PERFORMERS' PROTECTION BILL [H.L.] (Hansard, 5 February 1963)

§ LORD MANCROFT
My Lords, I rise to ask your Lordships' approval of the Second Reading of the Performers' Protection Bill. This is a measure which bears a curious but remote affinity to the measure of my noble friend Lord Colville of Culross which we have just been discussing. This Bill is dull, technical, complicated and, by general consent, largely incomprehensible. It has, however, the compensatory merit of being both short and good. It is concerned with international copyright, and international copyright is a subject which, at the best of times, can hardly be described as cosy. I will therefore be brief.
International copyright is regulated by two International Conventions. The first is the Berne Convention of 1886, and the second is the more recent UNESCO or Universal Copyright Convention of 1952. The 1952 Convention provided a sort of copyright bridge between Europe and the United States. Those of your Lordships who are interested in this subject will remember the trouble there has been in the past with the United States on the subject of copyright. I need remind the House of only two cases: Gilbert and Sullivan—who, indeed, had enough trouble between themselves, without having trouble, as they did, in the United States—and the well-known case of T. E. Lawrence and The Seven Pillars of Wisdom. In order to protect his copyright in America, Lawrence published one copy of the book only and put it on sale at the price of one hundred thousand dollars. Those two cases illustrate the difficulty, now happily resolved, we have had with the United States in the past.
But the two copyright Conventions to which I have referred deal only with the rights of authors, and authors for this purpose include writers, painters, composers and film-makers. It has long been realised, I believe, that there are other rights in this field which call for 513 international protection. My Bill, which seeks to carry out this object, is concerned with three separate classes of people: it is concerned with the rights of performers,—that is, the singer, the pianist or the band; it is concerned with the rights of producers of gramophone records—H.M.V. for instance; and, thirdly, it is concerned with the rights of broadcasting organisations—for instance, the B.B.C. These rights are not strictly copyright in the technical or in the international sense. They are ancillary or neighbouring rights to copyright, and for a long time attempts have been made to provide a single International Convention to regulate these rights. Now we are happy to report that success has at last been obtained in the Diplomatic Conference which was held at Rome in 1961. This conference was called the International Convention for the Protection of Performers, Producers of Phonograms (that is their word, my Lords, not mine) and Broadcasting Organisations. If any of your Lordships want to know what the word "phonogram" means (it is quite irrelevant to my Bill), it appears on page 595 of the Pocket Oxford Dictionary—and the definition is wrong.
My Lords, 25 countries, including Great Britain, signed this Convention. What I seek to do in my Bill is to make the small changes required in our law to ratify this Convention of Rome. I think the very smallness of the changes I seek to make is of some credit to this country, because the Convention very much reflects British practice in this respect, and is also largely the result of our initiative. The rights of record producers and broadcasting organisations are contained in our Copyright Act. 1956. which I had the honour of piloting through your Lordships' House, so it is a certain amount of personal satisfaction to me to be able to ratify by my Bill this Convention without in any way having to chance our own Act of 1956. That is about the record producers and the broadcasting organisations.
Now the performer—the band or the pianist—is in a different position. He is protected in this country not by the grant of a property right, not by copyright, but by an Act known as the Dramatic and Musical Performers' Protection Act, 1958. This makes it a criminal offence to record or broadcast his performance without his 514 written consent. The requirement of that consent enables him to strike a bargain about his own remuneration. If further use is to be made of the record or of the broadcast, it is the record producer's or the broadcast organisation's permission which has to be sought rather than that of the performer. That, my Lords, makes sense. It is obviously easier to trace the B.B.C. or H.M.V. than it is to trace all the members of a band; but the fact that the record producer and the broadcasting authority must get the performer's consent in the first instance enables the performer to stipulate that he shall be permitted to share in the remuneration for the uses to which they allow his performance to be put.
From the financial point of view the most important Article in the Rome Convention is Article 12. This provides that if a commercial record is used for broadcasting or for any communication to the public, then remuneration shall be paid by the user to the performers or the record producers or both. It is true that countries are entitled to enter reserves on this Article; nevertheless it establishes a principle of considerable importance to both record producers and performers. We were one of the first countries to recognise this principle and it is important to us, because our record inclustry is, I am told, the second largest in the world—second only to that of the United States. Obviously we stand to gain by the adoption of this principle. It is also of benefit not only to the record companies but to the performers because they share in the proceeds.
The Convention also provides for broadcasting organisations such as the B.B.C. to enjoy internationally the rights to authorise or prohibit rebroadcasting and recordings of their broadcasts. Your Lordships may remember that this was a right that they sought successfully in this country when our 1956 Copyright Act was enacted. Here again, we were the first country to provide copyright in broadcasting. It is comforting to know that this principle, too, should now be enshrined in an International Convention. The only changes necessary in our legislation are in the criminal Statute which protects performers. This is known as the Dramatic and Musical Performers' Protection Act. The 1958 Act deals in terms with dramatical and musical works.
515 The Rome Convention defines performers as singers, musicians, actors, dancers or other persons who act, sing, deliver, declaim or play or otherwise perform literary or artistic works. This provides an interesting problem. What is the position of Mr. Emlyn Williams giving one of his celebrated performances of Charles Dickens giving a reading from his works? That needs a little working out. What is the position of those who are asked to perform a picture? How can you "perform" a picture? What about the tableaux vivants we did as children? What about the tableaux vivants by the Crazy Gang doing well-known pictures? One remembers the havoc they managed to produce in their representation of "When did you last see your father?" Nearer home, it is interesting to know that our speeches in this House are now recorded on tape in another portion of the building. Which of your Lordships will be prepared to come forward and say in terms of the Rome Convention that his speech is the performance of a literary or artistic work? Fortunately, these are only academic exercises, because the definition of the 1958 Act is widened by my Bill, which uses virtually the words used in the Rome Convention and I hope is a solution of these problems.
Under Section (1) of the 1958 Act it is a criminal offence to make in this country a record of a performance without the consent in writing of the performer or to sell or to use for the purpose of public performance in this country a record so made. To be an offence, the act must be done in this country. The view has been expressed that our 1958 Act is not clear as to whether an offence is committed if the performance takes place abroad: for example, if a record is made here off the air from a performance given by a French orchestra in Paris and broadcast by a French radio. It is the intention that the place of performance should be immaterial. Clause 1 (2) of my Bill has been inserted to clarify this position. The effect of Clause 2 is to extend the provisions relating to the dealings with a "pirate" record made in this country for the sale or use here of such a record when made abroad. Thus, in future, it will be an offence to sell or to use in a public performance in this country a 516 record whose domestic law demands such consent.
I turn to Clause 3 in my Bill. As I have said, the 1958 Act makes it an offence to broadcast a live performance without consent. The Rome Convention speaks of broadcasting and communication to the public. The expression "broadcast" is, by our law, confined to the dissemination of performances by means of wireless. It does not cover wire. To meet the Rome Convention obligations it is necessary to provide, as I have done in Clause 3, that it is also an offence, say, to relay by wire a concert performed in a main hall to an overflow audience in a smaller hall without previously obtaining the permission of the performers. That is common sense.
These are just simply the changes we are required to make to ratify the Rome Convention, and these are the changes I am trying to carry out in my Bill. Little has been done to alter the balance between the three categories most concerned: the performers, the record producers and the broadcasting authorities; or to alter the relationship between any of those three and the public. Our protection system works satisfactorily and there have been very few prosecutions under the 1958 Act. Ratification for this Convention will benefit the performers in this country, the record producers and the broadcasters because the example of our ratification will set a good example to others abroad to follow suit, and the more people who ratify the Rome Convention, as we are doing, the more benefits will be brought to our own performers. This is not an epoch-making Bill, but one which will bring a benefit to a small section of the community. I beg to move.

§ LORD FRANCIS-WILLIAMS
My Lords, may I, in view of the fate which befell a previous Bill before your Lordships' House, rise to congratulate the noble Lord, Lord Mancroft—and rise to praise his Bill and not to bury it? I must say that I find it a little odd that this Bill, excellent though it is in most respects, comes before your Lordships' House as a Private Member's Bill rather than as a Government Measure. It has the most reputable and respectable parentage of the Rome Convention, and 517 it seems to me that it should have come before your Lordships' House as a Government measure, rather than that a private member's time should be taken up for a Bill intended to put into effect an international Convention. One would have thought, indeed, that the Government would be particularly sympathetic to the subject matter of the Bill at the present time, since the last broadcast performance by the Prime Minister that I saw suggested that any measure of protection of any kind which was available was desirable.
Leaving aside that question of principle, I am glad to welcome the Bill which, as the noble Lord, Lord Mancroft, has said, clears up a number of anomalies and brings into effect a decision of an international Convention which is well-merited and will be helpful to performers of all kinds. It is nice to know as the noble Lord said, that it is in line with general practice in this country. It is a Bill, primarily technical but admirable in its conception, which deserves the support of your Lordships' House.

§ LORD SOMERS
My Lords, I should like warmly to congratulate the noble Lord, Lord Mancroft, and to give this Bill my wholehearted support. I am speaking, as your Lordships will imagine, largely on behalf of musicians, but I wholeheartedly agree with the provisions in Clause 1 of the Bill for performers of other varieties. I believe that the general public recognise very little of the hard work that goes into a musical performance. They think of it as a very pleasant occupation, with somebody just sitting down and playing a piano, and possibly getting a large fee for it. Professional musical performers are among the hardest-worked people in this country, I should say. Their hours are not limited, and besides the enormous amount of travelling and hard physical work, there is also the great nervous strain involved. There is no doubt that they deserve every bit of protection that we can give them.
I must confess that this question of copyright has puzzled me, even though I am a member of the Performing Right Society and to a certain degree have myself benefited from copyright. Even to this day I cannot wholly understand it, and I leave it to those who are more 518 intelligent than I am. But we have to remember that to-day there are many more ways of reproducing or copying a performance than by merely taking a tape-recording of a live performance, as it is generally called. One can take a tape-recording of a broadcast in one's own home. There are many complicated details which have to be taken into consideration.
If we go through this Bill we see that it covers all the details that have been given in the Rome Convention. In our 1958 Act, performers were protected to the point where copies made of their performances could not be replayed for profit. But, in my opinion, we should go even further than that and forbid all copies of performances. It is not generally taken into consideration that a copy of a performance is not the same as the actual performance: to a certain degree it is always distorted. It may be that the copier who makes the recording is not very expert, and the result may be a poor reproduction of the original performance. This poor recording may not be performed in public for profit, but it may be performed privately to a few friends who are interested, and if they have not heard the soloist before they may say, "We do not think this performance is up to much". As a result, the performer's reputation will have been damaged, even though only to a small extent. Therefore, I think that this protection is very much needed.
What I am not clear about, and what I have no doubt my noble friend Lord Mancroft will make clear when he makes his final speech, is whether performances of a non-professional character are also covered—that is to say, whether a performance itself must be for profit in order to be protected. Personally I think that it would be a good thing if all performance of any kind were protected, since a performance might be that of a young student who is not at the profit-making stage but is about to be so. I believe that any protection that can be given to potential professional performers is very necessary. I welcome this Bill with my whole heart.

§ THE MINISTER OF STATE, BOARD OF TRADE (LORD DERWENT)
My Lords, may I first answer the noble Lord, Lord Francis-Williams? I imagine that there 519 are two reasons why my noble friend, and not Her Majesty's Government, is introducing this Bill. The first one, which I know to be correct, is that my noble friend handled previous legislation on the subject, and we think that it is only right and proper that he should handle this Bill, which to some extent is the culmination of his previous efforts. The second one, which has not actually been told me, though I have assumed it to be so, is that Her Majesty's Government thought my noble friend would handle it very much better than I should.
I think it is fair to say that we in this country are the pioneers in the matter of rights for performers, record-makers and broadcasting organisations. Now we have an international Convention which so closely follows our own ideas on these subjects that we can ratify it without any changes in the rights of record-makers and broadcasting authorities. But there are minor changes necessary in performers' rights, and the passing of this Bill will enable us to ratify the international Convention, which sets the pattern for future international development on lines in which we ourselves have been pioneers. I would only add that this Bill has been examined very closely by Her Majesty's Government. We thoroughly approve of it. We give it our blessing, and we trust that your Lordships will give it a Second Reading today.

§ LORD MANCROFT
My Lords, I am very grateful to the House for the kindly way in which my Bill has been received. My noble friend Lord Derwent has had a shot at two reasons why I was entrusted with the Bill. Either or both of them may be true—I do not know. I had thought the explanation might be that the Government were compensating me for the cavalier way in which they treated my Rights of Privacy Bill a few years ago. However, I do not mind, so long as your Lordships are prepared to give my Bill a Second Reading.
The question which my noble friend Lord Somers has raised is a difficult one. To a certain degree, it is met by Section 1 (1) of the 1958 Act, but I think that he is raising a very difficult point, if he suggests that no differentia 520 tion should be made between the established professional performer and the beginner or the amateur. I will try to see whether I can meet him, but I do not think that it will be possible to draft something that will draw such a fine distinction as that. The other difficulty that arises is, of course, the difficulty of detection. If somebody, in the privacy of his own house, makes a recording (and this is the borderline under Section 1) it is very difficult, in fact almost impossible, to find out whether or not an offence has been committed.

§ LORD SOMERS
My Lords, may I suggest that this is rather like these unenforceable laws of a 30 m.p.h. speed limit? They cannot be enforced, but, on the other hand, it is possible that if they are there the majority of people will obey them.

§ LORD MANCROFT
That is true. But this is not really the case of the offence which the law is designed to attack. It is not the man sitting in the privacy of his own room and recording from his wireless who is doing the damage. We are trying to protect a much wider class of persons on the more serious circumstances. I will look into the point, but, as I say, I see difficulties. I will take up no more of your Lordships' time. I thank your Lordships for your kind reception of the Bill.