§ [The references are to Bill No. 115 as first printed for the House of Commons.]
Clause 2, page 3, line 23, at end insert—
("(e) causing the work to be transmitted to subscribers to a diffusion service;")
§ LORD MANCROFT
My Lords, there are, I am afraid, a formidable number of Amendments on the Order Paper for our consideration this afternoon—114 in all —but I am happy to tell your Lordships that most of them are either drafting or consequential or of minor importance. I say that because I am afraid that this List of Amendments may have reached your Lordships rather late in the day, for which I apologise but I think it was inevitable. Your Lordships may not have had time to go through the list with your customary care. There is, in fact, only one group of Amendments which has any real substance, and that is the series concerned with the relay and rediffusion broadcasts. Even they are not really concerned with a matter of the greatest possible constitutional importance.
There are about a dozen Amendments on this subject. The first Amendment on the Order Paper, Amendment No. 1, is by way of being a paving Amendment for the rest of them. It might be of convenience to your Lordships if I were to explain now, on this first Amendment, what it is that all these relay and rediffusion Amendments are about. This series of Amendments deals with the position of the relay companies, a matter which was raised by the noble Lord, Lord Faringdon, and I think by the noble Lord, Lord Archibald, when they were moving Amendments to Clause 2 at the Report stage of this Bill in your Lordships' House, now many months ago. At 1136 that time the Bill made only one reference to relay activities, in providing that they did not constitute "performance"—a provision which has been retained in Clause 46 of the Bill. When, on Third Reading, the noble Lord, Lord Silkin, referred to the relay question again, with particular reference to the relaying of programmes broadcast from abroad, I said that the Government were still wrestling with the problem and more would no doubt be heard of it in another place. This subsequently proved to be a masterly understatement. The matter has attracted a great deal of attention in the other place, and the series of Amendments we are now about to discuss is the result.
In brief, the Government have recognised the claim that diffusion of a broadcast programme should rank as an infringement of copyright in the material broadcast. There seems to be no argument, as far as I can understand it, about including relaying amongst the "restricted acts" in Clauses 2 and 3. That marries up with Articles 11 and 11 bis of the Brussels Text. Nor is there any argument about the liability of persons engaged in relay who also originate their programmes. Where the argument arose in another place is over the relay in one country of a broadcast from another.
In the United Kingdom, the rediffusion companies are precluded from originating programmes under the Postmaster General's licence, and the facilities they can provide are specifically prescribed. Some of them, indeed, relay only programmes put out by the B.B.C. and I.T.A. Others transmit foreign broadcasts as well. In all cases, their subscribers must have the ordinary broadcast receiving licence. The B.B.C., deriving its main revenue through the Broadcasting Vote which is based on the proceeds of the ordinary receiving licence, makes a bargain with the Performing Right Society on the basis of all licence holders, including those serviced by the rediffusion companies. The number of licence holders is also one of the factors taken into account by the I.T.A. So far, therefore, as the home broadcasts are concerned, there is no case in equity for making the relay companies liable for further payments to the Performing Right Society and we have provided in the new clause after Clause 38 that a licence to the B.B.C. and I.T.A. to broadcast shall 1137 be deemed to include a permission to relay. We cannot take this line so far as foreign broadcasts are concerned since the owner of the copyright in the United Kingdom may not be the same person as the owner of the copyright abroad, and in that case the United Kingdom owner has no power to authorise or forbid: he broadcasting of the work from abroad, although relaying in the United Kingdom is properly one of the rights to be assured to him. Moreover, the payment made by the foreign broadcasting company may take no account of the relaying of the programme in another country.
To meet this situation, the series of Amendments provides for three things: first, it provides that causing a work to be transmitted to subscribers to a diffusion service shall be one of the acts restricted to the copyright owner (Clauses 2, 3 and 13); secondly, where a sound or television broadcast is made by the B.B.C. or the I.T.A. and someone transmits the 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 have permitted rediffusion—that is the new clause after Clause 38. The third point is that where a programme from a foreign station is transmitted to subscribers to a diffusion, service in the United Kingdom, the Tribunal shall have power to decide on the appropriate payment to be made by the diffusion company to such a body as the P.R.S. as 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 our new clause after Clause 27. This provision is important. Payment is not likely to be justified in all cases; for instance, Radio Luxembourg broadcasts programmes intended for reception in. this country, and the payment for the right to broadcast can be expected to take account of diffusion here.
The intention of some of your Lordships is, I gather, that a relay organisation shall be free to disseminate any "authorised broadcast", by which they mean any broadcast from anywhere if the broadcasters have the licence of the owner of 1138 the copyright in their country. We are making provision to deal with the relaying of B.B.C. and I.T.A. programmes. In the case of advertising programmes from abroad, since the whole purpose of the broadcast is to secure the maximum audience, there is no obvious reason why the relay companies should expect any change in the present arrangements. Accordingly. the dispute narrows itself clown to the treatment of the relaying of programmes primarily intended for the local audience in the country from which it is broadcast.
In another place, it was argued that everything should be left as it is, and this argument, as it developed, seemed to assume that the law is clear under the Act of 1911. Unfortunately, this is not so. When the Act of 1911 was passed, there was no such thing as broadcasting and the only provision of that Act which could be prayed in aid is that relating to "performance in public". Whether relaying is performance in public has never been decided by the courts in the United Kingdom, and I should be very bold indeed if I were to pontificate on the result of an action based on the Act of 1911. But it is quite clear, and indeed seems to be generally accepted, that Articles 11 and 11 bis of the Brussels text have made it necessary to treat rediffusion as a restricted act. What has been done in the clause after Clause 38 springs from this.
The Government accepts that Article 11 bis may be open to more than one construction, but it remains quite clear that Paragraph (2) requires us to ensure that authors should get "just remuneration" for the exercise of their rights. Reference was matte in another place to a resolution passed by the International Confederation of Authors and Composers' Societies—something like 60 societies, and 32 nations—and this is at any rate an indication that internationally our proceedings are being observed and our position may be called in question. But putting this on one side, the proposal which some of your Lordships are supporting will certainly not meet the equities of the situation. A composer whose work is being broadcast by foreign wireless stations of the ordinary kind (for instance, Radio Paris) would be paid a sum based on a listening audience confined to the country in which the broadcast is made, without 1139 reference to the additional United Kingdom audience created by the act of relaying. 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. In short, what would happen would be either that the wrong authority would pay or the composer would go short.
If the relay companies diffused programmes by re-broadcasting them to their subscribers (instead of relaying them over wires) there would be no doubt about their having to pay copyright fees. They are in business to disseminate the author's work for gain and there seems no valid reason why, in these cases in which the author cannot look elsewhere, they should be excused from paying for it. The argument that we are putting a new burden on the lower income groups served by the relay companies has not been established. It has been suggested that the provision will cost the relay companies some £50,000 a year. This figure is conjectural, but there are something like 1 million people who receive their programmes by relay, and if the figure is correct and if it is all passed on (neither of which need be accepted) the additional cost would be of the order of a farthing a week. On the Committee and the Report stages of this Bill the noble Lord, Lord Lucas of Chilworth, who was leading so energetically for the Opposition, frequently complained about the erosion of composers' and others' rights. I do not know what the opposite of erosion is—regurgitation or accretion. But this is the opposite of erosion; we are trying to protect the legitimate rights of composers.
I have spoken at considerable length. This is far and away the longest speech that I shall make to-day, and I apologise humbly. But I thought your Lordships would care to know about the whole of these Amendments concerning the relay services. We now come to the first Amendment which is, as I have said, purely a paving Amendment: it paves the way for all these rediffusions and relay points. This particular Amendment which I am now asking your Lordships to consider brings relaying within the acts restricted to the copyright owner in an original literary, dramatic or musical work. My Lords, I beg to move that this 1140 House doth agree with the Commons in this Amendment.
§ Moved, That the House doth agree with the Commons in the said Amendment.—(Lord Mancroft.)
§ 3.49 p.m.
§ LORD LUCAS OF CHILWORTH
My Lords, before I even comment upon the speech that has just been made by the noble Lord, Lord Mancroft, may I draw the attention of the House to something that is continually happening in this House and about which we on this side of the House continually protest. I received this list of 114 Amendments at 4 o'clock on Saturday afternoon, and how anybody can be expected to pass intelligent comment upon 114 Amendments in this brief space of time I do not know. I think it is treating this House with less than fair consideration, and if there is any criticism (and we hear quite a lot of criticism. and in sonic cases ridicule, levelled at your Lordships' House) this is just the kind of act on the part of Her Majesty's Government which gives colour to such comment. In other words, all we are expected to be is a rubber stamp. I do not blame the noble Lord, Lord Mancroft; I blame the machinery of the Government for the fact that they have to ask your Lordships to consider 114 Amendments when those of us on this side of the House who are supposed, and always try, to put up at least a semblance of an intelligent opposition are not even given a fair chance to do so.
Having voiced that protest may I now say that the noble Lord, Lord Mancroft, need not have apologised for the length of the speech he has just made, because the one I intend to make may be just a little longer and therefore, perhaps, I shall have to apologise before I have finished. I am glad that he has deployed the whole of his argument upon what I may call the one contentious point in the whole of these 114 Amendments. Let it be said to the credit of your Lordships' House that when this Bill was first introduced it was a poor thing, but when it left this House it was a remarkably good Bill, and the other place have not seen fit to alter one thing that your Lordships did. That should, at least, be placed on the credit side of our account.
The noble Lord has made comment upon the stand that I made, when I had 1141 the honour of leading for the Opposition on this Bill on Second Reading and the Committee stage, in asserting that the Bill eroded the fundamental and natural right of the composer and author. Yesterday I read the speech which I then made. This is what I said and what I should like to repeat on this aspect of the subject [OFFICIAL REPORT, Vol. 194, col. 511]:Copyright is the natural property right in the creations of the author's own mind. Whether he be an author or a composer, it is a natural right: it is his inviolate until, of his own free will and accord, he assigns it to somebody else.That was the principle which we on this side of the House maintained and which I am very glad the noble Lord, Lord Mancroft, has underlined this afternoon.
If the Bill had gone through in its original form there would have been serious erosion. I do not think that the noble Lord can cover Her Majesty's Government with a white sheet, as he has tried to do, because it was the introduction, by Her Majesty's Government, of a new concept of copyright in Clause 46 (3), on page 60 in the original Bill, that started all the trouble. The noble Lord then wished to say that the operation of a broadcast relay stationshall not be, taken to constitute performance, or to constitute causing visual images or sounds to he seen or heard.It was my noble friend Lord Archibald who, during the Committee stage of the Bill, drew the attention of the noble and learned Viscount on the Woolsack to this point. My noble friend maintained that a relay of a broadcast was a performance. Whether he was technically right in calling it a performance I do not know, but that raised the principle that it was an erosion upon the fundamental principle of copyright as laid down by the Brussels Convention. On that there cannot be the slightest argument. The noble and learned Viscount on the Woolsack, though he could not give my noble friend an answer at that time, undertook to con. suit with his experts and said that if my noble friend proved to be right, alteration would be made in the Bill at a subsequent stage, very likely in another place. Therefore, on the recital of facts now brought forward by the noble Lord, Lord Mancroft, about the trouble which Her Majesty's Government have had over this matter, the noble Lord should remember that it has been written that "the way of 1142 the transgressor is hard"; and Her Majesty's Government were the first transgressors.
I am glad that they have managed to get back on to the right road. The reason why they got back on the right road was that they realised, after consulting their experts, that in saying that copyright did riot subsist in a rediffusion or a relay of a broadcast they were in contravention of Article 11 bis of the Brussels Convention. I will read that to your Lordships because it is very important:(1) Authors of literary and artistic works shall have the exclusive right of authorising:i. The radio-diffusion of their works or the communication thereof to the public by any other means of wireless diffusion of signs, sounds or images".That is the first point. Now though "radio-diffusion" may be a French term, it clearly means broadcasting, and that gives the author the first right in broadcasting to authorise a broadcast. The next paragraph says:ii. Any communication to the public, whether over wires or not, of the radio-diffusion of the work, when this communication is made by a body other than the original one;So, clearly, the case is made that a radio-diffusion relay service is caught under this Article, not because it is a broadcasting organisation but because it is an organisation which relays a broadcast. I should think that that is clear beyond any doubt.
I hope that I shall not have to make this speech twice and that I can now deal with the other points made by the noble Lord. Lord Mancroft, because in his opening speech he has really dealt with the Amendment to Clause 40, an Amendment to Amendment No. 84, which is down on the Order Paper in the name of the noble Lord, Lord Teynham. As I have said, Article 11 bis of the Brussels Convention exactly fits the circumstances in which a relay company operates to the public over wires. It specifically mentions broadcasting and other bodies. The noble Lord said that of course the law could not be left as it was. That is right, because not only did broadcasting not exist at the time the 1911 Act was passed, but relay services did not exist either. And the recommendation made by the Copyright Committee was not made in regard to copyright and relay services but in regard to the relationship between relay services and the Post Office. So the Government, 1143 to keep within the Brussels Convention, had to introduce into this Bill the Amendment which the noble Lord, Lord Mancroft, is now moving. And to safeguard the position regarding the payment of copyright royalties they have brought into the Bill not only Clause 40 but Clause 28. And there are safeguards. I think that the noble Lord used very fair language.
I had intended to quote the language used by the Parliamentary Secretary to the Board of Trade in another place. As the noble Lord, Lord Mancroft, has said, there is no circumstance in which the subscriber or the relay service has to pay twice. At the present time. as the noble Lord has also said, the B.B.C. pay one block sum to the composers' organisation, not only for the relay to the B.B.C. or I.T.A. broadcasting programmes but also for any authorised foreign broadcast programme. If Radio Paris link up with the B.B.C. and the B.B.C. broadcast some of the Radio Paris programme, that copyright is dealt with under the fee which the B.B.C. pay. But if Radio Paris broadcast a programme to their own country, and a relay organisation picks up what I might call the "seepage" into this country, and relays it, there is no one who can say, as the law is at the present time, that the composer or author should be able to collect his fee, although the products of his brain have been used to gain money by those who relay services. This is what the Parliamentary Secretary said in another place [OFFICIAL REPORT, Commons, Vol. 558 (No. 211), col. 899]:why should not the relay companies pay something to the composer? They relay the composer's work to make money. They could not operate if it were not for the fruits of his labours. This is not a social service; it is a commercial proposition, and there is no clear reason that I can see why they should not expect to have to pay a fair fee to the composer.The machinery of the tribunal has been altered so that the tribunal can decide whether the composers ask too much for their services. The tribunal is there to say what is a fair and proper charge. I would ask your Lordships for one moment to consider further this fact. At the present time, the B.B.C. make, as I have said and as the noble Lord has said, a block payment to the composers' and authors' organisation for all this. So 1144 the composers' organisation does not levy any fee upon the relay services. But suppose that in future the financial structure of the B.B.C. were altered somewhat, in conformity, let us say, with what has been advocated, I believe, by the Auditor-General. And suppose the B.B.C. were to say: "Well now, as relay services are relaying a lot of foreign programmes for which we are now paying, we are not going to pay in future," where would the author and composer then be? Of course, the argument raised by those who support the noble Lord's Amendment is that he should go and fight his case in a foreign country where the law of this country does not apply. I would not say that he stood much chance of doing that. Is it fair? Is it equity? The noble Lord has said: "Yes, I support it." When the noble Lord, Lord Mancroft, put to your Lordships one of the arguments which supporters of Lord Teynharn's Amendment put—that this would increase fees which the relay subscriber has to pay—I ask: since when has it been an argument that you should not pay the wages of effort because, as a result of your so doing, the price of the commodity might be increased? Since when has it been an argument that the composers of this country should work for nothing so that the relay subscribers might save one farthing (that is the noble Lord's estimate, I do not know whether it is accurate or not) upon the fee they pay?
There has been some specious argument about this matter. This morning I received a document from a certain relay organisation which is concerned, and never in my life have I seen such specious arguments. They do not even tell the truth. So I find myself—and I think the majority of my noble friends on this side of the House find themselves also on—the side of the Government.
§ LORD LUCAS OF CHILWORTH
I am told that they all do—they all find themselves on the side of the Government. Initially we took the stand that there must be protection against this kind of erosion into the legitimate reward of the composer and the author. That is why we shall support the Government in this and in their subsequent Amendments on this specific issue.
My Lords, with the permission of the House, I propose to reserve my remarks until Amendment No. 84 is reached.
§ LORD CONESFORD
My Lords, I gather that the chief discussion is to take place on Amendment No. 84. I was wondering whether the noble Lord, Lord Lucas of Chilworth, could enlighten me on one point. He has made a speech of considerable force in support of the Amendment of Her Majesty's Government, and he has quoted from the speech made by the Parliamentary Secretary to the Board of Trade in another place last Thursday. Can he explain why, seeing that he takes the view that he does, the whole of his Party in another place voted against it?
§ LORD LUCAS OF CHILWORTH
I do not know that I am called upon to say anything about another place. I have my own view; my colleagues have their own views; others may have their own views.
§ 4.10 p.m.
§ LORD SOMERS
My Lords, I do not feel that I can let the discussion on this point go without saying a few words. All that I can say has been much more ably said already by the noble Lord, Lord Lucas of Chilworth, but I should like to point out that there can hardly be any doubt that this method of rediffusion is an independent performance. It reaches a totally new audience which would not have existed without its own existence. As to whether it relays British broadcasts or foreign ones does not seem to me to be of particular importance; the great point is that it creates an entirely new audience which would not have existed otherwise. One performer giving a recital naturally has to pay his ordinary performing rights; a second performer, if he is performing the same works in a totally different place, has to pay his. It is very right and just.
On the other hand, one must remember that each of these performers is very lucky if he is getting audiences of over 100, whereas these rediffusion services are gaining audiences of well over 1,000. Also, I might point out that the argument as to whether it will impose an extra burden on the lower income groups seems a little specious, because surely the lower income groups include the composer. I 1146 hardly think anybody can make a living by composing to-day; therefore that argument falls to the ground. Musicians must surely be amongst the poorest of our population.
§ On Question, Motion agreed to.