Copyright, Designs and Patents Bill [H.L.]

HL Deb 10 December 1987 vol 491 cc375-427

House again in Committee on Clause 71.

Lord McGregor of Durris moved Amendment No. 184: Page 28, line 18, at end insert— ("(c) where the copyright in the work originally vested in a person other than the author by virtue of section 11(2) of this Act.").

The noble Lord said: With the leave of the Committee, it may be convenient if I speak also to Amendments Nos. 189 and, with the approval of the noble Lord, Lord Howie of Troon, No. 189A.

The Bill introduces in the form of moral rights in relation to copyright two rights of fundamental importance to newspapers and periodicals: first, the right of an author of a copyright literary work to require that he shall be identified as its author whenever the work is published commercially; and, secondly, the Bill endows an author, other than an employed journalist, with the right not to have his copyright work unjustifiably modified.

This right would be enjoyed by freelance contributors and writers of letters for publication, but it goes far beyond that. It covers, for example, the director of every TV advertisement, the author of every trade catalogue or brochure. As the noble Lord, Lord Howie of Troon, explained earlier, it covers the photographer's photographs used in advertisements, and much more besides. However, in deference to the noble Lord the Chief Whip I shall restrict my comments on the implications of these two rights to newspapermen and periodicals, I shall do so by quoting without modification from a letter which the editor of the Economist addressed to several Members of this Chamber.

The editors' anxieties have already been referred to by the noble and learned Lord, Lord Hailsham, but they are generally so important and so compelling that I believe they deserve fuller mention. I quote from the letter, with the permission of the editor. He writes: The impact of this legislation on The Economist would undoubtedly be damaging and, if the waiver provisions were removed"— as is proposed by the noble Lord, Lord Willis, in his amendment to Clause 77— potentially disastrous. The introduction of moral rights of this kind may be appropriate for books by single authors, but for newspapers, magazines, periodicals and works of composite authorship, it would be utterly unworkable. The result could threaten, and possibly destroy, the special character of The Economist which has been its hallmark since its earliest days. There is a special place in British journalism, exemplified by The Economist, for the written article that is published as the collective voice of an editorial team. This type of journalism could be eroded to the point of destruction if each individual journalist became absolutely entitled to insist upon attribution, and (in the case of a freelancer) to give or withhold, as he chooses, his consent to the editing of his work before publication. A system based on assertion of the right to attribution and upon waivers or consents to modification is completely impractical for a newspaper working to tight deadlines. It could easily put [the editor] in a position of either having to abandon an article or risking legal action from, say, a photographer whose picture is to be cropped but who cannot be contacted for consent before our deadline".

I may perhaps add that it seems odd for a government who have devoted legislation to reducing the rights of trade unions to set about achieving in this particular measure a great strengthening of the National Union of Journalists. Finally: A regime in which an editor's decision to publish requires constant reference to lawyers for advice on contractual terms, consents and waivers cannot be in the public interest. It would interrupt the natural flow of news for publication. The legislation requires that every participant in the creation of a finished article should receive attribution if he requires it. Nothing could be less appropriate for The Economist than having to include an exhaustive list of researchers, journalists, editors, graphic artists and photographers who have contributed to an article".

I should add that Sir Edward Pickering, the executive vice-chairman of The Times, has written in similar terms of the difficulties that his newspaper would face under these clauses.

These arguments and conclusions are weighty. Above all, they are practical. In a number of clauses the Bill provides desirable and strongly supported protection for such folk as creative artists, authors of books, and contributors to symposia or works of reference. However, as it stands there is in places in the Bill a conflict when this protection, necessary for some, is achieved at the price of making the efficient conduct of newspapers and periodicals impossible.

We have put forward the amendments in an attempt to sort out this muddle. Amendment No. 184 excludes works made by employees from the right to be identified, and No. 189 and No. 189A would, in different ways, ensure that editors will remain in control of the content of the publications for which they are at present solely responsible.

I am conscious that the drafting may be defective and I emphasise that the intention of the amendments is to open the issue for consideration. I hope that the Minister may be willing to reconsider the clauses and suggest a method of resolving the conflict which at present exists between the rights of creators and the imperative necessities of producing papers and journals speedily. I beg to move.

Lord Grimond

I rise to support strongly what has been said by my noble friend who moved this amendment. I support the amendment for exactly the same reasons. I suppose I should begin by confessing that I have some interest in this matter because my son is an assistant editor on the Economist newspaper. But there are other papers, not as good as the Economist but good nevertheless, which will be affected. In all seriousness, if the Bill, I think by chance, were to ruin what has been the outstanding character of the Economist for at least 100 years, it would be unfortunate. It would not be intended, I am sure, by the Government or the Committee, but it would he apt to happen.

There are at least three Members of this House who have been or are directors of the Economist or its parent companies. No doubt they will in due course address the Committee on exactly what this will mean to the paper. But I am informed, as indeed is the noble Lord, Lord McGregor, that it would fundamentally alter the character of the Economist because most of it, if not all, is a joint effort. Most of it is anonymous but it is put together by the staff of the Economist, sometimes by outside or freelance writers; photographs are acquired through agencies and so forth. It is a collective production. I think there is certainly room in the British press for such a method of producing a paper, and the Economist, I would say, is a very good example of what can be done.

It may be thought at first sight that all this is to protect the rights of journalists. But actually what will happen is that many journalists will find that the Economist can no longer publish what they produce because it will not have the time, the means or the legal advice to fulfil all the provisions of the Bill as it stands. So I would very much hope that the amendment, or something like it—because I notice the noble Lord does not pretend that it is the only or necessarily a perfect amendment—which gives effect to it will be acceptable to the Government and the Committee.

This matter has already been raised and is indeed relevant to Amendment No. 158A and particularly to Clause 77 and the amendments in connection with that. When we come to Clause 77 it may be argued that there is protection in that clause which would make our fears unnecessary. That no doubt will be argued when that clause is considered. But certainly, as I understand it, the Economist at present feels that the provisions of the Bill, if they are enacted as they stand, will be harmful to it, and if they were amended by striking out the protection in Clause 77, they could well be disastrous.

As I say, this is a matter which could possibly be tackled in different ways. I think the Committee will agree that it is necessary that it should be tackled and that the tradition of this paper—which adds very greatly to the reputation of this country throughout the world and has enormous world-wide Circulation—should be protected and not harmed unintentionally by the drafters of the Bill.

If everybody who contributes to the Economist has to be identified and if every photograph which is cropped has to have the consent of the photographer, many of which come from agencies and others from outside writers, it will make the production of the paper almost impossible. Therefore I very much hope that the mover of the amendment will gain the support of the Committee and that the matter can be satisfactorily resolved.

8.15 p.m.

Lord Morton of Shuna

It is always interesting to hear the position that the Alliance takes. If it will allow me to do so, I should like to speak in favour of the freedom of the individual. It seems to me that the Bill, as drafted, is fair enough. In fact Clause 11(2), as we tried to argue on this side of the Committee, does not go far enough.

As I understand the basic premise of the Bill, it sets out the position of the law subject to contract. Anybody in any situation is free to contract to alter the position of the Bill. So the Bill is laying down what the common law or the statute position is, leaving it to the employer, the commissioner or anybody else to have a look and say: "This does not suit my particular position. I will have a contract".

As regards the editorial team of the Economist or of The Times, if it has one, I would suggest that they consult a good lawyer and enter into a contract with their employees. As regards the freelancers, I would suggest again that they enter into a contract.

Freedom of contract is extremely important to people. If we are saying that somebody who has a contract with a newspaper is never to have any moral right to anything that they write, that is a rather rigorous diminution of that individual's rights. I should have thought that that would not commend itself to the Committee.

I cannot see why it is so difficult—and we have had this argument several times in the fairly long debates we have had in Committee so far—for the newspaper organisation to enter into contracts with those whom they employ. Should they wish to have the advice as to who would be a good lawyer to advise them on contracts of employment, those noble Lords who have spoken thus far have one sitting very close to them who is in a position to advise them as to who might know something about contracts of employment. I should have thought that this is just totally unnecessary.

Lord Howie of Troon

I hesitate to dissent from my noble friend. He is a wonderful lawyer but not a great journalist. He has shown no great—

Lord Morton of Shuna

If my noble friend will allow me, I have never made any claim to be any sort of journalist. I have never tried to. If I tried to be a journalist, I should try to have a contract that controlled what I was doing.

Lord Howie of Troon

That is more or less what I meant. My noble friend is in the wrong field in his argument here, because, although he is right in some ways, he is wrong in others.

The first thing I should like to say is this. I assent happily to the suggestion of the noble Lord, Lord McGregor of Durris, that we should discuss this with my Amendment No. 189A, which was mentioned by the noble Lord, Lord Lloyd of Hampstead, earlier in one of the debates which we had. I would also add to it Amendment No. 185A, which is further down page 7 of the Marshalled List. This is identical to Amendment No. 189A and has the same intention: that is, of excluding magazines, newspapers and periodicals from this clause.

Our reasons for excluding periodicals and magazines are not to attack the freedom of the individual. In a recent debate I expressed some confusion—not quite confusion, but I expressed myself as having one foot on either side of the fence. While I defend the right of the individual author, as the noble Lord, Lord Willis, has argued cogently throughout the Bill, the matter becomes more complicated when we reach journalism, because we are not then dealing with the individual author.

In journalism when we are dealing with the individual author I would support the noble Lord, Lord Willis, entirely. But we are not always doing that. The Economist is the case in point. I have never written for it. not even a letter, though I buy it, I am happy to say at a discount. The whole point about a magazine like the Economist and other periodicals is that it works to a house style and the house style is not necessarily the style of the particular author.

The fact is that a piece of work is conceived somewhere. It may be conceived by the author, the editor, some editorial committee or by a conjunction of journalists perceiving the need for a story. The story is written by a working journalist and is then reworked by a body of people who produce a piece of work in the house style of that particular magazine. It is not necessarily in the house style of the particular author. Although the original author may well have a strong claim to paternity, he does not have sole claim to paternity. The ultimate work is a true team effort in which the sole author cannot be identified, and he cannot be identified because he does not exist. That is a weakness in the Bill.

Earlier in our debate the point was made very strongly by the noble and learned Lord, Lord Hailsham, that we are talking about the question of practicability. That is precisely the point which was raised by the Minister during discussions on Amendment No. 183 before the dinner break. The point of this amendment, tabled by the noble Lord, Lord McGregor, is to add to practicability. If it is not practical to identify the author, it should be possible to remove the area where he is not identified from the Bill, and that should be done.

I should now like to make a wider point. This short debate illustrates a recurrent weakness which appears over and over again throughout the Bill. The weakness is that the position of the individual artist or author, with which the noble Lord, Lord Hutchinson of Lullington, is concerned, is confused with the more general journeyman journalist. In an earlier attempt to deal with copyright, and to deal with moral right now, the Government have devised a formula which is applicable to the individual artist or author. We agree with the Government in that respect but it is not applicable to the journeyman journalist working in the journalistic situation where the "author" might not turn out to be the author after all. There is a conjunction of author, editor, sub-editor, layout man, author of the headline, typographical artist, etc. I think that that central confusion is weakening the Bill over and over again, and I believe that the amendment should be supported.

Lord Kilbracken

I do not believe that any problem arises as regards journalism when the work is carried out by people who are on the staff of the publication. In every case there is a contract of employment. All these matters can be agreed and laid down in the contract of employment, including whether they are to be identified, under what circumstances they are to be identified and, in the case of a team, what the by-line will be. That will be set out in the contract. However, problems arise in cases where outside contributors, freelance writers and photographers, are engaged because in such cases there is practically never a contract. That person may be writing for eight, 10 or 12 different publicatons but does not have a contract with any of them. He will telephone the paper and offer a story. The paper takes it but there is no contract because it is done ad hoc on that occasion. It is then that the question arises as to whether he has a right to he identified as the author and have his by-line on the story. It is often an honour to have one's by-line on a story. In journalism they are the only cases in which this issue can arise.

Lord Howie of Troon

I am not objecting to my journalists having by-lines. I like journalists to have by-lines and to have their photograph appear at the head of the article in order to identify them as real people. I think that that is a right that they should have. However, the difficulty arises in identifying who is the real person. Instead of the photograph of one author, do noble Lords want to see a row of fellows, each one of whom has had a hand in the pie?

That brings us back to the question of practicability. What the Government wants to be done cannot be done sensibly. I do not wish to take anything away from the author, but I wish to make sure that the right author is identified at the right time and that he is given his due respect.

Lord Beaverbrook

As the noble Lord, Lord McGregor of Durris, has spoken to a number of amendments that were not previously grouped, and the noble Lord, Lord Howie of Troon, has spoken to a number of amendments tabled in his name, I should like to confirm that I shall speak to Amendments Nos. 184, 184A, 185, 185A, 189, 189A and 263A.

Amendments Nos. 184, 184A and 185 seek to deprive employed authors of the right to be identified conferred by Clause 69. I cannot accept that giving employed authors this right will create insurmountable difficulties, as has been suggested.

Lord Howie of Troon

I beg the noble Lord's pardon, but I think that the amendment moved by the noble Lord, Lord McGregor of Durris, was separate from those which relate to employed journalists. It may be better if the two arguments are kept separate.

Lord Beaverbrook

The noble Lord, Lord Howie, spoke to the amendments standing in his name, which I believe are Amendments Nos. 185A, 189A and the consequential Amendment No. 263A, so I shall speak to them also.

We must remember that this right does not arise until it is asserted. The assertion must be made in writing. signed by the individual employee and brought to the attention of the employer in order to be effective. How often this will happen may be open to debate.

The important point to note is that if the employer is concerned that the right could be exercised in an way he would find unacceptable, he can make waiver of the right a condition in the contract of employment.

I should remind the Committee that in several European countries moral rights are much more favourable to the author than our proposals. Yet newspapers are still produced and publishing houses continue to function. Claims that the moral rights provisions in this Bill will totally disrupt newspaper and book production seem greatly exaggerated.

Turning to the amendments in the name of the noble Lord, Lord Howie of Troon—those are Amendments Nos. 185A, 189A and 263A—it is said that Clause 69 will give a right to a by-line on even the most trivial item and that Clause 72 will interfere with the editors's function.

The amendments seek to resolve these perceived problems by disapplying the moral rights provisions from newspapers, magazines, periodicals and what are called composite works, defined in Amendment No. 236A. I am not altogether sure what the noble Lord has in mind here. Does the adjective "similar" apply to composite works as well as to periodicals? For example, does he intend to include or exclude composite works such as encyclopaedias and anthologies?

We can, I think, leave these questions on one side for the moment and just consider the underlying principle in the context of newspapers. First, there is the right in Clause 69 which would give the author of a newspaper article the right to be given a by-line. Waiver of the right may be made part of the contract of employment or commission if the newspaper believes that giving a by-line is undesirable. If the right has not been waived, the right is still not effective unless it is asserted. In the case of an employed journalist that would mean giving formal written notice to his employer. And what if the right has not been waived, and has been asserted, and still the newspaper omits the by-line? If it is a five-line article, the damage suffered to the journalist's reputation is very unlikely to be sufficient to give cause for an action but the Committee may feel that the journalist has ground for complaint if his name is omitted from the page 1 "scoop" story.

The right not to have a work subjected to unreasonable modification is, I believe, even less of a problem for newspapers. First, it does not apply to works produced by employees, so the newspaper need only concern itself with commissioned works, or unsolicited contributions, such as letters to the editor. With commissioned works, the newspaper can obtain a waiver if it feels this is necessary. And so all we are left with is letters to the editor. Should editors be able to make unjustified modifications to letters sent to them for publication? If your Lordships' Committee believes the answer is that, yes, editors should he able to make unjustified modifications, then Amendment No. 189A may prove acceptable.

However, we remain unconvinced that the problems that this Bill poses for newspapers are as substantial as has been made out. In the Second Reading debate, several of your Lordships commented that we were giving moral rights with one hand and taking them away with the other. I do not accept that criticism. What we are doing is providing for moral rights and establishing a framework in which they can operate in a practical fashion.

I now turn to Amendment No. 189 in the name of the noble Lord, Lord McGregor of Durris. As the noble Lord told us, the editors of newspapers and other journals have expressed concern that the right conferred by this clause not to suffer unjustified modification may interfere with what they sometimes call the editor's right to edit.

First of all I must make it clear that we are not concerned here with the issue of editorial freedom. This is not about what items an editor includes or excludes from his paper. All we are dealing with are the editorial changes made to copy before it is included in the published paper. Editors and sub-editors may make changes to an article before it can be included in the paper. For example, it may have to be shortened because of pressure on space. The question is: will the right conferred by Clause 72 interfere with such long-standing editorial practices? The answer is no.

First we should note that Clause 73B means that journalists employed by newspapers do not have the right conferred by the clause. The question therefore only arises in those few cases where an article is commissioned, in which case a waiver can be required, or when unsolicited material such as a letter is printed.

The editor will not fall foul of the modification right, even in the very few cases when it is applicable, if the changes he makes are reasonable in the circumstances and not prejudicial to the honour and reputation of the author. No competent editor has anything to fear. Surely not even the most ardent advocate of the right to edit would advance the case that the editor should be able to damage an author's honour and reputation with impunity.

8.30 p.m.

Lord Howie of Troon

I have been in Parliament in one House or another for 25 or so years, and I must say the Minister's reply has very nearly taken my breath away. It is not that it was not interesting, because it was interesting. But what I thought odd about it was that it replied to a sizeable number of amendments which have not been moved.

Lord Beaverbrook

They have been spoken to.

Lord Howie of Troon

They have not.

Lord Beaverbrook

I believe that the noble Lord, Lord McGregor of Durris, did indeed say he was going to speak to Amendment No. 189. The noble Lord, Lord Howie of Troon, also spoke to the amendments that I have spoken to.

Lord Howie of Troon

We mentioned three amendments, one of the noble Lord's there and two of mine. The Minister has spoken to about eight, including my Amendment No. 263A, which I must confess is so far in advance in the Bill that I had forgotten all about it. Let me tell him this: regardless of his reply to my Amendment No. 263A, which I am going to move next week or the week after or whenever it may be, I am going to move my amendment. I was really quite staggered at the width of the Minister's reply. It is quite improper. I know he is in a hurry to get this Bill over and done with, but he should really exercise just a little bit of patience.

Lord Beaverbrook

We have been 33 minutes on this point. I have spoken only to amendments that have been mentioned by the noble Lord, Lord McGregor, and the noble Lord, Lord Howie. I would say, that, if Amendment No. 263A is going to be moved later on in the Bill, by all means, and I shall be very happy to reply.

Baroness Birk

Very briefly, I would very much like to support what my noble friend Lord Morton of Shuna had to say and also what the Minister said. I do not always agree with him, but on this occasion I thought he made out a first-class case for what is an absolutely first-class point. I am a paid-up member of the NUJ, and used to do a lot more journalism than I do now. I have always had a contract in one form or another, even as a freelance. When you are freelancing fairly regularly, you can have a contract for that.

So far as the question of letters is concerned, I think that even today in most newspapers it states that the editor has the right to print the letters, to alter them or to shorten them. This appears there as well. There are already ample ways in the Bill in which anybody can get a waiver, or I would prefer to call it a consent. This is done between the two people.

As I said on an earlier amendment, if somebody writing for the Economist does not have his name on an article, this has been going on for years and years and years. It is nothing new so he will obviously have agreed to it before. There is ample room here for any sort of arrangement, consent and contract. I think those are unnecessary fears. Some of the amendments that have been spoken to are so wide they are quite frightening in their effort to deal with this problem.

Lord Howie of Troon

My noble friend on the Front Bench is actually quite mistaken. There is no point in her saying there is nothing new. The thing that is new is the moral right. It is entirely new. It has never been anywhere in our law before. It has been introduced from Continental law and is something which I support. I support entirely the moral right of people to have their work identified, and properly attributed.

The only problem which I raised was the difficulty of attribution and the question of practicability, which the Minister himself supported under Amendment No. 183. What I am saying is that I support the moral right and I support his contention of practicability. I am saying that this amendment moved by the noble Lord, Lord McGregor of Durris, makes something which at the moment is impracticable, practical.

Lord McGregor of Durris

Of course, I was very disappointed by what the Minister had to say. It does appear that the gap between the Minister's view of how newspapers work and their editors' view is so wide that it would be helpful if an attempt were to be made to bridge it by consultation between now and the Report stage. But I shall in any event perhaps wish to come back to this at Report stage.

I would like to say one word to the noble Lord, Lord Morton of Shuna. I thought his observation that individual rights rest upon the foundation of freedom of contract was breathtaking in that one main strand of socialist thought has been precisely the denial of that proposition.

Lord Morton of Shuna

I would be very interested if the noble Lord would identify the strand which says that socialism denies the freedom of contract. That would be an interesting line. There is a normal line throughout all the history of all the parties who are at present represented in the Committee, as I understand it, that there is a limit in which the state intervenes in the freedom of contract for what is called the public interest point of view or to regulate that. But I have never known, and I have only been a member of the Labour Party for something over 40 years, anything that said that the Labour Party was against the freedom of contract. If the noble Lord, Lord McGregor of Durris, can point to the fact, well he is increasing my education.

Lord Howie of Troon

I should like to reply to that. This is not a political Bill. It has nothing to do with socialism, it has nothing to do with the Alliance and it has nothing to do with conservatism. It is a practical matter and it is on these practical grounds that we should deal with it.

The Deputy Chairman of Committees (Lord Alport)

Is the noble Lord withdrawing this amendment?

Lord McGregor of Durris

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 184A, 185 and 185A not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 185B: Page 28, line 24, leave outparagraph (b) and insert— ("(b) section 31 (broadcasting of recordings of speech):").

The noble Lord said: This amendment is intended to help broadcasters in regard to the need to credit speakers. The majority of programmes naturally lead to named speakers participating in them, but there are numerous circumstances in which such naming would be unnecessary and extremely irritating to the audience. Radio features comprising, for instance, numerous voices recounting snippets of experience should not have to be followed by a recitation of the names of all the contributors. Crediting on air is much more intrusive than crediting in the acknowledgement pages of a book, and I do not think that this is a difficulty for broadcasters that can be dealt with wholly from a contractual point of view. I beg to move.

Lord Beaverbrook

The noble Lord's amendment is consequential on Amendment No. 133A which we debated on Tuesday and which, if we had accepted it, would have introduced a new clause making an exception from copyright for interviews, speeches, and so on, recorded at the instigation of someone other than the speaker and then included in a broadcast. I explained at length then why we thought that amendment to be unnecessary. The noble Lord at that time agreed to withdraw it and to consider what I had said.

The present amendment is primarily intended to ensure that if the noble Lord's clause had been agreed to, the right of an author or director to be identified would not apply to cases where the exception for recorded speech applied. I am not sure that that would necessarily be the right decision. Should a person who agrees to be interviewed on television not have the right to be identified if he wants to be? In any event, I suggest that in view of the noble Lord's decision to withdraw Amendment No. 133A it would be somewhat anomalous to proceed with the present amendment.

Lord Lloyd of Kilgerran

The Minister has been good enough to refer to Amendment No. 133A. On that occasion I complained, quite amiably, that the Minister did not have in mind the real problems associated with broadcasting. But I have listened to what the noble Lord has said in regard to this amendment and will take advice on his answer. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lloyd of Kilgerran moved Amendment No. 185C: Page 28, line 30, at end insert— ("( ) The right does not apply in relation to the inclusion in a broadcast of a photograph. ( ) The right does not apply in relation to any work where one or more of the acts mentioned in section 69 has been done in relation to the work and, before the act was done, the author had a reasonable opportunity to assert the right.").

The noble Lord said: In spite of the amendments that I have already spoken to, this amendment is intended to prevent, again, television screens becoming cluttered up with credits to stills photographers. This Bill already recognises that so much music is used in broadcasting that it really would be absurd if every composer had to be credited. The amendment proposed recognises that some television programmes use such large numbers of stills that it would be equally impracticable for their authors to be credited. I beg to move.

Lord Beaverbrook

The noble Lord's amendment seeks to disapply the right to be identified as author—the so-called paternity right—in two instances. I must admit that we are somewhat puzzled by the proposal that photographs included in a broadcast be made a specific exception to the paternity right.

First, I cannot see why photographs should be treated differently from any other artistic work. Why should the author of a photograph not be identified when the author of a painting, for example, can enjoy his paternity right? We find it difficult to imagine any circumstances where this exception would be appropriate. After all, paragraphs (a) and (b) already provide for most instances when we would see a photograph included in a broadcast. For example, if someone died and his photograph was included as part of the news item about him, this would be covered by the fair dealing exception for the purposes of reporting current events.

To move on now to the second part of the amendment. it seeks to disapply the paternity right in cases where the author had a reasonable opportunity to assert it, but did not do so before any of the acts mentioned in Clause 69, such as commercial publication of the work, were carried out. I think this is a fair point, but I believe it is one that we have already adequately covered in Clause 70(5). It provides that in an action for infringement the court shall take into account any delay in asserting the paternity right. This recognises that it may be unjust to grant an injunction or damages if there is a late assertion after the rights owner has spent money on exploitation.

Lord Lloyd of Kilgerran

I am grateful to the Minister for dealing with the second part of my Amendment No. 185C, which I did not fully develop in my speech. He has referred to the fact that that point in the second part of this amendment is dealt with by Clause 75. I have not had the advantage of looking at Clause 75 and I certainly do not recall its terms.

Lord Beaverbrook

May I make it clear that I was referring to Clause 70(5)?

Lord Lloyd of Kilgerran

I beg the noble Lord's pardon. I have heard what the Minister said. I will take advice on it and probably come back at Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 71 agreed to.

8.45 p.m.

Clause 72 [Right not to suffer unjustified modification of work]:

Lord Lloyd of Kilgerran moved Amendment No. 185D: Page 28, line 39, after ("film") insert ("which is based on or comprises a dramatic work").

The noble Lord said: This is another amendment that has been put forward to me, as I said earlier today, by the BBC and the ITV lawyers jointly. The intention of this amendment is to limit the class of directors entitled to this new moral right to directors of dramatic works, such as feature films and television dramas. It is really a misnomer to describe makers of other types of films as directors. The word should be limited for the purpose of this clause to directors of actors; hence the link with dramatic works.

The proposed paragraph (b) adopts the more precise wording of the Paris provision of the Berne Convention. It is important that the words "distortion" and "mutilation" should appear as they indicate the degree of seriousness required before an author or director should be able to object to an unjustified modification. The present text of the Bill which refers only to an unjustified modification—

Lord Morton of Shuna

I wonder whether the noble Lord will give way. I think, if he is speaking about distortion and mutilation, he is speaking to Amendment No. 187A. I believe we thought he was speaking to Amendment No. 185D.

Lord Lloyd of Kilgerran

I should have asked for the leave of the Committee to speak to Amendment No. 187A at this stage. If I may continue, the present text of the Bill in regard to this part of the clause refers only to unjustified modification and fails to convey this, and thus goes much too far beyond the requirements of the convention which the Government wish to ratify. I beg to move.

Lord Willis

I am opposed to this amendment, for a very simple reason. One of the great glories of our film industry is that over the years we have made some extraordinarily good documentary films going back as far as John Grierson. I do not see why you should take away from the people who have created documentary films of this kind the kind of right that is included in the Bill. Therefore, I think that the amendment is mistaken.

Lord Morton of Shuna

I also think that the amendment is mistaken. I just can remember who John Grierson was. Many very good nature films have appeared on television. I can imagine that somebody with an inclination to parody, or somebody like Mr. John Cleese, could have great fun with those and could cause considerable fun if he was allowed to modify them to a considerably unjustified extent. I should have thought this was a protection which these people are entitled to have.

Lord Beaverbrook

I am afraid that I do not know who John Grierson is.

Noble Lords

Was.

Lord Beaverbrook

I am so sorry. I did not even know that.

I was just about to say to the noble Lord, Lord Lloyd of Kilgerran, that perhaps he would be agreeable if I spoke to his Amendment No. 185D now and came back to Amendment No. 187A as that has been grouped with Amendment No. 188 to which we shall come. The noble Lord's amendment seeks to limit the integrity right to film directors whose film is based on or comprises a dramatic work. I see no reason why film directors of, for example, nature films should be deprived of the right not to suffer unjustified modification of their work.

The rights of the director to be named on the film and not to suffer unreasonable modification should not depend on the subject matter of the film. The making of a documentary may require just the same level of creativity from the director as is needed by the director of a feature film. If there is concern that, for certain films, the exercise of moral rights might prove inconvenient, it is open to those who engage the director to require a waiver. This is a matter which those most directly concerned can agree between themselves. I do not believe that we should attempt to decree in the statute which films merit moral rights and which do not.

Lord Lloyd of Kilgerran

Again, I have heard what the noble Lord has said. I must comment that there is this lack of sympathy by the Minister to the great problems which broadcasters seem to have. Nevertheless I shall take advice on this and probably come back to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

The Deputy Chairman of Committees (Lord Ampthill)

I advise the Committee that if Amendment No. 186 is agreed to, I shall not be able to call Amendments Nos. 187, 187A, 188 and 189. I call the noble Lord, Lord Beaverbrook.

Lord Beaverbrook moved Amendment No. 186: Page 29, leave out lines I to 32 and insert— ("(2) For the purposes of this section—

1. (a) "modification" of work means any addition to, deletion from or alteration to or adaptation of the work, other than—
1. (i) a translation of a literary or dramatic work, or
2. (ii) an arrangement or transcription of a musical work involving no more than a change of key or register; and
2. (b) modification is justified only if it is reasonable in the circumstances and is not prejudicial to the honour or reputation of the author or director;

and in the following provisions reference to a "modified version" of a work are to a work, or copy of a work, which has been subjected to unjustified modification. (3) In the case of a literary, dramatic or musical work the right is infringed by a person who—

1. (a) publishes commercially, performs in public, broadcasts or includes in a cable programme service a modified version of the work; or
2. (b) issues to the public copies of a film or sound recording of, or including, a modified version of the work.

(4) In the case of an artistic work the right is infringed by a person who—

1. (a) publishes commercially or exhibits in public a modified version of the work, or broadcasts or includes in a cable programme service a visual image of a modified version of the work; or
2. (b) shows in public a film including a visual image of a modified version of the work or issues to the public copies of such a film.

(5)Subsection (4) does not apply to a work of architecture in the form of a building; but where the architect is identified on a building which is the subject of unjustified modification, he has the right to require the identification to be removed. (6) In the case of a film, the right is infringed by a person whoߞ

1. (a) shows in public, broadcasts or includes in a cable programme service a modified version of the film; or
2. (b) issues to the public copies of a modified version of the film, or who, along with the film, plays in public, broadcasts or includes in a cable programme service, or issues to the public copies of, a modified version of the film sound-track,

(7) The right conferred by this section extends to the modification of parts of a work resulting from a previous modification by a person other than the author or director, if those parts arc attributed to, or are likely to be regarded as the work of, the author or director.").

The noble Lord said: On the face of it this amendment seems rather a substantial one but I hasten to reassure the Committee that we detected one or two drafting errors. For example, reference should be made throughout to a "cable programme service" rather than a "cable programme". As several amendments were necessary, we have taken the opportunity to restructure the clause to set out its provisions on a more logical basis. For example, the definition of what constitutes unjustified modification is now at the beginning rather than the end of the clause. The right is now expressed in terms of when it is infringed rather than a right not to have something done.

The only change of substance in this general reshuffling is in subsection (7) of the amendment. As drafted the Bill provides for the right to extend to the modification of a work previously modified. We now propose that the right should extend only to modification of those parts of a work which have been previously modified by someone other than the author or director if those parts are nevertheless likely to be regarded as the author's or director's modifications.

Perhaps I should give an example to assist the Committee. Mahler's tenth symphony was unfinished and there may have been several attempts to finish it. I know that Mahler is long out of copyright, but for the purposes of this illustration let us assume that he died more recently. A notable completion was penned by the music critic Derryck Cooke. That completed symphony is a modification of Mahler's original. Now let us suppose that someone made further modifications to the completed symphony. if the changes are confined to the original part then of course Mahler or his heirs should have a right of action. But let us suppose that the changes are confined to Cooke's additions. Should Mahler be able to object?

We have come to the conclusion that unless the part of the work which is being modified is capable of being regarded as the author's work, he should not have a right to object. In the example I have given it might only be Cooke's reputation and not Mahler's which would suffer if someone modified the end of the symphony in an unjustifiable way. In that case Mahler should not have a right of action. I beg to move.

Lord Morton of Shuna moved, as an amendment to Amendment No. 186, Amendment No. 186A: Line 10, after ("provisions") insert ("of this section").

The noble Lord said: First, I express my sorrow that the Minister is totally unaware of a very eminent Scot who was one of the most eminent creators of the documentary film, while he seems to remember Mahler who, if my memory is right, was an Austrian who died considerably before my time. However leaving that aside, I agree with and congratulate the Minister on redrafting this clause in a more comprehensive way. Amendment No. 186A merely adds on the tenth line the words "of this section" to make quite clear that the following provisions do not take us down to the end of Clause 277 and the seven or eight schedules that follow. It is necessary for clarity that what is meant is that the following provisions finish in this one section of the Bill and do not go any further. I beg to move.

Lord Kilbracken

I do not think that this is a very great improvement in that in Clause 72(1) we are told that the author: has the right in the circumstances mentioned in this section". In the original draft we were told what those circumstances were. Now we are not told what they are. We are simply told that the right will be infringed in various ways without being told what they are.

I have another point of which I have not given the noble Lord notice. If he wishes to write to me about it I shall completely understand. I should point out that in the new subsection (2) there is a definition of the word "modification" which states: 'modification' … means any addition to, deletion from or alteration to or adaptation of the work". However, in Clause 21(3) there is a definition of adaptation which applies throughout this part of the Bill and therefore applies in this case. In that definition of adaptation in Clause 21(3) we are told that: (a) in relation to a literary or dramatic work, means— (i) a translation of the work. We are told also that in relation to a musical work it means an arrangement or transcription of the work.

But here we are told that modification means an adaptation: other than— a translation of a literary … work, or an arrangement or ranscription of a musical work". It seems to me very confusing to have two different definitions of adaptation which both apply in this subsection. This would have applied under the original wording as well as under this. At least in Clause 21(3) we should read, In this part except in Section 72", and make an exception in the case of Section 72 in that early part of the Bill. I beg to move.

Lord Howie of Troon

I only wish to say that whoever finishes Mahler's tenth symphony will do it with more alacrity than Mahler would have done himself. Although Mahler was very good, he tended to go on for a long time.

More importantly, I wish to draw the Minister's attention to subsection (5) because in that subsection he will find my King Charles' head, that being a reference to architecture and buildings. He will recall our earlier conversations about engineering and such other matters. I dare say that later on when he has considered these matters he will consider them in relation to this part of the Bill as well.

Finally, if I understood the deputy Chairman correctly, if this new clause is accepted, as seems likely, we shall be unable to accept Amendment No. 189. I only ask that the Minister should consider the spirit of Amendment No. 189, which referred to the old clause, in relation to the new clause.

9 p.m.

Lord Airedale

As Mahler went on for rather a long time. he might have found himself at home in this Committee stage.

Lord Beaverbrook

Perhaps the noble Lord, Lord Howie, will accept that, when I spoke earlier to Amendment No. 189. it was on the grounds that if my amendment is accepted, Amendment No. 189 will not be called. Therefore I should have been unable to speak to it. That was my reason for speaking to that amendment at that time.

Lord Howie of Troon

Thank you very much.

Lord Beaverbrook

Perhaps I may say to the noble Lord, Lord Morton of Shuna, who moved Amendment No. 186A as an amendment to my Amendment No. 186, that I am happy to accept his amendment. If I may say so, that change falls into the category of justified modification.

So far as concerns the point made by the noble Lord, Lord Kilbracken, I did not follow precisely what he was getting at. I shall look carefully at what he has said in Hansard and consider the matter.

Lord Lloyd of Kilgerran

Perhaps I may say that that amendment deals with some of the amendments which I had in mind and clarifies matters.

On Question amendment to the amendment agreed to.

Amendment No. 186, as amended, agreed to.

[Amendments Nos. 187 to 189 not moved.]

Clause 72, as amended, agreed to.

Clause 73 [Cases in which modification need not he justified]:

Lord Howie of Troon had given notice of his intention to move Amendment No. 189A: Page 29, line 37, at end insert— ("(aa) to newspapers, magazines or similar periodicals and composite works.")

The noble Lord said: Looking at the Bill, I see that the amendment would permit unjustified modification to works. In those circumstances, I do not think that I care to move the amendment.

[Amendment No. 189A not moved.]

Lord Williams of Elvel had given notice of his intention to move Amendment No. 190: Page 29, line 38, leave out paragraph(b).

The noble Lord said: It may be for the convenience of the Committee if I speak to Amendments Nos. 190,191,191A and 192. I do not wish to move Amendment No.190. However, because it has been grouped with other amendments, no doubt other Members will wish to speak to the group of amendments.

[Amendment No. 190 not moved.]

The Deputy Chairman of Committees (Lord Ampthill)

Before calling Amendment No. 191, I should point out to the Committee that, if it is agreed, I shall not be able to call Amendment No. 191A.

Lord Graham of Edmonton moved Amendment No. 191: Page 29, line 42, leave out paragraph (c).

The noble Lord said: In moving Amendment No. 191, perhaps I may draw the attention of the Committee to the fact that I have an interest to declare in my association with the Association of Cinematographic, Television and Allied Technicians, the ACTT. Because of its members, that association must clearly be affected by a great many of the matters which have been before the Committee.

The members of the ACTT obviously welcome that part of the Bill which relates to moral rights. As the Minister has said, that is a major additional right or benefit. The puzzlement of the members of the ACTT—not least those who are directors of films—was drawn most cogently to the attention of the House at Second Reading by my noble friend Lord Willis. It is the issue of, "Now you have it, now you don't". You have moral rights but you are going to have a great deal of difficulty in exercising them.

I listened carefully to what the Minister said earlier. He says that despite the impression gained in a large number of quarters that moral rights have been given and taken away by the subsection that we are seeking to delete, he has an answer.

May I remind the Minister that when his noble friend, Lord Young, introduced the Bill at Second Reading he said: The Berne Copyright Convention requires that the author be given the right to claim authorship of his work and to object to any modification which is prejudicial to his honour or reputation. The Bill enshrines these moral rights in statute for the first time. Film directors are also specifically recognised in the United Kingdom copyright legislation for the first time and are given moral rights in respect of their films".—[official Report, 12/11/87; col. 1478.]

In essence, I invite the Minister, in responding to this probing amendment, to say something positive about the doubts we have and which we are seeking to put right, particularly in terms of paragraph (c). How does that sit fairly and squarely with what the Minister has said?

The noble Lord, Lord Willis, in col. 1496 of the Official Report for 12th November 1987, said: What is in the Bill is a direct going-back on what was said in the White Paper".

In the White Paper, it was said: Moral rights will he independent of economic rights and will he exercisable only by the author".

Therefore, the amendment is benign in the sense that we clearly want to hear what the Minister has to say. It may well be that what he says will satisfy those outside the Committee with a deep interest. I beg to move.

Lord Beaverbrook

For the convenience of the Committee,I shall speak to Amendments Nos. 191, 191A and 192.

Amendments Nos. 191 and 192 seek to give employed authors or directors integrity right. As with the paternity right, there are some exceptions to the integrity right and those again have been included for reasons of practicality. There are many cases where, in the course of normal working practices, a work will be modified in some way. For example, a young employee might be asked to draft a report which his employer might then, from the benefit of more experience, wish to amend. That is not a practice which we would seek to stop, and the amendment, if accepted, would cause great problems in some industries. In the newspaper industry the job of the sub-editor would be difficult if he was not able to modify an article in order to fit the allotted space without worrying about a potential claim under the clause.

Amendment No. 191A adds to the list of cases where modification of a work need not be justified. It would mean that in addition to employed directors, film directors engaged under freelance contracts would not be able to enjoy the integrity right. The clause already provides that the right does not extend to employed directors, just as employed authors can have no right in respect of modifications made or authorised by the copyright owner.

What the noble Lord proposes would apply rather unfairly to freelance film directors only and not freelance authors. I do not see the need to draw the distinction. The question of moral rights and the extent of any waiver should be decided by the two sides in the matter in a contract drawn up between them.

Amendment No. 192 has already been provided for in Clause 73(b). It is the exception to the integrity right, with copyright originally vested in a person other than the author by virtue of Clause 11(2).

Lord Lloyd of Kilgerran

The noble Lord is very good to refer to Amendment No. 191A, which is in the names of myself and the noble Lord, Lord Harris of Greenwich. The answer does not seem to correspond to the advice that I was given as to the real meaning and practical application of the terms of my amendment. In view of the lateness of the hour and the complication of this part of the Bill in relation to directors' employment, whether it is "for services" or "of services", I shall defer further consideration of this aspect until Report. I shall not move Amendment No. 191A.

Lord Graham of Edmonton

I am grateful to the noble Lord for the clarity of his remarks but whether they are acceptable is another matter. I simply point out that Clause 73 lists the circumstances in which the right does not apply. Quite clearly subsection (c) refers specifically to the film industry and to the director. When we consider what that means it is that the right of a work not to suffer unjustified modification does not apply where copyright is vested in the director's employer, who is the producer.

This will almost inevitably be the case. As far as directors are concerned they see this as making what appears to be a moral right for them meaningless in that context. I appreciate that the noble Lord has treated this fairly and it may be that at a later stage I shall need to return with a more positive amendment which he will be prepared to accept. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 191A and 192 not moved.]

Clause 73 agreed to.

Clauses 74 to 76 agreed to.

Clause 77 [Consent and waiver of rights]:

[Amendments Nos. 193 and 194 not moved.]

Baroness Birk moved Amendment No. 195: Page 31, line 42, at end insert ("in writing").

The noble Baroness said: In speaking to this amendment I shall also refer to the amendment in the name of the noble Earl, Lord Stockton, which has not been moved; it is giving consent in circumstances which can be dispensed with by agreement. The amendment put down by the noble Earl would give consent either orally or in writing, whereas the amendment that I am moving on behalf of myself and my noble friends makes it clear that the consent has to be in writing.

It is greatly preferable that consent should be given in writing in order to minimise the possibility of there being doubt, uncertainty and confusion as to what has or has not been agreed. For example, if a newspaper seeks to dispense with an author's moral rights it can easily do so in contracts of employment, standards and conditions of engagement and so on. It would be thoroughly bad practice to encourage businesses which deal with authors to seek an author's consent on the telephone or otherwise without confirming that consent in writing. Unless the consent is in writing I envisage it leading to a great many misunderstandings and a great many problems. I beg to move.

Lord Graham of Edmonton

I support my noble friend. The realities of the film and television industry are such that there will always be immense pressures on writer-directors to consent to a waiver of their rights. There is also a tendency in that industry (and it may not be an exception) to work at very great pressure. In the first instance agreements are verbal and very often, but not always, they are codified in writing later. This amendment seeks—and I cannot believe that there will be any objection to it—to ensure that those who are most affected by it will feel more comfortable and that those rights which they appear to have are copperbottomed and guaranteed in that the whole issue is reduced to writing. I hope the noble Lord will see the sense, the fairness and the equity of this amendment.

Lord Beaverbrook

For the convenience of the Committee I shall speak to Amendments Nos. 195, 196 and 197 and I shall briefly allude to Amendment No. 194, which was not moved and which is in the name of my noble friend Lord Stockton. We envisage consent in respect of moral rights to operate very like a licence in respect of copyright; that is, that it may be implied, expressed or signified by conduct. The amendment in the name of my noble friend Lord Stockton would have limited consent to express oral or written consent, which we do not believe is right. Waiver of rights in advance should be in writing but consent to the doing of particular acts ought to be able to be given in any way whatever.

Consent is different from waiver. It is short term, whereas waiver is long term. I give an example. An employee who has not waived his right to be identified might draft a letter for the signature of his superior. Nothing is said between them and the work leaves the company unchanged over the signature of the superior. It is his name that appears on the work, not the author's, but the author has consented to this by the very action of passing the draft up the line to his superior.

The amendments in the names of the noble Lord, Lord Morton of Shuna, and the noble Baroness, Lady Birk, would remove the concept of waiver from the Bill altogether, substituting reliance on written consent and the general law of contract and estoppel. In Scotland the concept equivalent to estoppel is personal bar, as mentioned in Clause 160. I think it would be wrong to abandon the distinction between consent and waiver. I have said that consent is short term. It means consent to the doing of an act, but there must be an act in the minds of both parties before there can be anything to which consent can be given.

Waiver, on the other hand, is the giving up of rights in whole or in part, conditionally or unconditionally, revocably or irrevocably, in favour of particular people or in favour of the whole world, irrespective of whether any particular act is in anyone's mind. It is the sort of thing most likely to be found in a contract, but not necessarily. For example, it might arise in non-contractual dealings between members of a club committee or between a researcher and the publisher of the results of his research. It cannot sensibly be called consent; indeed, it is not consent. It is not saying, "I retain my rights but consent to your doing of that act", but "I waive my rights and give them up". We consider that we need provision for both informal consent and formal written waiver.

Baroness Birk

I thank the Minister for his reply. We feel that it should be a matter of consent and should always be in writing. We are not happy about waiver, as we have made clear on earlier amendments. Even if I agree with the Minister's own words, I still believe that consent should be in writing and not given orally. As we see the whole matter as a question of consent and contract, then it should always be in writing and not oral. As it is late, I will have another look at this amendment, and perhaps the Minister will also consider the matter, and I may come back to it at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 196 not moved.]

9.15p.m.

Lord Graham of Edmonton moved Amendment No. 196A: Page 32, line I, at beginning insert ("Subject to the proviso in subsection (3)(a) below")

The noble Lord said: I also speak to Amendments Nos. 196B and 196C because they all hang together and of course are all related to Clause 77 and the circumstances in which the consent under waiver apply.

The amendments are an attempt to distinguish between staff directors—for example, directors permanently employed by TV companies—and self-employed directors working on a freelance basis. Of course it is entirely appropriate that staff directors with a position within an organisation and security of permanent employment should waive their rights in favour of the employer; otherwise they would find it difficult to operate. However, it is not appropriate that self-employed directors with none of the rights and obligations of permanent employment should have to waive such rights in the way proposed. The Minister and his advisers will be aware that there are a great many people working in the industry who fall into that category.

The imbalance of power between individual directors and the companies is such that if the clause remains unamended they will in the overwhelming majority of cases be forced to waive their moral rights in order to obtain work in the first place. Indeed, a new or unknown director in a weak bargaining position could easily be forced to waive all his moral rights for any possible future work as a condition of obtaining his first engagement with such a company. The Committee may feel that that is reprehensible, but I am told that there are circumstances—and I can envisage them—in which sadly that may be the case. As it stands, it is only established named directors—that is, those who least need help because they are already well-established—who might be in a strong enough position to resist demands for a waiver.

The Bill is worded so that a writer or director could be forced to waive his moral rights in a totally open-ended way without any information or consultation after the modifications proposed. This means that the waiver could relate to works generally or to future work.

I hope the Minister and his advisers accept that the amendment requires only that specific modifications be proposed to the director in advance so that he or she can make an informed decision on the waiver.

Lord Willis

It is true that freelance writers, especially new young freelance writers, and directors are at a disadvantage because they are so anxious to have their work on the screen or to have the job that they are prepared to make concessions to the more powerful companies.

The Government rightly are strongly encouraging the growth of independent production, but "independent production" to some extent is a misnomer. A person who sets himself up today to produce television films for Channel 4 or for a film company may call himself an independent producer, but he has to go cap in hand to Granada, Yorkshire Television, MGM or other companies for the money. It is not possible to make a reasonable feature film these days for under about £3 million. No independent producer has that sort of money. In order to obtain the £3 million he may well sell his soul simply because he wishes to make the film. He is in a difficult position. His bargaining position is undermined and the big companies know this only too well. I do not wish to denigrate Granada or other companies, which on the whole are fair traders, but others are not. My career has been littered with the names of people who have been twisted in this way simply because they had a weak bargaining position.

Lord Beaverbrook

The amendments tabled by the noble Lord, Lord Graham of Edmonton, seek to make general waiver of moral rights applicable only in the context of the employer/employee relationship provided for in Clause 11(2). Thus a freelance author or director would in effect have inalienable moral rights subject only to consent for particular acts.

In tabling the amendments the noble Lord has, I think, conceded that consent and waiver provisions are necessary in certain areas of the media and elsewhere and that the concept of inalienable moral rights for authors is not practical in the real world. What we are now being asked to consider is whether, if consent and waiver provisions are accepted as right for some authors, other authors should have inalienable rights. The answer, I believe, is no. It has been a recurring theme of our debates that all authors should be treated in the same way. We accept that as a general principle. Exceptions to that general principle may sometimes be justified, but this is not such a case. There is, I think, a natural reluctance to make one group of authors second class or, viewed in another way, to raise another group to an elite.

Leaving aside this point of principle, I believe that there are practical reasons why we should not discriminate between authors. Consent and waiver are just as necessary for "stand alone" works—if I may coin that expression—as for those produced by freelance authors. The publisher of the life story of a barely literate celebrity must be assured that the true author, the ghost writer, will not suddenly seek to exercise his right to be named. This can only be ensured by provision for contractual waiver. Without provision for consent and waiver the users of copyright works are placed in an impossible position, with a sword of Damocles hanging over their heads.

Lord Graham of Edmonton

I have listened carefully to the Minister. I am not sure that those outside the Chamber will be satisfied with what he has said. However, I appreciate that the Minister has not beaten about the bush on the issue. I may return to the matter at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 196B and 196C not moved.]

Lord Williams of Elvel moved Amendment No. 197: Page 32, line 14, leave out from ("estoppel") to end of line 16.

The noble Lord said: I beg to move Amendment No. 197 standing in the name of the noble Lord, Lord Morton of Shuna, and my noble friend Lady Birk. My noble friend Lord Morton would have asked a question on Scottish law here. I do not know whether it has been covered by the noble Lord in his previous intervention. It is whether contract or estoppel has an equivalent in Scottish law and whether there should be an amendment to cover that point.

Secondly, subsection (4) refers to, informal waiver or other transaction in relation to any of the rights mentioned in subsection (1)".

I am not entirely certain what "informal waiver" means. This is a probing amendment to find out what informality means in relation to waiver. I beg to move.

Lord Beaverbrook

I had understood that this amendment was grouped with Amendments Nos. 194, 195 and 196. I spoke to that group including this amendment. Perhaps the noble Lord would like to read what I said. If it does not cover his point I shall be very glad to try to do so again.

Lord Williams of Elvel

I apologise to the noble Lord. I had not appreciated that there was this grouping. The noble Lord is quite right. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 198 not moved.]

Clause 77 agreed to.

Clauses 78 and 79 agreed to.

Clause 80 [Assignment and licences]:

Lord Lloyd of Kilgerran moved Amendment No. 198A: Page 33, line10, at end insert— ("(c) to one or more, but not all, of the countries in relation to which copyright subsists by virtue of this Act.").

The noble Lord said: We are entering into Chapter V of Part I of this Bill, which has dealings with rights in copyright works. Clause 80(2) defines what is meant by a partial assignment. It states: An assignment of copyright may be a partial assignment, that is, an assignment limited so as to apply", and then two paragraphs follow to which partial assignment can apply. If this amendment is accepted I am adding a third category defining that partial assignment should apply to one or more, but not all, of the countries in relation to which copyright subsists by virtue of this Act".

It is a simple, straightforward amendment. As copyright is always dealt with territorially, this amendment seeks merely to preserve the flexibility that an assignment can take place in respect of one or more of the territories referred to, but not all the territories. I beg to move.

9.30 p.m.

The Earl of Dundee

I am grateful to the noble Lord for his comments. I am afraid that to explain why this amendment is unnecessary I shall need to go into a little history. As many Members of the Committee know, the Copyright Act 1911 was a full-blown imperial statute. It extended throughout His Majesty's dominions, except for the self-governing dominions such as Canada and Australia. Provision was made for extending it by Order in Council to the protectorates, and the legislatures of the self-governing dominions could cause the Act to extend to themselves.

The result was that the Act extended to the whole of the British Empire. It was obviously desirable that a copyright owner could, upon assigning his copyright, divide it up between different parts of the empire, so that one publisher could own the copyright in the United Kingdom, another in Canada, and so forth; or perhaps the author might wish to retain his rights in the United Kingdom but assign them elsewhere. The 1911 Act therefore provided that assignment might be, either generally or subject to limitations to the United Kingdom or any self-governing dominion or other part of His Majesty's dominions to which this Act"— that is, the 1911 Act— extends". The 1956 Act adopted a different approach. It was still an imperial statute, but rather less enthusiastically so. The self-governing dominions had matured to fully independent states, and were dealt with in exactly the same way as foreign countries. Moreover, the Act did not extend automatically to the United Kingdom's colonies and other dependencies; extension had to be achieved by Order in Council under Section 31. Nonetheless, it was again necessary to provide for assignments of copyright to be capable of covering only part of the total territory to which the Act extended, which is why Section 36(2)(b) provides that an assignment may be limited, so as to apply to any one or more, but not all, of the countries in relation to which the owner of the copyright has by virtue of this Act", the exclusive right to do the acts restricted by copyright. The Committee will recognise the close similarity between the wording of the provision in the 1956 Act and the wording of the amendment.

One effect of these provisions about the extent of the 1911 and 1956 Acts was to create a single jurisdiction, consisting, in the words repeated frequently throughout the 1956 Act, of the United Kingdom and the other countries to which the provisions of the Act extended. In particular, Section 1(1) of the 1956 Act provides that copyright consists of the right to do certain acts, in the United Kingdom or in any other country to which the relevant provision of this Act extends". Infringement under Section 1(2) of that Act consists of doing any of those acts, in the United Kingdom or in any other country to which the relevant provision of this Act extends". An infringement in any of the other countries to which the 1956 Act extends may be the subject of legal proceedings in the United Kingdom, as indicated by Section 31(4).

This is all being changed in the Bill. Clause 16(1) provides that copyright is the exclusive right to do the restricted acts "in the United Kingdom". There is no mention of other countries to which Part I of the Bill extends. Nor is there mention anywhere else in Part I of those other countries except in Chapter IX, which is concerned with qualification. The important effect of this is that there is no longer a single jurisdiction consisting of the United Kingdom and the other countries to which our copyright law extends. Copyright under the Bill is limited to the United Kingdom, infringement is not defined as something which may occur in any other country to which Part I extends, and there is no possibility of proceedings in the United Kingdom in respect of infringement of the copyright law of another country to which Part I extends.

The Committee may ask, what then is the point of the provision for extension of Part I to dependent territories under Clause 146(2)? The answer is that the purpose is more limited than under the 1911 and 1956 Acts. First, it ensures qualification for copyright under Clauses 143, 144 and 145. Secondly, it provides a means of legislating for the United Kingdom's remaining dependencies—most of which, of course, are now very small—at very little cost either to the dependencies or to the United Kingdom itself. Upon extension, however, a separate copyright will arise in each dependency. It will not cause the scope of a single copyright covering the United Kingdom and its dependencies to expand, as under the 1911 and 1956 Acts.

The Committee will appreciate, therefore, that there is no cause for a provision enabling assignments of copyright under the Bill to be in respect of some countries and not others. As far as the law of the United Kingdom is concerned, copyright under the Bill will subsist only in the United Kingdom, not in the dependencies, and thus an assignment of copyright under the Bill will necesarily be limited to the United Kingdom. Assignment of copyright in the dependencies will be a separate matter for the law of each dependency by Order in Council under the Bill.

I should emphasise that none of this will make any difference in practice. It will still be possible to assign copyright in one country, in several countries or in the whole world by a single document, that document having effect in each country in question in accordance with its own laws. The only difference will be that an assignment of copyright in a dependent territory will be dealt with in exactly the same way as an assignment of copyright in a foreign country.

I am sorry that I have had to weary the Committee with such a lengthy explanation, but the point is complicated and there are no short cuts in the argument. In the light of what I have said, I hope that the noble Lord, Lord Lloyd of Kilgerran, will feel able to withdraw his amendment.

Lord Lloyd of Kilgerran

I congratulate the Minister on his learned and interesting dissertation on constitutional law. I heard what he said. I am afraid that I have not gathered what the consequences will be for my amendment. However, in the circumstances, I shall see what my advisers at ITV and BBC have to say about this and perhaps come back to the question at the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 agreed to.

Clause 81 agreed to.

Clause 82 [Exclusive licences]:

[Amendments Nos. 199 and 200 not moved.]

Clause 82 agreed to.

Clauses 83 and 84 agreed to.

Clause 85 [Transmission of moral rights on death]:

Lord Mottistone moved Amendment No. 201: Page 34, line 23, at end insert ("provided that in the case of the right conferred by section 69 above, the successor acquires the right to assert in accordance with section 70, waive in accordance with section 77 and enforce the right for the actual author to be identified as such,")

The noble Lord said: It appears from subsection (1)(a) of Clause 85 that a man might be entitled to be named as the author of his dead father's work. The present wording seems unclear. My amendment seeks to clarify it. I beg to move.

Lord kilbracken

I agree with the noble Lord. The same point had occurred to me. It is not at all clear what particular rights pass to the person specified in the will. It need not be the father. The person to whom the rights pass apparently has the right to be shown as being the author of that work. That surely cannot be intended.

The Earl of Dundee

The right conferred by Clause 69 is a right to be identified as author. When the author has died that right may still be exercised or waived by the person to whom the right passes under subsection (1)(a) or (b). But it is still a right relating to the name of the author and the successor cannot require that his name be put on the work instead of the author's. That was never intended, and although I do not believe that the courts would ever construe the clause in that way, I am grateful to my noble friend Lord Mottistone and to the noble Lord, Lord Kilbracken, for alerting us to this point. Is it certainly better to put the matter beyond all doubt.

Therefore I am perfectly happy to accept the principle underlying my noble friend's amendment. However, we think this principle should apply not only to those who inherit the right by testamentary disposition under subsection (1) but also to those to whom the right passes under subsection (2). I hope my noble friend will feel able to withdraw his amendment, given the assurance that we will table an amendment to cover more fully the point he has raised.

Lord Kilbracken

I am not quite sure what particular right is being passed on to the heir. Is it a right to ensure that the work of his father or whoever it may be is still attributed to him, that he is still identified as the author and that he still has the right to stop unjustified change from taking place in the copyright that has been left to him?

The Earl of Dundee

Yes, that is exactly what is desired to be avoided.

Lord Mottistone

I am grateful to my noble friend for undertaking to look at this point and clarify the clause. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 202: Page 34, line 28, leave out ("expires") and insert ("passes to the personal representatives of the owner of the moral right").

The noble Lord said: In the hope that this point will also be looked at carefully I move the amendment and ask why this provision does not comply with Chapter VI of the Berne Convention, which says that the moral rights shall after death be maintained in exactly the same way as the economic rights. Perhaps the noble Earl has a piece of paper which he is prepared to read to me in some way that I may be able to understand it. Otherwise I cannot see why, if the author has not managed to make a will or tears up his will, his heirs should not have the same rights as if he had made a will. I beg to move.

Lord Kilbracken

I agree with my noble friend, but I would go further and say that I cannot foresee that paragraph (c) would ever be applicable. The rights under paragraph (a) will of course pass to a person he has indicated in his will. Then paragraph (b) says: if there is no such direction but the copyright in the work in question forms part of his estate". I do not see how it can do anything but form part of his estate, whether he is testate or intestate. Even if he has not made a will the copyright is surely part of his estate, and therefore the moral rights pass to the person to whom the copyright passes.

Lord Morton of Shuna

The moral right is different from the copyright. That is the problem. You can assign the copyright to one person and retain the moral right yourself.

Lord Kilbracken

But paragraph (b) considers the condition if: the copyright in the work in question forms part of his estate". Surely the copyright in a man's work will always form part of his estate, and so the moral rights pass to the person to whom the copyright passes. Is that not right?

Lord Morton of Shuna

If the copyright does not form part of his estate, the moral right does not pass under paragraph (b) of Clause 85(1). Therefore one has to have Clause 85(1)(c) to deal with the moral right when he has assigned the copyright to somebody else because it does not pass under his estate. It is in that sense that I should have thought that the heirs have a right to protect his reputation.

Lord Kilbracken

I am sure that my noble friend is right, though I do not quite see it.

The Earl of Dundee

I am grateful to the noble Lord, Lord Morton of Shuna, for his explanations. The clause provides for the transmission of moral rights upon the death of the author or director. To the extent that copyright in his works forms part of his estate and passes to another, moral rights will do likewise. Where a copyright does not form part of his estate and the rights are not the subject of a specific bequest, they will then lapse.

This amendment seeks to ensure that the rights do not lapse in this way but rather that they should pass to the person or representatives of the moral rights owner instead. We consider this to be mistaken. The reason for bringing the rights under Clauses 69 and 72 to an end if there is no passage of copyright or specific bequest is that those rights may well become unmanageable in any other circumstance.

The general residue of an estate frequently passes either by the terms of a will or an intestacy to a large number of persons, often pursuant to trusts providing for life interests or other partial interests. One must always look at moral rights from the point of view of the copyright owner as well as the author, and the copyright owner could be put in an impossible position if moral rights became widely held.

If an author is sufficiently interested to want to keep his moral rights alive after his death, he can always specifically bequeath them. I am aware of course that the amendment adopts a similar approach to that in Clause 85(5) on false attribution. However, the reason for this subsection is that no better solution can be devised. One cannot bequeath to another the right not to suffer false attribution because there is no particular work in respect of which the right subsists which may be made the subject of a bequest. We are therefore making the best of a bad job, and if anybody can come up with a better idea we should be interested to hear it.

Lord Morton of Shuna

Has the noble Lord thought of Article 6 of the Berne Convention? Whoever authorised that had the idea: The rights granted to the author in accordance with the preceding paragraph"— which are the moral rights— shall, after his death, be maintained at least until the expiry of the economic rights.". That is a fairly definite assertion of a point of view. It may be totally daft, in which case no doubt the Government can negotiate with the authors of the Berne Convention. However, if the Government intend to ratify the Berne Convention, could they please explain how this will happen? Surely if somebody dies without making a testamentary disposition—and testamentary dispositions are covered by Clause 85(1) (a)—the rules of intestate succession will apply, and those are not to my knowledge regularly implying a right of liferent or anything of that nature, whatever the English term may be, to anybody at all. In instestacy there is usually somebody, even an executor, who can look after the rights.

I am sure an author who was misguided enough to die leaving a wife and several children would consider that they might have the right to protect his reputation from being subjected to modification, or unjustified modification, in the same way as they are entitled, or may be entitled, to the economic rights of copyright. I really do not see the difficulty that the Government seem to see. Perhaps if the noble Earl consults a well-known author who is sitting fairly close to him, he may get some advice.

9.45 p.m.

The Earl of Dundee

The well-known author to whom the noble Lord refers has in fact been silent just now. However, I do have sympathy with the latter point of the noble Lord regarding the widow and immediate family of the man who has died. As regard the Berne Convention, I would say to him the reason for not providing passage of moral rights to personal representatives is that the Berne Convention permits us to provide that some rights may, after the death of the author, cease to be maintained. This is provided for in the final sentence of paragraph 2 of Article 6 bis of the convention.

Lord Morton of Shuna

It is very interesting to see how the Government wish to destroy personal rights of property. No doubt this will also be of interest to all those who are authors within the meaning of the Bill. But I shall read what the noble Earl has said and may well return to this at a later stage.

There is something rather bizarre in this side of the Committee trying to defend the rights of property in authors and the Government trying to abolish all rights of individual property. However, we shall see where we go at the next stage and at this time I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 [Infringement actionable by copyright owner]:

Lord Lloyd of Kilgerran moved Amendment No. 203: Page 35, line 23, at end insert ("but damages for conversion of any infringing copy of a work shall not be recoverable")

The noble Lord said: With leave of the Committee, I move Amendment No. 203, which is in the name of the noble Lord, Lord Lloyd of Hampstead. He told me during dinner that he had to leave early and asked me to move the amendment.

We are still in the realm of exotic legal matters. This amendment concerns what the possible results are in an action for infringement. Damages obviously are the result, or may be the result, of an action for infringement of copyright. The White Paper stated that damages for conversion of any infringing copy of a work would not be recoverabe. Those are the terms of this amendment.

The legal history of copyright law over the past 10 years has been very interesting. It was possible not merely to get ordinary damages on infringement of copyright but an anomalous position arose in regard to copyright where you could get what we call conversion damages.

I do not think that I need explain to the committee at this late hour what conversion damages are in detail. But the effect was that vast damages—very large damages—were obtainable as a result of infringement of copyright. This was a unique position and has arisen with the general possibility of litigation. This was anomalous and the Government in the White Paper stated that they wished to abolish conversion damages. I assume that there is not much difficulty about the Government accepting the amendment, which provides that conversion damages should be abolished, as stated in the White Paper. I beg to move.

The Earl of Dundee

I am sure that Members of the Committee will wish to join me in agreeing wholeheartedly with the sentiments of this amendment. However, I am not able to accept the amendment. I do not think it is necessary and, moreover, I think that it will introduce an element of confusion into the Bill.

As Members of the Committee will know, Section 18 of the Copyright Act 1956 gives to a copyright owner all the rights and remedies in respect of infringing copies of his works as though he were the owner of those copies instead of the infringer. That has a number of consequences, some of which have been carried forward into the Bill. In a few minutes we shall come to Clauses 88 to 89. However, we have not carried forward the consequence that the copyright owner can recover from the infringer damages calculated by reference not to his actual loss but to the value of the infringing copies made and sold. These are the damages for conversion referred to in the amendment and they are usually much higher than the normal measures of damages. They are almost universally condemned. Last year in our White Paper we undertook to abolish them, and in this Bill we do just that.

Section 18 is repealed along with the rest of the 1956 Act, and there is nothing in the Bill to resurrect them. Indeed, so great is our distatse for conversion damages that in paragraph 28(2) of the revised Schedule 1, to be inserted by Amendment No. 274, they are singled out—

Lord Lloyd of Kilgerran

Will the noble Earl be good enough to repeat those sections, please?

The Earl of Dundee

Yes, of course. The sections in question occur in paragraph 28(2) of the revised Schedule 1 to be inserted by Amendment No. 274. They are singled out for particularly unfavourable treatment in the transitional provisions. The noble Lord, Lord Lloyd of Kilgerran, is concerned that conversion damages may be awarded under Clause 86. I can assure him that that is definitely not so.

The proposition is that Clauses 86 and 87 substantially replace Section 17 of the 1956 Act.

Clauses 88 and 89 are designed to achieve some of the effect of Section 18 but without the possibility of conversion damages. Since conversion damages were available only as a result of Section 18, not under Section 17, there is nothing in the Bill, particularly in Clause 86, on which a claim for conversion damages could be based.

We consider this amendment to be not only unnecessary but positively undesirable. It would remove all argument that conversion damages were available under the Bill, and that is so, but it would suggest that without the words in the amendment such damages were available. I should not like to think of the kinds of awkward consequences the courts might conjure out of that suggestion. In the light of that statement, I hope that the noble Lord will feel able to withdraw the amendment.

Lord Morton of Shuna

Would not the easy answer be to include one sentence stating that concession damages will not be available in any copyright action? That would make the matter quite clear, and perhaps the Government should think about that.

Lord Lloyd of Kilgerran

The Minister's speech supports the necessity of having a clear statement to the effect that conversion damages should be abolished. The noble Earl has made an intricate statement on the matter and I should like to think that he would wish to put the position more clearly.

The Earl of Dundee

I cannot go against the noble Lord's appeal for clarity. I shall certainly look at the matter again to see whether we can produce a different statement.

Lord Lloyd of Kilgerran

I am obliged to the noble Earl and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 86 agreed to.

Clause 87 [Provisions as to damages in infringement action]:

Lord Morton of Shuna moved Amendment No. 203A: Page 35, line 26, leave out ("it is shown") and insert ("the Court is satisfied on the evidence").

The noble Lord said: The words that I take some exception to are "it is shown": Where in an action of infringement of copyright is it shown that various things happen. Shown by whom and to whom? Sometimes in a court case one puts forward an argument which is in a sense shown by the evidence but is totally rejected by the court. We suggest this provision might be clearer if it said, "If the Court is satisfied on the evidence that the defendant did not know". The phrase "it is shown" does not make clear to whose satisfaction. I beg to move.

The Earl of Dundee

I am grateful to the noble Lord. So far as I am concerned, the expression "it is shown" and the alternative expression "the Court is satisfied on the evidence" mean more or less the same thing. But I would readily agree that the words proposed by the noble Lord express the point more obviously. My only reason for not wishing to accept the amendment now is that it does not appear to be comprehensive. For example, it does not cover the case where a point is pleaded by the defendant and not contested by the plaintiff.

The noble Lord, Lord Morton, would also not want me to overlook any possible differences between English and Scottish law, but I am very grateful to him. We shall look at these words here and elsewhere, such as in Clause 212, and come back with something at a later stage.

Lord Morton of Shuna

In Scotland we have an odd tradition when one side in an action makes an assertion, and the other side accepts it, that the court tends to accept that, in a civil action, as being accepted. I have looked for a long time for the reason why English cases take so much longer than Scottish cases. Perhaps I have now got a clue. If both sides agree that a situation is a fact, the judge can disagree. That may be the answer. To be serious for a moment I should have thought that if both sides agree in a civil action a judge tends to say, yes, that is agreed; and therefore the court is satisfied.

However, if the Government consider that they must look at this again—I learnt a long time ago that no drafting from this side of the Chamber is ever acceptable and can always be improved—I would ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna had given notice of his intention to move Amendment No. 204: Page 35, line 27, leave out ("had no reason to believe") and insert ("it would not have been obvious to a reasonable person in the circumstances").

The noble Lord said: This Amendment is, I think, supposed to be spoken to along with Amendments Nos. 209, 220, 223, 226 and 233. It proposes to take out the phrase "had no reason to believe" and to insert the phrase "it would not have been obvious to a reasonable person in the circumstances". I think we have covered this point in principle because it is the phrase that comes in the Patents Act 1977. It seems difficult to ascertain why one has one standard which is objective in the Patents Act and one standard which is apparently subjective in the copyright section.

At an earlier stage the Minister said he was going to consider this matter, so in the confident hope that that would have been the reply from the noble Lord on the opposite side I shall not move the amendment.

[Amendment No. 204 not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 205: Page 35, line 30, at end insert— ( ) No damages or other pecuniary remedy may be recovered from an employee under a contract of service who bona fide in the course of his employment commits any act of infringement of copyright.").

The noble Lord said: There is an increasing tendency in litigation in copyright matters for the plaintiffs to exert pressure upon defendants by suing individuals. Under the proposed new law, and old law, a machine operator, for instance, who activates a machine which prints infringing material or designs shall be liable for infringement of copyright and payment of damages. This activity of suing employees, for instance, just extends the time and causes a lot of delay.

Therefore the amendment that I am seeking to introduce is just this: that no damages—this clause is dealing with revisions as to damages in infringement actions—or other pecuniary remedy may be recovered from an employee under a contract of service who bona fide in the course of his employment commits any act of infringement of copyright, design right, registered design or patent. It is a sort of commonsense approach to reduce the cost and time of litigation that, if a plaintiff sues an employee who is in these circumstances, he cannot get any damages or any pecuniary reward from it. I beg to move.

10 p.m.

The Earl of Dundee

I have a great deal of sympathy with what the noble Lord, Lord Lloyd of Kilgerran, has said. The amendment would protect employees only from monetary remedies. Other remedies, such as an injunction to prevent further infringement, would still be available. Nevertheless, I am sure that the noble Lord will understand that there are some fundamental principles of law involved here. As a result, we shall need to consult before we can come to a view on whether it would be appropriate to do what the noble Lord proposes. If he will withdraw the amendment, I shall certainly set the necessary consultations in hand and return to the matter at a later stage.

Lord Lloyd of Kilgerran

I am very grateful to the noble Earl. On those terms, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 87 agreed to.

Clause 88 [Right to delivery up of infringing copies, &c.]:

The Deputy Chairman of Committees (Baroness Cox)

I must point out that if Amendment No. 206 is agreed to, I cannot call Amendment No. 206A.

[Amendment No. 206 not moved.]

Lord Morton of Shuna moved Amendment No. 206A: Page 35, line 39. after ("trade") insert ("or profession").

The noble Lord said: I think that this is general business that we dealt with earlier. A "trade or business" should be a "trade, profession or business". I think it was taken away to be considered, because nothing is acceptable without consideration. I beg to move.

The Earl of Dundee

With the leave of your Lordships' Committee, as well as Amendment No. 206A I shall address Amendment No. 218D. As my noble friend Lord Beaverbrook said when we discussed this earlier, it is certainly not the intention of the Government that the professions should be treated more favourably when it comes to matters of copyright infringement. We believe that the present wording will catch the professional and the businessman alike. Any profession or practice carried on for reward is a business but, as I say, we are looking at this again to make sure that that is the case. If it is not, we shall introduce appropriate amendments.

Lord Morton of Shuna

I happen to be a member of the Faculty of Advocates. I think that on this point I would have support from a barrister of the English Bar. I think we would object very strongly to any allegation that we were engaged in trade or in business. That would be terrible. We must be classified as being a profession. But if the intention is that we cannot breach the copyright law, so be it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 207 to 209 not moved.]

Lord Willis moved Amendment No. 209A: Page 35, line 42, at end insert ("or has been used").

The noble Lord said: This is a small point but one of which I hope the Government will take note. It seems to me ridiculous that under this clause you can seize or cause to be delivered up articles that have been adapted for the making of copies, but you cannot take those articles which had been used for the making of copies. I hope therefore that the Government will look at this amendment and agree to it. I beg to move.

The Earl of Dundee

I am very grateful to the noble Lord, Lord Willis. Clause 88 provides a right of delivery up of articles specifically designed or adapted for making infringing copies. Where a person has such an article in possession, custody or control, and he knows, or has reason to believe, that it will be used to make infringing copies, the copyright owner can apply for a court order that the article be forfeited and delivered up to him. It is said that the effectiveness of this remedy would be enhanced if, instead of referring to an article which is to be used, we also made mention of an article which has been used. After all it is easier to establish that something has been done than it is to establish future intent. I do not think the court would refuse an order against a defendant who was proved to have made infringing copies but who claimed that the article would not be used to make any more. However, we shall certainly consider whether any amendment is necessary and if so come back with the appropriate amendment.

Lord Willis

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 210: Page 36, line 3, leave out subsection (2).

The noble Lord said: It may be for the convenience of the Committee if I also speak to Amendment No. 211, which concerns the same issue. This provides that if there is an infringing copy, no remedy is to be available to remove the infringing copy from the infringer's possession if damages would be an adequate remedy. It would seem on the face of it very alarming that one can get an award of damages, which after all may never he paid—it just sits as an award unpaid—but that one can do nothing to recover the infringing article. It would seem on principle that this is entirely wrong. I beg to move.

The Earl of Dundee

Clauses 88 and 89 contain provision to the effect that an order for delivery up and forfeiture of infringing copies should not be made if damages would prove an adequate remedy.

The Committee will recall our earlier discussions when we talked about the conversion damages which were available under the 1956 Act. Those are to be abolished. I think that, as we discussed a moment ago, there is general agreement that this should be so. To allow the delivery up and forfeiture of infringing copies in every case would be to retain some of the undesirable features of the remedy of conversion. If it is accepted that conversion damages are wholly inappropriate, why should we consider that the copyright owners should get the full value of the infringing copies by having them forfeited to them where damages would be adequate? This reintroduces the effect of conversion damages by the back door.

It will be asked why should the pirate be able to retain copies? Should we not aim to have pirate copies withdrawn from the market? The answer may well be yes, and if the court finds that damages are not an adequate remedy, it can perfectly well order delivery up and forfeiture. Damages probably would not suffice in the case of pirate cassettes being sold on the market and the courts would be able to make an order for delivery up. However, in the case of inadvertent or partial infringement—for example a book which contains passages taken from someone else's work—damages may well be a sufficient remedy. To make an order for forfeiture of copies of the book would be unduly onerous. We believe that these clauses strike the right balance. The courts will have the flexibility to decide when delivery up and forfeiture are appropriate. That is, I think, as it should be.

Lord Morton of Shuna

This is perhaps not the time to ask for the opinion of the Committee. I shall consider what the noble Earl has said, although I must say I do not consider his answer totally satisfactory. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 88 agreed to.

Clause 89 [Right to seize infringing copies, &c.]:

[Amendment No. 211 not moved.]

On Question, Whether Clause 89 shall stand part of the Bill?

Lord Lloyd of Kilgerran

I have given notice of my intention to oppose the Question that Clause 89 stand part of the Bill. With the leave of the Committee, I wish to speak to Clause 210 and also to Amendments Nos. 293 and 294, which would be consequential if I can establish my position under Clauses 89 and 210.

Under Clause 29 a plaintiff who thinks that there is infringement can apparently go into a factory or other such place without a court order and seize the property which he says is the subject of infringement without any court order and under no control whatsoever. I daresay that the clause is meant to deal with the market barrow boy kind of sale so that such items can be seized on the spot. However, a plaintiff could cause massive loss to a shop, say, by entering the premises and seizing allegedly infringing goods of only small value.

There are very strict rules which can help a plaintiff in taking proceedings against an alleged infringer. A plaintiff who considers that there has been infringement of his copyright, patent, registered design, trademark or similar right can go to the court and obtain an order to enter premises to search for and remove infringing articles. That is known as an Anton Pillar order which has been developed in the courts over the past 10 years or so. The court has jurisdiction and discretion to decide whether the plaintiff's agents can enter on premises of an alleged infringer. There is control over the method which the plaintiff's agents adopt in premises. There must be a solicitor present.

The courts recognise that the so-called Anton Pillar orders can severely disrupt the business of a defendant. They impose conditions on the way in which the orders may be executed. A solicitor must be present and he must explain to the defendant in plain English the nature of the order. Execution of the order is normally restricted to working hours on weekdays. The court considers each case individually and carefully balances the rights of the plaintiff and the defendant.

In view of the procedure which is now available, it seems to me that the provisons in clauses 89 and 210 are totally unnecessary and can only lead to breaches of the peace. One can quite imagine that if some agent enters into premises without a court order and tries to seize goods, it will probably result in a fist fight. I think that the provisions in the two clauses are quite unnecessary and can only lead to breaches of the peace. I beg to move.

Lord Mottistone

The deletion of Clause 89 would deprive copyright owners of an important right of seizure of infringing articles. Loss of that right can only make it easier for copyright pirates and counterfeiters. I am sure that the noble Lord would not want to encourage them.

Lord Lloyd of Kilgerran

With great respect to the noble Lord, I am not concerned with counterfeiting at the present time. There are clauses later on in the Bill to deal with the aspect of counterfeiting. At present we are dealing with infringement of copyright, which is a well-known phrase and which does not require the draconian powers of Clauses 89 and 210.

Lord Morton of Shuna

I entirely agree with the noble Lord, Lord Lloyd of Kilgerran. It is quite improper that owners of copyright should be able to wander around the countryside bursting into people's property and picking up whatever they feel may be an infringing article. They should go through the courts. They have a procedure which the noble Lord, Lord Mottistone, will know can operate very quickly indeed to recover such articles. It seems entirely proper that that should be done under some sort of control and not by anyone who is wandering about and leaping in where angels fear to tread.

10.15 p.m.

The Earl of Dundee

In the circumstances when a copyright owner is entitled to the delivery up of infringing copies or articles for making infringing copies, he is also permitted under this clause to seize or detain the copy or article in question. In order to do this the copyright owner may enter premises to which the public have access such as a video shop, but he certainly may not use any force.

Under Section 18 of the 1956 Act the copyright owner was treated as if he were the owner of every infringing copy. Copyright owners have used this provision to seize, for example, infringing records from street market traders. It has proved to be an effective weapon in the fight against piracy.

As the Committee knows, we propose to abolish conversion damages in copyright infringement cases and this has been the substance of a discussion over the last two or three amendments. As I said earlier, this has been very generally welcomed. In doing away with conversion damages we must not throw the baby out with the bath water and repeal all remedies in respect of conversion.

We are committed to the fight against piracy and do not wish to deprive copyright owners of any of the other weapons in their current armoury. We therefore believe that they should retain a right to seize infringing copies.

After such seizure the copyright owner may apply to the court for an order for the copies or the articles to be forfeited to him. He will do this if he wants to be sure of his right to hold onto the copies or articles or to destroy them as he thinks fit. He does not need to do so if he is quite confident of his position without such an order.

The person from whom the copies or articles were seized will always be able, if he thinks the seizure was not justified by Clause 89, to bring an action in the courts to get them back or to recover damages. The rights and wrongs of the matter can be sorted out in those proceedings. This clause retains for copyright owners the existing possibility for peaceful—and I emphasise peaceful—self-help without depriving others of the opportunity of sorting things out in court.

The noble Lord, Lord Lloyd of Kilgerran, referred to the Anton Pillar orders. We do not think it is sufficient to rely only on Anton Pillar orders. The problem with them is that they take time—if only a little time—and they may give infringers the opportunity to escape. Where Section 18 of the 1956 Act applies copyright owners do not need to rely upon Anton Pillar orders. There is no good reason to deprive copyright owners of this existing remedy.

I wish to refer also to the remarks made by the noble Lord, Lord Morton, about the risk of the use of force. The clause does not permit entry into premises to which the public do not have access, nor does it permit the use of force. The fears of the noble Lord cannot be realised as a result of this clause. If they were realised, of course it would be unlawful but not the result of the Bill.

Lord Morton of Shuna

If I am the copyright owner of a record and I go into a shop, pick up against the owner's wishes the offending infringing copy and remove it from the shop, can the noble Earl explain how I am not using force of any sort? There is the difficulty that I shall probably be arrested for shoplifting. What is going to happen?

Do the Government believe that each copyright owner as an individual will not send a servant or agent, who may be fairly well built and fairly young, just in case he is detained by a store detective? It is a situation which cries out for the commission of a breach of the peace, and one can see it happening.

The Earl of Dundee

In theory I take the point which the noble Lord is making. In fact there is no force used in the example which he gives.

Lord Lloyd of Kilgerran

There are no powers under this provision for force to be used. One must be realistic about the operation of the measure. As the noble Lord, Lord Morton of Shuna, has said if a person who thinks he is the owner of the copyright sees his gramophone record and tries to pick it up, there is bound to be a breach of the peace. Clauses 89 and 210 create a breach of the peace. Obviously, a person with a stall in a market might find some difficulty in selling these infringing records, or what are thought to be infringing records. He might be able to get away with it that afternoon, but this does not give one the right to go to anyone's premises and say, "I am the copyright owner. That is an infringement of my copyright", and grab the records and take them away. That seems to me quite absurd.

The Earl of Dundee

As always, I highly value the contributions of the noble Lords, Lord Morton of Shuna, and Lord Lloyd of Kilgerran. I am prepared to take away, without commitment, the comments which they have made in order to see whether we can alter the provision in any way. However, before doing so, I reiterate that I believe we have struck a fair balance. After all, conversion damages have disappeared and, as I understand it, since the 1956 Act there have not been many examples of blatant breach of this provision. Therefore, in that way, perhaps the proof of the pudding is in the eating. However, without commitment, I will take away the comments that the Members have made.

Lord Morton of Shuna

I have experience of going with the backing of a court order and various court officials to recover alleged breaches of copyright from alleged infringers. It is not an easy situation and is one which is very fraught. if you do not do that with the help of a court order and the court officials you are really asking for trouble. I believe that part of the reason that there has not been trouble until now is that copyright owners have not been so stupid. To leave in this clause is asking for trouble in the future.

The Earl of Stockton

On the one or two occasions when I have had to enforce copyright—not in this country but under very similar circumstances—the mechanism by which I have done it is, where I have been informed there are copyright or piracy provisions, to go into the shop and purchase a copy of the offending material. I take it outside and place it in a safe place in the back of the car. I then go back in and say, "I have just bought a pirate or offending copy of this material in your shop and I see you have another 80 copies of it. These will be seized", or, "I am seizing these". I have done this in Jordan, in the souk in Amman, where the man was a little upset, but I assure the Committtee that there was no breach of the peace there. I have done it on the dock in Port Harcourt in Nigeria and there was no breach of the peace there. I believe that perhaps the noble Lord, Lord Morton of Shuna, has exaggerated the volatility of the representatives of the book trade and other trades in this country if he thinks a breach of the peace is likely to happen here.

Lord Lloyd of Kilgerran

Has the noble Earl ever done this in Cheltenham? I am delighted to hear the stories of the noble Earl about what happens abroad. I can tell him how infringement of trade marks are sometimes dealt with in Indian towns. The lawyer goes in with a large sword, puts it on the table in front of the man who is supposedly infringing the trade mark and sorts the matter out. There is no violence at all, perhaps due to the presence of the weapon. However, that is not something one can do in this country. All that Clause 89 says is that you can go into a premises in this country, not abroad, and take what you believe is an infringement. That really leads to a breach of the peace.

Clause 89 agreed to.

Clauses 90 and 91 agreed to.

Clause 92 [Pecuniary remedies where concurrent rights of action]:

The Earl of Dundee moved Amendment No. 212: Page 37, line 18, leave out (", and any right of action exercisable, by") and insert ("or available to").

The noble Earl said: Clause 92 provides for the award and division of pecuniary remedies in cases where the copyright owner and exclusive licensee have concurrent rights of action. Paragraph (a) requires the court to take two factors into account when assessing damages in cases of concurrent rights of action. The first is, naturally, the terms of the exclusive licence. The contractual provisions are highly relevant to the question of damages and how they are to be divided.

The second consideration is what other remedies are available to the copyright owner or exclusive licensee. The Bill as drafted requires the court to take into account not only any pecuniary remedy already awarded but any other right of action exercisable by the copyright owner or exclusive licensee. We now realise that this was wrong, and the amendment will correct that defect.

All the court should consider when assessing damages is the terms of the licence and any pecuniary remedy already awarded or available to the copyright owner or exclusive licensee. The fact that either may also have the right, for example, to obtain an injunction is immaterial.

The amendment also removes a grammatical defect which some noble Lords may have spotted.

On Question, amendment agreed to.

Clause 92, as amended, agreed to.

Clause 93 [Remedies for infringement of moral rights]:

The Deputy Chairman of Committees

I should tell the Committee that if Amendment No. 213 or Amendment No. 214 is agreed to, I cannot call Amendments Nos. 215, 216 and 217.

Lord Willis moved Amendment No. 213: Page 37, line 36, leave out subsection (2).

The noble Lord said: On behalf of the noble Lords, Lord Lloyd of Hampstead and Lord Graham of Edmonton, I want to draw attention to a very serious subsection of the clause.

Subsection (2) specifically states: Damages for infringement of the… (right to be identified as author or director) shall be given only in respect of economic loss suffered by the plaintiff'.

We operate in a creative business where loss of reputation can be more serious than any economic loss. It can lead to long or short-term economic loss. Damage to reputation is one of the hazards that we experience in the business. It seems wrong to deny a director or author the right to take action for damage to reputation if he or she thinks it appropriate. I wish to know why the Government limit the matter in this way. I think that it would be better not to include subsection (2). I beg to move.

Lord Graham of Edmonton

I support the amendment. Those who believe they have gained something under the Bill find once again, when they look closer, that the substance disappears.

The point of moral rights is that emphasis should be placed on the artistic and creative integrity of directors and writers and not only on economic criteria. In this instance the Bill narrows the impact of moral rights. The provision for damages in respect of economic loss is wholly inadequate. I believe, as does the Association of Cinematograph, Television and Allied Technicians, that such restriction is unnecessary and that the broader question relating to artistic and creative integrity should be considered when assessing the damages.

Lord Hutchinson of Lullington

I support the amendment. I wish to speak also to Amendment No. 214. As we know, the author of an artistic work has the right to be identified. That right has been given him, first, because he has to assert it in relation to the infringer. Secondly, if he succeeds in doing that, he has to prove economic loss. Thus the right that he has been given is whittled down to nothing.

The Minister will no doubt reply to the noble Lord, Lord Willis, that injury to reputation will be covered in any action for damages. However, it is not only a question of injury to reputation. Someone may show a work of art by a person and assert, say, in Scotland that the work was by a well-known water colourist. That colourist might come from Shuna, Kilgerran, or some such place and gain a tremendous amount of kudos when in reality the artist was a good, true English artist from the little hamlet of Lullington.

There is a great deal there to be suffered by the artist. I would say with the greatest respect to my noble friend that to prove economic loss would be out of the question. Amendment No. 214 simply seeks to put such a person in precisely the same position as the person who has had the copyright infringed, using the same wording as is found in Clause 87(2). That would surely seem to be the fair situation.

10.30 p.m.

Baroness Birk

On behalf of my noble friend, I support the amendment moved by the noble Lord, Lord Willis, and supported by the noble Lord, Lord Graham, and the noble Lord, Lord Hutchinson of Lullington. I think I am right in saying that we are taking these amendments together. I shall therefore speak to Amendment No. 215 in the name of the noble Lord, Lord Morton of Shuna, and myself, which seeks to: leave out lines 37 and 38 and insert ('shall be such as the justice of the case may require.')". That seems to me to be a very simple way of expressing what we are all trying to achieve. In this area, which deals with moral rights, it is totally wrong that it should be specifically stated in the Bill that damages, shall be given only in respect of economic loss". We then find ourselves back at square one. What is the point of having moral rights if there is no compensation for damages for infringement?

For that reason I do not like Amendment No. 216 in the name of the noble Lord, Lord Beaverbrook, which inserts the words: not include compensation for injured feelings". This almost reverts to the orginal text, which confines damages to cases of economic loss. There must be some compensation if we are to have this scheme of moral rights. I prefer our amendment because it seems a very simple and short way to express this. I beg to move.

Lord Beaverbrook

For the convenience of the Committee, I speak also to Amendments Nos. 213, 214, 215, 216 —which is in my own name—and 217, in the name of my noble friend Lord Stockton.

The drafting of Clause 93(2) has drawn considerable criticism, not least during the Second Reading debate. As I indicated then, the intention of Clause 93(2) was to exclude damages for injured feelings but not to exclude the loss of reputation. We fully accept that an author lives on his reputation and any loss of reputation is therefore an economic loss.

I promised the noble Lord, Lord Hutchinson of Lullington, that this would be something to return to in Committee and my amendment therefore makes plain that only injured feelings are intended to be excluded. I hope that this will meet the concerns of the noble Lord and other Members of the Committee.

Amendment No. 214 borrows wording used in Clause 87(2), which deals with action for an infringement of copyright. As the noble Lords will recall, conversion damages are not included in the Bill and the purpose of Clause 87(2) is to provide a deterrent to flagrant infringement of copyright. While it is very important for copyright I do not think it is appropriate to moral rights, where flagrant infringements are much more difficult to determine.

With regard to the amendment tabled by my noble friend Lord Stockton, I am not sure what is meant in this context by the word "genuine". The courts would not knowingly award damages in respect of a loss which was not genuine. But if the intention is to restrict damages to specific financial loss caused by failing to name the author, then that runs counter both to the Government's intention to which Amendment No. 216 gives expression and to what I had taken to be the mood of the House during Second Reading.

I hope that in the light of Amendment No. 216 and what I have said, the noble Lords will be prepared to withdraw their amendments, and agree to Amendment No. 216.

Lord Willis

I am still worried about this and I may have to look at it again. As I understood it, in law—and perhaps the lawyers among us can tell me—it is possible to obtain damages for injured feelings. Is that true? So why cannot copyright owners get damages for injured feelings? Why should they be excluded from the clause?

Lord Beaverbrook

I am advised that one cannot get damages for injured feelings.

Lord Willis

I have to bow to superior legal knowledge. I beg leave to withdraw the amendment

Amendment, by leave, withdrawn.

[Amendments Nos. 214 and 215 not moved.]

Lord Beaverbrook moved Amendment No. 216: Page 37. line 37, leave out from ("shall") to end of line 38 and insert ("not include compensation for injured feelings").

On Question, amendment agreed to.

[Amendment No. 217 not moved.]

Lord Graham of Edmonton moved Amendment No. 217A: Page 37, line 42, leave out from ("act") to end of line 44.

The noble Lord said: Those noble Lords with a copy of the Bill will appreciate that the words that I wish to strike out are: unless a disclaimer is made, in such terms and in such manner as may be approved by the court, identifying the modification in question and dissociating the author or director from it".

Clause 93(3) totally misses the point of moral rights, which include the right to prevent a justifiable or modified work from being shown on artistic or creative grounds. I know that the clause has been modified slightly by the Minister's amendment, but in support of my amendment I want to say that to show such a work and merely to issue a disclaimer completely undermines the raison d'etre of moral rights. A disclaimer is not in any sense a remedy since the damage is done anyway.

I should be grateful if the Minister will address himself to the point I am making. Perhaps then I shall be able to withdraw the amendment. I beg to move.

Lord Beaverbrook

The amendment moved by the noble Lord seeks to restrict the remedies available to the court when considering cases of infringement of the right conferred by Clause 72. We do not believe that we should deprive the courts of flexibility. There will be cases where the best course is to allow the modified work to be used, provided that the author or director is clearly dissociated from it. I think the flexibility benefits both authors and directors as well as the users of copyright material. The court might find the modification insufficient to justify a full injunction so the author could find himself associated with a modified work which he wishes to disown. Clause 93 will allow the court in cases where a full injunction is not justified to allow exploitation to continue while allowing the author to be dissociated from the change.

Lord Graham of Edmonton

I am sure that the Committee will read with care what the Minister has said. Clearly it is possible to presume difficulties, which the Minister's words may overcome. Without reservation or qualification, because I may need to come back at a later stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 93, as amended, agreed to.

Clause 94 [General presumptions as to subsistence of copyright.]:

Lord Lloyd of Kilgerran moved Amendment No. 218: Page 38, line 3, leave out ("in the absence of evidence to the contrary") and insert ("unless put in issue by the defendant").

The noble Lord said: We are now entering upon Clause 94, which sets out general presumptions as to the subsistence of copyright. One of the presumptions set out in the clause is that: In proceedings"— that means court proceedings— brought by virtue of this Chapter it shall be presumed, in the absence of evidence to the contrary".

The one presumption about which I am complaining is that the plaintiff, if he claims to be the owner of the copyright, is the owner".

It is unprecedented in British law for a plaintiff not to have to prove the ownership of an intellectual property right and whether or not it subsists. Very often the plaintiff is the only person who knows the relevant facts. The clause as proposed would avoid a plaintiff being obliged to disclose documents on discovery unless the defendant had evidence, but this may be entirely in the possession of the plaintiff. It is quite unprecedented that the plaintiff should not have to prove his ownership and whether his intellectual property rights subsist.

It is true that the Whitford Report suggested some years ago that in interlocutory proceedings it would be possible for a plaintiff to claim copyright and it would be within the discretion of the judge to decide whether that was feasible in the circumstances of the interlocutory proceedings. However, it is quite unknown and unprecedented in intellectual property proceedings for the plaintiff not to have to prove ownership and subsistence of his rights. I beg to move.

Lord Mottistone

I am advised that the effect of the amendment would be completely to neuter the impact of Clause 94. Establishing that copyright subsists and that the plaintiff is the owner of the copyright are costly operations. I am no lawyer, so I do not know how much the costs benefit the lawyers. The requirement to provide this type of proof, especially when it is not necessary, dramatically increases the legal costs of the copyright infringement actions. I hope that the Committee will reject the amendment.

Lord Williams of Elvel

The amendment addresses the whole question of evidence on presumptions. This is the subject of certain amendments that we have tabled on subsequent clauses. I think it proper that the Minister should give a reply to the noble Lord, Lord Lloyd, which will cover the substance of the amendments we have down on the question of presumption in subsequent clauses.

Lord Beaverbrook

The purpose of this clause is to provide general presumptions as to the subsistence and ownership of copyright in civil proceedings. Subsection (1) provides that it is to be presumed in the absence of evidence to the contrary that copyright subsists in the work in question and that the plaintiff is the owner of copyright. These presumptions already apply under Section 20 of the 1956 Act but only until the defendant puts subsistence or ownership in issue. The defendant has only to raise the point in his pleadings without any evidence for the plaintiff to have to prove subsistence and ownership. Under the Bill, however, he will have to produce some evidence to back his challenge before the plaintiff can be put to proof. The amendment would restore the provisions of the 1956 Act.

Establishing the subsistence and ownership of copyright is not always easy and there has been a constant complaint that the defendant can put the plaintiff to proof when he has no reason to doubt the assertions made. The trouble and expense may deter the plaintiff from proceeding and occupies the court unprofitably. We do not think the out and out pirate should be able to use this delaying tactic or that valuable court time should be wasted on establishing such self-evident facts as the subsistence of copyright in the latest film on release.

We are, however, aware that our proposed alternative is criticised for creating as many problems as it solves. We would like, therefore, to take the opportunity of going away with the clause and reconsidering it altogether. I doubt whether we would want to return to the existing law via the noble Lord's amendment, but it may be that we can find a better answer.

Lord Lloyd of Kilgerran

I am grateful to the Minister for that assurance. I beg leave to withdraw the amendment.

Clause 94 agreed to.

Clause 95 [Presumptions relevant to literary, dramatic, musical and artistic works]:

[Amendments Ns. 218A and 218B not moved.]

Clause 95 agreed to.

Clause 96 [Presumptions relevant to sound recordings and films]:

[Amendment 218C not moved.]

Clause 96 agreed to.

Clause 97 agreed to.

Clause 98 [Criminal liability for making or dealing with infringing articles]:

[Amendment No. 2I8D not moved.]

10.45 p.m.

The Earl of Stockton moved Amendment No. 219: Page 39, line 36, leave out ("with a view to committing any act infringing the copyright").

The noble Earl said: I beg to move the amendment standing in my name and those of the noble Lords, Lord Morton of Shuna and Lord Williams of Elvel. This amendment would narrow the offence of possessing in the course of a trade or business to just that. The clause as drafted includes the weakening qualification of, with a view to committing any act infringing the copyright".

We discussed this point earlier in the proceedings in the Committee. We feel that such a qualification would allow the offender an easy escape route. I beg to move.

Lord Williams of Elvel

From these Benches I should like to support the noble Earl, Lord Stockton, in this amendment.

Lord Beaverbrook

The Committee will be aware that a person who, in the course of a trade or business, is in possession of a copy of a sound recording, film or computer program which he knows to be an infringing copy is guilty of an offence. These provisions, introduced in the last few years, have been highly effective in the fight against piracy. In the White Paper we promised to extend this criminal offence provision to all categories of copyright material and, for consistency, make unauthorised possession by way of trade a secondary infringement under the civil provisions. This we have done, in this clause and Clause 23 respectively.

When we came to look at this question again in the course of drafting the Bill it became apparent that the criminal offence might be too onerous. For example, a garage might have a photocopy of a repair manual, or a sales company might be using an infringing copy of a training video to train its staff. In such cases, possession would be a purely internal matter, with no intent to exploit the material by further copying.

We felt that this was an area where the full force of the criminal law should not be brought into play. By restricting the offence of possession in the way we have done, the pirate will still be liable. Possession of a garage full of pirate videos will be an offence. But incidental possession, if I can use that term, such as in the examples I gave earlier, will he matters for the civil law only.

The Earl of Stockton

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 220 to 226A not moved.]

Lord Lloyd of Kilgerran moved Amendment No. 227: Page 40, line 23, leave out ("imprisonment for a term not exceeding six months or").

The noble Lord said: With the leave of the Committee I should like to speak also to Amendments Nos. 228, 229 and 230. The object of these amendments is to remove from Clause 98 any sanction of imprisonment being imposed upon a defendant when he is found guilty. My reason for this is that it is anomalous that alone among intellectual property rights infringement of copyright should be a criminal offence.

Why should the inventor of a patented product, for example, be obliged to rely upon civil remedies alone but the composer of a pop song have the assistance of the criminal law? It is totally incongruous and highly unsatisfactory in British law. Mere infringement of copyright should not be criminal, although in many instances counterfeiting must be caught, and can be caught, by other provisions of the criminal law.

It is so necessary to differentiate between what is meant by infringement of intellectual property rights and counterfeiting when it can be proved. In this Bill the differences have been set down. The noble Lord, Lord Mottistone, knows that. I think the amendments have been put down in the name of the noble Lord, Lord Cullen. There are a large number of amendments to deal with counterfeiting, and there, of course, imprisonment can be one of the sanctions and I shall support most of those provisions in regard to counterfeiting. When one is dealing purely with infringement of copyright, criminal proceedings should not be included as an action that can be taken against the defendant. I beg to move.

Lord Mottistone

I am sorry to cross swords again with the noble Lord, Lord Lloyd of Kilgerran, as we often join in these affairs together. However, I am advised that removing imprisonment as a penalty would not be reasonable. Where copyright infringement is a criminal offence the penalties for such infringement should include a short prison term. It seems to me to be perfectly straightforward.

Lord Lloyd of Kilgerran

I am not sure whether I understood the noble Lord, Lord Mottistone, correctly, because he assumed from the outset of his argument that infringement was a criminal offence. It is not a criminal offence and, indeed, it should not be.

His argument was that if it was a criminal offence then there should he imprisonment. I agree that that might be a sanction but he has I think—with the greatest of respect to him—got infringement of copyright muddled up with counterfeiting. Counterfeiting is a criminal offence and therefore criminal sanctions should apply—but not to infringement.

Lord Williams of Elvel

I should like to speak very briefly to this. Over the years we have had increasing criminalization—if I can use that expression—of civil offences. This is a fundamental principle which has been creeping into our statute and we will come back to this subject at a later stage, as I am sure the noble Lord, Lord Lloyd, will also.

We do not believe that infringement of copyright should be a criminal offence. That is the point that the noble Lord, Lord Lloyd of Kilgerran, was making and we support that. However, this is not the time to debate the point as it should be debated.

Lord Beaverbrook

Do I gather from that that the noble Lord wishes to withdraw the amendment now or would he like me to speak to the Committee at this hour of the evening, which I am very happy to do?

Lord Williams of Elvel

I think the noble Lord the Minister should speak to the Committee on this matter.

Lord Beaverbrook

My noble friend the Secretary of State made an unequivocal condemnation of copyright piracy when he opened the Second Reading debate on this Bill. In doing so I am sure that he was reflecting the sentiments of this Committee.

Whether one calls it piracy, bootlegging or counterfeiting, what we are really talking about is the misappropriation of someone else's property. That can only be regarded as theft. People are in the business of taking the intellectual property of others and selling it for profit, often passing it off as the genuine article. Not only does the producer of the genuine article suffer when his property is stolen but often it is the consumer who also suffers. The pirate or counterfeit goods are seldom of the same quality as the original. While some members of this Committee may feel that a loss in sound quality on a pirate pop music cassette is not of great moment, those interested in such music are being shortchanged. When we get to counterfeit goods such as electrical appliances or brake-shoes there is a very real safety problem.

In Clause 98 we are solely concerned with copyright. Piracy of copyright material is a world-wide problem, particularly for records, videos and computer software. The estimated value of the pirate market for records alone runs to 100 million US dollars per annum worldwide. In some countries over 90 per cent. of records and cassettes are pirate versions. This Committee will be aware of the efforts that we are making to encourage those countries where piracy is a serious problem to take action.

On our domestic scene piracy is still a problem, although on nothing like the same scale. About 5 per cent. of the home market for prerecorded music is pirate. One of the reasons why we have kept piracy under control in the United Kingdom is the deterrent effect of the penalties provided in the law.

The 1956 Act provided for fines and terms of imprisonment for various copyright offences. Legislation introduced in 1983 substantially increased the penalties in respect of films and records and then in 1985 did likewise for computer programs. The effects in the pirate video field were dramatic. The pirates' share of the market fell almost overnight. It was this that encouraged us to standardise these penalties across the whole field of copyright. We want to send out a strong anti-piracy message from this Committee and I believe that the amendment in question would send completely the wrong signals. Piracy is theft and needs to be dealt with as such.

I should like to say to the noble Lord, Lord Lloyd of Kilgerran, that the comparison with patents is not, I feel, a very good one. Copyright piracy is pure copy. Patent infringement is a much more complex matter, with considerable doubt in many cases as to whether infringement has taken place at all.

Lord Lloyd of Kilgerran

It is kind of the Minister to explain the Government's case. I do not wish to take up the time of the Committee at this late hour. I should like to look at what he said in Hansard and I shall probably take up the matter again at a later stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 228 to 230 not moved.]

Lord Mottistone moved Amendment No. 231: Page 40, line 32, leave out ("do not") and insert ("shall")

The noble Lord said: Clauses 94 to 94, referred to in subsection (6), to which my amendment applies, are presumptions as to various matters connected with copyright. These presumptions relate to subsistence and ownership of copyright. If put to strict proof these could involve an extremely costly evidential burden. In film piracy £500,000 in costs is not untypical for a single case. These matters are rarely, if ever, challenged seriously. They are merely challenged to deter prosecutions. In any event, the proposed change—that is, to revert the sense from the negative to the positive in this subsection—would still enable them to be challenged if evidence were produced.

The requirement for the prosecution to prove copying and intent to copy would still remain. If such unnecessary challenges became commonplace on software piracy criminal cases, they would result in either significantly increased costs being faced by public prosecution authorities, the cost being passed on to the industry or prosecutions being dropped on grounds of expense. The effect could be to make criminal sanctions completely ineffective in practice. There are signs that this has already happened in film piracy cases. I beg to move.

Lord Beaverbrook

Unlike other intellectual property rights such as patents, copyright is not registered in any way. Establishing subsistence and ownership of copyright can sometimes give rise to problems. Particular difficulty appears to have arisen in film cases. We have therefore thought it right to provide for certain presumptions to be made in civil proceedings to ease the burden on the courts and to prevent the pirate from infringing with impunity, secure in the knowledge that he can deter an infringement action by putting the copyright owner to proof.

While it may be right to provide for certain presumptions in civil proceedings, one must of necessity tread much more carefully when dealing with criminal provisions. We do not believe that a defendant in a criminal case should be put in the position of having to prove his innocence. It is for the prosecution to prove his guilt.

If the presumptions contained in Clauses 94 to 97 were to be applicable in criminal proceedings—and Clause 94 cannot be applied without some modification—the onus would be on the defendant to disprove certain presumptions made about ownership, authorship and subsistence. Providing presumptions to assist the court to come to conclusions on the balance of probabilities is one thing; providing presumptions in matters which have to be proved beyond reasonable doubt is quite another. Indeed, to introduce these presumptions into our criminal law would be an astonishing development. There are some offences of strict liability, and others where the onus of proving matters within the knowledge or control of the accused lies on him and not the prosecution; but I am aware of no offence in our law in which the accused must prove the negative of something about which he may know nothing.

The criminal provisions of copyright law are intended to supplement, not replace, the civil provisions. Copyright owners sometimes complain that it is more difficult to get a conviction than with a civil action. But that is as it should be. Copyright is, and must remain, principally a matter for the civil law since it is concerned with the enforcement of private rights.

Lord Mottistone

I understand what my noble friend has said and I thank him for explaining the matter at such length. I should like to think about it, and at this stage I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 232 not moved.]

Clauses 98 agreed to.

Clause 99 [Forfeiture of infringing copies, &c.]:

[Amendment No. 233 not moved.]

Lord Williams of Elvel moved Amendment No.234: Page 41, line 10, leave out ("district or").

The noble Lord said: Amendment No. 234 stands in my name and in the name of my noble friend Lord Morton of Shuna. I am advised by my noble friend, who, alas, has had to depart for Scotland, that there is a Scottish point to be made and that the district court is not an appropriate court do deal with these matters. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord for tabling this amendment, which I am prepared to accept.

On Question, amendment agreed to.

Clause 99, as amended, agreed to.

Clause 100 agreed to.

11 p.m.

Clause 101 [Offence by body corporate: liability of officers]:

Lord Lloyd of Kilgerran moved Amendment No.235: Page 41, line 37, leave out ("97") and insert ("98").

The noble Lord said: As I explained earlier, the noble Lord, Lord Lloyd of Hampstead, asked me if I would move his amendment. Clause 101 sets out offences by body corporate: liability of officers. The first line reads: Where an offence under section 97 committed by a body corporate is proved".

When one looks at Clause 97, it does not seem to be appropriate and the figure should be 98. So this major amendment is to substitute 98 for 97. I hope that I am right. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord and am of course prepared to accept this amendment.

On Question, amendment agreed to.

On Question, Whether Clause 101, as amended, shall be agreed to?

Lord Williams of Elvel

Perhaps I may ask the noble Lord whether in his department the divisions which are concerned with patents and the divisions which are concerned with companies have consulted each other about the contents of this clause. I will say no more, because I think that at a later stage I may wish to come back to certain responsibilities of people purporting to be directors, and all the rest of it.

Lord Beaverbrook

I will certainly look into that matter and let the noble Lord know.

Clause 101, as amended, agreed to.

Clause 102 [Infringing copies may be treated as prohibited goods]:

[Amendment No. 236 not moved.]

Lord Mottistone moved Amendment No. 237: Page 42, line 12, leave out ("a sound recording or film") and insert ("any work").

The noble Lord said: Copyright goods are now imported into the United Kingdom in many forms, not just sound recording or film, as printed paper works, films, magnetic tapes or disks, optical disks and laser cards, as well as works fixed in semiconductor chips, may all be imported from countries in which counterfeiters and pirates flourish. Copyright owners should have the power to ask the Commissioners of Customs and Excise to treat such goods as prohibited copies of the works; hence my request for an amendment to say "any work" instead of restricting it to two particular items. I beg to move.

Lord Beaverbrook

When we announced our intention in the White Paper to extend the import prohibition provisions in the 1956 Act to films and records, we indicated that such provisions may create difficulties for Customs and Excise. The existing provisions have not been used to any great degree and any sudden increase would impose undue burdens on the limited resources of Customs and Excise. It was for this reason that we said in the White Paper that, in the case of films and records, the copyright owner would have to give notice of the expected time and place of the infringing importation.

To extend the import provisions even further would not be a practical proposition, even if resources were not already fully used. It is relatively easy for a Customs official to identify copies of a book, film or record; usually it is self-evident. It is clearly much more difficult to determine whether a floppy disk carrying a computer program is a copy or not. The benefit to be gained by extension of the provisions to all types of copyright work cannot justify the costs that would be incurred. I am afraid that the extension of the present law now provided by Clause 102(3) is as far as we can go.

Lord Mottistone

Sadly, my noble friend is very convincing. I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

[Amendment No. 238 not moved.]

Clause 102 agreed to.

Clause 103 [Power of Commissioners of Customs and Excise to make regulations]:

[Amendments Nos. 238A and 238B not moved.]

Clause 103 agreed to.

Clause 104 [Supplementary provisions with respect to forfeiture orders]:

[Amendment No. 238C not moved.]

Clause 104 agreed to.

The Earl of Dundee

The Committee may perhaps agree that we have reached a suitable moment to break. If so, I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.