PERFORMERS' PROTECTION BILL [H.L.] (Hansard, 4 May 1972)

§ LORD GOODMAN
My Lords, I beg to move that this Bill be now read a second time. I think I should declare an interest in that since introducing this Bill I have reflected that I am a director of two or three companies that might conceivably in the future benefit by the consequences of the Bill, but none of the companies would have been concerned to promote the Bill and it would not have entered their heads to do so. Nevertheless, I think it right to say that commercial interests might conceivably arise.
My Lords, I can be very brief indeed. I do not think it would be right to describe this as a benevolent Bill because I do not think any Bill which merely serves to increase penalties can appropriately be so described. I think it may be described as a highly salutary matter. Before I go into brief details, perhaps I might describe the purpose of the Bill and why it arises. It has been discovered that a number of enterprising gentry are pursuing what, to them, is the profitable course of manufacturing what are known, I believe, as "blackleg" recordings. The method they use is to tape recordings from actual radio or television performances or film reproductions, or actually to extract tapes from recording studios and to produce illicit and unauthorised records which are put on sale to the public at highly competitive prices, since they are absolved from many of the costs and fees that would arise if their business was of a more legitimate and less enterprising nature. Not unnaturally, they can charge less for the recording. I do not think anyone could approbate this practice, which is of course particularly obnoxious to the commercial recording companies who make the recordings and whose trade is thereby unfairly affected, and, perhaps more from my point of view, it is particularly obnoxious to the performers who fail to receive the legitimate payments and royalties which often come their way in respect of such recordings. Hence, discouraging any such practice is, I think, a wise and desirable thing to do.
There is a small legislative code which has operated and is designed (and, so far as the actual substance of the offences 854 is concerned, effectively designed) to prevent this sort of thing happening. But as so often happens with penal measures, the penalty has become almost derisory. People do not mind paying a fine of £50 when (as not so long ago happened in one case) there have been pressings of some 13,000 recordings of a particular unauthorised and illegal recording, of which only 4,000 are destroyed when they are seized by the police and 9,000 have already been sold at a profit to the manufacturers of some thirty shillings per recording. If one could achieve a transaction of that kind a penalty of £50 a time levied on someone who is otherwise unemployed might well be considered an advantageous field in which to operate. Certainly people with fewer moral scruples than noble Lords do consider it a profitable field in which to operate, and the hope is that the suggested substituted penalties in this short Bill which makes no change to the substantive law, since no change is required, will be a sufficient deterrent to prevent people from doing it.
Needless to say, the Bill has the support of the performers; it has the support of the reputable and respectable commercial record manufacturers; it has the support of the Musicians' Union, of Equity and, in the somewhat ambiguous phrase, of those who briefed me for this purpose, it has the "moderate support of the B.B.C. and the I.T.A." I must leave it to noble Lords to construe that. I can only interpret it myself as meaning that if they could have seized some honourable opportunity to make a slight use of these misdemeanours, they might have done so! Confronted with this situation they are apparently not opposed to this measure.
All in all, I cannot think of anyone who is likely to be opposed to such a measure, except on purely technical grounds. I doubt whether there are any interests in this House which represent the actual malefactors. Some noble Lords may think that the penalties proposed are too moderate. The amendment of the previous Act is slightly anomalous in the sense that the major and more severe combined penalty is reserved for the making of recordings; and for other infringements of the Act, although the penalties are increased, there is not a suggestion 855 that there should be an alternative prison sentence. My own view is that the alternative of a possible sentence of imprisonment is really indispensable if this measure is to have "teeth". I do not think that one can impose financial penalties that will have sufficient reality to enable them to be an effective deterrent. Often the people doing these things are not, at an early stage of their criminal activities, sufficiently prosperous to make a financial penalty have any real meaning, so that the deterrent of a possible sentence of imprisonment is, I think, indispensable, and although in a way something that nobody is particularly enthusiastic about, I think unavoidable if we are to protect the interests of one of the most deserving sections of the community and in many ways one of the least rewarded.
I think on the technical matters there is really nothing more I need to add. The previous measures which the Bill amends make perfectly clear the actions that constitute offences which are covered by the Act. They protect very thoroughly infringements against performances which ought to be protected, excepting those which are made for purely domestic or private use. I do not think anyone would suggest in those circumstances there was any particular vice in allowing it. What has gone wrong is, of course, that the money penalty is inadequate, and therefore there is, I am told, an increasingly prevalent practice of regarding the Act as being no very effective safeguard when people want to make a quick penny at the expense of their fellow men. Hence I have no hesitation in commending this Bill to your Lordships and asking that you give it a Second Reading, so that it may in due course pass into law and become an effective method for preventing some small inadequacy in our legal system that we are so simply able to repair. I beg to move.

§ BARONESS LEE OF ASHERIDGE
My Lords, I imagine that every Member of your Lordships' House will want to support this modest measure. It has the support of all the trade unions—Equity, the Musicians' Union and all others con 856 cerned; it has the support of every reputable producer. It is in the interests of performers. What we may have to look at on Committee stage is whether we think the deterrents to piracy are adequate. But as this is a Second Reading, and as Lord Goodman with his usual lucidity has stated the main points of this measure, I hope that without further ado we can agree to give it a Second Reading, and if any noble Lord wants to make any modification there will be ample time to do so on Committee stage.

§ THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT or TRADE AND INDUSTRY (THE EARL OF LIMERICK)
My Lords, as you have heard, this Bill seeks to curb the making of sound recordings without the permission of performers. I propose to use the colloquial term "bootleggers" for those who take part in this activity. I noted that Lord Goodman referred to them as "blacklegs", but I do not think we need cross swords on that point. I think the proposition that will command the support of the House is that both blacklegging and bootlegging are reprehensible activities. It is perhaps appropriate to draw a distinction here between the bootlegger and the pirate, both of whom prey upon performers and upon the record industry. The nature of the former's activities we have heard described; the latter, the pirate, also much in the news in recent years, makes and sells copies of existing records without the permission of the copyright holder. Fortunately, record piracy has not so far been a major problem in this country. On the other hand, as we have heard, bootlegging is on the increase, particularly where performance of popular music is concerned, and the penalties under the Performers' Protection Acts are insufficient to stop an illicit trade whose rewards are likely to exceed by a wide margin any fine which may currently be imposed under the Acts.
At the time when the Acts became law it probably could not have been foreseen that the ready availability of recording devices, coupled with the increase in the number of concerts of popular music held under informal conditions, would cause the production of bootleg records on a 857 substantial scale to become the reality which it now is. But this indeed is what seems to have happened. It is also said that there is an assured market for the products of these operations, because the public taste for the novel and the unusual in popular music results in a certain cachet attaching to bootleg records, notwithstanding the fact that they are likely to be much inferior in quality to what is produced in recording studios. In these circumstances, and particularly if "bootleg" performances of records reach the market before authorised records of studio performances of the same work, performers are deprived of the payments which they would normally receive for the recording of their performance and for the subsequent sale of their records to the public. The record industry, too, is adversely affected by the sale of "bootleg" records in competition with records legitimately produced and paid for by the industry.
Thus there seems to be a case for strengthening the protection which the performers enjoy, and I accept that the penalties which may be imposed under the Acts are insufficient for the purpose of deterring "bootleggers". I accept also that the proposal in the Bill to make the Acts apply to officers of bodies corporate could make the Acts more readily enforceable against offenders who might otherwise escape the full consequences of detection. The Government therefore see good in the Bill and hope the strengthened Acts will go at least some way to enabling those who suffer to put the "bootleggers" out of business.

§ LORD LLOYD OF HAMPSTEAD
My Lords, I have not put my name down to speak on this Bill, and I will not detain your Lordships for more than a moment. I entirely support this Bill. It deals with an important right of performers. The present situation has really made the penalties derisory; therefore I should have thought that the case for some increase in the penalties is overwhelming, particularly bearing in mind—and this is a point which has to be remembered—that under the existing Acts, and of course as amended, there is no civil right of action on the part of performers if they are injured in this way.
The only point I wish to make in addition is on the new section which it is 858 proposed to introduce; that is, the new Section 4A, which refers to the liability of directors. I am wondering whether the noble Lord, Lord Goodman, has fully considered the exact form of this provision, which provides for liability if the directors consent or connive on the one hand, or, alternatively, if an act committed is attributable to any neglect of theirs. Of course most of the offences under these Acts are offences committed knowingly, and it seems to me, for the moment at any rate, that there may be some inconsistency if we are going to make directors liable for a mere neglect in regard to an offence which, so far as the corporation itself is concerned, has to be made knowingly. I may be wrong, but I should have thought that a little reflection on the exact form of this section would be justified and might perhaps be made before the Committee stage is reached. But, subject to that small point, I warmly support the provisions of this Bill.

§ LORD GOODMAN
My Lords, I can be very brief indeed. As to the point made by the noble Lord, Lord Lloyd, I think it does call for consideration, and I am much obliged to him. Perhaps we shall have an opportunity of considering it at Committee stage. It seems to me inconsistent, now that he has pointed it out, that you can have an offence of absolute liability which relates to the commission by someone else of an offence of which he must have knowledge. I think that is a point where correction should be made. I am most indebted for the observations that came from the Government Bench, and I trust, in consequence, that we may hope to see the Bill passed in a reasonable space of time.