COPYRIGHT: TRANSITIONAL PROVISIONS AND SAVINGS (Hansard, 14 December 1987)

HL Deb 14 December 1987 vol 491 cc573-89 573

§ Introductory

§ 1.—(1) In this Schedule— the 1911 Act" means the Copyright Act 1911, the 1956 Act" means the Copyright Act 1956, and the new copyright provisions" means the provisions of this Act relating to copyright, that is, Part I (including this Schedule) and Schedules 3, 6 and 7 so far as they make amendments or repeals consequential on the provisions of Part I.

§ (2) References in this Schedule to "commencement", without more. are to the date on which the new copyright provisions come into force.

§ (3) References in this Schedule to "existing works" arc to works made before commencement; and for this purpose a work of which the making extended over a period shall be taken to have been made when its making was completed.

§ 2.—(1) In relation to the 1956 Act, references in this Schedule to a work include any work or other subject-matter within the meaning of that Act.

§ (2) In relation to the 1911 Act—

(a) references in this Schedule to copyright include the right conferred by section 24 of that Act in substitution for a right subsisting immediately before the commencement of that Act;
(b) references in this Schedule to copyright in a sound recording are to the copyright under that Act in records embodying the recording, and
(c) references in this Schedule to copyright in a film are to any copyright under that Act in the film (so far as it constituted a dramatic work for the purposes of that Act) or in photographs forming part of the film.

§ General principles: continuity of the law

§ 3. The new copyright provisions apply in relation to things existing at commencement as they apply in relation to things coming into existence after commencement, subject to any express provision to the contrary.

§ 4.—(1) The provisions of this paragraph have effect for securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions.

§ (2) A reference in an enactment, instrument or other document to copyright, or to a work or other subject-matter in which copyright subsists, which apart from this Act would be construed as referring to copyright under the 1956 Act shall he construed, so far as may be required for continuing its effect, as being, or as the case may require, including, a reference to copyright under this Act or to works in which copyright subsists under this Act.

§ (3) Anything done (including subordinate legislation made), or having effect as done, under or for the purposes of a provision repealed by this Act has effect as if done under or for the purposes of the corresponding provision of the new copyright provisions.

§ (4) References (expressed or implied) in this Act or any other enactment, instrument or document to any of the new copyright provisions shall, so far as the context permits, be construed as including, in relation to times, circumstances and purposes before commencement, a reference to corresponding earlier provisions.

§ (5) A reference (express or implied) in an enactment, instrument or other document to a provision repealed by this Act shall be construed, so far as may be required for continuing its effect, as a reference to the corresponding provision of this Act.

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§ (6) The provisions of this paragraph have effect subject to any specific transitional provision or saving and to any express amendment made by this Act.

§ Subsistence of copyright

§ 5.—(1) Copyright subsists in an existing work after commencement only if copyright subsisted in it immediately before commencement.

§ (2) Sub-paragraph (1) does not prevent an existing work qualifying for copyright protection after commencement—

(a) and or section 144 (qualification by virtue of first publication), or
(b) by virtue of an Order under section 148 (application of Part I to countries to which it does not extend).

§ 6.—(1) Copyright shall not subsist by virtue of this Act in an artistic work made before 1st June 1957 which at the time when the work was made constituted a design capable of registration under the Registered Designs Act 1949 or under the enactments repealed by that Act, and was used, or intended to be used, as a model or pattern to be multiplied by any industrial process.

§ (2) For this purpose a design shall be deemed to be used as a model or pattern to be multiplied by any industrial process.

(a) when the design is reproduced or is intended to be reproduced on more than 50 single articles, unless all the articles in which the design is reproduced or is intended to he reproduced together form only a single set of articles as defined in section 44(1) of the Registered Designs Act 1949, or
(b) when the design is to be applied to—
1. (i) printed paper hangings,
2. (ii) carpets, floor cloths or oil cloths, manufactured or sold in lengths or pieces,
3. (iii) textile piece goods, or textile goods manufactured or sold in lengths or pieces, or
4. (iv) lace, not made by hand.

§ 7.—(1) No copyright subsists in a film, as such, made before 1st June 1957.

§ (2) Where a film made before that date was an original dramatic work within the meaning of the 1911 Act, the new copyright provisions have effect in relation to the film as if it was an original dramatic work within the meaning of Part I; and the person who was the author for the purposes of the 1911 Act shall be taken to be the author for the purposes of that Part.

§ (3) The new copyright provisions have effect in relation to photographs forming part of a film made before 1st June 1957 as they have effect in relation to photographs not forming part of a film.

§ 8. No copyright subsists in—

(a) a broadcast made before 1st June 1957. or
(b) a cable programme included in a cable programme service before 1st January 1985;

and any such broadcast or cable programme shall be disregarded for the purposes of section 14(2) (duration of copyright in repeats).

§ Authorship of work

§ 9. The question who was the author of an existing work shall be determined in accordance with the law in force at the time the work was made.

§ First ownership of copyright

§ 10.—(1) Section 11 of this Act (first ownership of copyright) has effect subject to the following provisions.

§ (2) Subsection (3) of that section (works made for purposes of publication in newspaper, magazine or similar periodical) applies to works made before 1st June 1957 notwithstanding that the employer was not the proprietor of a newspaper, magazine or similar periodical.

§ (3) Where on or after 1st June 1957 and before commencement a person commissioned, and paid or agreed to pay for in money or money's worth—

(a) the taking of a photograph, or
(b) the painting or drawing of a portrait. or
(c) the making of an engraving,

he is the first owner of any copyright in the work made (before or after commencement) in pursuance of the commission, subject to any agreement to the contrary.

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§ (4) Where before 1st June 1957 in the case of an engraving, photograph or portrait, the plate or other original was ordered by some person other than the author and was made for valuable consideration in pursuance of the order, then in the absence of any agreement to the contrary, the person by whom such plate or other original was ordered is the first owner of copyright.

§ (5) Sub-paragraph (3) does not apply to a work made by an employee in the course of employment by the proprietor of a newspaper, magazine or similar periodical for the purposes of publication in a newspaper, magazine or similar periodical; and sub-paragraph (4) does not apply to a work made by an employee in the course of employment with any person for the purposes of publication in a newspaper, magazine or similar periodical.

§ (6) Where before commencement a person commissioned the making of a sound recording. and paid or agreed to pay for it in money or money's worth, he is the first owner of any copyright in a recording made (before or after commencement) in pursuance of the commission, subject to any agreement to the contrary.

§ Duration of copyright in existing works

§ 11.—(1) The following provisions have effect with respect to the duration of copyright in existing works.

§ The question which provision applies to a work shall be determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

§ (2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired under the 1956 Act.

(a) literary, dramatic or musical works in relation to which the period of 50 years mentioned in the proviso to section 2(3) of the 1956 Act (duration of copyright in works made available to the public after the death of the author) has begun to run;
(b) engravings in relation to which the period of 50 years mentioned in the proviso to section 3(4) of the 1956 Act (duration of copyright in works published after the death of the author) has begun to run;
(c) published photographs and photographs taken before 1st June 1957;
(d) published sound recordings and sound recordings made before 1st June 1957;
(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

§ (3) Copyright in anonymous or pseudonymous literary, dramatic, musical or artistic works (other than photographs) continues to subsist—

(a) if the work is published. until the date on which it would have expired in accordance with the 1956 Act, and
(b) if the work is unpublished, until the date on which it expires in accordance with section 12 of this Act or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the later,

unless, in either case, the identity of the author becomes known before that date, in which case section 12(1) of this Act applies.

§ However copyright is not infringed by an act done at a time when, or in pursuance of arrangements made at a time when, it is reasonable to assume that the author died 50 years or more before the beginning of the calendar year in which that act is done or the arrangements made.

§ (4) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) literary, dramatic and musical works of which the author has died and in relation to which none of the acts mentioned in paragraphs (a) to (e) of the proviso to section 2(3) of the 1956 Act has been done;
(b) unpublished engravings of which the author has died;
(c) unpublished photographs taken on or after 1st June 1957.

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§ (5) Copyright in the following descriptions of work continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force—

(a) unpublished sound recordings made on or after 1st June 1957;
(b) films not falling within sub-paragraph (2)(e) above,

unless the recording or film is published before the end of that period in which case copyright in it shall continue until the end of the period of 50 years from the end of the calendar year in which the recording or film is published.

§ (6) Copyright in any other description of existing work continues to subsist until the date on which copyright in that description of work expires in accordance with sections 12 to 15 of this Act.

§ (7) The above provisions do not apply to works subject to Crown copyright (see paragraph 37 below).

§ Perpetual copyright under the Copyright Act 1775

§ 12.—(1) The rights conferred on universities and colleges by the Copyright Act 1775 shall continue to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force and shall then expire.

§ (2) The provisions of the following Chapters of Part I, Chapter III (acts permitted in relation to copyright works), Chapter VI (remedies for infringement), Chapter VII (licensing schemes and licensing bodies), and Chapter VIII (the Copyright Tribunal), apply in relation to those rights as they apply in relation to copyright under this Act.

§ Acts infringing copyright

§ 13.—(1) The provisions of Chapters II and III of Part I as to the acts constituting an infringement of copyright apply only in relation to acts done after commencement; the provisions of the 1956 Act continue to apply in relation to acts done before commencement.

§ (2) For the purposes of section 27 (meaning of "infringing copy") the question whether the making of an article constituted an infringement of copyright, or would have done if the article had been made in the United Kingdom, shall be determined—

(a) in relation to an article made on or after 1st June 1957 and before commencement, by reference to the 1956 Act, and
(b) in relation to an article made before 1st June 1957, by reference to the 1911 Act.

§ (3) For the purposes of the application of sections 31(2), 51(2) and 57(3) (subsequent exploitation of things whose making was, by virtue of an earlier provision of the section, not an infringement of copyright) to things made before commencement, it shall be assumed that the new copyright provisions were in force at all material times.

§ (4) Section 55 (articles for producing material in a particular typeface) applies where articles have been marketed as mentioned in subsection (1) before commencement with the substitution for the period mentioned in subsection (2) of the period of 25 years from the end of the calendar year in which the new copyright provisions come into force.

§ (5) In section 59 (reconstruction of buildings) the reference to the owner of the copyright in the drawings or plans is, in relation to buildings constructed before commencement, to the person who at the time of the construction was the owner of the copyright in the drawings or plans under the 1956 Act, the 1911 Act or any enactment repealed by the 1911 Act.

§ 14. The following provisions of section 7 of the 1956 Act continue to apply in relation to existing works—

(a) subsection (6) (copying of unpublished works from manuscript or copy in library, museum or other institution);
(b) subsection (7) (publication or work containing material to which subsection (6) applies), except paragraph (a) (duty to give notice of intended publication);
(c) subsection (8) (subsequent broadcasting, performance, &c. of material published in accordance with subsection (7));

and subsection (9)(d) (illustrations) continues to apply for the purposes of those provisions.

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§ 15. Where in the case of a dramatic or musical work made before 1st July 1912, the right conferred by the 1911 Act did not include the sole right to perform the work in public the acts restricted by the copyright shall be treated as not including—

(a) performing the work in public,
(b) broadcasting the work or including it in a cable programme service, or
(c) doing any of the above in relation to an adaptation of the work;

and where the right conferred by the 1911 Act consisted only of the sole right to perform the work in public, the acts restricted by the copyright shall he treated as consisting only of those acts.

§ 16. Where a work made before 1st July 1912 consists of an essay, article or portion forming part of and first published in a review, magazine or other periodical or work of a like nature, the copyright is subject to any right of publishing the essay, article, or portion in a separate form to which the author was entitled at the commencement of the 1911 Act, or would if that Act had not been passed, have become entitled under section 18 of the Copyright Act 1842.

§ Designs

§ 17.—(1) Section 51 (exclusion of copyright protection in relation to works recorded or embodied in design document or models) does not apply for ten years after commencement in relation to a design recorded or embodied in a design document or model before commencement.

§ (2) During those ten years the following provisions of Part III (design right) apply to any relevant copyright as in relation to design right—

(a) sections 217 to 219 (availability of licences of right), and
(b) sections 226 and 227 (application to comptroller to settle terms of licence of right).

§ (3) In section 217 as it applies by virtue of this paragraph. for the reference in subsection (1) to the last five years of the design right term there shall be substituted a reference to the last five years of the period of ten years referred to in sub-paragraph (1) above, or to so much of those last five years during which copyright subsists.

§ (4) In section 219 as it applies by virtue of this paragraph, for the reference in subsection (1)(b) to section 209 or 210 there shall he substituted a reference to section 88 or 89.

§ (5) Where a licence of right is available by virtue of this paragraph, a person to whom a licence was granted before commencement may apply to the comptroller for an order adjusting the terms of that licence.

§ (6) The provisions of sections 228 to 231 (procedure and appeals) apply in relation to proceedings brought under or by virtue of this paragraph as to proceedings under Part III.

§ (7) A licence granted by virtue of this paragraph shall relate only to acts which would be permitted by section 51 if the design document or model had been made after commencement.

§ (8) Nothing in this paragraph affects the operation of any rule of law preventing or restricting the enforcement of copyright in relation to a design.

§ 18.—(1) Where section 10 of the 1956 Act (effect of industrial application of design corresponding to artistic work) applied in relation to an artistic work at any time before commencement. section 52(2) of this Act applies with the substitution for the period of 25 years mentioned there of the relevant period of 15 years as defined in section 10(3) of the 1956 Act.

§ (2) Except as provided in sub-paragraph (1), section 52 applies only where articles are marketed as mentioned in subsection (1)(b) after commencement.

§ Abolition of statutory recording licence

§ 19. Section 8 of the 1956 Act (statutory licence to copy records sold by retail) continues to apply where notice under subsection (1)(b) of that section was given before the repeal of that section by this Act, but only in respect of the making of records—

(a) within one year of the repeal coming into force, and
(b) up to the number stated in the notice as intended to be sold.

§ Moral rights

§ 20.—(1) No act done before commencement is actionable by virtue of any provisions of Chapter IV of Part I (moral rights).

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§ (2) Section 43 of the 1956 Act (false attribution of authorship) continues to apply in relation to acts done before commencement.

§ 21.—(1) The following provisions have effect with respect to the rights conferred by—

(a) section 69 (right to be identified as author or director), and
(b) section 72 (right not to suffer modification of work).

§ (2) The rights do not apply—

(a) in relation to a literary, dramatic, musical and artistic work of which the author died before commencement; or
(b) in relation to a film made before commencement.

§ (3) The rights in relation to an existing literary, dramatic, musical or artistic work do not apply—

(a) where copyright first vested in the author, to anything which by virtue of an assignment of copyright made or licence granted before commencement may be done without infringing copyright;
(b) where copyright first vested in a person other than the author, to anything done by or with the licence of the copyright owner.

§ (4) The rights do not apply to anything done in relation to a record made in pursuance of section 8 of the 1956 Act (statutory recording licence).

§ Assignments and licences

§ 22.—(1) Any document made or event occurring before commencement which had any operation—

(a) affecting the ownership of the copyright in an existing work, or
(b) creating, transferring or terminating an interest, right or licence in respect of the copyright in an existing work,

has the corresponding operation in relation to copyright in the work under this Act.

§ (2) Expressions used in such a document shall be construed in accordance with their effect immediately before commencement.

§ 23.—(1) Section 81(1) of this Act (assignment of future copyright: statutory vesting of legal interest on copyright coming into existence) does not apply in relation to an agreement made before 1st June 1957.

§ (2) The repeal by this Act of section 37(2) of the 1956 Act (assignment of future copyright: devolution of right where assignee dies before copyright comes into existence) does not affect the operation of that provision in relation to an agreement made before commencement.

§ 24.—(1) Where the author of a literary, dramatic, musical or artistic work was the first owner of the copyright in it, no assignment of the copyright and no grant of any interest in it. made by him (otherwise than by will) after the passing of the 1911 Act and before 1st June 1957, shall be operative to vest in the assignee or grantee any rights with respect to the copyright in the work beyond the expiration of 25 years from the death of the author.

§ (2) The reversionary interest in the copyright expectant on the termination of that period may after commencement be assigned by the author during his life but in the absence of any assignment shall, on his death, devolve on his legal personal representatives as part of his estate.

§ (3) Nothing in this paragraph affects—

(a) an assignment of the reversionary interest by a person to whom it has been assigned,
(b) an assignment of the reversionary interest after the death of the author by his personal representatives or any person becoming entitled to it, or
(c) any assignment of the copyright after the reversionary interest has fallen in.

§ (4) Nothing in this paragraph applies to the assignment of the copyright in a collective work or a licence to publish a work or part of a work as part of a collective work.

§ (5) In sub-paragraph (4) "collective work" means—

(a) any encyclopaedia, dictionary, yearbook. or similar work:
(b) a newspaper, review, magazine, or similar periodical: and
(c) any work written in distinct parts by different authors, or in which works or parts of work of different authors are incorporated.

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§ 25.—(1) This paragraph applies where copyright subsists in a literary, dramatic, musical or artistic work made before 1st July 1912 in relation to which the author, before the commencement of the 191 I Act, made such an assignment or grant as was mentioned in paragraph (a) of the proviso to section 24(1) of that Act (assignment or grant of copyright or performing right for full term of the right under the previous law).

§ (2) If before commencement any event has occurred or notice has been given which by virtue of paragraph 38 of Schedule 7 to the 1956 Act had any operation in relation to copyright in the work under that Act, the event or notice has the corresponding operation in relation to copyright under this Act.

§ (3) Any right which immediately before commencement would by virtue of paragraph 38(3) of that Schedule have been exercisable in relation to the work, or copyright in it, is exercisable in relation to the work or copyright in it under this Act.

§ (4) If in accordance with paragraph 38(4) of that Schedule copyright would, on a date after the commencement of the 1956 Act, have reverted to the author or his personal representatives and that date falls after the commencement of the new copyright provisions—

(a) the copyright in the work shall revert to the author or his personal representatives, as the case may be, and
(b) any interest of any other person in the copyright which subsists on that date by virtue of any document made before the commencement of the 1911 Act shall thereupon determine.

§ 26. Section 82(2) of this Act (rights of exclusive licensee against successors in title of person granting licence) does not apply in relation to an exclusive licence granted before commencement.

§ Bequests

§ 27.—(1) Section 83 of this Act (copyright to pass under will with original document or other material thing embodying unpublished work)—

(a) does not apply where the testator died before 1st June 1957, and
(b) where the testator died on or after that date and before commencement, applies only in relation to an original document embodying a work.

§ (2) In the case of an author who died before 1st June 1957, the ownership after his death of a manuscript of his, where such ownership has been acquired under a testamentary disposition made by him and the manuscript is of a work which has not been published or performed in public, is prima facie proof of the copyright being with the owner of the manuscript.

§ Remedies for infringement

§ 28.—(1) Sections 86 and 87 of this Act (remedies for infringement) apply only in relation to an infringement of copyright committed after commencement; section 17 of the 1956 Act continues to apply in relation to infringements committed before commencement.

§ (2) Sections 88 and 89 of this Act (delivery up or seizure of infringing copies, &c.) apply to infringing copies and other articles made before or after commencement; section 18 of the 1956 Act, and section 7 of the 1911 Act, apply after commencement only for the purposes of proceedings begun before commencement.

§ (3) Sections 90 to 92 of this Act (rights and remedies of exclusive licensee) apply where sections 86 to 89 of this Act apply; section 19 of the 1956 Act continues to apply where section 17 or 18 of that Act applies.

§ (4) Sections 94 to 97 of this Act (presumptions) apply only in proceedings brought by virtue of this Act; section 20 of the 1956 Act continues to apply in proceedings brought by virtue of that Act.

§ 29. Sections 90 to 92 of this Act (rights and remedies of exclusive licensee) do not apply to a licence granted before 1st June 1957.

§ 30.—(1) The provisions of section 98 of this Act (criminal liability for making or dealing with infringing articles, & c.) apply only in relation to acts done after commencement; section 21 of the 1956 Act (penalties and summary proceedings in respect of dealings which infringe copyright) continues to apply in relation to acts done before commencement.

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§ (2) Section 100 of this Act (search warrants) applies in relation to offences committed before commencement in relation to which section 21A or 21B of the 1956 Act applied; sections 21A and 21B continue to apply in relation to warrants issued before commencement.

§ Copyright Tribunal: proceedings pending on commencement

§ 31.—(1) The Lord Chancellor may, after consultation with the Lord Advocate, by rules make such provision as he considers necessary or expedient with respect to proceedings pending under Part IV of the 1956 Act immediately before commencement.

§ (2) Rules under this paragraph shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

§ Qualification for copyright protection

§ 32. Every work in which copyright subsisted under the 1956 Act immediately before commencement shall be deemed to satisfy the requirements of Part I of this Act as to qualification for copyright protection.

§ Dependent territories

§ 33.—(1) An Order in Council in force immediately before commencement which extends to any of the Channel Islands, the Isle of Man or any colony any provisions of the 1911 Act or the 1956 Act shall remain in force as part of the law of that country until—

(a) it is revoked, or
(b) an Order is made in respect of that country under section 146 of this Act (power to extend new copyright provisions).

§ (2) An Order in Council which continues in force under subparagraph (1) may be varied or revoked under the provisions of the 1911 or 1956 Act under which it was made.

§ (3) A country in respect of which such an Order remains in force shall be treated, in the law of the countries to which Part I extends, as a country to which that Part extends.

§ (4) If such a country ceases to be a colony of the United Kingdom, section 147 of this Act applies (consequences of country ceasing to be colony), with the substitution for the reference in subsection (3)(b) to the provisions of Part I of this Act of a reference to the provisions of the 1956 Act or the 1911 Act, as the case may be.

§ 34.—(1) A country which immediately before commencement was, or was treated as, a country to which the 1956 Act extended but was no longer a dependent territory of the United Kingdom shall be treated as a country to which Part I extends for the purposes of sections 143 to 145 (qualification for copyright protection) until—

(a) an Order in Council is made in respect of that country under section 148 (application of Part Ito countries to which it does not extend), or
(b) an Order in Council is made declaring that it shall cease to be so treated by reason of the fact that the provisions of the 1956 Act or, as the case may be, the 1911 Act, which extended there as part of the law of that country have been repealed or amended.

§ (2) A statutory instrument containing an Order in Council under sub-paragraph (1)(b) shall be subject to annulment in pursuance of a resolution of either House of Parliament.

§ Territorial waters and the continental shelf

§ 35. Section 150 of this Act (application of Part I to things done in territorial waters or the United Kingdom sector of the continental shelf) does not apply in relation to anything done before commencement.

§ Crown copyright

§ 36.—(1) Section 151 of this Act (Crown copyright) applies to an existing work if, and only if, section 39 of the 1956 Act applied to the work immediately before commencement.

§ (2) The provisions of section 151 as to first ownership of copyright have effect subject to any agreement entered into before commencement under section 39(6) of the 1956 Act.

§ 37.—(1) The following provisions have effect with respect to the duration of copyright in existing works to which section 151 (Crown copyright) applies.

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§ The question which provisions applies to a work shall he determined by reference to the facts immediately before commencement; and expressions used in this paragraph which were defined for the purposes of the 1956 Act have the same meaning as in that Act.

§ (2) Copyright in the following descriptions of work continues to subsist until the date on which it would have expired in accordance with the 1956 Act—

(a) published literary, dramatic or musical works;
(b) published engravings;
(c) published photographs and photographs taken before 1st June 1957;
(d) published sound recordings and sound recordings made before 1st June 1957;
(e) published films and films falling within section 13(3)(a) of the 1956 Act (films registered under former enactments relating to registration of films).

§ (3) Copyright in unpublished literary, dramatic or musical works continues to subsist until—

(a) the date on which copyright expires in accordance with section 151(3), or
(b) the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force,

whichever is the later.

(a) unpublished engravings;
(b) unpublished photographs taken on or after 1st June 1957.

§ (5) Copyright in a film or sound recording not falling within sub-paragraph (2) above continues to subsist until the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, unless the film or recording is published before the end of that period, in which case copyright expires 50 years from the end of the calendar year in which it is published.

§ (6) Copyright in any description of artistic work not provided for above continues to subsist until it expires in accordance with section 151(4).

§ Copyright resting in certain international organisations

§ 38.—(1) Any work in which immediately before commencement copyright subsisted by virtue of section 33 of the 1956 Act shall be deemed to satisfy the requirements of section 152(1); but otherwise section 152 does not apply to works made or, as the case may be, published before commencement.

§ (2) Copyright in any such work which is unpublished continues to subsist until the date on which it would have expired in accordance with the 1956 Act, or the end of the period of 50 years from the end of the calendar year in which the new copyright provisions come into force, whichever is the earlier.

§ Meaning of "publication"

§ 39. Section 159(3) (construction of building treated as equivalent to publication) applies only where the construction of the building began after commencement.

§ Meaning of "unauthorised"

§ 40. For the purposes of the application of the definition in section 161 (minor definitions) of the expression "unauthorised" in relation to things done before commencement—

(a) paragraph (a) applies in relation to things done before 1st June 1957 as if the reference to the licence of the copyright owner were a reference to his consent or acquiescence;
(b) paragraph (b) applies with the substitution for the words from "or, in a case" to the end of the words "or any person lawfully claiming under him"; and
(c) paragraph (c) shall be disregarded.")

§ The noble Lord said: This amendment replaces the whole of Schedule 1. It contains the transitional provisions consequential upon the changes to copyright law effected by Part I. I feel that even at this 582 late hour of the evening a word of explanation is needed about why the amendment is being made. The problem with preparing transitional provisions is that they have to be done last, when one can see to what transition is being made.

§ As the Committee will know, a draft of Part I of the Bill was sent out for public consultation during the summer. Comments were received during September and as a result a revision of Part I, in the form now before the Committee, was prepared during early October. Only when that had been done was it possible to turn to the transitional provisions. Unfortunately there was simply not enough time to get the schedule absolutely right before the introduction of the Bill. Accordingly the schedule as it appears in the Bill and in the amendment should be regarded as successive drafts of the same thing, rather than as a change of mind on our part about what should appear in the schedule.

§ I do not propose to explain the differences between the two versions or why we wish to make changes. I shall address myself to the new schedule entirely on its own merits.

§ Lord Lloyd of Kilgerran
Will the Minister go a little slower because it is very difficult to follow him at the speed he is speaking, if we are meant to follow. I should like to follow, but if I am in a minority of one I do not mind very much.

§ Lord Beaverbrook
Of course I shall go more slowly for the noble Lord.

§ Lord Williams of Elvel
For the Committee.

§ Lord Beaverbrook
For the noble Lord, for the Committee and for all concerned I shall go more slowly. Long and complex transitional provisions are more necessary in copyright than in almost any other field of law except perhaps land law. Copyright lasts for a very long time. The transitional provisions must be capable of dealing with works created and transactions in respect of those works carried out more than 100 years ago. Many works written before the date when the 1911 Act came into force, at 1st July 1912, are still in copyright—for example much of the output of George Bernard Shaw, Pablo Picasso, and Richard Strauss. Thus the schedule must be capable of dealing with differences between the provisions of Part I and three earlier regimes; namely, before 1st July 1912; between 1st July 1912 and 1st June 1957, which is when the 1956 Act came into force; and between 1st June 1957 and the coming into force of this Bill.
The general principles underlying the schedule are that existing copyright should not be lost; that existing works not in copyright should not suddenly acquire it; that existing copyright owners should not suddenly find themselves with a right substantially less valuable than they enjoy at present and that others already exploiting or dealing with existing works should not suddenly find themselves unable to continue. With those remarks, I beg to move.

583

§ Lord Lloyd of Kilgerran
There is considerable difficulty about dealing with this. I endeavoured to study Schedule 1 as it appeared in the Bill. I am sorry to complain. I understand that during Second Reading there was a potential renewal of the whole schedule, but I see that there has been introduced into paragraph 1 a definition of "the new copyright provisions" That phrase, as far as I can understand it, was not in the previous schedule so what does "new provisions" mean?
A little further one sees that the new schedule talks about General principles: continuity of the law and the "provisions of this paragraph". Which provisions are they? Are they the new provisions?
Paragraph 4 contains an obvious misprint in the first line. The word "provision" should surely be "provisions". I should imagine that the wording should be: The provisions of this paragraph have the effect of securing the continuity of the law so far as the new copyright provisions re-enact (with or without modification) earlier provisions. Again we are in a difficulty. The same thing arose during our discussions of the scope of Clause 165. Perhaps I may pause there, in case I have made a fundamental mistake to ask the noble Lord how he justifies those amendments to the original schedule.

§ Lord Beaverbrook
The schedule as now printed on the Marshalled List was put down as an amendment very early on. I regret that perhaps our intention was not pointed out at Second Reading.

§ Lord Williams of Elvel
The noble Lord says that the schedule as now printed on the Marshalled List was put down early on. But we received a copy of the Bill which contained a schedule. That was Schedule 1. It presumably took a good deal of trouble to draft that schedule. To say that new Schedule 1 replacing Schedule 1 of the Bill was put down early on as a government amendment seems to be quite ridiculous.

§ Lord Beaverbrook
I would not agree with the noble Lord. The new Schedule 1 as printed on the Marshalled List was not a complete change but a development of what was effectively the previous draft. There was very little time to get this provision absolutely right. If it had been absolutely right there would have been no need to put down this amendment today.
I have listened carefully to the points made by the noble Lord, Lord Lloyd of Kilgerran. I wonder whether under the circumstances he will allow me to write to him on these matters. I am grateful to him for pointing out a misprint in the clause and I shall take up the points he raises.

§ Lord Lucas of Chilworth
I would not wish to embarrass my noble friend but I find it a little odd, particularly at this time of the day, that we should be faced with discussing a schedule without a full explanation. That worries me. My noble friend will recall that I sat only shortly where he sits and was always somewhat embarrassed to make the kind of explanation that he has made. It was my 584 understanding that we were not going to go so far tonight. However, the arrangements of the business managers are not my business.
I find it a little disappointing that at this time of night my noble friend the Minister cannot give a fuller explanation of why we should have a new schedule and what the fundamental differences are. What is the reason for making these changes? I hope he will forgive me if I say that I find his remarks just a little dismissive. Although we will accept the new schedule with a scarcity of explanation I hope we shall have a somewhat better explanation when we come to this part of the Bill at a later stage.

§ Lord Lloyd of Kilgerran
I am grateful to the noble Lord, Lord Lucas of Chilworth, who as usual endeavours to help the Committee. In view of the legal representations I have had I must revert to the text of Clause 156, which says: A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression". Now we have this Schedule 1 descending on us. There are many changes of expression. There are changes of paragraphs. I am not dealing with a misprint and whether it is "provision" or "provisions". That is a simple matter. We do not want an amendment about that. But where is this change of expression? If the noble Lord were to say that subsection (2) of Clause 156 should not stand part of the Bill, I can understand it. Then we can go on to accept this Schedule 1 so far as possible when we have had an opportunity of studying it and understand what is meant by "change of expression".
I have been studying the 1956 Act and looking at Schedule 8, part of which has been incorporated in this Schedule 1 in Amendment 274. Then when I go further it does not take in paragraph 43 of Schedule 8. I do not understand therefore the provisions of Schedule 1 when one has in mind the scope of Clause 156.

§ Lord Williams of Elvel
I must support the noble Lord, Lord Lloyd of Kilgerran, in his comments. Let me finish on one point. He has mentioned the point that I picked up, being a non-lawyer, in paragraph 1(1) of this new schedule, "new copyright provisions". May we have an explanation from the Government exactly what they mean by these "new copyright provisions"?
The rest of the schedule contains a great deal of material. It is almost a Bill in itself. Since we are already dealing with a Bill which is about five Bills in themselves it is odd that the Government should, after 14 years of drafting, produce a schedule as an amendment to a schedule they produced in the first place. Having said all that, perhaps the noble Lord the Minister could concentrate on the point the noble Lord, Lord Lloyd, made about the expression "new copyright provisions".

§ Lord Beaverbrook
The provisions to which the noble Lord, Lord Lloyd of Kilgerran, and the noble Lord, Lord Williams of Elvel, refer are necessary to simplify the drafting of the schedule. Their meaning is explained in the revised schedule and cannot really 585 be explained in isolation. I shall write to the noble Lord and send a copy to the noble Lord, Lord Williams, and place a copy in the Library to clarify these points.

§ Lord Williams of Elvel
Would the noble Lord be kind enough—because we are late at night and patience is running somewhat short—to explain in a letter, however long it is, to the noble Lord, Lord Lloyd, and myself exactly why the new schedule has had to be tabled to replace the old schedule, and in what respect the new schedule is different from the old schedule, the reasons for that, and then we can probably get on with the Report stage?

§ Lord Beaverbrook
I have already endeavoured to explain why this schedule was tabled as an amendment in itself. We had a lot of adjustments to make. We did not want to put down long streams of amendments to Schedule 1 as printed in the Bill, and we took a decision to table a new schedule. I shall write to the noble Lords and place a copy in the Library of the letter setting out what they request. It will not be a short letter. I do not think there are any matters of great note in it. Really this schedule as it appears in the Bill, and as it appears in the amendment, should be regarded as successive drafts of the same thing.

§ Lord Lloyd of Kilgerran
I sympathise with the noble Lord the Minister on the difficult task which I feel it is his duty to undertake and he has kindly agreed to do; but does not that mean that this Bill should be recommitted? The noble Lord is now saying that the new Schedule 1 differs in many respects from the schedule in the Bill. We have not had enough time to consider the matter, and he himself said that they had not had enough time to consider the exact scope of Schedule 1 by Second Reading, and I would entirely agree with him on that. Therefore, having not had time to deal with the schedule properly, they have put in something which they now wish to repeal. Surely it means that the Bill should be recommitted in order to deal with approximately 40 clauses. It means that this part of the Bill has not been adequately dealt with for proper and understandable reasons. I am not complaining about that because it is a large and complicated Bill and the Minister is in a difficult situation. However, the Bill should he recommitted as regards this schedule. I do not know whether any Member of the Committee wishes to comment on that.

§ 11.30 p.m.

§ Lord Williams of Elvel
I think that the noble Lord, Lord Lloyd of Kilgerran, has a serious point. I do not wish to commit myself on whether we shall move for recommitment. I think that we must see whether in consideration of the schedule there are amendments we wish to move at Report or whether there are amendments which the Government wish to move at that stage. This situation has arisen before in connection with other Acts with which the noble Lord, Lord Lucas, and I have dealt in the past.
586 If amendments to the schedule come forward from the Government, the Opposition or other Benches, it may be that we shall reach the point when we must say that the whole Bill must be recommitted. However, I am not taking a stand on that matter at this moment.

§ Lord Lucas of Chilworth
As 1 started this argument, I should like to say that I do not ask my noble friend for a recommitment. I find desperately disappointing the fact that we have a new schedule which most Members of the Committee have compared with the old. It is almost tomorrow and after a fairly long day the Government have merely said, "Rather than table a series of amendments, we decided to rewrite the schedule and here it is". I am sure that the explanations are perfectly reasonable and acceptable but the Government have not given all the little differences and reasons which perhaps some of us have not taken on board. The Government have said, "Here is a new schedule. It is much simpler than writing a number of amendments. There is no fundamental difference and we are sure that you will find it all right on the night".
We are now in the fifth day of Committee on the Bill and I do not find that a totally acceptable way for the Government to present their case. I am sure that at the end of the day it is the right case and I expect that I shall be happy, but I do not like the way in which we are dealing with the matter.

§ Lord Lloyd of Kilgerran
The noble Lord has been helpful on this matter. However, with regard to time, I was told that I should be required to be here until after midnight, and I have been prepared to be here until then. I was instructed that that was the position and therefore I am tonight anxious to clarify the scope of new Schedule 1, comparing it with Schedule 1 in the Bill.
I do not want to put the Minister in the dreadful position of having to spend a great deal of time writing to the noble Lord, Lord Williams, who has approached the matter more cautiously than I, and also writing to me. I suspect that we shall receive the letter on Boxing Day, or in a similar period, when many of us will have other matters to deal with. There will be a terrible rush before Report. I do not know when the Report stage will take place, but I know that we on these Benches receive less information than does the Opposition Chief Whip. That is only natural and I make no complaint about it. It is a great nuisance for a person like myself who has quite a lot of other things to do.

§ Lord Beaverbrook
I think I can reassure the Committee that the differences between Schedule 1 as printed in the original Bill and Schedule 1 as printed in the Marshalled List are changes that we have had to make to correct technically defective drafting. I do not think that there are any matters, or many matters, of any great import.

§ Lord Lloyd of Kilgerran
The Minister says that there are certain matters of technical drafting which this new schedule corrects. Will he tell me now what some of those technical draftings are? I am not 587 concerned with the merely technical draftings or misprints which I pointed out; I am talking about changes of expression in relation to the 1956 Act.

§ Lord Williams of Elvel
If it was a question simply of technical drafting, why did not the Government introduce certain amendments of technical drafting? Why did they have to rewrite the whole schedule?

§ Lord Lloyd of Kilgerran
The method adopted by the Minister or the Government confuses us all. If now he has certain instances of technical drafting, perhaps he would be good enough to give us examples.

§ Lord Beaverbrook
I was going to carry on to say that we decided, perhaps wrongly, that the best way of dealing with this was to put down as an amendment a new schedule in its entirety rather than coming through with a great number of amendments of very little consequence. This may or may not have been the right way of dealing with it. If your Lordships' Committee feels that that has only added to the difficulties, I can only apologise.
I will write to the noble Lords concerned with an explanation of all points of substance on the differences between the schedule as originally drafted in the Bill and as printed in the Marshalled List. I think that that will be the best way of proceeding, and I hope that the Committee will accept my assurance that there is no intention here whatsoever to get something through that has not been debated or looked at in time by your Lordships, no intention whatsoever. We simply felt that this was the best way to proceed rather than tabling a very large number of small amendments.

§ Lord Lloyd of Kilgerran
I am very grateful for the step forward that the noble Lord has made, but it is not far enough. What I would like to see are the changes of expression as referred to in subsection (2) of Clause 156 that have taken place in relation to this new schedule. It is not only a question of technical drafting; changes of expression have taken place. There are probably two sets of changes of expression. There may be changes of expression arising in the schedule which is in the Bill and there may be further changes of expression arising in the new schedule.
As the noble Lord, Lord Williams, said, we are entirely confused about the position. If persons like myself are confused—and I realise it is very late at night—other people in industry will be very much confused about the whole position. This is increasing the costs of litigation, the costs to industry; and it is not in the national interest to avoid a proper clarification of the differences between these two schedules in the light of Clause 156.

§ Lord Beaverbrook
The very point we are concerned about in getting this schedule right is that which he mentioned: the costs of litigation and the cost to industry. We have endeavoured to do this in the schedule as printed in the Marshalled List.
I will indeed provide the noble Lord with a list of where terminology has been changed, as he asked. I 588 fear that it may be a very long list, but no doubt he will be able to go through it and see whether the assurances that I have given are correct.

§ Lord Lloyd of Kilgerran
I am very grateful to the noble Lord. But then we come to another matter, the timing of Report stage. When are we going to have the result? When are we going to have the result of this monumental task on the part of the noble Lord and his advisers? When are we going to have this long letter? Are we going to have it in time for the Report stage? At this rate, I should have thought that the Report stage of this Bill should not be brought forward until the beginning of March.

§ Lord Beaverbrook
I should say to the noble Lord that the timing of Report stage is for the usual channels. Yes, it is a very great undertaking. The noble Lord is asking for something. I am seeking to oblige him and oblige him I will. Changes between the 1956 Act and the Bill are not, I believe, anything to do with this matter. Both versions of the schedule achieve a transition from the 1956 Act to the Bill, and it makes no difference to the question of the change of expression which version of the schedule is used. I would point that out to the noble Lord, and I think that, having said that, it will perhaps define the task that we are undertaking in writing to him with the changes between the schedule as printed in the original Bill and as presented in the Marshalled List.

§ Lord Lloyd of Kilgerran
I am not going to pursue this very much further. The Minister has been very fair and tolerant, but he has said that he or his advisers—the Government—did not have enough time to get Schedule 1 in its right form. He must now give us—I refer to the noble Lords, Lord Williams and Lord Morton, and myself—time to get at our advisers in order to see how the new Schedule 1 corresponds to the rest of the Bill and also how far it relates to the previous law of the 1956 Act. We must have time—and that is an essential element in what I am pursuing today—to have advice. The noble Lord has been very fair. He has said that he did not have time—by "he" I mean he and his advisers—to get the schedule right. He must persuade the usual channels that we want more time before Report stage.

§ Lord Beaverbrook
I should just make it clear again to the noble Lord, Lord Lloyd, that I will be writing to him and the noble Lord, Lord Williams, pointing out the differences between the schedule as drafted in the original Bill and as printed in the Marshalled List. I do not know whether he is asking me for the changes compared to the 1956 Act. That would be an almost insurmountable task and is perhaps not what he had in mind.

§ Lord Lloyd of Kilgerran
The Minister must take his own course in this matter. I have made my observations and I stand there. I am asking now for the sympathy of the Minister to extend the time for Report stage longer than it is scheduled at the present time by the usual channels, because this is a monumental task that we have to deal with in getting our advisers to understand what the Government require.

589

§ Lord Beaverbrook
I think that when the noble Lord has received our submission to him as to the changes in Schedule 1 between the original Bill and that printed in the Marshalled List he will find that any changes of substance are very small indeed. I am well aware that one part of the usual channels is listening to this debate this evening and no doubt he is well able to take account of the noble Lord's remarks.

§ Lord Williams of Elvel
Perhaps I can finish this debate by asking the noble Lord for an assurance that we will not have any more Government amendments to Schedule 1 which are not provoked by the opposition parties. Have they got it right in their own minds at last?

§ Lord Beaverbrook
We try to get everything right first time round. I have to admit that we did not get Schedule 1 right first time round. I hope there will be no further amendments, but I cannot give that undertaking because something may come to light or be brought to our attention by your Lordships that would require an amendment to be brought forward.

§ Lord Lloyd of Kilgerran
I know that the Minister cannot give that undertaking, and I apologise for extending this debate. But this is an important matter from the point of view of advisers on this important Bill. This Bill will stand the test of time for 30 years. We are told that by the Government. Surely we must try better than we have done so far in getting Schedule 1 right.

§ Lord Brain
I happen to know that the Government have to produce further amendments to Schedule 1 which are a consequence of something that has already been discussed in this Committee stage. Therefore I do not think that one can ask them for that assurance.

§ Lord Beaverbrook
The noble Lord can certainly ask for it but the noble Lord, Lord Brain, may have noticed that I was unable to give it.

§ On Question, amendment agreed to.

§ Amendments Nos. 274A and 274AZA not moved.

§ New Schedule I agreed to.

The Earl of Dundee
It may be to the convenience of all the Members of the Committee that we have a break. In view of that I beg to move that the House do now resume.

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

§ House resumed.