HL Deb 30 October 1956 vol 199 cc1215-8

Clause 46, page 60, line 8, at end insert— ("(3) References in this Act to the transmission of a work or other subject-matter to subscribers to a diffusion service are references to the transmission thereof in the course of a service of distributing broadcast programmes, or other programmes (whether provided by the person operating the service or other persons), over wires, or other paths provided by a material substance, to the premises of subscribers to the service; and for the purposes of this Act, where a work or other subject-matter is so transmitted, —

  1. (a) the person operating the service (that is to say, the person who, in the agreements with subscribers to the service, undertakes to provide them with the service, whether 1216 he is the person who transmits the programmes or not) shall be taken to be the person causing the work or other subject-matter to be so transmitted, and
  2. (b) no person, other than the person operating the service, shall be taken to be causing it to be so transmitted, notwithstanding that he provides any facilities for the transmission of the programmes:
Provided that, for the purposes of this subsection. and of references to which this subsection applies, no account shall be taken of a service of distributing broadcast or other programmes, where the service is only incidental to a business of keeping or letting premises where persons reside or sleep, and is operated as part of the amenities provided exclusively or mainly for residents or inmates therein.

(4) References in this Act to the doing of any act by the reception of a television broadcast or sound broadcast made by the Corporation or the Authority are references to the doing of that act by means of receiving the broadcast either—

  1. (a) from the transmission whereby the broadcast is made by the Corporation or the Authority, as the case may be, or
  2. (b) from a transmission made by the Corporation or the Authority, as the case may be, otherwise than by way of broadcasting, but simultaneously with the transmission mentioned in the preceding paragraph,
whether (in either case) the reception of the broadcast is directly from thes transmission in question or from a retransmission thereof made by any person from any place, whether in the United Kingdom or elsewhere; and in this subsection "retransmission" means any retransmission, whether over paths provided by a material substance or not, including any retransmission made by making use of any record, print, negative, tape or other article on which the broadcast in question has been recorded."

LORD MANCROFT

My Lords. this Amendment is concerned with Clause 46. the interpretation clause. The Amendment has two distinct parts. The new subsection (3) contains the new definition of what is included in the terms "transmitting to subscribers to diffusion services" and provides, first, that the transmission must be over wires or other paths provided by material substance (to differentiate this service from broadcasting). Secondly, it provides that the person causing the work to be transmitted is the person who, in agreements with his subscribers, undertakes to provide them with a service, and relieves from liability other persons who merely provide, for example, the wires over which the programme is relayed, from liability. But for this last provision, the Postmaster General might find himself alleged to be running a relay service. The proviso to the clause is to remove from the mischief of relaying hotel keepers and others whose premises are so wired that in private rooms there can be radio reception for the benefit of guests. It would not relieve the hotel keeper front liabilities in respect of performance in public if he provided a loud speaker in his lounge. I beg to move that this 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.)

LORD LUCAS OF CHILWORTH

My Lords, would the noble Lord be kind enough to answer this question? I am a little puzzled. I expect there is a simple answer to it, but I cannot fathom it. The cause of all the mischief I have spoken about this afternoon was the inclusion in the original Bill by the Government of Clause 46, subsection (3). There it says: For the purposes of this Act (a) the operation of a broadcast relay station,… shall not be taken to constitute performance, or to constitute causing visual images or sounds to be seen or heard. I should have thought that, having put in the first Amendment on the Order Paper. that to Clause 2, the Government would have moved to delete this subsection from. the Bill. Is there not an inconsistency in saying that the relay service is subject to copyright and also in saying that for the purpose of this Act the operation of a broadcasting relay station is not to be. taken to constitute a performance? My noble friend Lord Archibald first drew attention to this offending clause on the Committee stage of the Bill, and it was upon that Amendment that the noble and learned Viscount the Lord Chancellor said that he would look at this matter again. It must be a performance in order to have a breach of copyright. Is the act of relaying not a performance? Is the performance the act? Perhaps the noble Lord, Lord Mancroft, or the noble and learned Viscount would tell me whether leaving this subsection in the Bill does not form an escape clause.

LORD MANCROFT

My Lords, I quite see the noble Lord's difficulty, at which we have already hinted. The real difficulty is that we are not quite certain whether this is a performance or not. Frankly, that is the position, as I have already told the noble Lord. I have said that I should not be prepared to guess what an English court of law would do with that decision. In view of the fact that we are not quite clear, we have made this distinction. I think there is a marked distinction and that we must make it clear at the moment, as we have done in this clause, that the operation of a broadcast, relay station is not to be taken to constitute a performance. The noble Lord must distinguish between the performance and the restricted act. He will remember that we discussed this in some detail on the first Amendment to Clause 2.

LORD LUCAS OF CHILWORTH

My Lords, frankly my mind is not clear on the matter. If I can have the noble Lord's assurance that this is not an escape clause, and that what we have already done by the first Amendment—that is, to place "causing the work to be transmitted to subscribers to a diffusion service" among acts restricted by the copyright—has been done without any equivocation. I shall be happy. But after all the trouble we have been to, I should not like to see an escape clause put in by which a relay by a relay station was not taken to constitute a performance.

LORD MANCROFT

My Lords, there is nothing inconsistent in the scheme of the Bill. By the Amendment to Clause 2 relaying has been made a restricted act in its own right. I will look at this again to make quite certain. but I am pretty certain that the Bill is completely consistent on those two points.

LORD LUCAS OF CHILWORTH

My Lords, with that assurance, of course, I do not object, but I am sure I have the noble Lord's sympathy in my dilemma. I think that anybody reading this Bill, even a lawyer, who has not had the opportunity of the expert advice that the Board of Trade has. would be in some confusion.