up and 1199 relayed are foreign broadcasts. Therefore, this particular obligation is to be imposed for the benefit of a foreign station, and, in ninety-nine cases out of a hundred, in favour of a foreign broadcaster. But it is certainly the British listener who is going to be made to pay. Now is that fair? That is the only thing we have to decide.
It is common ground that an author should be paid for his copyright. It is equally common ground that an author should not he paid twice. There are performing right societies in every civilised country to protect the author, and for thirty years the broadcasting authority and the author have always known that the broadcast can be picked up by any individual receiving set of any relay service. This relay business. I understand, has been going on for twenty years or more. Now, under this proposal, the relay services are to be made to pay an extra fee for broadcasts in foreign countries, but not in the United Kingdom. There is no international obligation to do this. That was not contended here or in another place. If there is any question about the rights of Radio Diffusion or anybody else, they are going to meet again next July, and they can talk about it then. But this has not come to us as something we ought to do by international agreement. This is something which we are asked to do as fair and right. Everybody wants to do what is fair and right, but is it really fair or right to impose this new and invidious discrimination upon one million relay subscribers—and I say advisedly "subscribers"?
One of two things will happen—and here I agree with so many of the speeches which were made, not from my side of the House, in another place. Sooner or later the charge will be passed on. My noble friend Lord Mancroft said, "It is only a trifle; a farthing a week." Well, I do not know. I would not challenge, but I certainly would not guarantee, his calculation. Appetite grows with eating. It may be a farthing, or it may be a halfpenny. But do not let my noble friend think that farthings and halfpennies do not count. After all, in working class budgets—and these families are nearly all people in modest circumstances—halfpennies or farthings a week add up, whether it is in radio service, milk or in 1200 bread. Either that will be passed on or the service will be less good. I do not think that is right, and that is the only reason why I have intervened. Apart from two interventions by Government Under-Secretaries I think every single speech made in another place was opposed to this proposal. I think your Lordships, if you reject this Amendment, and adhere to the position you took when you sent the Bill down to another place, will be doing what is fair and just by a great many humble people.
§ 6.5 p.m.
THE MARQUESS OF WILLINGDON
My Lords, I have a similar confession to make as the last speaker. For many years I have had an interest in a company which is sometimes in competition with that of my noble friend Lord Swinton. I rise to-day to support this Amendment only because I think the present position, as it left another place, is so very unfair. I make a hid for the support of the Lord Chancellor. for in February of this year he stated in the debate [OFFICIAL REPORT. Vol. 195. col. 1192]: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.Further, I make a bid for the help of the Assistant Postmaster General. On June 19, in another place, he said:All that the rediffusion and relay companies arc doing is to provide their listeners with a means of listening to a broadcast programme. Therefore we think it would be wrong to regard the action undertaken by the relay services as providing a second performance of the work and therefore entitling the head copyright owner to a second royalty in respect of it.
§ LORD CONESFORD
My Lords, I shall not detain the House for more than two minutes. I rise only to ask my noble and learned friend the Lord Chancellor if he would be good enough to answer two questions which I shall put to him. The first is a purely legal question which I put to him as the great legal authority in this House, and that is whether in his view the new Government Amendment before this House—the Amendment the Commons made which is now before the House, and which my noble friend is seeking in his turn to amend—is required by Article 11 bis of the Brussels Convention. I agree with my noble friend 1201 Lord Swinton that in another place the House was invited to assume that that question did not arise and to treat the Amendment simply on its merits. Nevertheless, I should greatly value my noble and learned friend's view on the question whether what the Government are now proposing is, or is not, required by Article 11 bis of the Brussels Convention. The second question which I put to him, and which I do not knew whether he is in a position to answer, is whether other countries which are parties to the Berne Convention either have made or are making a similar provision in their law to that which is intended here.
My Lords, before anybody replies on behalf of Her Majesty's Government, I think it proper to refer to the quotation which was perfectly properly made by my noble friend Lord Teynham of the words of the Assistant Postmaster General, speaking for the Government in another place. and to ask whether they ought to be qualified in any way, or whether they embody the views of Her Majesty's Government towards this House. If they do, they are contrary to those expressed by all other previous Governments and to the doctrine that was always laid down with the common assent of both Parties in the House by the late Lord Donoughmore. I think that this is much more important than the fate of this Amendment.
§ LORD LUCAS OF CHILWORTH
My Lords, there is one observation I should like to make—I do not intend to repeat anything I said previously. One of. the two statements made by the noble Earl. Lord Swinton, was that what your Lordships are being asked to do by this Amendment is to reverse what you did when the Bill in its original form was before your Lordships' House. I say that that is not a correct statement. The reason your Lordships were not asked to express an opinion, which would very likely have gone to the Division Lobby after debate, was because of the undertakings given by the noble and learned Viscount on the Woolsack. My noble friend Lord Archibald raised at the Committee stage this matter of the relay services and the effect of relay services upon copyright. He was speaking on subsection (3) (a) of Clause 42. It was the fact that the Government put that in the Bill that was the cause of all the trouble. 1202 That brought a new concept of copyright into copyright law.
My noble friend raised this matter, as I said when I spoke to your Lordships upon the first Amendment, and it was because of the assurance which the noble and learned Viscount on the Woolsack gave my friend that the matter was not pursued at that time. My noble friend Lord Archibald put down a series of Amendments upon the same subject on Report stage. Unfortunately, my noble friend was ill —
§ LORD LUCAS OF CHILWORTH
I will come to that, if the noble Earl will possess himself in patience. They were moved by the noble Lords, Lord Silkin and Lord Douglas of Barloch. Again, there was the noble and learned Viscount's assurance that this matter was receiving the very close attention of Her Majesty's Government, but that it was a very difficult matter; and he asked my noble friend to withdraw the Amendment on the assurance that it was under active consideration and that it would be dealt with in another place. It was also referred to by the noble Lord, Lord Silkin, in his Third Reading speech as the one remaining controversial matter that had not been decided.
Those are the facts. Nobody, least of all the noble Earl, Lord Swinton, can say that the matter was not raised in your Lordships' House. If it had not been for the assurances we had received from the noble and learned Viscount, it would have had, shall I say, stricter consideration, because we on this side of the House have always felt that it was incumbent upon Her Majesty's Government to bring in the clause they had brought in with the first Amendment because of the Brussels Convention. The Brussels Convention has always said that the author and/or composer has this right. It says:The author of a literary or artistic work shall have the exclusive right of authorising any communication to the public, whether over wires or riot, on the radio diffusion of the work"—The English translation of radio diffusion is "broadcasting"—when this communication is made by a body other than the original one.1203 That is the wording of the Brussels Convention. The Government were bound —they had no option, if they wanted to keep within the Brussels Convention—to put the Amendment into this Bill that the noble Lord, Lord Mancroft, moved as the first Amendment. The other clauses, 28 and 40, were really put into this Bill only to amplify that and to give wide safeguards to the relay companies to see that they did not pay twice for the same thing. That is putting the point in colloquial language.
The point I put to the noble Lord, Lord Teynham, is this. If his Amendment is agreed to, it will mean that the British author and composer will be thrown on the mercy of the courts of another country to obtain his rightful fees, his rightful remuneration, because the law of this country will not give him any protection.
I am not quite sure that the point is correct. It is a very difficult legal one, and I may be wrong. As I take it, the clause, if amended according to my Amendments, would mean that the author would have recourse to the British relay service if the relay service had relayed a broadcast from a foreign station and the foreign station had made the broadcast in breach of copyright. That is as I understand it.
§ LORD LUCAS OF CHILWORTH
I am not going to argue law with the noble and learned Viscount the Lord Chancellor but that is not my interpretation. The interpretation of those who advise me upon these matters is this: that once you have brought in this provision there will be only one form of redress for the British composer; that is, to seek it in the courts of the country of the station concerned, because he will not have any redress in this country. That is the only thing I should like to record, because I shall not take any notice of the other comments that have been made. They are for the Government. I hope your Lordships will not mind my adding this. There is only one interest I have to disclose, and that is my interest for the composer and the author, that he should get the just return for the work of his brains. I have no financial interest of my own to safeguard; his is the only one that I am thinking of. Noble Lords on this side of the House will join with me in that. I ask your Lordships to reject the Amendment to 1204 the Amendment. I can assure the noble Lord that, if this matter goes to a Division, we shall support the Government on the Commons Amendment as it stands.
§ LORD SOMERS
My Lords, with all due respect to the noble Lord, Lord Teynham—and I say those words with all seriousness, because I have a very great respect for him—I think that, if his Amendment is carried, it will be an act of gross injustice. I should like to make it clear that I am not speaking in my own interest as a composer, because I am not an eminent enough one for my performing rights to make any difference to my income: I am speaking in the interests of composers in general. They are very hard-working people, more hard working. I think one might say, than the average manual worker, since the mental strain is so terrific that it takes a pretty sound frame to bear up to it.
One has to remember, too, that it is about the least remunerative, as I have said before—I do not want to repeat myself too often—of all occupations. Any steps that we can take to encourage the composer in producing his works are surely worth while. If they are not worthwhile works, then they will die by themselves. If they are worth while, surely it is worth while encouraging them to be produced. Presumably, the rediffusion stations are companies with an adequate financial background. I hardly think they are going to lose a great deal by paying for these extra rights. After all, the composer's performing rights are very minute at the best of times, and one cannot get away, as I said before, from the fact that it is a dual or extra performance.
The noble Earl, Lord Swinton, said that it was an alternative to the original. On the other hand, one can say the same of two concerts in different places, yet both have to pay their dues. This is definitely a new performance, creating a new audience. Of course, the performing rights paid to the foreign composer by his foreign station may or may not include the possibility of the rediffusion of the work in this country—one cannot say about that. In any case, the noble Earl said that foreign composers and not British composers would benefit by this. But we are all in the greatest favour of that; we do not merely want British composers to get their dues. In all 1205 justice, surely the composer who gets what really amounts to two separate performances of his work should be paid for those two performances.
§ 6.22 p.m.
§ THE LORD CHANCELLOR
My Lords, the arguments in regard to this Amendment have extended over a wide field and I shall do my best to cover them. I hope that any noble Lord who feels that I have left anything untouched will not hesitate to remind me of it, because it is my intention to deal with the important points that have been raised. The first argument in point of time that has been advanced is in regard to the procedure in your Lordships' House when this Bill was previously before the House. The noble Lord, Lord Lucas of Chilworth, has gone over that carefully and I will not repeat it. I simply add the footnote, to remind your Lordships that after the matter had been discussed on Committee stage and on Report, and after the noble Lord, Lord Silkin, had raised it on Third Reading, my noble friend, Lord Mancroft, said that the Government were still wrestling with the problem, and prophesied, with complete accuracy, that more would be heard of it in another place.
With regard to the very interesting constitutional point raised by my noble friend Lord Saltoun, let me make my position completely clear. I do not think that it is material at all in which House a Bill starts; the legislative functions remain quite clearly a duty on Members of both Houses. Legislative functions are always two in number. The first is to give effect to the general policy of which the House approves—that is generally the policy of the Government of the day in the House of Commons; it may, or may not be, in your Lordships' House. That is the first general legislative function: to put into legislative effect a line of policy. The second legislative function is so to adjust the provisions of the Bill that they fit the lives and ordinary daily round of people in this country as a whole.
In so far as my honourable friend the Assistant Postmaster General said that it is a normal process to start fairly close to your governing Report and then to find on examination that certain portions of it do not fit the circumstances at the time when the Bill is introduced as well as 1206 they appeared to the authors, that is, I should submit, a perfectly reasonable approach. I cannot understand why my honourable friend should have thought that there was any difference in the situation according to in which House the Bill was introduced. At any rate, I have given your Lordships my view, which I state without any equivocation.
May I interrupt the noble and learned Viscount? Would he agree with me that both Houses are completely independently empowered to deal with my Bill according to how they see fit?
§ THE LORD CHANCELLOR
Certainly; that is absolutely right. The noble Lord, Lord Saltoun, would agree with me from his great experience that, having asserted that right, there is a wide field of co-operation between the Houses to get the best result. I am glad that my noble friend agrees. That is the position. I should like to come back to the point that my noble friend Lord Willingdon raised in his quotation from myself. I think that when I do come back to it, he will see that the point that I made, that I hoped at that time might be covered by the existing law, is put beyond doubt in the Amendment. I have dealt with these matters because they concern the first point, which is the history of this legislation.
Now, as to the position under the Bill. I think it is important to remember that in all the earlier Amendments my noble friend Lord Mancroft put forward the argument for including relaying among the restricted acts in Clauses 2 and 3. There has been no dispute on that point. Therefore. the House must approach this difficulty on the basis that they are certainly starting from the fact that they are restricted acts within Clauses 2 and 3. I do not think that anyone who reads Articles 11 and 11 bis of the Brussels Text would seriously question that point —at any rate, nobody has questioned that point, and that is our starting point today. There is also no argument—my noble friend Lord Swinton emphasised this point—about the liability of persons engaged in relay who also originate their programme. The noble Earl accepted that they must be dealt with as parties who must pay. Therefore, the argument that arose in another place and 1207 which is repeated to-day is over a relay in one country of a broadcast from another. With all respect to my noble friend Lord Swinton, I do not think it is highly profitable to speculate on why or why not speakers did or did not speak from the Government Benches in another place. The noble Earl, Lord Swinton. as all your Lordships would expect. had his brilliance early recognised, and if my memory is right sat on the Back Benches of another place only from January, 1919. until April, 1920.
§ THE LORD CHANCELLOR
As one who sat many more years before ministerial office came his way, I should simply say to your Lordships that the argument which my noble friend anticipated is a very strong one—that when you have got a long Bill, Government Whips always come round and say, "Cannot you restrain your argumentative and rhetorical powers and let us get on with the business?" I only say to your Lordships. do not draw too serious a conclusion from that point.
The position in the United Kingdom is that rediffusion companies are precluded from originating programmes under the Postmaster General's licence. and the facilities they provide are prescribed some of them relay only programmes put out by the B.B.C. and the I.T.A. and others transmit foreign broadcasts as well. So far as the B.B.C. is concerned, owing to the way in which it receives its income it can, and does. contract with the Performing Right Society on the basis of all licence holders. including those who hold the licence owing to their having the rediffusion service. That point is therefore quite clearly dealt with, and the new clause after Clause 38, which we are discussing, provides that a licence by the B.B.C. and the I.T.A. to broadcast shall be deemed to include a permission to relay.
But the real difficulty we find is that we cannot take this line so far as foreign broadcasts are concerned, since the owner of the copyright in the United Kingdom need not be the same as the owner of the copyright abroad; and the relaying in the United Kingdom is properly one of the rights to be assured to the owner 1208 of the copyright in the United Kingdom. That is the difficulty. It is a fair one which we must face and, as your Lordships have heard from my noble friend, we have dealt with it on the three broad lines of, first, making the transmitting to subscribers by a diffusion service one of the acts restricted (that is under Clauses 2, 3 and 13), and secondly, by saying that when a sound or television broadcast is made by the B.B.C. or I.T.A. and someone transmits a programme by cable or wire in the operation of a diffusion service, he does not thereby infringe; and the original copyright owner is deemed, in allowing broadcasting, to be permitting rediffusion. That is obviously right in the case of the B.B.C. and the I.T.A.
So we come to the third point. Where a programme from a foreign station is transmitted to subscribers by a diffusion service in the United Kingdom, we suggest that the Tribunal shall have power to decide on the appropriate payment to be made by the diffusion company to the owner of the copyright in the United Kingdom for the diffusion of the programme, if the Tribunal is satisfied that the payment made abroad for the right to broadcast took no account, or insufficient account, of the fact that the programme would be diffused in the United Kingdom. That is the new clause, after Clause 27. That covers the point made by my noble friend Lord Willingdon, because it makes quite clear that in the case where the copyright owner has not been paid a fee appropriate to the rediffusion, or has been paid an insufficient fee, he can go to the Tribunal and get it. In essence, that is the solution, and surely it must be the right one, that we should try and do equity between the people concerned.
I am not making any animadversions at all to the fact that my noble friends Lord Swinton and Lord Willingdon have come here and told your Lordships where the interests of their shareholders lie, for that is something which must be considered. One must be equitable between those who are carrying on the service with their money. But, on the other hand, as my noble friend Lord Somers has said, equity does not mean looking at one side; it means also looking at the author and seeing whether lie is getting a square deal. That is what we have tried to do.
§ THE EARL OF SWINTON
My Lords, I declared my interest perfectly plainly. Had I been considering merely my shareholders I should not have intervened in this debate at all. What I am concerned about is the fact that there are many small companies who cannot afford this. I am concerned, as was every speaker in another place, with one million poor people who are the subscribers. I will make the noble and learned Viscount a present of the capitalists and the shareholders. I am concerned with the little people.
§ THE EARL OF SWINTON
My Lords, the noble and learned Viscount said I was speaking for the shareholders, a remark which I disliked.
§ THE LORD CHANCELLOR
My Lords, it is not a matter on which the noble Earl need get annoyed. I am saying that it is the duty of the House to hold the balance fairly between capital invested in carrying on this service and authors who are concerned in getting a fair reward. Surely that is the way to look at it. As I made perfectly clear, I am not animadverting against the shareholders being considered. Why should they not be considered? All I am asking your Lordships to do is to find a balance between their interests and the interests of the author. That is what it comes down to in the end.
I want to come to the point put to me by my noble friend Lord Conesford on the position under the Brussels Text. I would put it in this way. I believe Article 11 bis is difficult to construe and I should not like to give a final opinion until I had heard at any rate two possible meanings argued fully before me, because that is my approach to a question of law; but I think the noble Lord will agree that there are at least two very arguable meanings that can be given. One school of thought says that paragraph I gives three totally independent and distinguishable rights and that the author is entitled, subject only to what escape is given by paragraph 2, to three separate fees. The noble Lord, Lord Conesford, will notice that in paragraph 2 "rights" is in the plural. The other school holds that the words "radio-diffusion and communication to the public" 1210 are not, in the original French, apt to describe broadcasting and relay services. I am, of course, always completely frank with your Lordships on questions of law. for that is what you look to me to be; but if that is the position and there is a difficulty and an ambiguity which only considered argument and a decision thereon would solve, then surely it is our duty to do cur utmost to conform with the Convention. I should say, therefore, that if it is arguable—I have tried to put two views which might be put to your Lordships—that one view does conform with the Convention and if the other view is taken it may be found that that is wrong and we are in breach of the Convention, then we ought to comply with the Convention in this regard.
My noble friend asked me about other countries. I am sorry that I am not in a position to give him a specific answer, but I did not know that the point was to be raised, But I would remind the noble Lord of what my noble friend Lord Mancroft said, because I think it has some bearing on this. Lord Mancroft said that a resolution was passed by the International Confederation of Authors and Composers' Societies, and that this involved sixty societies and thirty-two nations. I think that is an indication that internationally our proceedings are being observed and may be called in question. Again, I do not put it any higher but I think it is a fair point that if you have sixty societies in thirty-two countries calling attention to this point they are likely to raise it if we take a view of the Convention that does not appear to them to put it into operation.
I have dealt with that point because I wanted to answer the arguments that have been put up, but I think we come down in the end, as I said, to what is just and equitable between the parties concerned. The composer whose work was being broadcast by a foreign wireless station of the ordinary kind—I think some one of your Lordships mentioned Radio Paris—would be paid on a basis of a listening audience confined to the country to which the broadcast was made, without reference to the additional United Kingdom audience created by the act of relay. In reverse the composer would be expected to look to the B.B.C. or I.T.A. for fees sufficient to cover the relaying of their broadcasts in foreign countries. What 1211 would happen would be either that the wrong authority would pay or the composer would go short.
That is really the position, and now I come to what the noble Earl, Lord Swinton, said about the effect on other people. The position there is that, so far as I know (I do not think anyone has suggested that it is any higher), the highest figure that has been suggested is £50.000; and, as we have heard from the noble Earl, Lord Swinton, it covered one million subscribers, or however you describe them. Lord Swinton questioned the figures. I did my own arithmetic. I took it at £50,000 a year, and I put it in favour of Lord Swinton that that was broadly £1,000 a week. Now £1,000, if my arithmetic is right (your Lordships will check it) is 960,000 farthings—that is, one farthing per person per week. The noble Earl, Lord Swinton, has very eloquently described the terrible effect on his companies if they should have to pass on this charge; they cannot deal with it themselves; it will mean an extra farthing a week for one million people. I really think that an attempt to get tears out of your Lordships over a matter of a farthing a week is not a very conclusive argument. I personally am not terribly hard-hearted, but my withers were completely unwrung. One goes through the country and one sees these people. I think my memory is right (if not I shall be corrected) and that the number of television sets has increased from 3 million to 6 million in the last five years. I do not think that your Lordships ought to come to a decision on a matter of a farthing a week.
My Lords, I have tried to cover this point. What we have tried to do throughout
§ out this Bill is to take a fair and equitable line between the composer and those who are otherwise concerned—and by the composer, in this case, I mean the owner of the copyright. We must do that. I think every one of your Lordships agreed with the noble Lord, Lord Lucas of Chilworth, that we do not want any more erosion of these rights than can possibly be helped. On the other hand. we have to fit it to new services. I say that, after very careful consideration—for that we have had at every stage in the Bill—we have come to a fair conclusion. I hope that after the full explanation which has been given—it has been given twice, I am afraid—to your Lordships to-day, Lord Teynham will not desire to press his Amendment.
My Lords, I much appreciate the arguments which have been put forward by the noble and learned Viscount, but I am afraid that I am not entirely convinced that Her Majesty's Government are quite holding a balance in this matter. I still feel that a rather unnecessarily onerous position is being put upon the relay companies, especially the smaller ones. With regard to the point raised by the noble Lord, Lord Smilers, he is, of course, aware that his own organisation, the Performing Right Society, has made it known that they are quite satisfied that no change in the law should take place. For those reasons and for others which I have mentioned, I feel that I must press this Amendment.
§ On Question, Whether the said Amendment to the Commons Amendment shall be agreed to?
§ Their Lordships divided: —
§ Contents 5, Not-Contents 43.1213
|Willingdon, M. [Teller.]||Swinton, E.||Teynham, L. [Teller.]|
|Kilmuir, V. (L. Chancellor.]||Onslow, E. [Teller.]||Blackford, L.|
|St. Aldwyn, E.||Chesham, L.|
|Cholmondeley, M.||Selkirk, E.||Denham, L.|
|Fairfax of Cameron, L|
|Buckinghamshire, E.||Bridgeman, V.||Freyberg, L.|
|Fortescue, E. [Teller.]||Goschen, V.||Gifford, L.|
|Gosford, E.||Stonehaven, V.||Gridley, L.|
|Home, E.||Hawke, L.|
|Lindsay, E.||Amherst of Hackney, L.||Henderson, L.|
|Lucan, E||Archibald, L.||Jeffreys, L.|
|Lucas of Chilworth, L.||Salter, L.||Strathclyde, L.|
|McCorquodale of Newton, L.||Saltoun, L.||Strathcona and Mount Royal. L|
|Mancroft, L.||Sandys, L.|
|Mathers, L.||Silkin, L.||Thurlow, L.|
|Raglan, L.||Somers, L.||Tweedsmuir, L.|
|Rennell, L.||Strang, L.||Wolverlon, L.|
On Question, Motion agreed to
§ Resolved in the negative, and Amendment to the Commons Amendment disagreed to accordingly.