PRIVATE RECORDING SCHEMES

HL Deb 14 December 1987 vol 491 cc535-73

(1) This section shall apply to schemes operated by designated organisations pursuant to section (Scheme for private recording) above.

(2) Where there arises—

1. (a) any dispute between the organisation and a person as to that person's liability for the payment to the organisation of royalties, or
2. (b) any dispute between a person claiming to be entitled to participate in the distribution of royalties and the organisation as to the administration of the scheme, or
3. (c) any dispute between a person claiming to be entitled to a rebate of royalties paid and the organisation,

either party to the dispute may refer the matter to the Copyright Tribunal.

(3) The Tribunal shall consider the matter referred and make such order as the Copyright Tribunal may determine to be reasonable in the circumstances.

(4) The order may be made so as to be in force indefinitely or for such period as the Tribunal may determine.

(5) Where the Tribunal has made an order under this section the organisation or other party to the dispute may apply to the Tribunal to review its order but no such application shall, except with the special leave of the Tribunal, be made—

1. (a) within twelve months from the date of the previous order, or
2. (b) if the order was made so as to be in force for 15 months or less, until the last three months before expiry of the order.").

The noble Lord said: I have had second thoughts about the amendment. It arose because, like a number of my noble friends, I felt that unlike the remainder of the Bill the provisions in this chapter are very complex and their full implications difficult to establish with certainty.

The obligations on the United Kingdom under the Berne Convention place strict limitation upon the extent to which authors' exclusive rights required by the convention to be protected may be qualified by subjection to the overriding jurisdiction of a tribunal. I therefore ask the Government whether they will look at this chapter again in the light of what I have said and in the light of the Berne Convention. I beg to move.

Lord Beaverbrook

I understand that the new clause was debated earlier in connection with the tape levy point. We are looking carefully at that tape levy point and at the amendment.

Lord Willis

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

9 p.m.

Clause 132 [The Copyright Tribunal]:

On Question, Whether Clause 132 shall stand part of the Bill'?

Lord Williams of Elvel

This starts us off on the Copyright Tribunal. I wish to raise what may be a slightly sensitive point of view of the professions that a number of noble Lords pursue. It is concerned with subsection (3), which specifies as follows: A person shall not he appointed chairman or deputy chairman unless he is a barrister, advocate or solicitor of not less than seven years' standing or has held judicial office". I understand that the Government wish to have a chairman and two deputy chairmen who are legally qualified. Nevertheless, a problem arises. If the chairman and deputy chairmen are selected on the basis that they are qualified in this part of the law, they could easily find, if they are barristers, advocates or solicitors, that they are acting in certain cases to do with this part of the law. As members, deputy chairmen or the chairman of the Copyright Tribunal—and I say this with the greatest respect to those noble Lords who practise in the law—they could act in cases in which the Copyright Tribunal itself is involved. There may be cases in which there is or is not a reference to the Copyright Tribunal, but their knowledge of events that have gone on in the tribunal will in some way aid them in the pursuit of their private practice.

I have tried to choose my words extremely carefully because I do not wish to irritate or provoke any noble Lords, or my noble friend Lord Morton of Shuna, who may in the future be appointed the chairman or deputy chairman of the Copyright Tribunal.

In thinking back to my banking and stockbroking days—the noble Lord will know what I am talking about—this matter raises problems of conflict of interest. I wonder whether the Government will agree that any person who is appointed a chairman or deputy chairman, even if he is a barrister, advocate or solicitor of not less than seven years' standing", should agree as a condition of acceptance of his appointment not to practise in the sphere in which he might be in conflict. Recently the chairman of the Takeover Panel has defended somebody who has been accused of and has pleaded guilty to insider dealing. Such a situation in the Copyright Tribunal could lead to many problems. I am not opposing clause stand part, but I am seeking clarification from the Government on how they see the membership of the tribunal.

Lord Beaverbrook

The noble Lord is quite correct. The clause provides for the membership of the tribunal and provision is made for appointment by the Lord Chancellor after consultation with the Lord Advocate of a chairman and two deputy chairmen who must be legally qualified, and for the Secretary of State to appoint between two and eight ordinary members.

The noble Lord raises a specific point on conflict. Obviously a chairman or deputy chairman or any member of the tribunal might find himself with a conflict of interests, in which case he ought to disqualify himself. We shall consider whether any express provision is required. It would however he quite wrong to exclude experts because of that risk. But in looking at that point further I do not want to cast any aspersions on any member of the legal profession. I am sure that anyone would immediately wish to step aside if there were any possible conflict. We shall consider whether any more is needed in respect of that when such members are appointed.

Lord Morton of Shuna

It is much easier if the rules are made absolutely clear in an Act, in regulations or something of that nature. One of the difficulties under which the Bar in England and Wales and in Scotland operates is the so-called cab rank rule. If one is instructed on something which one is not specifically barred from doing, it is difficult to refuse those instructions. There is a certain difficulty which could be made clear either in the Bill or in regulations.

Lord Williams of Elvel

Perhaps I may add one word to the point that my noble friend has made. The Minister said that he was in no doubt—again I do not wish to cast any aspersions upon any member of the legal profession—that somebody who was involved in a conflict would disqualify himself. The question is: would he disqualify himself from participating in the acts of the Copyright Tribunal or would he disqualify himself from acting for his client? Those are two rather separate points.

Lord Beaverbrook

I think that he would have to disqualify himself from that case because it would be very strange for the chairman of the tribunal to act in a case where the tribunal itself was on the other side. That would be very difficult. On the other hand, if the chairman of the tribunal wished to continue on the tribunal in considering a case where he had been involved with his private practice, I cannot imagine that it would he right for him to continue in that case either.

Lord Morton of Shuna

The difficulty is that it has occurred in practice. My noble friend Lord Williams of Elvel has referred to it in connection with the Takeover Panel. It has also occurred in industrial tribunals in certain cases. If the intention is that once appointed as chairman or deputy chairman one gives no advice whatever on copyright law, that is one thing. But is that what the Government have in mind and if so why not say so?

Lord Beaverbrook

I hear what the noble Lord has to say. From the Government's point of view, disqualification must be from activity on the tribunal, but equally I think it would be very strange if the chairman of the tribunal were acting on the other side.

Clause 132 agreed to.

Clause 133 [Membership of the tribunal]:

On Question, Whether Clause 133 shall stand part of the Bill?

Lord Williams of Elvel

Perhaps the noble Lord can help me on a small point relating to the expression in Clause 133(4) in line 11. "a duly qualified person". My understanding is that we know what a "duly qualified person" is in the case of a chairman or a deputy chairman, hut we do not know what a "duly qualified person" is in relation to a member of the Copyright Tribunal. I may have misread the clause but I do not see a definition of who is duly qualified to become a member. I should be grateful if the noble Lord would tell me that there is a definition somewhere or could expand a little on who the Government feel should be duly qualified to be a member of the tribunal.

Lord Beaverbrook

Under Clause 132 the Secretary of State will appoint between two and eight ordinary members. As I understand it, it would be for the Secretary of State to decide who is qualified and suitable to take up the role of member of the Copyright Tribunal. That would be at his discretion as there are no formal qualifications for ordinary membership. The point should be looked at because there may well be an error or something the draftsman has not covered. I should like to look at it.

Lord Williams of Elvel

I am most grateful to the noble Lord. I simply point out that "duly qualified" means somebody who has a qualification, and he cannot therefore be ordinary.

Lord Beaverbrook

I am not sure that I agree with that.

Clause 133 agreed to.

Clauses 134 and 135 agreed to.

Clause 136 [Jurisdiction of the tribunal]:

[Amendments Nos. 255, 256 and 256A not moved.]

Clause 136 agreed to.

[Amendment No. 257A not moved.]

Clauses 137 and 138 agreed to.

Clause 139 [Request to refer question for opinion of the court]:

Lord Mulley moved Amendment No. 257B: Page 59, line 17, after ("law") insert ("or fact").

The noble Lord said: I understand that it will be convenient for the Committee to consider with this amendment Amendments Nos. 257C, 257D and 257E. As I said earlier neither I nor the AIRC wish to prejudge the activities and proceedings of the Copyright Tribunal before it comes into existence. However, as the Minister has underlined, it may be a long time before legislation on this subject comes before the Chamber. Consequently, we cannot wait to see how the Copyright Tribunal behaves. However, if it should be minded to behave as its predecessor the Performing Rights Tribunal behaved, it would be necessary and desirable to take some steps to protect the interests of parties appearing or seeking to appear before it.

There are two points involved. The first is the question of whether there should be appeal against its decisions on points of law or fact. I realise that what we are asking for is a general right of appeal. As the noble Lord indicated in reply to a previous debate, the facts can be in dispute. He said that the Government found difficulty in reconciling the facts put to them by the independent radio contractors and Phonographic Performance Limited. Clearly there is room for considerable dispute as to fact.

We may find difficulty on the question of discrimination as to whether it is a matter of law or a matter of fact or a combination of both. Therefore there is a great deal to be said for permitting an appeal to a court on decisions of the tribunal. Surely such a right would be rarely and prudently exercised if only because of the costs involved. Except for one or two stations that have particularly good franchises, the independent radio contractors are not in a very healthy financial position. Therefore, I think there is a case for extending the right of appeal generally.

The other point—and I have to be blunt about it—arises entirely from the experience of the AIRC before the Performing Rights Tribunal where a decision reached after long deliberation by Mr. Justice Harman was disregarded by the tribunal. It may he that the new tribunal will be a little more open-minded—we hope it will—in approaching these matters. But it may he necessary in some way for the tribunal to be obliged, like everybody else, to obey the decisions and judgments of the court. As the noble Lord the Minister is well aware, this was not the case with the judgment of Mr. Justice Harman fairly recently.

Of course, some extremely difficult decisions are going to arise in the light of the Government's declared intentions as to the future of radio broadcasting. If they are minded, as it seems, to go ahead with community stations, there is the important question as to whether they will also have to have the same copyright fees and payments which apply now to the independent radio contractors under the IBA. If they do, I do not see how the community stations could survive.

If they do not, that would surely he not only extremely unfair competition to the licensed IBA stations. It would probably mean that many of those stations would cease to function and would go out of business because they would lose the advertising revenue which alone permits them to pay the fees. There are going to be some difficult questions. As a matter of fact, the Government ought to think long and hard before they extend the permission of community stations to operate. However, if they do, then the question of what copyright fees they should pay is a delicate one; it could be one of both law and fact.

It would be only right in that complex situation for a right of appeal to the court to be permitted. If a court gives a decision, then the tribunal should give effect to that decision. Whether or not the wording is right, I hope the points I have made will be carefully considered by the Government with a view to implementing them at a future stage of the Bill. I beg to move.

9.15 p.m.

Lord Morton of Shuna

I do not wish to enter at all into the question of whether broadcasting is treated fairly on the question of the copyright of broadcast music. However, on the point of principle, if you have a tribunal the whole purpose of it is that one restricts the grounds of appeal basically to questions of law. If you are going to have an appeal on questions of law or fact, there is no point in having a tribunal. You might as well go straight to the court and have the usual rules of evidence and the usual rules of the court of first instance deciding what facts are established on what evidence.

If you are going to turn the Copyright Tribunal into a court let us call it a court. There is a basic element of principle in suddenly turning a tribunal round, making it a court, and calling it a tribunal. On that ground alone I would oppose this amendment.

Lord Beaverbrook

I also shall speak to Amendments 257B, 257C, 257D and 257E. These amendments have two related aims. The first is to enable appeals to be made from decisions of the Copyright Tribunal. not only on questions of law as under the Bill and the 1956 Act, but also on questions of fact as well. The second aim is to put the tribunal under a strict obligation to "give effect to" decisions of the High Court, or Court of Session. following an appeal, rather than, as under the Bill, simply having to reconsider an earlier ruling "in the light or the court's decision.

I will deal first with the issue of appeals on questions of fact. I have to say that this is not a proposal which is acceptable to the Government. If questions of fact could be appealed to the court as well as questions of law, this would rapidly lead to virtually every decision of the tribunal being heard again in full before the High Court. As the noble Lord, Lord Morton of Shuna, has said, if that were to be so there would be little point in retaining the tribunal at all. Even if this were desirable, and I do not believe it is, it is questionable whether the High Court could accept such an addition to its workload hearing in mind the likely increase in tribunal hearings with the extra responsibilites given it by the Bill.

I am aware that in one or two cases copyright-user groups who have referred a collecting society's terms to the tribunal have complained that the tribunal has assessed questions of fact incorrectly. This is, I believe, a very rare occurrence. It is inevitable that where two parties are in dispute one or other of them may feel less than content with an arbitration body's decision. That can hardly be avoided. But in general I believe that the tribunal's decisions are widely respected. There is in any case the safeguard that where a licensing scheme is subject to a tribunal order it can be referred back to the tribunal for reconsideration after a year has elapsed.

As regards Amendments Nos. 257D and 257E, I venture to suggest that these are misconceived. If appeals on questions of fact were allowed as well as on points of law, the High Court would in effect become a full-blown court of appeal. It would substitute its own decisions and the tribunal would have no further role in the case in question. But so long as appeals may be made only on questions of law it will always be necessary for the tribunal to reconsider the application of the law to the facts in the light of the court's decision on the questions of law.

Of course it must take the court's decision into account, but that will only be the starting point. Having taken the court's decision into account the tribunal will have to decide whether that produces any difference in its conclusions, and it is not invevitable that that will be so. For example, suppose that the court decided that the tribunal ought to ignore a factor of which it had previously taken account. It might be that even if that factor is ignored the tribunal's decision should be the same.

I should like to refer to the point made by the noble Lord, Lord Mulley as regards the decision that Mr. Justice Harman ignored. It is not true that the judgment was "ignored". The tribunal took account of it and this case illustrates the point that, upon the case being returned from the court, the tribunal's task is not a mechanical application of the court's decision but involves reconsideration of all the factors in the case in the light of the decision. That may well result in a relatively minor change to the tribunals' original decision.

Lord Mulley

I understand the objection of my noble friend Lord Morton to the principle of turning the tribunal into a court by giving the general power of appeal. I do not wish to cross swords with him again, but I should like to make clear that I am not speaking on the grounds of theory (of which I am well aware) but from bitter experience of the independent radio industry. It has had the experience of not being properly considered on questions of fact. Even if it is agreed that the appeal will be limited to points of law, I think that the tribunal should at least be obliged to give effect to the decisions of the court.

As regards the decision of Mr. Justice Harman, I could read out the judgment but I shall not. However, he said that in the opinion of the court it was fair to compare the fees charged to independent radio stations with those charged by the BBC "as a matter of law". He used that expression. However, the tribunal refused to give effect to that and refused to take it into account.

Clause 124, which was recently defended by the Minister, provides that the tribunal shall take into account all the relevant considerations. I appreciate that that was not a statutory obligation for the performing rights tribunal. However, if either side in an argument feels that all relevant considerations have not been taken into account by the tribunal, where does it go? It is difficult to argue that it is a matter of law whether it is prepared to accept this or that evidence. The disputes often relate to questions of fact. There is a statutory obligation that the tribunal should take all relevant considerations into account, but what happens if it does not or if in the opinion of the parties it does not? Where do the parties go? Within the legal system the normal way would be by appeal, but unless it can be shown that the only question is a legal one, there would be no right of appeal. While I am prepared to consider what further steps to take, I hope that the Government will give further consideration to the matter before we have further deliberation on the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 139 agreed to.

Clause 140 agreed to.

Clause 141: [Proceedings in consequence of court decision]:

[Amendments Nos. 257C to 257E not moved.]

Clause 141 agreed to.

Clause 142 [Qualification fir copyright protection]:

The Earl of Dundeemoved Amendment No. 258: Page 61, line 1, after ("Chapter") insert ("or section 151 or 152)").

The noble Earl said: This amendment deals with a slightly technical point. Clause 142 sets out the conditions for qualification for copyright protection. Subsection (3) provides that these qualifications need only be met once so that copyright does not cease because of some subsequent event. For example, if the author of a novel qualified for copyright protection by being resident in a country which subsequently ceased to be a country to which the Bill extended, copyright would not be lost. To take a case in point, a work which qualifies for protection because the author is a resident of Hong Kong will not lose protection when the colony passes to the Chinese.

The principle of subsection (3) is a general one. Subsequent events should not change the status of works which qualify for protection under Clauses 151 and 152. For example, a work made by the legislative assembly of a colony is Crown copyright. What is the status of the work when the colony becomes independent and the Act no longer extends to that territory? In those circumstances Clause 151 would no longer apply and the work created by the pre-independence colonial legislative assembly would no longer be Crown copyright. That would be the wrong result. This amendment can put it right. Similarly works attracting copyright protection under Clause 152 should not lose protection because of some later event.

This change does not, of course, mean that the Crown necessarily retains copyright. In the case of a colony becoming independent, the copyright may be transferred by assignment or by means of the statute providing the independence. Nor does it mean that works by the post-independence legislature would earn Crown copyright—Clause 147(2)(b) sees to that. The amendment does ensure that existing copyright continues to subsist, and that is the main point. I beg to move.

On Question, amendment agreed to.

Clause 142, as amended, agreed to.

Clause 143 [Qualification hr reference to author]:

Lord Morton of Shunamoved Amendment No. 258ZA: Page 61, line 6, after first ("citizen") insert ("a Commonwealth citizen")

The noble Lord said: This amendment is to be dealt-with in combination with Amendment No. 259. There is, as noble Lords will have seen, an obvious inconsistency between Clause 143, which refers to a British citizen, a British dependent territories citizen, a British national (overseas), a British overseas citizen, a British subject or a British protected person, and Clause 148 which refers to Commonwealth citizens. There is an obvious inconsistency between the two. The amendment which I am proposing will add to that list "a Commonwealth citizen". Amendment No. 259 in the name of the noble Lord, Lord Beaverbrook, concerns Clause 148 and deletes "Commonwealth" citizen. But one way or another it is necessary that the Commonwealth citizen should not be in at one stage of the Bill and out at another in the same part of the Bill. It is to clear up this inconsistency that I move this amendment.

9.30 p.m.

The Earl of Dundee

I am grateful to the noble Lord. With the Committee's leave, I shall speak to Amendment No. 258ZA in the name of the noble Lord, Lord Morton, and also to Amendment No. 259 in the name of my noble friend Lord Beaverbrook.

The question here is whether Commonwealth citizens should or should not acquire copyright protection in the United Kingdom automatically. If the noble Lord were to feel that they should, as was the case in the draft of the Bill which we sent out for consultations and indeed in the 1956 Act, then that opinion would be consistent with the 1956 Act. But the result of the consultations was that we received a number of representations saying that Commonwealth countries should not be dealt with in this way. In considering this, there have of course been consultations with the Foreign and Commonwealth Office, which is writing to our High Commissions in all the countries concerned telling them what we are now proposing to do.

The reason why we are proposing that Commonwealth citizens should no longer be automatically entitled to copyright protection in the United Kingdom is that all the Commonwealth countries are independent states and should be treated no differently from any other independent country. It is of course open to all Commonwealth countries to join one of the various international conventions, as a number have done. Equally they can establish reciprocal arrangements with the United Kingdom, as Singapore has recently done. In either case their citizens will be entitled to copyright protection in the United Kingdom. But there are a number of Commonwealth countries which have not done either of these things and which do not afford copyright protection to British citizens under their own laws. In these circumstances we do not think that we should give something for nothing, notwithstanding the Commonwealth connection.

The amendment in the name of my noble friend Lord Beaverbrook is merely a correction. As I have said, when we went out to consultation we referred to Commonwealth citizens in what is now Clause 143. When we decided to make the change to British citizens, the consequential amendment in Clause 148 was overlooked. The amendment seeks to make the necessary correction, and I beg to move.

Lord Morton of Shuna

With great respect, I do not think that the noble Earl should be moving the amendment, because I am moving an amendment to Clause 143 and we have not reached Clause 148. I was not particularly involved in which of the amendments was accepted but the two were inconsistent. That is all I was saying. If it is necessary to leave out the "Commonwealth", fair enough. I can see the reasons for it, in which case I shall withdraw this amendment. All I was trying to say was that Clause 143 had not been drafted in the light of Clause 148 and to draw that to the Government's attention. I have now done so and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 143 agreed to.

Clause 144 [Qualification by reference to country of. first publication]:

Lord Mulley moved Amendment No. 258A: Page 62, line I, leave out ("a sound recording").

The noble Lord said: I understand that it will be convenient to the Committee to take with this amendment Amendments Nos. 258B and 259A. This is a rather complex subject and on the face of it it may he asked: why does one ask for a particular form of copyright protection for sound recording? The answer is quite simple. It is that there is an international convention, the Rome Convention of 1961, which is specifically concerned with phonograph copyright and nothing else. Therefore one wants to relate what we do to that convention.

In particular the Government in their Green Paper drew attention to the fact that there were dangers where the only source of music was a virtual monopoly. They stated that they hoped other sources of music for sound broadcasting would emerge. There has been no sign of that happening and it seems unlikely with the existing circumstances of the PPL and the Musicians' Union and the anomalies that exist when they seek to use records from overseas persist. Then there is no alternative whatever to them paying the very high fee which they are charged and which we have already discussed.

The simplest way to counteract this, which I commend to the Government, is that they should fix a statutory maximum copyright fee as has been done in Australia. It is very interesting to compare the 15 per cent. of net advertising revenue that our stations pay with the statutory maximum in Australia which is 1 per cent. Yet the stations, along with the record companies, have negotiated a fee of 0.2 per cent., namely, one-fifth of I per cent., by way of copyright. It is probably unlikely that the Government would be bold enough, despite their oratorical support of competition, to impose a statutory limit of that kind. Personally, I should be happy to consider that. But if the Government do not pursue such a course, they could at least do something to protect British interests by making, as other EC countries have done, a declaration of first fixation.

The position under the Rome Convention is that there is no protection by way of copyright unless the first production of a record is made in a country covered by the convention. But the actual publication, the mere playing of the record, is very easily arranged, bringing with it the obligation to pay copyright fees to that country. This is a problem in respect of the United States.

Our broadcasters, the BBC as well as the independent radio stations, pay the 15 per cent. average fee to the copyright bodies and to the United States record companies. But in the United States the broadcasters pay practically nothing to their own record companies for playing American records and nothing at all when they play British records. Therefore, I ask the Government to bring in reciprocity. I ask them to consider the argument that we should not pay fees to other countries if we use their records unless they pay fees to us if they use British records. Of course, many of them do. That measure could be very easily carried out by requiring an actual production of the record. The test should be where the record is made rather than where it was first played.

As always, one should look to France for an example of how to look after national interests and one's own citizens. France has carried out exactly that measure. It has carried out what is technically called a first fixation approach rather than the first production. That measure is entirely in keeping with the Rome Convention. It would lead to proper reciprocity. It would also provide in a very minor way an alternative source of music and needle time to British stations. I do not believe for a moment there is any danger that our radio would be fully occupied with foreign records. That would not command the audience; therefore, it would not command the advertising fees. But at least it would represent some alternative open to the stations unless the Government are prepared to try to ease the quite onerous circumstances in which they currently find themselves. I beg to move.

Lord Morton of Shuna

I had difficulty in following the argument that because America does not have an adequate protection of copyright interests, everybody should follow America. I should have thought that it was in the basic interest of copyright conventions that America should sign them. It seems to me that the amendment is going in the wrong direction. I cannot see a logical reason—I quite see that radio may be feeling hard done by—why sound recording should be removed from protection under the clause.

The Earl of Dundee

We have already discussed in earlier debates the concerns of independent radio which underlie the amendments. As my noble friend Lord Beaverbrook said in that context, we are looking carefully at all the proposals put to us by independent radio, along with representations which we have also received from the record industry. We shall come to a conclusion as soon as we can on what, if anything, we should do in response.

The amendments would remove protection against unauthorised broadcasting and public performance from sound recordings which are first recorded in a country which is not a party to the 1961 Rome Convention by a company which is not formed under the laws of a Rome member state. It would substitute what is known as "first fixation", to which the noble Lord, Lord Mulley, has just referred. That criterion would be substituted for protection. That is one of the options which we are considering. It is a possibility. However, 1 hope that the noble Lord will understand that I can give no commitment today as to what our decision will be.

The noble Lord, Lord Mulley, referred to the criterion of statutory maxima or minima. As to the suggestion that the legislation should lay down a statutory maximum remuneration for broadcasting records, that would not be consistent with our obligations under the Rome Convention. Our minimum obligation under the convention is to ensure equitable remuneration, and what is equitable must be judged in the light of all the circumstances and not fixed by law.

Lord Mulley

I am grateful to the noble Earl for undertaking on behalf of the Government that the matter will be looked at again. I appreciate that he cannot give a commitment.

With great respect to my noble friend Lord Morton, it is not quite the simple problem that he sees it as being. It does not seem sensible that we should pay large sums to American record companies if we use their records and get nothing back from them. That is not the way that we should carry on international business. I prefer, being a European, to follow the practice of our French friends. I commend that course to the Government. There must be a genuine production of a record in a country to establish its origin; it is not simply a matter of sending a record over by air, having it played on a private gramophone somewhere and saying that a first performance has been established in order to satisfy the convention obligation. I think that first fixation is something that ought to be brought in. I commend the French legislation to the noble Earl and his colleagues.

Lord Lloyd of Kilgerran

Before the amendment is withdrawn, I should like to apologise for not being in my place to support the noble Lord, Lord Mulley, on this amendment. I am sorry I was late in arriving. However, I support the amendment.

Lord Mulley

I am grateful to the noble Lord. If I had known that he was going to arrive with his Powerful support—he understands these things much better than I do— should have spoken longer to permit him to take part. However, should like it to be on the record that I have the support of the noble lord, lord Lloyd of kilgerran. With that additional arrow to my bow, i beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 144 agreed to.

Clause 145 agreed to.

[Amendment No. 258B not moved.]

[Clauses 146 and 147 agreed to.]

9.45 p.m.

Clause 148 [Application of this Part to countries to which it does not extend]:

The Earl of Dundee moved Amendment No. 259: Page 63, line 29, leave out ("Commonwealth") and insert ("British").

On Question, amendment agreed to.

[Amendment No. 259A not moved.]

Clause 148, as amended, agreed to.

Clause 149 agreed to.

Clause 150 [Territorial waters and the continental shelf]:

Lord Willis moved Amendment No. 260:

Page 64, line 41, leave out subsection (2) and insert— ("(2) This Part applies to things done—

1. (a) in the United Kingdom sector of the continental shelf on a structure, vessel or aircraft which is present there for purposes directly connected with the exploration of the seabed or subsoil or the exploitation of their natural resources, and
2. (b) on ships or aircraft registered in the United Kingdom, as it applies to things done in the United Kingdom.").

The noble Lord said: I rise to raise an injustice which has to be put right. Despite repeated representations from various organisations representing copyright owners, the Bill does not yet extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom. It is common knowledge that there is extensive use of music and film on ships and aircraft to provide entertainment and information on a considerable scale for passengers and crew. That is increasing all the time.

Such use within territorial limits would give rise to normal copyright obligations. There is no reason whatsoever why this should not also apply when the use takes place on ships and aircraft that fly the flag of the country when they are outside the territorial limits of the United Kingdom; in other words, on British aircraft and British ships when they are using copyright material, they should pay the copyright fees that are required. I beg to move.

Lord Williams of Elvel

I and other noble Lords from these Benches have also put our names to the amendment moved by the noble Lord, Lord Willis. I support what he has said. Despite representations from various organisations representing copyright owners, the Bill does not extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom.

As my noble friend said, it is common knowledge that there is extensive use of music and film on ships and aircraft to provide entertainment and information for passengers and crew. It occurs on a considerable scale. Such use within territorial limits would give rise to normal copyright obligations. In our view there is no reason whatever why that should not apply to the use which takes place on ships and aircraft flying the flag of the country when they are outside the territorial limits of the United Kingdom. Therefore we should like to see this amendment inserted in the Bill.

I recognise that this matter has been the object of many discussions between interested parties and the Government during the compilation of this Bill. Nevertheless, I feel that this is a sensible amendment and from these Benches I should like to support my noble friend Lord Willis.

Lord Lloyd of Kilgerran

I should like to go a little further than the noble Lord, Lord Williams, and say quite categorically that I do not understand why this amendment should not be accepted by the Government. Is it because the offshore industry is very much against it for some particular reason?

It seems to me that it is a practical matter. In the amendment there is reference to: the United Kingdom sector of the continental shelf on a structure, vessel or aircraft". These matters should be attended to in the same way as in other areas. I support this amendment.

The Earl of Dundee

For the convenience of the Committee, I shall speak to Amendments Nos. 260 and 281BBA. These amendments would make two additions to the places in which the Bill would apply. The first would be aircraft which are present in the United Kingdom sector of the Continental shelf for purposes directly connected with seabed exploration.

I am not sure that this is really an intelligible concept. Structures and vessels sit on the seabed of the Continental shelf or float on the waters above it for the exploration or exploitation of the shelf; and although that is the high seas, we are permitted by international law to exercise jurisdiction over them. Aircraft in international airspace over the Continental shelf are scarcely likely to be there for that purpose—merely carrying goods or passengers to or from an oil rig does not count—and thus we cannot exercise jurisdiction.

Lord Williams of Elvel

I am sorry to interrupt the noble Earl. I believe that he understands what we mean by this amendment. We are not parliamentary draftsmen on this side of the Committee. I think he understands what the purport is, though he may find technical problems to the amendment.

The Earl of Dundee

Perhaps I may continue for a moment. The exception to our inability to exercise jurisdiction is of course when the ship or aircraft is British. Turning now to the second addition, I do not think that is desirable. As we understand the position, few countries have this kind of provision. As a result, we would be giving something to overseas owners of copyright which, in the main, their countries do not give to us. In doing so, we would put our domestic airlines and shipping companies at a competitive disadvantage compared to their foreign competitors. For those reasons, I must resist the amendments.

Lord Lloyd of Kilgerran

I have had some difficulty in understanding the Minister. He realises that there have been discussions on the law of the sea, and there have been a large number of difficulties, but a large number of countries have ratified the law of the sea. That relates to an area of 200 miles around a particular land area. I do not see what the problem is. We are not giving to foreign countries some privileges which they do not give to us. I do not understand that at all. I should have thought that this part of the Bill relating to copyright should extend to the area set out in the amendment.

Lord Airedale

Have the Government considered the amount by which it would add to the cost of a passenger's ticket if copyright fees had to be paid for providing entertainment on ships and aircraft which supply copyright entertainment material to their passengers?

Lord Willis

The shipping and aircraft companies already make the passenger pay for entertainment on board. I do not think the noble Lord need be concerned about that. We are asking a very simple question here and I must press the Government on it. British-owned aircraft and ships come, I suppose, within UK law. Why should they be exempt from copyright in this Bill?

The Earl of Dundee

I do not think that they are within UK law. It may be helpful to the Committee if I expand further on the general purpose of Clause 150. Anything done within UK territorial Waters—that is, waters extending 12 miles from the shore or the appropriate baseline—will be treated for the purposes of Part I as if done within the United Kingdom.

Lord Williams of Elvel

Does that, therefore, include subsection (2)(a)?

The Earl of Dundee

The two amendments which we are discussing fall within the context of Clause 150.

Lord Williams of Elvel

I was asking about subsection (2)(a) of Amendment No. 260. As I understood the noble Earl, he said that this did fall within UK jurisdiction. If that is so, then subsection (2)(a) of my noble friend's amendment seems to be approved by the Government. Am I right or wrong?

The Earl of Dundee

There seems to be an element of confusion here and certainly if the noble Lord is not happy—and indeed the noble Lord, Lord Lloyd of Kilgerran, is also unhappy—I am prepared to take the matter away and look at it again. But I think I should do so without commitment because I feel that we possibly have got the balance right here.

I should also say with regard to the law of the sea convention that there is nothing in that law which requires countries to exercise jurisdiction in respect of copyright over the economic zone adjacent to their coasts. Accordingly, foreign ships and aircraft are not generally subject to copyright jurisdiction. It would be unfair to our own ships and aircraft for them to be subject to British copyright jurisdiction.

Lord Williams of Elvel

As I understand it, the noble Earl is refuting subsection (2)(b) of our amendment. However, I am concentrating for the moment on subsection (2)(a). I should like to press the noble Earl a little further as to whether he feels that what he has said is conceding the principle of subsection (2)(a) in our amendment.

Lord Lloyd of Kilgerran

Although the noble Earl was doing so well about this difficult question, there was a time I thought in his speech when he was not sneering but perhaps laughing about having ships on the seabed. But that is the practice at the present time: endeavouring to get ships on the seabed for exploration purposes. And they stay there for quite a time. Of course I may have misunderstood the noble Earl in his initial preface to this decision on this matter, but exploration on the seabed or subsoil happens regularly at the present time and will do so increasingly in the future.

The Earl of Dundee

I am grateful to the noble Lord, Lord Lloyd of Kilgerran, and I share his sentiment that it should happen not only increasingly in the future, but even indefinitely in the future, that ships behave in this way in our interest. Nevertheless, what I actually said was not to refute that ships do this but to refute the suggestion that aircraft were doing so.

Lord Airedale

The noble Lord uses the argument of putting our carriers at a disadvantage with our competitors. If the calculation I am asking for turns out to be that by paying these copyright fees the cost per passenger ticket would be practically nil, then that disposes of the argument about unfairness to us in competition with other foreign carriers, does it not?

Lord Willis

I thank the noble Lord for making that point. However, if you are going to extend that logically and talk about unfairness, you might as well say remove the copyright, or the royalties, from books exported abroad so that they can compete more equally with foreign competitors. The basic point I was trying to make—and I am sorry to flog this live horse so much—is that up to the territorial limit aircraft and ships would be subject to copyright. Why should a great liner or a great aircraft immediately it flies out of our territorial waters—if it is registered in Britain and British owned—then be copyright free? There is no basis in logic for that. I hope that the Government will look seriously at this particular point.

The Earl of Dundee

I have heard what the noble Lord has said; and, indeed, I have listened very carefully to the arguments of other noble Lords on this matter. As I said earlier, I am prepared to take the discussion away and consider it once more. However, at this stage I still feel that perhaps the Government have the balance right; but I certainly have, as I always do, listened very carefully to what has been said and I shall consider these points.

Lord Willis

I thank the noble Earl for that reply. We have heard the record many times before in these debates. At this stage I shall accept what he said, but it may well be that we shall come back to the subject on Report if necessary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150 agreed to.

Clause 151 [Crown copyright]:

10 p.m.

Lord Mottistone moved Amendment No. 261: Page 65, line II, leave out ("in pursuance of a commission or otherwise").

The noble Lord said: We now move on to Crown copyright. The words that I seek to delete by Amendment No. 261 have in effect been added to the existing provisions giving copyright ownership to the Crown for works made under the direction or control of the Crown. I refer to Section 39(1) of the 1956 Act. The existing provision contained in the 1956 Act deals adequately with Crown servants, but giving a commission is not normally considered the equivalent to exercising direction or control, despite the inclusion of the word "otherwise" in the words that I seek to delete.

The Crown would therefore for the first time be given copyright to the whole class of works; namely, those that it has commissioned but has not hitherto acquired. In the case of all other commissioned works, the author not the commissioner takes the ownership. I direct the Committee's attention to Clause 11. There is no justification for treating the Crown differently. If it desires ownership in any particular instance, it should seek it by negotiation.

I hope that my noble friend will accept that this is a point which is worth considering. I hope that he will agree to my amendment, which I have pleasure in moving.

Lord Howie of Troon

I support the amendment. The Committee will recall that we had a considerable debate sometime earlier on the subject of the commissioner. There are two issue in the Bill, as I understand it, where the commissioner rather than the author holds the copyright. One of them is this clause and the other is in relation to design right. I should have thought that what appears in the Bill twice could reasonably appear in the Bill three times or, alternatively, if it were wrong earlier for the commissioner not to have the copyright, I cannot see why the copyright should be held by the Crown here.

Lord Beaverbrook

Under the 1956 Act, the Crown is entitled to copyright in two groups of works. The first is those made by or under the direction or control of Her Majesty or a government department, and, secondly, works first published by the Crown. Under the Bill, works in the second category will no longer attract Crown copyright.

It is open to argument whether a work commissioned by the Crown under the 1956 Act can he said to be made under the direction or control of the Crown and so be a Crown-copyright work. To resolve any doubts, in the White Paper we said that we would make it explicit that the expression: works made by or under the direction or control of the Crown, included works commissioned by the Crown. It is true that, as a result of our decision not to re-enact the provisions of Section 4(3), the Crown and international organisations referred to in Clause 152 arc in a different position from other commissioners; but then the Crown and international organisations are different from other people or we should not need special provisions in Clauses 151 and 152.

We take the view that where public money is being, spent on the production of a work the Crown should be the first owner of the copyright. There is nothing, to stop the Crown assigning the copyright to the author. That can be agreed when the work is commissioned and will happen when that is appropriate. 1 hope that on that basis my noble friend will feel able to withdraw his amendment.

Lord Mottistone

I find this a difficult matter. I in no sense wish to deprive Her Majesty of anything she requires, but the servants of the Crown are pushing themselves into a position of great superiority which is not accorded to others. I am not sure that that is strictly fair. Why should they not be subject to Clause II just like anyone else? If it is something commissioned at public expense, what about a company that commissions something at its expense or anything that the Minister or I might commission? Why is the Crown different in this area? If there was a security aspect to it I could understand it. If there is a financial aspect I do not see why the servants of the Crown should be in a superior position.

In seeking to tighten up the Act and make sure that people cannot question their rights—because that is what I see them as doing—it would be more appropriate if they had put themselves in the same position as everybody else rather than giving themselves extra priorities and advantages. I hope that the Minister will have a look at this and consider whether the servants of the Crown are not arrogating to themselves a position of superiority that they do not really deserve.

Lord Willis

I support the amendment and the appeal made by the noble Lord, Lord Mottistone. I gave an example earlier of a servant of the Royal Mint who had produced designs for various coins. That was all in the line of duty as far as he was concerned. Let us suppose that the Royal Mint reproduced some of his designs as special coins, which it sold to the public at great profit. What he had designed was coinage for the use of the public in normal financial transactions. However, the Royal Mint went beyond that: it made this issue out of which it had considerable profit. He received nothing. I think that that is morally wrong. I agree with the noble Lord, Lord Mottistone, that the Crown should be treated no differently from any individual manufacturer in such circumstances.

Lord Lloyd of Kilgerran

It is interesting that the noble Lord, Lord Mottistone, is pursuing this matter. The Minister's answer will be quite simple; namely, that it involves the question of constitutional law. It is not a question of the Crown being in a superior position; it is a question of the Crown endeavouring to keep its neutrality in relation to commercial transactions. I therefore support the Minister in the line that he has taken on the matter.

During the course of the Bill the noble Lord, Lord Mottistone, and I have co-operated on a number of points to help the Government and in the public interest. I am sorry to have to differ from him on this one point.

Lord Mottistone

Will the noble Lord say how his view applies to the case quoted by the noble Lord, Lord Willis?

Lord Lloyd of Kilgerran

I am not concerned with particular cases. This is a general principle. The noble Lord, Lord Mottistone, said that Her Majesty the Queen—the Crown—was endeavouring to put herself in a superior position. I do not believe that that is right.

Lord Willis

To refer to the instance that I quoted, in the course of his normal duties the servant of the Royal Mint designed the coin. He was happy that it went through the normal coinage. He suddenly discovered that some special issue was being made of the coin. He went to his master and said, "This is all very well, you are making a huge profit, but I have some moral right to this under the copyright law and I have some intellectual property in it". Is the noble Lord telling me that the answer to that servant would be, "Oh, no, the Crown is absolutely neutral"? Neutral towards whom? I think it is scandalous and absolutely wrong.

Lord Howie of Troon

I still support the noble Lord, Lord Mottistone. I do not think there are the wide-ranging constitutional issues which the noble Lord, Lord Lloyd of Kilgerran, drew to our attention.

It is clear that the Crown publishes certain publications which are within the public interest and only within the public interest. But that is not the Crown's only publication ventures. It publishes a fairly wide range of books such as guide books which are in direct competition with those of private publishers. There is no reason why the rules of copyright should be different for the Crown and for the private publisher.

However, looking ahead with some dismay I see a further complication. The Government have a habit of privatising things and removing them from the Crown. It is conceivable that part of the Crown as publisher would cease and become a private publisher. Presumably, if that happened, the copyright of the Crown as commissioner would vanish and the provisions of Clause 11 would apply. I see that the Minister agrees. I think this is a case of the goose and the gander: what is sauce for one ought to be sauce for the other. If it is right here for the commissioner to have the copyright, then it is right under Clause 11. If it is wrong under Clause 11, it is wrong under this clause. That is the simple, non-constitutional case that I am presenting.

Lord Beaverbrook

I am sure that the noble Lord would not expect me to follow him down that road. The example given by the noble Lord, Lord Willis, of the employee in the Royal Mint is not a very good one. Copyright in designs of legal tender is vested in the Crown. I do not believe that the noble Lord would go along with any other possible scenario. There are security and all sorts of other implications.

I say to my noble friend Lord Mottistone that the extension of Crown copyright to commissioned works will make little difference in practice. The first reason is that the reference to commissioned works will be, as I have already indicated, to resolve existing doubts. The other reason is that many commissioned works are already Crown copyright because of the first publication rule. We arc abolishing that rule, but not because of its effect on commissioned works.

It is right that works commissioned by the Crown should remain substantially unchanged. The reason for Crown copyright is neither that of security nor of finance. It is because of the wide-ranging, multifarious activities of the Crown. The ordinary rules are not practical in this case. What the noble Lord, Lord Lloyd of Kilgerran, said about the constitutional position is quite right. We must maintain the present position of the Bill if effective public administration is not to be impeded by copyright law.

The noble Lord, Lord Howie of Troon, said that the Crown is in competition with other publishers. That is recognised in subsection (3)(b) on commercial publication. That, however, has no relevance to the circumstances in which the Crown acquires copyright in the first place.

Lord Lloyd of Kilgerran

I thank the Minister for answering the questions that the noble Lord, Lord Willis, directed to me and part of the questions which the noble Lord, Lord Howie of Troon, directed at me also. 1 apologise to the noble Lord, Lord Howie of Troon, that I did not hear all his questions. I was talking to the Secretary of State at that time.

Lord Howie of Troon

It was rather nice of the Secretary of State to drop in long enough for the noble Lord to talk to him.

Lord Mottistone

I thank the noble Lord, Lord Willis, for his splendid example. It seems to me that the more government-owned affairs that can be privatised the better. That will make for more fairness all round. I am upset by what the noble Lord, Lord Lloyd of Kilgerran, had to say about the Queen. I specifically excluded her from my strictures.

Lord Lloyd of Kilgerran

I am sorry.

Lord Mottistone

Having listened to all of this I still think it is unfair. However, at this stage it is much too late to pursue the argument and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

10.15 p.m.

Lord Williams of Elvel moved Amendment No. 262: Page 65, line 16, at end insert (", subject to any agreement to the contrary.")

The noble Lord said: In the absence of the noble Lord, Lord Lloyd of Hampstead, I believe the amendment is the property of the Committee once it has been tabled. This may be a half-way house. I did not intervene in the discussion on the amendment of the noble Lord, Lord Mottistone, but it seems to me that this amendment might provide a half-way house. There could be protection in that the Crown could have its proper rights and those who have copyright could in certain circumstances and subject to any agreement be protected. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord, Lord Williams, for moving the amendment of the noble Lord, Lord Lloyd of Hampstead.

Under the present law the Crown is entitled to copyright in certain works but this is subject to agreement to the contrary between the author and Her Majesty or a government department that the copyright should be vested in the author or some other person.

The amendment would make the provisions of subsection (2) subject to agreement to the contrary; and although lie does not say so I assume he means agreement between Her Majesty and the author concerned. The purpose of the amendment is to ensure that, as now, there is the possibility for the author to have the copyright if that is agreeable to the Crown. That possibility still exists save that it must be given effect to by assignment of future copyright under Clause 81. This is easily done in an agreement in writing. The only possibility excluded is oral agreement, which is not a sensible way of dealing in copyright in this context. Given these assurances perhaps the noble Lord will feel able to withdraw the amendment.

Lord Williams of Elvel

I am most grateful to the noble Lord. If the noble Lord, Lord Lloyd of Hampstead, had said in his amendment, subject to any written agreement to the contrary", would the noble Lord have accepted the amendment?

Lord Beaverbrook

I was making a separate point that, regardless of the principle here, I believe that any such agreement should be in writing. But, no, I do not think it would change my view on the principle.

Lord Howie of Troon

Clause 11 uses the locution "subject to any agreement". Is there any reason why this clause should be materially different from Clause 11?

Lord Beaverbrook

I assume that the noble Lord is again talking about why the Crown should be treated differently. Can I assume that I am correct in that? We have already been through that argument on the previous amendment and what I said then stands.

Lord Williams of Elvel

I find the Minister's arguments rather confusing. He seems to accept that the thrust of the amendment of the noble Lord, Lord Lloyd of Hampstead, as amended by me verbally, if I may use that expression, which would make it read, subject to any written agreement to the contrary", is already covered by the Bill. If it is covered by the Bill, why should we not spell it out on the face of the Bill in this clause?

Lord Beaverbrook

It is a matter of degree. We believe that the balance we have struck here is the right one and that the amendment of the noble Lord, Lord Lloyd of Hampstead, would change the degree to one we could not go for.

Lord Williams of Elvel

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lloyd of Kilgerran moved Amendment No. 262A: Page 65, line 19, leave out ("125") and insert ("50").

The noble Lord said: With the leave of the Committee I should like to speak to Amendments Nos. 262B and 262C.

Lord Willis

Will the noble Lord speak up?

Lord Lloyd of Kilgerran

It is the microphones. I shall do that. The noble Lord, Lord Willis, has had his little joke on the serious matter of these amendments, but I am sure that he and the noble Lord, Lord Howie of Troon, and also the noble Lord, Lord Mottistone, if he were in his place, would agree with me.

This is a question of the extent of Crown copyright. I hope I shall not be accused of lèse majesté. I am merely probing the Minister to find why, when one is dealing with a copyright of which Her Majesty is first owner, by virtue of this section, in a literary, dramatic or musical work, the extent of the Crown monopoly in this copyright has now been extended from 50 years to 125 years. Why has the Crown had this large extension of copyright in this matter? I merely ask for the reason.

So far as the other two amendments are concerned, Amendments Nos. 262B and 262C, they refer to subsection (3)(b) of Clause 151, which deals with dates. But substantially both those amendments lead to an extension of Crown copyright and I merely ask the Government why they have thought it desirable, presumably in the national interest, having regard to the scope of this Bill, to extend Crown copyright to such an extent. I beg to move.

Lord Beaverbrook

These amendments address the question of the duration of Crown copyright. I have to say at the outset that I cannot accept Amendments Nos. 262B and 262C since their effect would be to limit the copyright in Crown publications to the year of publication. That would be disastrous for the viability of Her Majesty's Stationery Office. I do not suppose, however, that the noble Lord intends that.

Your Lordships' Committee may find it helpful if I explain how we arrived at the provisions in subsection (3). At present the copyright in most official papers lasts indefinitely since, although such papers are made available for public inspection after 30 years, or more, they are not "published" within the meaning of the 1956 Act. It is our intention in this Bill to remove all indefinite copyright protection. The Committee will recall that the normal term of copyright of life plus 50 years is now to apply to works regardless of whether they have been published. Crown copyright is also to have a limited term and will expire 125 years from the end of the year in which the work was created.

At first sight the term of 125 years for Crown copyright may seem unduly long, but it is of course shorter than eternity, which is the present term for unpublished Crown works. The term is equivalent to that for the early works of a long-lived author. It must be remembered that for official documents the first 30 years (at least) of copyright protection is not relevant since the documents are not in the public domain and available for copying. The period is even longer in the case of Royal papers, which I am advised may not be released for 100 years.

The 125-year term ensures that there will be a period of protection once the papers concerned are in the public domain and I do not think the term is disproportionate once one subtracts at least 30 years from the 125-year term. A term of life of author plus 50 years is not practical: it would require a large bureaucracy to keep records of the date of demise of each of the many authors of Crown copyright works.

Although we think such a duration of copyright is justified for unpublished official papers and the like, we recognise that it provides an unduly long period of protection for official publications. We therefore provide that, if the work is published commercially within its first 75 years, the 125-year term is to be curtailed and copyright is to expire 50 years from publication.

The expression "published commercially" is defined in Clause 159 and is distinct from publication. To be published commercially and thus bring the shorter period of Crown copyright into play, copies issued to the public must have been made in advance of the receipt of orders or the work must have been made available to the public on an electronic retrieval system. This rules out publication by issue of photocopies to the public by the Public Record Office, where copies are made on demand, but covers the publishing operations of HMSO. The net effect is that for all publications the period of Crown copyright is, as now, 50 years. For unpublished documents, the indefinite term is curtailed.

The only area where Crown copyright could be said to increase would be a document in the Public Record Office which has been copied several times. That would be regarded as published under the 1956 Act and so copyright would expire after 50 years. This was a nonsense—one could not tell whether publication had technically taken place and the document retained all the appearance of an unpublished work. I think that the Committee will agree that the regime we now propose is more practical.

Lord Howie of Troon

I am almost convinced by the Minister's comments, especially in regard to commercial publication. However, he said that the 125 years was in some way analogous to life plus 50 years. He said that it was the life of a very long-lived author publishing a very early work. If one takes 50 years from 125, one is left with 75 years. In those circumstances, one is talking of an author dying at the age of 85, having published his work at the age of 10; of an author dying at the age of 100 having published his work at the age of 25. Surely the Government have overdone things and the analogy with life plus 50 years would be substantially less than 125 years. I know that that is not quite what the noble Lord, Lord Lloyd of Kilgerran, has proposed; but I think that the Minister could consider 100 years, or even less, and still meet the proposition which he reasonably put forward.

Lord Beaverbrook

We have given careful consideration to the matter, and again I believe that the conclusion we have reached is about right. We could argue the matter either way for a long period of time. However, at the end of the day it is a subjective judgment and this is the judgment that we have reached.

Lord Howie of Troon

How can it be just about right in view of what I said about an 85 year-old author publishing his work at the age of 10? It cannot be just about right. Surely, 125 years is a number which seemed reasonable in some ways and gave what the Government thought to be adequate protection. However, in the face of the analogy with life plus 50 years, I think that it begins to look rather frail. For the Government to say that it is just about right—which is a phrase that has been stated approximately once an hour in the course of the Bill—is a wholly inadequate reply.

Lord Beaverbrook

I am sorry that the noble Lord takes that view. We believe that it is about right and therefore I cannot follow the noble Lord down the road that he takes.

Baroness Seear

I am sorry to prolong the debate but I should like to support what the noble Lord, Lord Howie, has said. All the Minister has told the Committee is that he thinks that the conclusion is just about right. We are always hearing the assertion that the Government think that it is just about right. We want answers to arguments put forward and the Minister has not answered the noble Lord, Lord Howie; he has simply said that he thinks it is just about right but has not told us why.

Lord Beaverbrook

I have already set out at considerable length why we believe the conclusion to be right. Throughout the Bill there are a number of matters which, at the end of the day, are a subjective view. I fully accept that the noble Lord, Lord Howie of Troon, has his subjective view and the Government have theirs. I have set that out and I have set out the arguments as to why we believe it to be so.

I should like to say to the noble Baroness and the noble Lord that the 125-year term allows 25-year protection for Royal papers which are not released for 100 years. If the term was substantially reduced, there would be no protection for such papers and I think that that is an important consideration.

Lord Howie of Troon

I thank the Minister for that piece of information which is a stronger argument than any he has put forward so far. However, for the record, I should like to say that I think that the Government have got it just about wrong.

10.30 p.m.

Lord Lloyd of Kilgerran

The Minister's last speech supports very strongly the line I take that 125 years is too long. I think his answers to the noble Lord, Lord Howie of Troon, lead to the view that 100 years would be far more reasonable from any subjective view. I fully realise that the noble Lord the Minister might be a little cross.

Lord Beaverbrook

I think I should make it clear that Royal papers which were not released for 100 years would be in copyright for 25 years after release.

Lord Lloyd of Kilgerran

I am very grateful to the noble Lord who again supports my view that 125 years is too long and that it should be 100 years. I do not want to prolong the argument. My noble friend Lady Seear has said, "Tell us the reasons why you think that 125 years is the right subjective decision to come to on this matter." But we get no reasons. It is simply said that the Government think that that is right.

Lord Beaverbrook

I really must protest. I have at considerable length set out the reasons. I would urge the noble Lord perhaps to have a look tomorrow at what I have said and the reasons that I have set out for coming to our views.

Lord Lloyd of Kilgerran

When the Minister at half past ten at night asks me so promptly to read what he has said, I fully realise that I may have misunderstood part of his argument. In those circumstances I shall read what the noble Lord has said. Perhaps the noble Lord would kindly consider the proposition put forward by the noble Lord, Lord Howie of Troon, and myself that 100 years is the reasonable period for increasing the period of copyright of the Crown in this matter. I thank the noble Lord for his long dissertation. I may have misunderstood it. I beg leave to withdraw the amendment at this stage.

Amendment, by leave, withdrawn.

[Amendments Nos. 262B and 262C not moved.]

On Question, Whether Clause 151 shall stand part of the Bill?

Lord Williams of Elvel

We have had a long discussion of this clause and 1 do not intend to pursue it further. We shall read very carefully what the noble Lord has said.

I pause only to remind the noble Lord what the Whitford Report said. I quote from page 154, "Summary of Recommendations": Any new copyright act should clearly state that the creators of copyright works shall be the owners of copyright in what they create, subject only to any contract divesting them of the copyright, and in the absence of a contract to such statutory exceptions recommended below in paragraph 570. It goes on to limit the Crown copyright. I do not believe that Clause 151. as drafted in the Bill, represents Whitford. I am sure there are very good arguments the noble Lord has adduced for that. We will just have to read them and see why the Government differ from the conclusions of the Whitford Committee.

Clause 151 agreed to.

Clause 152 [Copyright vesting in certain international organisations]:

On Question. Whether Clause 152 shall stand part of the Bill?

Lord Williams of Elvel

There is a simple point which I should like to ask the Minister about. It concerns Clause 152(2). 1 quote from the Bill as drafted: The international organisations to which this section applies are those as to which Tier Majesty has by Order in Council declared that it is expedient that this section should apply. Will the noble Lord give the sort of international organisations which will benefit from this exemption? There is no indication in the Bill as to which organisations will benefit. Beyond that, could the Minister tell us on what criteria Orders in Council will be made to exempt international organisations from the provisions of the Bill?

Lord Beaverbrook

I should say to your Lordships that Protocol 2 of the Universal Copyright Convention requires us to protect works made or published by the United Nations, its specialised agencies, or by the Organisation of American States. Most of the works in question will qualify for protection under the provisions of Clause 143 or Clause 144, but this clause ensures that protection is given even when the works would not otherwise qualify.

For example, a work commissioned by one of these agencies from an Indonesian author and first published in Saudi Arabia would not qualify for protection under either the authorship or the first publication rules. Only those international organisations— and I shall come back to this point in a moment—which are specified by an Order in Council, as the noble Lord said, will benefit from the provisions of this clause; and the duration of copyright is to be 50 years from the end of the year of creation of the work, unless in order to meet international obligations an Order in Council is made specifying a longer period.

An international organisation to which these provisions apply is deemed to have the legal capacities of a body corporate for all copyright purposes. Further examples beyond what I gave earlier would include the United Nations specialist agencies, OECD, the Organisation of American States, the Western European Union and the Council of Europe. I have no doubt that I could come up with many more examples of those organisations that would be specified in the Order in Council.

Lord Lloyd of Kilgerran

May I ask the Minister, before he sits down, whether those international organisations to which he has referred are mentioned in Schedule 1 in any way, because I fail to see whether Schedule 1 covers this clause in regard to certain matters? I may be wrong. I have not had an opportunity of studying the Government's new Schedule 1. But I wonder whether these international organisations are mentioned in Schedule 1 or whether they should be mentioned.

Lord Beaverbrook

I believe that they are not mentioned in Schedule 1. As to whether they should be, that is another matter.

Lord Williams of Elvel

It may be another matter but I am sure the Government will consider that matter before tabling their final version of Schedule 1. Would the noble Lord be good enough—I trespass on his patience—to write to me with a list of those organisations which will benefit from this clause at the moment and those organisations which he feels at the moment, given present conditions, may in future benefit? When we have had that letter, perhaps we can consider what position we will take on Report.

Lord Beaverbrook

I shall certainly undertake to write to the noble Lord and will give him further examples of organisations that would be covered. As to whether it will be an exhaustive list, I cannot give that undertaking. But we will do our best to cover most of the types of organisation.

Clause 152 agreed to.

Clauses 153 and 154 agreed to.

Clause 155 [Rights and privileges under other enactments or the common law]:

Lord Hardinge of Penshurst moved Amendment No. 262D: Page 67. line 14, at end insert (", which shall apply equally to employers and employees.").

The noble Lord said: In moving this amendment I should like to start by making it clear that I agree with the Government that whatever is written by employees in the course of their employment should become the copyright of the employer. I have no disagreement with this as 1 tried to explain in the debate on Clause 1 I In this matter the noble Lord, Lord Willis, and I are not in agreement, but we agree about many things including this amendment.

My speech on Clause 11 was concerned with the question of whether the employers shall have absolute and immediate freedom in their use of such copyright; that is, any form of communication written by an employee in the course of his employment. If so, it could obviously lead to situations most discouraging and damaging to the employee, especially perhaps one who had offered in good faith controversial or mistaken opinions in an internal memorandum to his employer. He could be publicly humiliated in that event. In his reply my noble friend the Minister answered that I need not worry since this was unnecessary because it was taken care of in Clause 155(1)(d), which refers to trust and confidentiality. I could not take this further at the time, partly because I needed legal help to understand Clause 155 and partly because my last train left at 10.50 p.m. Since then I have of course read the rest of the debate in Hansard and shall refer later to some of the things that were said.

It turns out that my lawyer does not agree with my noble friend the Minister. He sticks to his guns and says that Clause 155(1)(d) only protects employers. It is to ensure that employees obey the rules of trust and confidentiality which I should have thought were pretty obvious anyway and that any loyal and honourable employee would do so automatically. But it does not protect employees against the hazards I tried to identify as regards Clause 11. I shall not repeat all that as it is all in Hansard but I shall give one instance for the sake of clarification. I shall take a hypothetical example from the industry in which I have worked all my life which is book trade publishing, and in my case mostly fiction.

Here I should add that in retirement I retain one small consultancy, so to that extent I suppose I have an interest to declare. It is a very small one as I am actually a freelance. During my working years great best-sellers and classics were turned down. They were not turned down by me although I did once turn down The L-Shaped Room. There is nothing new about publishers turning down books that later prove successful or even classics. Both Erewhon and Jane Austen were turned down in the last century. It is easy to name two since the war: Animal Farm and The Day of the Jackal. Here we must assume that wrong judgments were made, put on paper and consequently acted on.

The moments those books appeared from a rival imprint and reached the best-seller list the employers, the unfettered owners of the copyright, were free to make good money by selling the words of those editors or readers or editorial directors to the public prints. The point is that employees have no protection under any law of privilege, trust or confidentiality.

I have taken my own trade as an example but there must be tens of thousands of people in the entertainment industry in the same situation. But I believe that it goes far beyond that. To revert to the debate on Clause 11, the noble Lord, Lord Hutchinson of Lullington, said that washing machines were infra dig and nothing to do with it. My noble friend the Minister was surely right in saying that copyright exists in the instructions for working washing machines, so this goes far beyond the entertainment industry.

As it happens due to serendipity I was able to obtain some informal advice from one of the greatest legal brains in the land. I must make it clear that the case was put to him without notice so that his response could only be spontaneous and informal. It nevertheless carries great weight with me. He says that my lawyers are right. He says that the application of equity, case law etc. in such cases of copyright are scarce enough to be virtually worthless.

So I hope that the Minister, having had further time to take advice, may be prepared to concede that there is a point here that really does deserve attention. I do not for a moment suggest that the drafting of the amendment is adequate. I am sure it would have to be worded differently by parliamentary draftsmen. I beg to move.

Lord Lloyd of Kilgerran

It is a great privilege for me to follow the noble Lord, Lord Hardinge of Penshurst, in view of his great experience in these matters. When he produces an amendment which provides that whatever is in the clause shall apply to employers and employees I am immediately very interested.

The noble Lord prefaced his remarks by saying that he differed from the noble Lord, Lord Willis, as to the ownership of copyright. I should like to agree with him for the present time at any rate that the employer prima facie has the ownership in the copyright of the employee's copyright.

The noble Lord may recall that I went a bit further than that in one of my amendments to say that the employee should have the right to ask for a share of profits if as a result of the commercial use of his design they had been very substantial and that, if the employer did not agree, he could go to the tribunal. That was the position. It did not give the employee any right to any share in the profits. It merely gave him the right to apply for a share and therefore to use the sanction of going to the employer's tribunal afterwards in the same way that that happened in the Patents Act. Perhaps the noble Lord, Lord Hardinge of Penshurst, will therefore amplify the preface to his remarks by saying that he agrees with me on that principle.

10.45 p.m.

Lord Hardinge of Penshurst

I do not agree with the noble Lord. The point I was trying to make was more a defensive than an aggressive one. I opened my remarks by saying that I thought that the employers should own the copyrights of what was written by their employees in their employment. At an early stage I suggested a method by which some restraint might be placed on usage as a protection for employees.

Lord Lloyd of Kilgerran

The noble Lord is asking for privileges to be granted alike to employers and employees. If he cannot agree with my proposition, I cannot support him on the amendment.

Lord Willis

The noble Lord, Lord Hardinge, whose amendment I support, has admitted that it may not he adequately drafted. However, he has a sound point, which is a point of justice for employer and employee. That is the point which he is trying to put to the Government. He is a man of wit and perception; he accepted my first novel and has published my novels ever since, with the help of the noble Earl, Lord Stockton. Therefore, I think that whatever he says to the Committee must be listened to very carefully, particularly by myselfl!

Speaking seriously, the point is sound. Although the amendment may not be right in its drafting, I think that the Government ought to look at the matter and see what they can do to give some rights to employees.

Lord Lloyd of Kilgerran

I am completely out of my depth. I did not realise that the noble Earl, Lord Stockton, and the noble Lord, Lord Hardinge of Penshurst, had been publishing the novels of the noble Lord, Lord Willis. I hope that I may be able to persuade those three noble Lords to support my theme with relation to the position of the employee as against the employer, when the employee makes a good design which is very profitable to the employer.

Lord Hardinge of Penshurst

Perhaps I may say in response to the point made by the noble Lord, Lord Lloyd, that I do not for a moment suggest that the drafting of the amendment is near correct or even necessarily in the right place. It is the principle which is important.

Lord Lloyd of Kilgerran

The noble Lords, Lord Hardinge and Lord Willis, said that the drafting was not properly finalised. Perhaps there is hope for my proposition in relation to the position of the employee as against the employer where the employee's invention or design has brought a great profit to a company and to the employer.

Lord Howie of Troon

I have gone even further than the noble Earl, Lord Stockton, and the noble Lord, Lord Hardinge. I have actually bought one of the novels of the noble Lord, Lord Willis. What is more, I read it right to the end! If any noble Lord wishes to give me a price for it, he may have it. I think that the amendment deserves support. There is to my mind an clement of natural justice in it.

Lord Beaverbrook

I have to say to my noble friend that a copyright Bill is simply not the place to deal with matters such as the rules of equity on breaches of trust or confidence. This Bill does not have any effect on the law of confidentiality. In some cases it will protect employers and in others it will protect employees. It depends on the circumstances in which the obligation of' confidentiality arises.

It is not true that the law on confidentiality benefits only employers. This amendment goes very wide of the Bill and I simply cannot begin to accept it.

Lord Hardinge of Penshurst

I am grateful to my noble friend for his reply. I cannot agree with much of what he says, but it is late and there will be other opportunities for discussing the matter. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 155 agreed to.

Clause 156 [General provisions as to construction]:

Lord Lloyd of Kilgerran moved Amendment No. 263: Page 67, line 28, leave out subsection (3)

The noble Lord said: I spoke to this amendment at Second Reading and indicated the reasons why subsection (3) should be removed from the Bill.

I have been pressed by a number of firms of solicitors and members of the Bar to say that subsection (3) is nonsense. It says: Decisions under the previous law may be referred to for the purpose of establishing whether such a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part".

In the earlier part of the clause it says: (1) This Part restates and amends the law of copyright". If it restates the law then the decisions arising under the 1956 Act should apply. As soon as the expression in the Bill changes from the expression in the Act of 1956, it immediately brings into question the meaning of that addition. Therefore, I should have thought that subsection (3) should be deleted. I beg to move.

Lord Morton of Shuna

I strongly support this amendment, although I think it does not go far enough. My intimation that I would oppose Clause 156 standing part of the Bill was right. It totally confuses the law if one has a provision such as the Interpretation Act and then this kind of section is thrown in. What is the purpose of Clause 156(3)—quite apart from what I shall in a moment develop as the meaning of Clause 156(2)? It does not in any sense seem to be useful to any interpretation of the Act.

Lord Lloyd of Kilgerran

I am very grateful to the noble Lord for his support. I am anxious to save as much time as possible and I am intervening before the Minister replies. If he agrees, I shall withdraw my amendment and allow the matter to be raised when we discuss the question whether Clause 156 shall stand part of the Bill. I am entirely in the hands of the Committee on this matter and in order to save time I shall do exactly what the noble Lord advises.

Lord Beaverbrook

As the noble Lord has moved his amendment perhaps I should reply to it. One of the functions of the Bill is to restate large parts of the existing law unchanged but in a much plainer and more easily understood form. The danger of such a restatement of the law in different language is that the courts will assume that the use of different language necessarily means that the law has changed. Of course in many areas we are intending a change in the law and each set of circumstances must be treated on its merits. I agree with the view expressed by my noble friend Lord Brentford at an earlier Committee sitting that the existing jurisprudence has a vital part to play in this.

We do not want to throw away large chunks of helpful jurisprudence where the law is unchanged. Equally, we want to be able to take advantage of that jurisprudence for the purpose of constructing the law and deciding whether it has in fact changed. The provisions of this clause have been included in response to a very large number of requests and we do not want to lose them.

Lord Lloyd of Kilgerran

I thank the Minister for his reply but I am tempted to ask where he got the advice from. He said that he had a large number of representations. Who from? I have had a large number of representations from solicitors and other people operating in this sphere. I do not want to embarrass the Minister but he did say that he had had a large number of representations. I shall be delighted to hear from where they came.

Lord Beaverbrook

Many Members of the Committee have had many representations, often of a conflicting nature. For as many representations received taking one view I have received an equal number taking another view. Therefore the fact that these requests have been received should be no surprise. The requests received were in response to the consultation on draft clauses. I would have to consider whether I was able to disclose to the noble Lord exactly where they had come from. I will look at that matter but I cannot give him a definitive answer this evening. We feel that we do not want to lose the helpful jurisprudence that has been established.

Lord Lloyd of Kilgerran

I am grateful to the Minister. Obviously one does not want to throw away the jurisprudence which exists in relation to the words of the 1956 Act. However, when those words are changed one cannot get away from the position that lawyers, and perhaps judges, may take a different view and find themselves embarrassed by this.

I sympathise greatly with the Minister. He said that he has had many representations. We must get together some time to compare the number of representations that have been made to us on this Bill. During the past few weeks I have been inundated in relation to all aspects of the Bill by solicitors and members of the Bar. In these circumstances I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 156 shall stand part of the Bill?

Lord Morton of Shuna

I am sorry to continue this argument. The noble Lord, Lord Lloyd of Kilgerran, dealt with subsection (3). 1 wonder whether the Minister will consider the word "merely" in subsection (2). I can see that even a Scots lawyer could manage to have an argument lasting for several weeks on whether "merely" changed one rule of interpretation or another. It is the general rule of law, as I understand the Interpretation Act, that if Parliament changes the wording it means that it changes the meaning.

It is an absolute rule of law that we cannot refer to anything said in this Chamber or in the other place in debate to ascertain the meaning that the Government intended to be applied to any section. Therefore, the court will be left with the terrible discovery, or argument, as to whether the provision which changes the words is merely to bring 1956 language up to that of 1987 or 1988 English—as I anticipate the Bill may take that time to pass into an Act—or whether it is trying to bring about a change because the Bill is trying to change in certain circumstances and not in others. The court will not know whether a change is deliberate or merely one of expression. How are they to know? This is really nonsense.

It is very good for any lawyer who practises in court. We can have days, months, weeks and even years discussing what Clause 156 may take us to. But it really is a total nonsense if anyone is trying to understand what the Bill actually means. I therefore suggest that this section should be taken away, disposed of quietly and omitted.

11 p.m.

Lord Lloyd of Kilgerran

I would be reluctant in the presence of the advisers of the Minister to say that anything they have produced is total nonsense. The courage of the noble Lord, Lord Morton of Shuna, is far greater than my own. I am here as a pragmatist endeavouring to save trouble for customers and for persons concerned with copyright matters in industry. I believe that this clause should be in some way diluted—I hope that is the correct term or a helpful phrase—and certainly thrown out if the Minister considers that it should be retained in its present form.

Lord Beaverbrook

The language of the Bill is generally simpler than that of the 1956 Act. The changes in wording are not to be construed as leading to a change of meaning. Examples are the change from cinematograph film simply to film and the wording of the exceptions relating to libraries.

The point of the word "merely" is that a change or wording is by itself not to lead to a change of meaning if the ordinary meaning of the new word is the same as that of the old word. In other words, the court is not to search for a change of meaning just because of a change of words where a change of meaning is not, in fact, apparent. If any Member of this Committee can understand what I have just said without referring to Hansard tomorrow, then he is a better man than I am.

The overall point is that we are using plainer and more easily understood English. But, as I have said, the danger of such a restatement of the law in different languages is that the courts will assume that the use of such different language necessarily means that the law has changed. We do not want to throw away the case history in jurisprudence that has been built up. If this can be stated in a better way, of course we will have a look at it. However, at the moment we believe that this is a necessary provision.

Baroness Seear

If the simpler language leads to so much confusion, would it not be more sensible to leave the more complicated language, which people understood, where it was?

Lord Lloyd of Kilgerran

The Minister gives his case away. The two examples at the preface of his argument were so naive that any court would know that those two words did not change the meaning at all. We are talking about phrases that have been changed. We are not talking about whether it is a film or a cinematograph film. His citation of those two examples gives his case away entirely. I hope that the noble Lord can take it back and save us a lot more discussion. I am not going to pursue the matter for weeks and weeks as the noble Lord, Lord Morton of Shuna, threatened to do. I want to get away as soon as I can this evening; in these circumstances I am simply supporting the noble Lord.

Lord Morton of Shuna

I do not wish at this stage in this place to pursue the matter for weeks and weeks I simply foresee that somebody might, in some other circumstance, be instructed for weeks and weeks. If the language is clear, simple and unambiguous, there is no need to refer to the previous case history. However, if the language is ambiguous, then you have to go back. I would have thought the intention of the Government was that the language should not be ambiguous. Therefore to introduce several new ambiguities in Clause 156 adds to the confusion. We do not know where we apply the Interpretation Act and we will not know where we apply Section 156, as it will be.

Lord Howie of Troon

I am strongly in favour of my noble friend Lord Morton of Shuna. Do other Members of the Committee remember our debates some weeks ago on Clauses 2 and 3 when we discussed the definition of dramatic works, artistic works and such matters? It was then argued convincingly by the noble and learned Lord. Lord Hailsham, and others that the courts would take a common sense view of words and meanings. Although I did not go all the way with them, they argued that the court would always come up with the common sense and the correct meaning.

If those arguments were true in relation to Clauses 2 and 3, they must be true now. If the courts were capable of dealing with the earlier parts of the Bill. they must be capable of dealing with this matter. I shall subside under the blandishments of the Chief Whip.

Clauses 156 to 158 agreed to.

Clause 159 [Meaning of publication and commercial publication]:

[Amendments Nos. 263AZA and 263BZA not moved.]

Lord Morton of Shuna moved Amendment No. 263CZA: Page 69, line 17, leave out subsection (4)

The noble Lord said: This is a simple point. Subsection (4) defines "commercial publication". I cannot find any reference to commercial publication, as such, in the Bill up to now. We have a definition of "publication". Why do we have a definition of "commercial publication"?

Lord Beaverbrook

Commercial publication is a new concept in the Bill and so some explanation is perhaps desirable. It is mentioned in Notes on Clauses. Under the 1956 Act, the concept of publication has relevance in three areas—

Lord Morton of Shuna

Perhaps the noble Lord will give way. I am not interested at this time of night in what is in the Notes on Clauses. If the words "commercial publication" do not appear in the Bill up to Clause 159, what is the point of defining "commercial publication"? It has no basis. That is the only point in which I am interested. If the noble Lord can point to one clause up to now that provides that "commercial publication" says, does or means such and such, that is fine, and I shall withdraw the amendment.

Lord Beaverbrook

As I was saying, under the 1956 Act the concept of publication has relevance in a number of areas; namely, subsistence, duration of copyright and restricted act of publication. The term "commercial publication" is used in Clauses 69, 72 and 151

Lord Morton of Shuna

In that case, I beg leave to withdraw the amendment?

Amendment, by leave, withdrawn.

Clauses 159 and 160 agreed to.

Clause 161 [Minor definitions]:

[Amendment 263ZA not moved.]

Lord Howie of Troon had given notice of his intention to move Amendment No. 263A: Page 70, line 5. at end insert— (" "composite works" means a work derived from the works of two or more authors commissioned by a publisher for inclusion in the work as a whole and intended to represent the style and views of that publisher;")

The noble Lord said: I do not intend to move the amendment. It has been overtaken by events. Members of the Committee may remember that when it was overtaken by events, I became a little irritated by the Minister. I should like to apologise to him for my stern words on that occasion.

[Amendments Nos. 263A and 263B not moved.]

Lord Brain moved Amendment No. 264: Page 70, line 28, at end insert— ("( ) for duplicating existing images,")

The noble Lord said: I shall speak also to Amendment No. 265, because both amendments relate to the same matter. 1 come back to my earlier amendment about the definition of photography and a photograph.

There is a risk that "facsimile" does not cover everything. Some duplication of images, which I have suggested as provisional wording, may not be the same in colour. Someone may send some information across the world that starts life in colour but is reproduced in this country in black and white. It is duplicating an existing image by a reprographic process and therefore should be covered. An image may also be transmitted in the form of a still television picture, which is photographed using an instant photography method. That is duplicating an image. It is not facsimile or using a multiple process but, I suspect, reprography.

If computer-stored images have never been printed before the computer prints them out finally, they may have to be transmitted electronically. I therefore suggest that the word "photograph" be inserted.

If the Minister would prefer not to reply now but to write to me, I am happy to accept that. I beg to move.

Lord Beaverbrook

We were not clear as to the thrust of the amendment. I shall consider carefully both what the noble Lord has said and Amendment No. 265, and write to him with our conclusions.

Lord Lloyd of Kilgerran

I should be grateful if the Minister would let me have a copy of his letter as I was proposing to support the noble Lord, Lord Brain, as far as I understood him, on this highly technical matter.

Lord Lucas of Chilworth

I remind the Committee that it is the convention for such letters to be available in the Library. I therefore hope that my noble friend will ensure that that is done. It is some time since the point has been mentioned. I do so now for the convenience of the Committee.

Lord Beaverbrook

At the beginning of Committee stage, I undertook for copies of all letters that I write to be available in the Library.

Lord Brain

I beg leave to withdraw the amendment.

Amendment, by leave withdrawn.

[Amendments Nos. 265 and 266 not moved.]

Clause 161 agreed to.

Clause 162 [Index of defined expression]:

Lord Beaverbrook moved Amendment No. 267: Page 71. line 32, at end insert—

("commencement (in Schedule 1)

paragraph 1(2) of that Schedule")

The noble Lord said: In moving Amendment No. 267, I shall speak also to Amendments Nos. 268, 269, 270, 271 and 272.

The amendments insert various expressions into the index of defined expressions for Part I and Schedule I in Clause 162. They are all terms used in more than one clause.

On Question, amendment agreed to.

[Amendment 267A not moved.]

Lord Beaverbrook

I beg to move Amendments Nos. 268 to 272:

Page 71, line 35, at end insert—

("copyright (generally))	section I
copyright (in Schedule I)	paragraph 2(2) of that Schedule")

Page 71, line 49, at end insert—

("existing works (in Schedule 1)

paragraph 1(3) of that Schedule")

Page 71. line 52, at end insert—

("general licence (in sections 129 and 130)

section 129(7)")

Page 72, line 15, at end insert—

("the new copyright provisions (in Schedule 1)	paragraph 1(1) of that Schedule
the 1911 Act (in Schedule 1)	paragraph 1(1) of that Schedule")
the 1956 Act (in Schedule 1)	paragraph 1(1) of that Schedule")

Page 72, line 46, at end insert—

("work (in Schedule 1)

paragraph 2(11) of that Schedule")

On Question, amendments agreed to.

Clause 162, as amended, agreed to.

Schedule 1 [Copyright: transitional provisions and savings]:

[Atnendment No. 273 not moved.]

11.15 p.m.

Lord Beaverbrook moved Amendment No. 274:

Leave out Schedule 1 and insert the following new Schedule—