HL Deb 11 May 1976 vol 370 cc859-73

3.10 p.m.

Report received.

Clause 1 [Establishment of public lending right]:

The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Lord Donaldson of Kingsbridge) moved Amendment No. 1:

Page 1, line 5, leave out from beginning to first ("right") in line 6 and insert ("In accordance with a scheme to be prepared and brought into force by the Secretary of State, there shall be conferred on authors a").

The noble Lord said: My Lords, it is sometimes necessary to hold informal consultations, and I must apologise for the fact that these overlapped the beginning of the passage of the Bill. I beg to move Amendment No. 1, but it may be convenient to deal with Amendments Nos. 1 and 3 together. They concern subsections (1) and (2) of Clause 1 and also affect the Amendment tabled by the noble Lord, Lord Elton. At Committee stage I was unable to accept the Amendment proposed by the noble Lord, Lord Elton, and the noble Viscount, Lord Eccles, which would have involved an inaccurate description of the Bill.

As I explained, the Act itself does not confer the right on authors. This right is contingent upon registration of individual books in accordance with the scheme in Clause 1(7) and Clause 1(1), which states that the purpose of the Bill must reflect this. I promised to look again at the wording, and I hope that my Amendments will be acceptable to your Lordships. The first Amendment substitutes for the words to which the noble Lord, Lord Elton, objected, the sentence: In accordance with a scheme to be prepared and brought into force by the Secretary of State, there shall be conferred on authors a…".

I beg to move.


My Lords, I am grateful to the noble Lord for introducing this Amendment, which meets us on this side in a number of respects. I, in turn, should like to apologise for the untimeliness of our unofficial consultations at the beginning of this exchange. Taken with Amendment No. 3, this seems also to deal with the question of syntax, which both of us felt should be dealt with. Therefore I shall not move my Amendment, No. 2. We are grateful to the Government for meeting us on this point.

On Question, Amendment agreed to.

3.13 p.m.

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 3:

Page 1, line 13, leave out from ("with") to end of line 16 and insert (" the scheme; and in preparing the scheme the Secretary of State shall consult with representatives of authors and library authorities and of others who appear to him to be likely to be affected by it.")

The noble Lord said: My Lords, I beg to move this Amendment. It is partly consequential on the first Amendment and partly goes to meet the desire of the noble Viscount, Lord Eccles, that the words "others for consultation" should be included. At Committee stage, we agreed that "others" was much too wide, that one could not saddle the Secretary of State with consulting others, and that I should try to find a phrase which limited it to his satisfaction. The phrase now is: … others who appear to him to be likely to be affected by it. I hope this will be satisfactory and I beg to move.


My Lords, I think it is proper for me at this stage to draw the attention of the noble Lord to Amendment No. 4, which proposes an amendment to No. 3. Perhaps I could speak to them together. It appears to me that the Secretary of State will be the sole judge of who is likely to be affected by this clause and it is therefore open to him, however grave an omission from his list of those whom he has consulted, merely to say that this person, this institution or these people and so on, do not appear to him to be likely to be affected by the scheme. That is a defence which cannot be broached in any way, and I should like at least some comment from the noble Lord on this interpretation. I take it that there is a precedent for dressing up the Minister in this armour, which seems to us a little thick. Perhaps the noble Lord could use this opportunity to explain his reasons.


My Lords, there are many precedents for not landing the Secretary of State with an open-ended obligation, which this would represent as it stands now. The obligation is to consult, those representing authors, local library authorities and others. This would be open-ended, and I do not think anyone could accept it on behalf of their Secretary of State. Certainly, I cannot. I said I would look again at the wording. My Amendment seems to make perfectly clear the obligation to consult representatives of authors and local library authorities. I can give your Lordships a clear assurance that it is the intention of the Secretary of State to act reasonably and in good faith towards the others. But it must be for the Government, I submit, to judge what other interests are likely to be affected.

The noble Lord has tabled this Amendment, but I hope very much that he will not press it. The position is that unless one allows the Secretary of State to judge who is interested the world is available, and somebody could come forward to challenge what is done on the grounds that he was not consulted and, by Statute, was obliged to be. It would be an impossible position. I think we have gone a long way towards meeting what was in the minds of the noble Lord and the noble Viscount, and I hope they will be able to accept this Amendment.


My Lords, in thanking the noble Lord for that reply to what was in effect a question, I should like to say that we are grateful to him for the extent to which the Government have met us on this point. I am sorry that, because of indisposition, my noble friend Lord Eccles cannot himself be here to say as much. In view of this, and also of the fact that we are not in this case a Chamber of revision, I do not think it is necessary to pursue this point, and I am happy to concur with the noble Lord.

On Question, Amendment agreed to.

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 5:

Page 1, line 23, leave out ("person") and insert ("persons").

The noble Lord said: My Lords, the Government accept the suggestion made by the noble Lord, Lord Ironside, at Committee stage that, in the interests of drafting consistency with Clause 4(3), the word "persons" should be substituted for "person" in Clause 1(4). I hope this will satisfy the noble Lord's desirable wish for consistency, and I beg to move.


My Lords, I would not quarrel with the wording the noble Lord has now introduced. In fact, I am very glad to see that he has used the plural because this indicates to everyone that the Government are thinking, even at this stage, in terms of multiple authors, joint authors and so on. However, I should like to ask him why he feels that the words "if any" after "persons" should be left out, because so far as I can see the Registrar may have a book on the register and the holder of the public lending right may die or transfer it, and it may not be possible for the Registrar to find out for some time who the new owner is. Therefore, it seems a pity that the book should be left off the register just because the owner of the right cannot be located or established.


My Lords, the noble Lord is very persistent, and I have reached this position with my advisers. It would not be logically wrong to include the words "if any" on their first appearance, which was in Clause 1(4), but it is entirely unnecessary and therefore better not to do so. Of course, the words "if any" remain in Clause 4(3). I hope that the noble Lord will be satisfied with that advice.

On Question, Amendment agreed to.

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 6:

Page 2, line 17, leave out ("and").

The noble Lord said: My Lords, with the permission of the House, I should like to speak to Amendments Nos. 7 and 11 with this Amendment. They are amendments to Clause 1(7) and Clause 4(4). The noble Lord, Lord Ironside, proposed at the Committee stage that authors or title holders should be allowed at their own wish to have an entry deleted from the register, and I promised to suggest how this should be done. The Amendments I now put forward to Clause 1(7) will, I think, meet the noble Lord's main object of enabling authors or title holders to renounce their claim, for whatever reason, and, if necessary, to take it up again at a later date, should they so wish. The amendment to Clause 4(4) will enable the name of the author or title holder to be deleted either temporarily or for all time. I think that this meets the noble Lord's suggestion which we thought very helpful. My Lords, I beg to move.


My Lords, I think that the Government's wording is admirable, and it is expressed in a very much better way than I could express it myself. I should just like to ask the noble Lord whether by the words "for all time" he means eternity, or for all time that the lending right exists.


My Lords, "for all time" has a perfectly specific meaning, which is for eternity. If we meant less than that we should doubtless have said so.

On Question, Amendment agreed to.

Lord DONALDSON of KINGS-BRIDGE moved Amendment No. 7:

Page 2, line 19, at end insert ("and (d) to be renounced (either in whole or in part, and either temporarily or for all time) on notice being given to the Registrar to that effect.")

On Question, Amendment agreed to.

3.22 p.m.

Lord WILLIS moved Amendment No. 8:

Page 2, line 19, at end insert (" and (d) to be exercisable only by persons who—

  1. (i) are citizens of the United Kingdom; or
  2. (ii) have been ordinarily resident in the United Kingdom for such period as may be prescribed; or
  3. (iii) are citizens of such other country as may be prescribed on the ground that such country affords substantial reciprocity of treatment to authors who are citizens of the United Kingdom.")

The noble Lord said: My Lords, this is a subject which we discussed at considerable length earlier. It concerns the question whether the limited funds available for public lending right should be made available to overseas authors, and under the Bill as it stands they are, in fact, made available to them. The point that was made very strongly in our debate in Committee was that, for example, the very big and popular American authors, who have many books in our libraries, could cream off a considerable amount of these limited funds, and there is no reciprocal public lending right in America, and is not likely to be for some time. If you add to the American writers a number of other famous international authors, your Lordships will see that it is quite possible that a large proportion of the money could go to overseas authors, while our books could be lent by their libraries without any reciprocal payment.

I made the point very strongly in Committee that this is not xenophobia on my part. I speak as a previous president of the International Writers' Guild, and I know that my fellow members of that Guild would agree absolutely with the point that I have been making. I said that I would go back and see whether I could get an expert Opinion on this subject from a good copyright lawyer, and I have one which was provided for me by the Society of Authors and the Writers' Guild of Great Britain, from one of the most authoritative copyright lawyers in the country. I think it makes it quite clear that the Government are wrong when they say that on public lending right they cannot amend the Bill to exclude overseas authors, because they are bound by certain copyright Conventions.

I do not want to read the whole of this rather complicated legal Opinion to your Lordships, but if you will bear with me for a couple of minutes I should like to read the relevant sections which make a very powerful case. It states: The general principle of both Conventions "— and they are the Berne Convention and the Universal Copyright Convention— is that in each contracting State the nationals of another contracting State shall enjoy the same exclusive rights in respect of their works as the nationals of that State.

That, I take it, is the position on which the Government stand; that they are bound by these Conventions and therefore cannot morally and honourably avoid paying overseas authors. The Opinion, however, goes on as follows: These are not, however, absolute and unqualified obligations. An important qualification is made in the case of more extensive rights than those granted by the Convention: such rights can be the subject of special agreements made between the contracting States. Thus it is provided by Article 20 of the Berne Convention that The Governments of the Countries of the Union ' "—

that is, the Copyright Union — 'reserve the right to enter into special agreements among themselves, in so far as such agreements grant to authors more extensive rights than those granted by the Convention, or contain other provisions ' "— and so on. That is absolutely crystal clear. We are granting authors more extensive rights. Here in Article 20 of the Berne Convention is the perfect answer to those who say that we must pay overseas authors.

The Opinion then goes on to deal with the question of public lending right and its relationship to copyright: The Bill refers to an author's 'public lending right' by which is meant an entitlement to payments out of the central fund. The proposals are plainly intended to confer financial benefits on authors. For the purposes of the Convention it would … be wrong to equate financial benefits conferred on authors by domestic legislation with the 'exclusive rights' of authors for the protection of their works referred to in the Conventions. In other words, there are two separate things. There is the financial right that we gain from public lending right, and the other rights, the exclusive rights, which are laid down by the Conventions.

The Opinion goes on to say: … the right to receive the payment from the central fund is not an 'exclusive right' at all…no author will be entitled to prevent copies of his works from being lent out by public libraries … He will have no right to prevent anyone from lending out copies of his works 'gratis' or for gain. The exclusive rights referred to in the Convention are enforceable. We cannot enforce public lending right, and so on. I should be very happy, of course, to let the Government have a copy of this most authoritative Opinion, but its conclusion is very simple and is as follows: In my opinion, the United Kingdom would not be in breach of its obligations under either the Berne Convention or the Universal Copyright Convention if the Public Lending Right Bill were amended so that the authors eligible to receive payment under the proposed scheme were restricted to (i) citizens of the United Kingdom and (ii) citizens of any other country where a similar scheme has been established".

That is, as I said, a most authoritative Opinion from a very well-known copy-right lawyer, and it is backed up by other opinion that we have been able to get. It seems to me to make the case crystal clear. In Committee, your Lordships had great sympathy with this point, and I think the feeling was that it would clearly be wrong to have these limited funds drained away by authors in countries with which there was no reciprocal agreement. Quite rightly, the Government said that they were bound by certain Conventions and that there was nothing they could do. Here is an Opinion which says that we can do something, and I hope that the Government will therefore listen with a very sympathetic ear to what we regard as a fundamental and important point. My Lords, I beg to move.

3.30 p.m.


My Lords, I am grateful to my noble friend for taking so much trouble and for offering me a copy of his expert Opinion. I have had enough to do with the law in my brief but eventful life to know that it never pays to ask two lawyers the same question. Therefore, I must refuse the noble Lord's offer. Subject to that, this is a difficult situation. I do not dispute the potential facts, although none of them is quite as yet a fact because we do not know the figures. I do not dispute the reality of the worry that the noble Lord describes. With a very limited amount of money available, we do not want to see an enormous amount of it going to authors who are not resident in this country and who are not part of our cultural heritage. Of course, there is a limitation in the intention (which does not appear in the Bill but which has been referred to several times by the noble Viscount, Lord Eccles, on this point) that the scheme will have a maximum so that, to use the current phrase, the best seller will not scoop the pool. This is a defence.

However, to look seriously at this matter, both of us have consulted further and I am afraid I have to accept the fact and say that the difference between us has not been resolved. Even though the legal position may be arguable—legal positions very often are—nevertheless I believe that we have to oppose my noble friend's Amendment. If we accepted it I think we should run a real risk of appearing to evade the spirit of the Berne and the Universal Copyright Conventions. We should be standing on a technical legal point, whereas the broad impression that we should be giving would be one of ill-will and wrong behaviour. Her Majesty's Government do not believe that even if the noble Lord's legal point could be established over my advice, this would be the right course to take.


My Lords, I wonder whether the noble Lord could elucidate his position. I would not stick out my neck on the legal point but on the ethical point it seems to me that the position is reasonably clear. The general Conventions regarding copyright rest essentially upon the assumption of reciprocity. No reciprocity is proposed in this case. Therefore, it seems to me to fall into a different category.


My Lords, the details of the Berne and the Universal Copyright Conventions involve reciprocity but they have a wider implication, which has always been understood, where reciprocity does not cone into it. My own view—I have said this before and I think the noble Lord, Lord Digby, and the noble Viscount, Lord Eccles, have said so also —is that in this case the right thing to do is to go for reciprocity. I hope that we shall get it in due course, but to legislate for reciprocity over people where we have no power whatever to make them either start a public lending right or give it to us if they do is not something which it is possible to do in a Bill of this kind.

I am influenced by the very firm opinion on the part not of the legal advisers but of the people who, in trade and diplomacy, are concerned with the nation's good name that this would be making a fundamental mistake. In the long run we cannot try to evade our obligations. We believe that there is an obligation. I have said so in public and I cannot now say that there is not. I do not believe that we can try to get out of that obligation in this way. Let us never forget that for a country as influential in this field as we are to do so could tend only to undermine the Conventions from which, on the whole, we gain enormously. As one of the main English speaking and reading nations, these Conventions redound very much to our benefit. On the basis of a disputed legal point I do not believe that my noble friend would really want to risk our good will internationally on such an important subject and I am sorry that I must ask the House to resist the Amendment.


My Lords, may I support the noble Lord, Lord Donaldson of Kingsbridge, in his resistance to this Amendment. It is a new version of the Amendment which the noble Lord, Lord Willis, brought forward at the Committee stage. Clearly the noble Lord has done a tremendous amount of work upon it since, to which we all pay tribute. On that occasion I am afraid that I upset the noble Lord by saying that it had a xenophobic ring. I will avoid that word very carefully and I apologise for ever having used it. However, the noble Lord's Amendment seeks to exclude certain categories of people from public lending right, so may I substitute the word "exclusiveness". I do not think that the noble Lord can object to that word.

There is only one category of author that I might be willing to exclude and that is the British citizen who has ceased to reside in the United Kingdom in order to pay less tax. Whether that is legally possible I do not know, but I might agree that such a author should not get public lending right out of taxpayers' money to which he has ceased to contribute. Otherwise I suggest that there should be no exclusions. The noble Lord, Lord Willis, has told us that it will be ages before there is any public lending right in the United States. I am sure that the noble Lord knows the American situation much better than I do, so I accept his judgment. In a moment I will explain how I see reciprocity working as between the United States and the United Kingdom, but first there is one point upon which I must touch.

I am sorry that the noble Viscount, Lord Eccles, is not here because my point relates to a sentence attributed to him in col. 61 of the Hansard Report of our Committee stage debate. In that column there appears this sentence: What the Americans lend out here is pulp fiction".—[Official Report; 27/4/76; col. 61.] I am sure that was a mistake on the part of the noble Viscount; it must have escaped from him in an unguarded moment and I wish he were here to agree to that. But that that should stand unchallenged as the considered opinion of this House on American literature is too awful to contemplate. I see reciprocity as between the United States and the United Kingdom as a matter of very rough justice. British authors earn their dollars by getting their books published in the United States where people buy books, and they do very well out of it. American authors will get something out of public lending right in this country where, on the whole, instead of buying books we borrow them. It is not precise reciprocity, of course, but it is a kind of rough approximation to it and I still think that we shall be the gainers. The advantage which we enjoy through having English as our native language seems to me to impose upon us an obligation to be generous towards foreign authors. In any case, I suggest that frontiers and all the temporary trappings of nationalism are little more than irrelevant absurdities in the context of literature and art. Therefore, I hope that the Government will continue to resist this Amendment.


My Lords, the noble Lord has just observed that the ethical line is to he generous to foreign authors, but judging by what transpired during the Committee stage when there was under consideration the parsimonious, the almost stingy, amount that was to he allocated in the long run, it does not appear to me that foreign authors would suffer financially if-they were excluded, to use the term which the noble Lord himself injected into the debate. In the course of the Committee stage I ventured to intervene, and I apologise for intervening, only because I thought this was—I hope I may be forgiven for saying this— a piffling Bill. Certainly when it was being formulated by the draftsmen— I do not know who advised them; I hope it was not one of the intellectual Ministers in the present Government, if indeed there are any intellectuals in that Government—it seemed to me that there were so many complications in the Bill that whoever offered the advice was not the type of adviser I would have selected.

It may be suggested that I have an interest to declare. It is perfectly true that I have had several books published. What I have gained from them I may be permitted to conceal. On the whole I have done very well out of it, and indeed I do not suppose that at any time I shall go on my knees and beg for some modicum of dividend which may emerge as a result of the allocation of this very parsimonious and, as I would put it, stingy fund. Let us consider a very simple proposition. Let us divest ourselves of all the complications, even all the legal subtleties on either side in the debate. The simple proposition is that the purpose of this Bill at the outset—and I challenge contradiction—was to provide some modicum of dividend for British authors. That was the sole intention and I venture, without any arrogance, to challenge contradiction. It was never thought at the time—at least it was never mentioned at the time—that we had under consideration making some financial provision for foreign authors, even if those foreign authors had a command of English and were now placing it at the disposal of people in this country. That was the intention. I listened to the debate at the Committee stage and on the Second Reading of this Bill and, as I have said, took no part in it except to make one trifling intervention, which probably did not make any difference. But, and I say this with great respect to the Minister, it never seemed to have occurred to him that we intended to dole out these funds, however meagre or however generous, to foreign authors. That was not the intention.

Ever since this matter was first mentioned many years ago, because this is by no means an original concept that has been injected into our debate by my noble friend Lord Willis, books were available in the public libraries and loaned out to Tom, Dick and Harry, much to the financial detriment of the authors—for the most part authors who were mentioned I think, in a book published many years ago, which I think was called Grub Street. For the moment I cannot recall the author's name. I mention it just to show that I have read some books myself. This is the situation with which we are faced.

What are we proposing to do now? Of these meagre funds, £1 million, £400,000 is to be absorbed in administrative expenses and £600,000 is to be allocated, not among the few thousand British authors resident in the United Kingdom, citizens of our own country, our own neighbours and friends, but to the vast array of American authors whose books are to be found in every bookshop in the country and on sale much to the detriment of British authors who are unable to inject into their books the subject which interests some people more than any other; namely, pornography.

What are we doing about this? I would reject the Bill altogether. That is what I said at the Committee stage. It is a piffling Bill: take it back, cut its throat: be done with it. But if we are to consider it, let us be reasonable about it.

I wish to make a further point. In the course of his observations earlier in reply to the noble Lord, Lord Elton, who asked whether a Secretary of State or a Minister would have the right to adjudicate and decide how the money would be allocated, if there was to be any money at all, the reply that came from my noble friend Lord Donaldson was that you must have somebody to decide whether this person or that person should be a recipient. That is what he said. Very well. Leave it at that and say that it must be left to a Minister of State or to some Minister in whatever Government exists in the future, because of course all this is going to happen in the remote future; it will take a long time before the proposals are implemented. It should be left to him to decide who should have a first call on the fund, the British author or the foreign author. I think that question must be answered. It is no use injecting all this complicated stuff about the Berne provisions relating to copyright. It seems to me that has been thrown in at the last minute in order to prevent our doing the simple thing, dealing with a simple proposition, that is, to make some financial provision, however small it may be, for British authors who need it.

Therefore I support my noble friend and if he wants to go into the Division Lobby I shall be there with him.


My Lords, I suggest that—


My Lords, I do not know why I am being interrupted; I have not finished yet. I do not know why my noble friend Lord Strabolgi is being so precipitate; after all, there is no reason why we should not have a little discussion about this. There is not very much business on today. Besides, the House was in a very dull mood and I am livening it up a little.

Anyway, to sum up, I wish to make two points, the first concerning my noble friend Lord Donaldson's suggestion that the adjudication must eventually be left to a Minister. All right, I accept that. But if that is to be so, then the first call on the fund, however meagre or however generous, should be by British authors, and after they have been suitably provided for then we will be generous with the foreign authors. Could anything be more ethical than that? The ethics would satisfy even my noble friend Lord Robbins, who knows more about ethics than anybody else in this Assembly. I will leave it there. If there is to be a Division I am with my noble friend Lord Willis and common sense and the original intention of this Bill. I stand by that.


My Lords, I apologise to my noble friend Lord Shinwell. I thought he had sat down. What I was going to suggest, and what venture to suggest now to the House, is that this may be a convenient moment to take the Statement at present being made in the other place.