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

HL Deb 17 December 1987 vol 491 cc869-905

3.5 p.m.

Lord Beaverbrook

My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Beaverbrook.)

On Question, Motion agreed to.

House in Committee accordingly.

[The BARONESS SEROTA in the Chair.]

Clauses 163 and 164 agreed to.

Clause 165 [Consent required for recording or live transmission of performance]:

Lord Morton of Shuna moved Amendment No. 274AA Page 74, line 15, leave out ("his") and insert ("written")

The noble Lord said: I speak to this amendment in the name of my noble friends Lord Williams and Lady Birk. For the convenience of the Committee, I also speak to Amendments Nos. 274G, 279ZC, 281BCA and 281BDA. These all refer to the phrase of something being done "without his consent". The purpose of the amendment is that the consent should be in writing. This has the obvious advantage that it can then be established whether or not the consent has been granted. It would seem a sensible amendment. I beg to move.

Lord Denning

May I say a word on this amendment to this special part of the Bill? It gives performers rights for the first time in our law. I happen to have been very concerned with it in the first case upon the matter ex parte Island Records in 1978. It will apply to many of these amendments which are going through.

I explained the situation with which we are faced. What happened when it came before our court was that performers in a theatre or in a studio had no copyright whatsoever in their performances, however good and skilful they were. What was happening was that an individual in the audience would have a small condenser microphone in his pocket through which he would record that performance on a tape. Having obtained it in that way, without consent, he would make hundreds of copies and sell them cheaply through shops of all kinds. That was called boot-legging. The people who unlawfully recorded those performances were bootleggers—an American phrase arising from people who hid illegal bottles of liquor in their boots.

The other people who come within this part of the Bill are known as pirates. A sound recording is made legitimately in a studio by a performer having an exclusive contract with the record company giving them the rights of those records. However, the pirates take those records and make hundreds and thousands of cheap copies for shops selling recordings cheaply.

That was what came before the courts in 1978. It was clearly, and could be proved a criminal offence for a person in the audience at a performance to make recordings without consent. However, there was no civil remedy. The performers had no copyright or right in the performance, however good and skilful it was. Each of the committees that sat recommended there should be a performers' right equivalent to copyright. Therefore, we have in the Bill, "without his consent". The question then arises as to whether that consent should be in writing. As the Bill stands, written consent is not required. A nod of the head by the performer to the audience could be said to be a consent. Naturally enough, the performers and the record industry say that that is not good enough and that there should be written consent. Therefore, the amendment proposes to leave out "his" and insert "written".

This is supported by the Green Paper which states in paragraph 3 of Chapter 6: In addition the Government considers that written consent of performers should not be dispensed with. Bearing in mind the wide variety of circumstances, it affects the view, which has been strongly expressed by performers, that there is a clear need for agreements affecting them to be in writing". Therefore, I suggest that this amendment which carries out the objectives in the Green Paper should be accepted. I certainly support its inclusion in the Bill.

2 p.m.

Lord Lloyd of Hampstead

I, too, support the amendment. If the word "written" is not included, questions can be raised as to whether there was oral consent or, possibly, consent by conduct. That could give rise to lengthy and difficult legal disputes. I entirely agree that the whole situation will be much clearer if there is insistence on written consent. Accordingly, I support the amendment.

Lord Jenkins of Putney

I, too, add a word of support but for an additional reason to those already very validly put forward. If one has written consent one knows that the consent is authoritative. A problem arises when a performer may have authorised an agent to give consent on his behalf. There is another circumstance in which he reserves the right unto himself completely. A performer might give consent, having previously by contract given the right to somebody else to exercise consent on his behalf—or it could be the other way about. Therefore, I believe it is important to have a written consent not only for the sake of the performer but for the sake of those who are utilising the performance. From all points of view, the Government will be well advised, and I hope will be persuaded, to accept this amendment.

Lord Beaverbrook

As explained by the noble Lord, Lord Morton of Shuna, these amendments seek to restore the position under the Performers Protection Acts whereby consent to the use of a performance must be given in writing if an offence is not to be committed. This requirement for consent to be in writing has been dropped from the Bill. The reason for this decision is that we have concluded that on general legal principles such a requirement is unsound. Let us suppose, as may happen, that a performer is asked to consent to a recording being made of a performance and he chooses to consent orally. The agreement might be made quite casually but it would unquestionably amount to the giving of consent. The absence of writing would be total irrelevance because the court would refuse to give judgment in favour of a plaintiff who had consented to what he subsequently complained of, whether or not that consent was in writing. It is scarcely credible that a criminal court should convict in such a case.

We have considerable doubts as to whether the existing requirement in the Performers Protection Acts for consent to be given in writing is well-founded in this respect. Although the 1981 Green Paper entitled Reform of the Law relating to Copyright, Designs and Performers' Protection said that the requirement for written consent would be preserved, we gave no undertaking to do so in the White Paper.

As your Lordships may know, the Whitford Committee was against retention of this requirement. In practice, anyone wanting consent to exploit a performance will be well advised to obtain consent in writing, if only to prove that he had consent if this were questioned. I know that performers have been keen to see the requirement for written consent retained, but we do not believe that its removal will damage their interests and we do not think that its retention will help them.

The second and third limbs of Amendment No. 279ZC, in the name of the noble Lord, Lord Jenkins of Putney, address a slightly different point. They would require, first, that consent relate only to a specific usage or usages. This seems to us to be unduly restrictive. Performers are, of course, perfectly free to impose limitations of this kind if they want to. So why limit their freedom in this way? In any case, for the same reasons I have given, a wider consent would inevitably be given effect by the courts.

The same goes for the third provision which would prevent a performer agreeing with, say, an agent or manager to grant consents on his behalf. Again I ask, why fetter the performer in that way? It would surely be impractical, for example, for a broadcaster or recording company to have to seek the individual consent of every member of a choir or orchestra.

Usually consent will be given by the agent or manager on behalf of all the performers, and surely that should be permitted. Clause 181 provides the necessary safeguard against a person who represents falsely that he is authorised to give consent in relation to a performance. I would say to the noble Lords, Lord Lloyd of Hampstead and Lord Jenkins of Putney, that it is true that written consent is more authoritative and may avoid dispute, but in that case the parties can always put their intentions in writing and the matter is therefore always in their hands.

Lord Morton of Shuna

I am very much obliged for the support I have received from the noble and learned Lord, Lord Denning, the noble Lord, Lord Lloyd of Hampstead, and my noble friend Lord Jenkins of Putney.

I think that the Government are being ill advised and rather impractical in turning down this amendment. If they want to do good to lawyers they are doing it by leaving out the requirement of written consent. As my noble friend Lord Jenkins of Putney pointed out, there may well be situations when an artist gives consent orally where he has already given his exclusive licence, so to speak, to his agent, and then one is in a straightforward muddle. If a person gives consent when perhaps his emotional condition is not at its most cool, he may thereafter deny that he gave his oral consent.

These are all situations where one is opening up a sphere of litigation. What we on this side, and especially myself, want is to make the law clear and avoid litigation if possible. That is the purpose behind the requirement for written consent and I cannot see that it is so difficult to put in.

However, this is perhaps not the time of the year to divide the Committee. Therefore I ask leave to withdraw the amendment.

Lord Jenkins of Putney

As I have an amendment in this section may I perhaps add a word at this point? I think that if I were to refer to the case of Rickless and Others v. United Artists Corporation the Committee would not immediately apprehend that it is the rather better known "Pink Panther" case, which is relevant to this problem. In that case the Law Lords decided that the consent which had been given for an original usage of an out-take from one "Pink Panther" film did not give justification for the usage of all the rest of the out-takes which were subsequently taken; in other words, they decided that what my noble friend and I are seeking to establish by this amendment should in fact be the case.

If we can take it, and I think that we can, that the noble Lord, Lord Beaverbrook, in replying to this debate is saying in effect that what we are seeking to do is unnecessary because it has already been decided and therefore we need not put it into the Act, I would then be glad to follow my noble friend's example and withdraw my amendment. But, if he is not saying that but is saying that what we are seeking to do is unnecessary and that we are seeking by legislation to overturn what the Law Lords have already decided, that would not be a satisfactory situation. I believe that my interpretation of what he is saying is as I first suggested, and under those circumstances I would be happy to add my withdrawal to my noble friend's.

Lord Beaverbrook

Before the noble Lord sits down, I think I should say to him that the consent in the "Pink Panther" case was in fact in writing. There was no question of oral consent arising; in other words, in this case the writing did not avoid litigation.

Lord Jenkins of Putney

My amendment refers not to writing, as the noble Lord said in his reply, but to specific usage. I was addressing myself to a different point and that is why I ventured to intervene in this matter. I was not addressing myself to the identical point of my noble friend. The point I am seeking to make is that a consent given relates to that usage and consent to a single usage does not embrace further uses which may follow.

What I am seeking to do in my amendment is to put that into legislation. I was saying that if what the noble Lord was saying was that the decision of the Law Lords was in practice accepted, we need not press this point. If the noble Lord is not saying that, we shall have to press the amendment, if not now, at a later stage.

Amendment, by leave, withdrawn.

Lord Tordoff moved Amendment No. 274AB: Page 74, line 15, at end insert ("which shall not be unreasonably withheld").

The noble Lord said: There will doubtless be surprise in the Committee to find that the noble Lord, Lord Lloyd of Kilgerran, has been transmogrified into the shape of me. No one is more surprised than I am. He apologises to the Committee that he cannot be here this afternoon during the long saga of the Committee stage. He has asked me to move the amendment on his behalf and to speak also to Amendments Nos. 274DA, 274GA and 275B. I shall endeavour to do so in my halting way.

As they now stand unamended by the Bill, I understand that the Performers Protection Acts give an absolute power to a performer to refuse to give consent in a way which can prevent television companies selling their programmes in the United Kingdom or overseas. An organisation which seeks to make an agreement that is of great value to it can be frustrated by one performer out of a much larger number. That performer may well have been offered terms which are the same as those of the other performers in the show, all of whom have accepted. For some reason, or for no reason, one performer who may merely be playing a walk-on part can refuse consent and the sale cannot then be made. I understand that there is no appeal against that performer's decision.

The only defence under the Acts and under the present draft of the Bill is that the person infringing the performer's rights believed on reasonable grounds that consent had been given. In the eyes of people involved in the profession, the Bill seems to make the position worse. It does not merely re-impose the absolute and arbitrary power of the performer but the performer may also bequeath his consent under the Bill. Those attempting to sell British programmes in this highly competitive world will be faced with the strange prospect of having obtained consent for up to 50 years after the performance was first transmitted—long after the performer has died—but, again, if consent is refused no appeal can be made against the decision.

For those reasons, it is essential that the arbitrary and absolute nature of the performer's right to refuse consent be tempered to allow an organisation seeking to sell programmes to show that it has acted reasonably; that it has, for instance, offered fair remuneration; and that all or most of the other members of the cast have given their consent, or that when consent has been bequeathed that refusal to consent has been unreasonable.

The amendments will enable the broadcasting organisations in this country to make their programmes available to the world using new technology. This is an industry in which technology is changing fast and where Australian and American programmes are readily available. Any one who has the time and lack of taste to watch Australian television programmes in the middle of the afternoon will know that that is already the case. They are not subject to the inhibitions of the Bill. It is proposed that consent shall not unreasonably be withheld. It is a straightforward proposition even to my untutored mind. I beg to move.

Lord Morton of Shuna

I am sure that in his careful preparation for moving this amendment, the noble Lord, Lord Tordoff, has considered the terms of the Rome Convention of 1961, as amended in Geneva in 1982. It appears to us that the amendment runs counter to the terms of Article 7 of that convention, which is why it must be opposed. One must rely on contract to give the consent required.

Lord Denning

I can well see the objections to the amendment but there is a great deal to be said for its merits. Let us take a pop group. Three of its members consent and one stands out and will not consent. Is that to bar any dealings in the matter? Surely the consent should not be unreasonably withheld, whatever the Berne Convention may say. I do not see why we should not have a provision in English law that consent should not be unreasonably withheld.

Lord Campbell of Alloway

This is a dilution of the protection which the Bill affords to consumer rights which is wholly unacceptable, quite apart from the convention matter raised by the noble Lord, Lord Morton of Shuna, which is a valid point. The concept of interpreting "reason to believe" in the context of the myriad situations that could arise would be extremely troublesome for the courts. There is no justification for this amendment. I hope that it will not be pressed.

Lord Beaverbrook

Perhaps I can clarify whether the noble Lord, Lord Tordoff, is speaking to Amendments Nos. 274AB, 274GA, 275B and 278AA. He also mentioned Amendment No. 274DA and I was wondering whether he was also speaking to that amendment.

Lord Tordoff

I was under the impression that I was. However, I was also under the impression that I was not yet speaking to Amendment No. 278AA. I had it in mind to subsume that within the discussion on Amendment No. 277ZB which appears—certainly in the mind of my noble friend—to be a more logical place to do so.

Lord Beaverbrook

I am most grateful to the noble Lord. Perhaps at this stage for the convenience of Members of the Committee I can also speak to Amendment No. 274DA as well as Amendment No. 278AA, as I was under the impression that Amendment No. 278AA was listed on the groupings list with the first three amendments. It is of course at the discretion of the noble Lord as to how we deal with this.

I have to say that I think it would be quite wrong to subject performers' rights, and the rights of persons having recording rights, to the degree of compulsory licensing which these amendments would introduce. Even under present law, which provides only criminal remedies for unauthorised exploitation of a performance, a performer does not have to show reasonable grounds in order to refuse consent to such exploitation. Surely if a performer does not want his performance to be recorded or broadcast live, or does not want an illicit recording of his performance to be imported, sold, rented out or distributed, that should be the end of the matter. His right to prevent such exploitation should be an absolute right, just like a copyright owner's right to prevent unauthorised exploitation of his works. He should not have to prove reasonable grounds for refusing consent.

Perhaps I may say to the noble Lord, Lord Tordoff, that we do not believe that there are in practice grave difficulties over obtaining consents where several performers are concerned. The noble Lord, Lord Tordoff, and the noble and learned Lord, Lord Denning, gave the example of a pop group where perhaps one out of four members of the group objected to the recording of a performance. This is a matter that could and should be sorted out by contract prior to any performance. I imagine that this is the sensible way for most groups of multiple performers to proceed. In any event, as the noble Lord, Lord Morton of Shuna, has said, the compulsion of the kind envisaged by his amendment would, I believe, be contrary to the Rome Convention.

These amendments would undermine the whole basis of performers' protection as it has existed in this country since 1925. I hope that the noble Lord will be willing to withdraw the one that he has moved.

Lord Tordoff

It is quite clear that I shall have a busy Christmas reading through these various conventions. It seems to me that the broadcasting authorities are clearly worried about this problem. I do not think it is quite as simple as the Minister suggests. However, I said that this was intended to be a probing amendment. Quite clearly, this is not the time to press it. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Morton of Shuna moved Amendment No. 274B: Page 74, line 16, leave out ("otherwise than for private purposes,").

The noble Lord said: This amendment deletes the words "otherwise than for private purposes". It may be for the convenience of the Committee if I speak also to Amendments Nos. 277A, 281BC and 281BD which deal with exactly the same point.

If the provision were unamended, it would mean that taping a concert or a live musical performance for private purposes would not infringe the performer's right. This is totally inconsistent with the Bill, as we have already provided for in Committee, in respect to composers' and publishers' copyright rights. We have already had various discussions, exemplified perhaps by the illegality of the noble Lord, Lord Donaldson, in taping various works. It seems to be totally illogical—

Lord Tordoff

I wonder whether the noble Lord would perhaps rephrase that comment about my noble friend.

Lord Morton of Shuna

I should rephrase it happily if it was not a phrase used by the noble Lord, Lord Donaldson.

Lord Tordoff

I think my noble friend Lord Donaldson was asking questions about legality. He was not stating that he was acting illegally.

Lord Morton of Shuna

The Minister stated that he was acting in an illegal way. But somebody who is taping privately is in breach of copyright law. To that extent it may be only a civil remedy, but it is illegal taping and remains, as I understand the Government's position, illegal under the Bill. It having been illegal from the copyright point of view, it seems totally illogical to have it suddenly legalised from the performer's point of view. In an attempt—it may be totally inappropriate—to introduce logic into the Bill, I suggest that it would be better to have the same rules both for the performer's right and for the copyright right. I beg to move.

Lord Denning

I am against this amendment. We have had all the discussions about home taping. Although I suggested it was lawful and not an infringement, nevertheless it can be done and there is no remedy and no blanket licence in respect of home taping. This would allow a private individual in his own home for his own private purposes to make a copy of a tape. It would not be for public use, so I would keep in the Bill the words "otherwise than for private purposes".

Lord Campbell of Alloway

To avoid running around this track again, there is no doubt that the point made by the noble Lord, Lord Morton, is that there is a glaring inconsistency. I should be interested to know upon what grounds my noble friend the Minister justifies the inconsistency, irrespective of the merits which have been discussed in other connections.

Lord Lloyd of Hampstead

I agree with what has just been said. It is clear that in the realms of copyright one is not entitled, having bought a copy of a book, to take it home and copy it for one's own private uses. There seems no reasons why this exception should be made by what is seemingly a side wind by these words being inserted in a general clause dealing with infringement. I should have thought that the retention of these words would require some kind of express justification of which I do not feel I am aware.

Lord Beaverbrook

It was, in my belief, unclear what the noble Lord, Lord Donaldson, was doing with his tape recorder and what exactly he was recording. For me to have said that he was acting illegally was entirely hypothetical.

The exception which allows recordings or films to be made of performances without the performers' consent if they are for private and domestic use without an offence being committed has always existed under the Performers' Protection Acts. The Bill provides that the exception shall also apply to the new civil remedies which it gives to performers but leaves the principle unchanged.

The purpose of performers' protection legislation has always been to protect performers against unauthorised commercial exploitation of their performance such as the making and marketing of bootleg recordings or unauthorised broadcasting. The making of recordings for private use does not damage their interests in this way and we believe that the exception which allows it is right and should continue. I would say to my noble friend Lord Campbell of Alloway that the the new civil remedies are against breach of statutory duty. They are not proprietary rights like copyright where unauthorised use of a work infringes the right whether or not it is done in private.

I say to the noble Lord, Lord Morton of Shuna, that we do not think that it is logical to regard copyright and performers' protection as the same. A work is permanent. It can last for ever. A performance is essentially ephemeral. Unless otherwise recorded, once made it cannot be further exploited and therefore a private recording of a performance does not injure the performer's interest in quite the same way.

Lord Morton of Shuna

I am very much obliged to the noble Lord. I have great difficulty in understanding his last remarks. Let us take as an example a performance of a play featuring an eminent actor, or a performance of a symphony with a particular conductor and orchestra. I find great difficulty in drawing a distinction between the copyright in the music and saying that cannot be copied and one is breaking the law, civil or criminal, by copying it, but that there is nothing wrong in copying an eminent conductor, orchestra or actor. It seems to me totally illogical to draw the distinction; and here I am obliged to the noble Lord, Lord Campbell of Alloway. I shall study what the noble Lord has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

2.30 p.m.

Lord Morton of Shuna moved Amendment No. 274C: Page 74, line 17, leave out ("substantial").

The noble Lord said: I should perhaps say that I shall also speak to Amendments Nos. 274D and 274H. This amendment reconstitutes a discussion we had in the copyright section over what was substantial and what was insubstantial, whether substantial was the right word and whether a phrase such as "recognisable part" might be better. I do not want to go through all the arguments again but it seems to me that "substantial" is the wrong word. I beg to move.

Lord Beaverbrook

I shall also speak to the same amendments. These amendments are essentially the same as Amendments Nos. 67 and 69 which we debated at some length at an earlier sitting of the Committee. At the risk of repeating myself, I shall gladly accept that the restricted acts should not be confined only to acts done with a complete performance. Nevertheless, as with copyright, the removal of the word "substantial" would go much too far. It would mean that acts done in relation to the smallest fragment of a performance would constitute infringement of a performer's rights; for example, a single word from a performance of Hamlet, to build on the example I used last time. In our view this is clearly wrong. Of course, as I said before, a "substantial part" does not necessarily mean a large part. Even a small part can be substantial depending on the circumstances. We have in the words "substantial part" a well worked and well understood concept which is just as appropriate here as in copyright.

As for alternatives, I said in our earlier debate that the expression "substantial part" has been the subject of much illuminating jurisprudence over the years. To throw this away would only mean that we had to start all over again from scratch because any substitute—I think the noble Lord, Lord Williams of Elvel, suggested "significant" last time—would be just as much open to interpretation as "substantial". And who could say where that would lead us? Substituting a different word would only cause great confusion and uncertainty and I am against the idea.

Lord Morton of Shuna

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 274D and 274DA not moved.]

Lord Jenkins of Putney moved Amendment No. 274E: Page 74, line 20, leave out subsection (2).

The noble Lord said: Amendment No. 274E seeks to leave out subsection (2). I should also like to speak to Amendment No. 274F, which as an alternative proposes that reasonable inquiries should be made as to whether a performer had given consent.

The object of the amendment will be clear to the Committee. I do not want to waste time by advocating it and I think that it will be best if I sit down and listen to what the Minister has to say. Then, if necessary, I shall reply. I beg to move.

The Deputy Chairman of Committees (Lord Nugent of Guildford)

I should explain to the Committee that if Amendment No. 274E is agreed to I shall not be able to put Amendment No. 274F. The noble Lord has sought to remove that difficulty.

Lord Beaverbrook

Will it be agreeable to the noble Lord if I also speak to the other amendments in the grouping? This is a substantial group of amendments and I can go through them carefully. It may be to his convenience if I speak to all the amendments.

Lord Jenkins of Putney

Yes, certainly.

Lord Beaverbrook

I am speaking to Amendments Nos. 274E, 274F, 274HA, 275C, 276ZA, 276D, 277ZA, 277B, 278DA, 278H, 278J, 279C, 280A and 281ZA.

Lord Jenkins of Putney

I should like to point out that my agreement is entirely subject to the consent of other Members of the Committee, because in some cases the other amendments do not go to the same clause. Although I am agreeable, I think that one should not take my consent as being generally applicable without others indicating that they consent.

Lord Beaverbrook

I am grateful to the noble Lord and I hope that other Members of the Committee will be happy to consider the amendments in this way.

This large group of amendments in the name of the noble Lord, Lord Jenkins of Putney, are all directed towards imposing stricter civil liability on those who exploit performances without the appropriate consent. I understand the noble Lord's reasons for wanting to move in this general direction, but, as with copyright, so with the rights of performers and of those whom the Bill defines as "persons having recording rights", a fair balance must be struck between the interests of performers and users. In particular, those who infringe a performer's rights in all innocence should not be penalised out of proportion.

We believe that in the Bill we have the balance broadly right and I have to say that in our view the amendments in the name of the noble Lord swing it too far in favour of the performer. Amendments Nos. 274E and 277B seek to provide that damages should be available against someone who commits a primary infringement of a performer's rights or the rights of persons with recording rights by making a recording of a performance without consent or broadcasting it live without consent, even though he had reasonable grounds for believing that consent had been given. We do not accept that this would be right.

I remind the Committee that, although, under the Bill damages would not be available in such a case, an injunction would be available, and innocence is no defence to forfeiture proceedings under Clause 176. In other words, provision is there for termination of the infringement itself. I would also point out that subsection (2) of Clauses 165 and 169 places the onus on the defendant to prove that his grounds for believing consent had been given were reasonable. But genuine innocence should not be penalised by damages.

Amendment No. 274F to Clause 165 is intended as a less drastic alternative to Amendment No. 274E. It is proposed that to avoid imposition of damages an infringer would have to show that he had made reasonable inquiries to establish whether the performer's consent to the particular exploitation of his performance had been given. I believe that that requirement is fully covered by the Bill as drafted. The defendant has to show reasonable grounds for believing that consent had been given and that must surely in appropriate cases mean making the necessary inquiries. This amendment, therefore, merely repeats what is in the Bill.

Amendments Nos. 274H and 275C would have the effect of imposing liability for using or dealing with a recording made without consent regardless of whether the person using or dealing with it knew, or had reason to believe, that there was no consent. This cannot be right. Once a recording has been made, it may pass into the hands of other people with no means of knowing, or even suspecting, that it may not have been made with consent.

A shopkeeper, for example, buying a recording from his regular supplier may find himself with something which looks like an entirely legitimate recording but is in fact bootleg. He is in no position to find this out, and should not incur any liability until he had had the facts brought to his attention. We are out to catch pirates and bootleggers, not innocent users of, and dealers in, recordings acting entirely properly in the ordinary course of their business; and therefore liability should not be imposed on anyone who does not know, and has no reason to believe, that there was no consent to the earlier making of the recording now in his hands.

Amendments Nos. 276ZA, 276D, 277ZA, 278DA, 278H and 278J all relate to the problem of the innocent acquirer of illicit recordings who subsequently commits a secondary infringement. Let us return to the innocent shopkeeper whom I mentioned a moment ago. Up to the point at which he discovers that he has illicit recordings in stock, he commits no infringement. What is to happen when he does discover, presumably by being told by the performer or the recording company to which the performer is exclusively contracted? Is he to find himself with unsaleable stock on his hands? We think that the answer is no.

The appropriate result should be that he should be required to pay to the performer and/or the recording company what is in effect an appropriate royalty, but that he should be able to continue to sell the recordings; and this is what Clauses 167(2) and (3) and 171(2) and (3) provide. Moreover, to allow for the possibility that the innocent dealer may be a wholesaler rather than a retailer, and thus that the innocently acquired but illicit recordings will need to be capable of being sold not only by the wholesaler but also by the retailer, we have included a reference to predecessor in title; that is, the wholesaler.

Amendments Nos. 276ZA, 276D, 278DA and 278H would remove from the Bill entirely these provisions about innocent acquisitions; Amendments Nos. 277ZA and 278J would render them worthless. I say "worthless" because a shopkeeper is in no position to make inquiries about whether consent had been given. This would not be right. I readily appreciate that from the point of view of the performer or the legitimate recording company it is not satisfactory that illicit recordings should remain on the market in return for only a reasonable royalty, but it would be even less satisfactory from the shopkeeper's point of view that he should be left with unsaleable stock. It should not be forgotten that we are concerned here with two innocent parties. The guilty party, the bootlegger, has already taken the money and run. We ought to strike a balance between them, rather than load the loss on to the shoulders of only one, and this is what the Bill as drafted does.

Finally, I turn to Amendments Nos. 279C, 280A and 281ZA. These are all amendments to Clause 178, which creates criminal offences. Even if it were right that there should be no test of guilty knowledge for secondary civil liability, it would not be right that there should be no such test for criminal liability. This is not the sort of offence which should be capable of being committed even in ignorance, while acting in good faith, because nothing that a person can do can prevent him from committing the offence if he does not have at least reason to believe that the recordings in question are or would be illicit. Strict liability is imposed in criminal offences only where the person in question is able to avoid ignorant commission of the offence, such as breaking the speed limit. I do not think that I need say anything more about that.

I well understand the concerns of the noble Lord, Lord Jenkins of Putney, but I hope that having heard this rather lengthy explanation he will perhaps be able to review what I have said and see whether it goes some way towards helping him on these matters.

2.45 p.m.

Lord Jenkins of Putney

I should very much like to review what the noble Lord has said because the question of where the line is drawn between a criminal offence and a civil offence seems to me to be rather a difficult one. In those circumstances if the Committee will permit me I should like to withdraw the amendment at this stage, study what the noble Lord has said and then consider whether or not it is desirable to come back at a later stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 274F and 274G not moved.]

On Question, Whether Clause 165 shall stand part of the Bill?

Lord Campbell of Alloway

On the question whether Clause 165 shall stand part of the Bill I wish briefly to say that during our discussions on Amendment No. 274B I listened with very great care to everything that was said by the Minister. Like the noble Lord, Lord Morton of Shuna, I find considerable difficulty with the reasoning advanced in justification for the rejection of that amendment. I wonder whether it would be possible for the Minister, without any form of commitment, to have another look at that. My main reason for making that suggestion is the views expressed by the noble Lord, Lord Lloyd of Hampstead, who after all commands considerable authority on this subject.

Lord Beaverbrook

Of course I shall look and see what has been said in Hansard. I always take great note of everything noble Lords say. I can give no commitment on the matter. Again it is something about which the Government have thought long and hard. I must say that we came to our conclusion having given appropriate consideration to the matter. I of course accept the noble Lord's request that without commitment we shall look again at this matter.

Clause 165 agreed to.

Clause 166 [Infringement of performer's rights by use of recording made without consent.]

[Amendments Nos. 274GA, 274H and 274HA not moved.]

Lord Morton of Shuna moved Amendment No. 275: Page 74, line 30, leave out ("has reason to believe") and insert ("which it was obvious to a reasonable person in the circumstances").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendments Nos. 276, 277, 278, 280 and 281. It is a great pleasure not to have any more letters of the alphabet attached to those amendments.

These amendments all seek to take out the words "has reason to believe" and insert the words: which was obvious to a reasonable person in the circumstances". Those are the words that are used in the Patents Act. We have already had that argument. If I were to receive some kind of indication that the same undertaking to look again at this phraseology would be applied to this part of the Bill as it was to the earlier part I should beg leave to withdraw the amendment. However I see that I am getting no indication at all. In those circumstances I move the amendment because it would seem entirely logical that the same standard should be set throughout and that it should be the standard of the Patents Act which is a much better, more easily understood and fairer standard than this rather dubious one of proving the defender's or the defendant's state of mind. I beg to move.

Lord Beaverbrook

I should say a few words about why the wording in the Patents Act 1977 is, we believe, not appropriate here. In the Patents Act the words: obvious to a reasonable person in the circumstances". occur in Section 60. The context there is entirely different. In subsection (1) of Section 60 the question is whether the use of a process without consent would be an infringement of a patent.

In subsection (2) the question is whether something is a means of putting an invention into effect. In both cases the question relates to the nature of the thing done irrespective of whether there is consent. To put the point in copyright terms, the question is whether or not the thing done is a restricted act. The question must be entirely objective and a formula obvious to a reasonable person in the circumstances seems right in that instance. As I said earlier, that test is not adequate in the Bill either in the copyright clauses such as the secondary infringements in Clauses 22, 23 and 24 or in this part of the Bill such as in Clauses 166, 167 and 178. Clause 169 is entirely different.

In copyright the question whether an article is an infringing copy depends partly upon whether the making of the copy was with the licence of the copyright owner and in the case of straightforward piracy that is the only question. In this part of the Bill the question whether a recording is an illicit one or was made without consent is exclusively a matter of whether or not there was consent. It may often be that it is not obvious to a reasonable person that there was no consent but the person in question had reason to believe that there was no consent.

This case must be caught. The pirate or the bootlegger must not be allowed to escape by turning a blind eye to facts known peculiarly to him and saying that they were not obvious to a reasonable person. If he has reason to believe that there was no consent, he must he liable irrespective of what a reasonable person might think.

Lord Morton of Shuna

The Minister has many qualities, but foreseeing what may happen in court I fear is not one of them.

If one has to prove that the person knew, one can be fairly certain that he will deny it. If one has to prove that he had reason to believe, one can also be fairly sure that he will deny that he had any reason to believe and it is difficult to prove that he had. If one has to prove that it was obvious to a reasonable person in the circumstances, one has a more objective test and is not left with the subjective mind of the person on the other side. In all the circumstances of the various clauses in the Bill, I should have thought that that is a much more appropriate standard to apply. I hope that the Minister will take it away and consider it.

Lord Beaverbrook

The noble Lord is a much greater authority than I am on what might happen in a Scottish court. I suspect that he is also much more familiar than I am with what might happen in an English court.

I believe that our wording is better. I am concerned that the noble Lord's wording may not catch certain instances. As I said earlier, we shall look carefully at what he says. I am not prepared to say that I shall take it away with a commitment. We carefully observe what the noble Lord says, and I shall look at this carefully.

Lord Morton of Shuna

I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Jenkins of Putney moved Amendment No. 275A: Page 74, line 31, at end insert ("or where such consent was not given for the specific usage in question.").

The noble Lord said: Although I do not intend to press the amendment, I think that it is desirable to move it. It goes to the point that I made at an earlier stage. It seeks to say that consent is not valid unless it was given for the specific usage in question. I gave as an illustration earlier the case of the "Pink Panther" where consent given for an outtake for use in one single case was taken by the user to apply to all cases. The Law Lords decided that that was not the case and that that particular consent did not mean that the consent was given to the usage of the entire outtake from the whole series.

I am seeking in the amendment to make it clear in the legislation that that is the case. I am seeking to put into the legislation what the Law Lords decided. I should therefore like to study what the noble Lord has said in reply to a previous question and what he may say in reply to what I have said at this stage. Having done that, I shall consider whether it is desirable to bring forward further amendments at a later stage in order to establish in the legislation what has been established in law.

Lord Beaverbrook

Perhaps I may briefly speak to the amendment as the noble Lord has moved it. I believe that the amendments would go rather further than perhaps has been outlined so far. Amendments Nos. 275A and 278AC attempt to create a new right to control usage of a recording once it has been made. Under the Performers' Protection Acts and under the Bill as drafted neither the performer nor a person having recording rights has the right to prevent a recording from being shown or played in public, broadcast or included in a cable programme service, once they have consented to the making of the recording in the first place.

We have always taken the view, and continue to do so, that it would be quite impractical if, for example, a broadcaster had to obtain the consent of all the performers involved every time he broadcast a record, or a cinema owner had to obtain the consent of all the actors involved every time a film was shown. Of course performers should have a right to be remunerated when recordings or films of their performances are played, shown or broadcast. However, they can achieve that by appropriate contractual arrangements with record or film companies. Phonographic Performance Limited, for example, has an arrangement under which a share of its royalties from the broadcasting or the public performance of records is paid to the performers.

In our view, there is no reason why contractual arrangements should not continue to deal satisfactorily with the problem. I regret that, for the reasons I have given, those amendments are not acceptable. Perhaps I may add as a final point that we do not dispute the right of performers and persons having recording rights to control the re-recording of their recorded performances. However, that right is already contained in the Bill in Clauses 165 and 169.

The case to which the noble Lord, Lord Jenkins, has referred did not establish that consent must be given to specific usage. The point in that case was that consent was given only for the making of the original film and not a further film. There is no reason to prevent a wider consent from being given.

Lord Jenkins of Putney

I am most grateful to the noble Lord for that explanation and I shall study carefully what he has said with a view to coming back to it in the future. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 166 agreed to.

Clause 167 [Infringement of performers' rights by importing, possessing or dealing with illicit recording]:

[Amendments Nos. 275B, 275C, 276 and 276A not moved.]

Lord Morton of Shuna moved Amendment No. 276A: Page 74, line 43, leave out ("remedy") and insert ("remedies").

The noble Lord said: In moving this amendment perhaps it will be convenient for me to speak also to Amendments Nos. 276B, 276C, 278E, 278F and 278G. Amendment No. 276A concerns the situation where there is an innocent infringer who has obtained an illicit copy. Subsection (2) restricts to damages only the remedies available to the performer whose rights have been infringed by the illicit recording. A similar problem occurs in the other amendments which allow, in addition to damages, that the performer should be able to retrieve the illicit recording and that the innocent owner of the recording should not be able to go on enjoying it. I beg to move.

3 p.m.

Lord Beaverbrook

The intention of the amendments tabled by the noble Lord is that the importer or dealer in illicit recordings should be liable for a forfeiture order against him, even in cases where he acquired the recordings in good faith.

The amendments are unnecessary because the Bill already achieves that result. The two subsections to be amended by these amendments before us relate to the remedies available in an action for infringement. Proceedings for forfeiture, however, are not infringement actions but distinct proceedings: infringement is dealt with in Clause 175; forfeiture in Clause 176. Nothing in Clause 176 prevents forfeiture from being ordered against an innocent acquirer of illicit recordings. Therefore the Bill achieves the desired result already.

I am aware of course that subsection (2) of Clause 176 precludes forfeiture where damages would be adequate, and damages might of course be limited by Clauses 167(2) and 171(2) where the infringement was by an innocent acquirer. We shall consider the merits of that when we reach Amendment No. 279A, but the Committee will recall that we have already considered an identical provision in Clause 88(2) on copyright. I must say, however, that irrespective of whether Clause 176(2) should remain in the Bill, I believe that the amendments now before us would do nothing to deal with its effect.

Lord Morton of Shuna

I shall study what the noble Lord has said and without any commitment that I shall not return to this matter later, I ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 276B to 277ZA not moved]

Clause 167 agreed to.

Clause 168 [Exclusive recording contracts and persons having recording rights]:

Lord Tordoff moved Amendment No. 277ZB: Page 75, line 5, after ("contract") insert ("in writing").

The noble Lord said: I shall speak also to Amendments Nos. 277ZA, 277ZD and 278AA. That may not be in conformity with the list which is in front of the Committee but I am assured that this is the way that my noble friend would have wished to deal with these matters and I am sure we can cope. All these amendments relate to exclusive recording rights.

I am informed that the intention in the Bill is to introduce a new concept into the law of intellectual property. We oppose the introduction of such provisions on the basis that they are a restraint on trade. An exclusive recording contract is a commercial agreement granting a company the exclusive right to exploit the work of a recording artist. To grant a recording company a veto on all use of the performance of that artist unreasonably restrains his rights to control his work. Further from the point of view of the users it is unworkable in practice.

Without prejudice to the above remarks, if such rights are to be enshrined they need to be more clearly defined, and the right to grant consent should be subject only to equitable remuneration through the jurisdiction of the Copyright Tribunal.

In relation to Amendment No. 277A we prefer the use of the term: with a view to commercial exploitation", in Amendment No. 278ZA in place of: otherwise than for private purposes", in order to provide uniformity throughout the clauses dealing with recording rights.

Further, we have suggested exclusion of the requirement for the performer's consent in these clauses because we consider that its inclusion is inappropriate in clauses dealing with recording rights. That is effectively dealt with in Clauses 164 to 167. With those few words, I beg to move.

Lord Beaverbrook

I shall speak also to Amendments Nos. 277ZB and 277ZD and I agree with the noble Lord that Amendment No. 278AA addresses the same or very similar point. These amendments seek to control the manner in which contracts are arranged between performers and those to whom they give exclusive recording contracts. Apart from the general controls against the making of recordings without the performer's consent this is not a matter with which this Bill is concerned. It is entirely up to the performers and recording companies involved to decide what sort of contractual arrangements they enter into. All the Bill is doing in Clauses 168 to 171 is provide that where someone does have an exclusive recording contract with a performer, that person as well as the performer has certain rights against third parties who may record the contracted artist's performances without consent.

Obviously, persons with recording rights who have occasion to exercise them may need to prove that they indeed do possess those rights. That will in most cases be a sufficient incentive to enter into a written contract with the artist.

Turning now to Amendment No. 277ZD, which is concerned with assignment or licensing of recording rights, I have to point out that so far as rights are conferred by Part II of this Bill, they are not assignable. This is expressly stated in subsection (1) of Clause 173. Admittedly, Clause 173(4) preserves the right of assignment of contracts or licences but that is a matter of general law of contract and personal property, not the Bill. For the reasons I have outlined we cannot accept these amendments.

Lord Tordoff

I am most grateful to the Minister. Clearly my noble friend during the recess will wish to study in Hansard what the noble Lord said, and he may or may not come back to these matters with more understanding than I have at present. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 277ZC and 277ZD not moved.]

Clause 168 agreed to.

Clause 169 [Consent required for recording of performance subject to exclusive contract]:

[Amendments Nos. 277A, 277B, 278 and 278ZA not moved.]

Clause 169 agreed to.

Clause 170 [Infringement of recording rights by use of recording made without consent]:

Lord Beaverbrook moved Amendment No. 278A: Page 75, line 38, leave out ("or that of the performer").

The noble Lord said: With the leave of the Committee, I will speak also to Amendments Nos. 278B, 278C, 278D and 281A. These amendments all relate to the person whose consent is required to the doing of various things which might otherwise be an infringement of exclusive recording rights. The basic principle ought to be that either the performer or the person with exclusive recording rights may give effective consent to the making of a recording—I must put on one side the argument that the consent of the performer should not be relevant at this stage, since it is not directly material to the amendments—but once the recording is made, only the person with recording rights should be concerned since it is his rights which are affected, not the performer's. Accordingly, the reference to the performer should come out of the opening words of Clauses 170 and 171(1) and that is what Amendments Nos. 278A and 278D achieve.

In Clause 170, however, we have a further reference to consent, at the very end of the clause as printed, and since that consent is not the same as the consent in the opening words—it is consent to the making of the recording, not to the doing of something with the recording—the consent should be the same as in Clause 169 which we have just been debating. Thus, it must be the consent of the performer or the person with recording rights; but because the person with the recording rights at the time of the making of the recording may not be the same as the person whose consent is required under Clause 170, we need to identify him as the person with those rights at the time that consent was given to the making of the recording. Thus, we have the rather complicated concept of "appropriate consent", introduced by Amendments Nos. 278B and 278C.

The same points surface in Clause 178; hence Amendment No. 281A is needed. The Committee will notice that the new subsection (3) to be introduced by this amendment distinguishes between the "making" offence in paragraph (a) and all other offences, which are necessarily committed after the making of a recording, in paragraph (b). In subparagraph (ii) of paragraph (a) the consent of the performer is an alternative to that of the person with recording rights, but in subparagraph (ii) of paragraph (b) the performer drops out of the picture.

Otherwise, the effect of the new subsection (3) in Clause 178 is the same as that in the Bill as printed, subject to one point. The last three lines of the new subsection require two consents in the case of a non-making offence where both the performer and the person with recording rights have rights. This is the only place where two consents are to be required. Two consents are not required in respect of the making offence because it will always be enough to get the consent of the performer.

I am sorry that this is so complicated, but these amendments do no more than reflect the complicated world of musical recording. I beg to move.

The Principal Deputy Chairman of Committees (Baroness Serota)

In putting this amendment I should point out to the Committee that if the amendment is agreed to I cannot call Amendment No. 278AB.

Lord Williams of Elvel

I am grateful to the noble Lord for his explanation of what he admits are rather complicated amendments. It is a rather complicated situation.

In Clause 170 we are satisfied that the amendment put forward by the noble Lord is right. It is odd that the provision was not in the original Bill as drafted. Amendment No. 281A,on the other hand, gives us a little trouble. The subparagraph mentioned by the noble Lord gives a person who records a performance under an exclusive recording contract rights over the future recording or re-recording of that contract. As I understand it, the recording could be used as a sound-track for a film. That may well be in contravention of, or there may be some difficulty with, the Rome Convention. Article 7.1(c)(ii) requires that the performer be given protection from the reproduction of fixation—I use the words of the convention itself; that is, the re-recording of a recording. I ask the noble Lord whether he can give his considered view on whether that right enshrined in the convention is sufficiently protected by Amendment No. 281A.

Lord Beaverbrook

I was about to say that I shall study carefully in Hansard what I said, but I am now informed that there is sufficient protection.

Lord Williams of Elvel

I am grateful to the noble Lord but I hope he does not think I was simply speaking off the top of my head. I have been advised that there may not be sufficient protection. When the noble Lord looks at this again, as I am sure he will on many aspects of our debates, I hope he will satisfy himself on this point.

On Question, amendment agreed to.

[Amendment No. 278AA not moved.]

[Amendments Nos. 278AB and 278AC not moved.]

Lord Beaverbrook moved Amendment No. 278B: Page 76, line 2, after ("without") insert ("the appropriate").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 278C: Page 76, line 2, at end insert— ("(2) The reference in subsection (1) to "the appropriate consent" is to the consent of—

1. (a) the performer, or
2. (b) the person who at the time the consent was given had recording rights in relation to the performance (or. if there was more than one such person, of all of them).").

On Question, amendment agreed to. Clause 170, as amended, agreed to.

Clause 171 [Infringement of recording rights by importing, possessing or dealing with illicit recording]:

Lord Beaverbrook moved Amendment No. 278D: Page 76, line 4, leave out ("or that of the performer").

On Question, amendment agreed to.

[Amendments Nos. 278DA, 278E to 278J not moved.]

Clause 171, as amended, agreed to.

Clause 172 [Duration of rights]:

Lord Jenkins of Putney moved Amendment No. 278K: Page 76, line 22, leave out ("50") and insert ("100").

The noble Lord said: The present situation is that performers' protection legislation makes it a criminal offence to use works where no written consent has been given, but there is no time limit. The Bill seeks to insert a time limit of 50 years; after that the protection ceases to operate. I can see no reason why any time limit should be inserted. But there may be a reason which I should be happy to learn from the noble Lord, Lord Beaverbrook.

However, in order to demonstrate the very reasonable attitude which I bring to the matter I have agreed to go along with him in principle even without knowing the reason for it. I assume that there must be some reason behind what he proposes and I suggest that if he would accept 100 years, or even at worst 70 years, it would seem to me to be more reasonable than a period of 50 years. Perhaps if I were to sit down now the noble Lord might be good enough to tell the Committee why the Government seek to remove the existing permanent position and substitute a limit of 50 years?

Lord Beaverbrook

I am very grateful to the noble Lord for his comments. The protection for performers provided by the existing Performers' Protection Acts is primarily a protection against unauthorised recording filming, broadcasting and cable distribution of live performances and the term is not particularly significant in that context.

The Acts therefore make no provision as to term even though they do give protection, as the Bill does, against the re-recording for purposes not authorised by the performers and against dealing with, as well as making, unauthorised recordings. It is to these last mentioned activities that the term of protection is mainly relevant.

The Committee will recall that although the remedies under the Acts are criminal only, the judgment in the case of Rickless and Others v. United Artists Corporation was that the Acts conferred civil rights of action as well as criminal remedies and that these were subject to no limitation of term. This is not an acceptable position since it means that performers' rights effectively far outlive those of copyright owners. We felt, as did the court, that some limit had to be imposed. Since the term is only relevant to exploitation of performances, which have already been filmed or recorded, it seemed appropriate to us to set the same term for performers' rights as applies to sound recordings and films.

This would mean, for example, that someone wanting to dub an out-of-copyright record on to a film sound-track would not have to trace the performers involved and obtain their consent, as they would have to do if the term of the performers' rights exceeded those in the record itself.

Once copyright in the recording has expired, it is unlikely to be possible to trace the performer through the recording company. I believe that cases where limitation of a term to 50 years will significantly damage a performer's interests will be rare, and over a longer term will cause severe practical problems for those who find themselves having to trace a performer to gain appropriate consent more than 50 years after a performance has taken place.

Lord Williams of Elvel

Could the noble Lord give us some idea of what is the practice in other countries which are signatories to the Rome Convention? Do they have such a limit and, if so, what limit is it?

Lord Beaverbrook

I do not have that information with me. I shall find out and write to the noble Lord. I shall send a copy to the noble Lord, Lord Jenkins of Putney, and place one in the Library.

Lord Jenkins of Putney

I am grateful for that undertaking. Before making a decision on this amendment, would it be in order if I were to address a few remarks on Amendment No. 279ZC? I see that it would not. This is the first occasion on which anyone has had any explanation of the Government's reasons for the direction in which they have moved in this clause. In those circumstances, it is reasonable that we should take the opportunity to consider what the noble Lord has said and whether it is necessary to return to the matter at a later stage of the Bill. I seek leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 278L not moved.]

Clause 172 agreed to.

Clause 173 [Transmission of rights]:

[Amendments Nos. 278M to 279BZA not moved.]

Clause 173 agreed to.

Clause 174 [Consent]:

Lord Williams of Elvel moved Amendment No. 279ZA: Page 76, line 43, after ("performance") insert ("or").

The noble Lord said: It may be for the convenience of the Committee if I speak also to Amendment No. 279ZB. Article 7 of the Rome Convention requires protection to be given against reproduction of a fixed performance for purposes other than those for which consent has been given. It is therefore essential, if adequate protection is to be given, that there should be clear evidence of the intended performances for which consent has been given and the intended uses of fixations. Further, the possibility of retrospectively legitimising an illicit recording would, in our view, present great practical difficulties. I am advised by the Musicians' Union that that is why it would like to see an amendment of the nature I am moving incorporated into the Bill. I beg to move.

Lord Beaverbrook

The purpose of subsection (1) is merely to make it clear that consent may cover any grouping of performances, past or future, which the owner of the relevant rights considers convenient. The provision is permissive, not mandatory, and in no way obliges performers or persons having recording rights to give consent to use of their performances generally.

It is surely right that performers should be free to make whatever arrangements suit them best in that respect. I am informed that the wording in the clause enables us to conform with the Rome Convention. The clause makes it clear that performers have the freedom that they should have. We do not wish to see it limited in the way that the amendment would suggest.

Lord Williams of Elvel

I am grateful for what the noble Lord has said. As we are getting on in the afternoon, we shall have to look at this matter with our advisers to see whether we agree with his position or whether we have some further position to take at a later stage of the Bill. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 279ZB and 279ZC not moved.]

Clauses 174 and 175 agreed to.

Clause 176 [Right to delivery up of illicit recording]:

Lord Tordoff moved Amendment No. 279ZD: Page 77, line 13, after ("performance") insert ("knowing or having reason to believe it is an illicit recording").

The noble Lord said: Again, perhaps I may move this amendment on behalf of my noble friend. We believe that it is inappropriate to extend the wide rights of entry, search and seizure to performers' protection. However, if such rights are to be granted, we believe that such measures should not be enshrined without provisions for a more stringent regime. For example, there should be an obligation for full disclosure on the plaintiff. Entry and seizure should be ordered only in the presence of a police officer. There should be provision for a strict burden of proof prior to the granting of an order.

We believe that as the Bill stands the damage to the defendant under the provisions outweighs the potential damage to the plaintiff. To alleviate this imbalance we suggest that the damage should be awarded only for economic loss. Thus the rights and obligations granted conform with those granted as a result of the introduction of moral rights into the Bill.

As the noble Lord will have observed, I have also spoken to Amendments Nos. 279AA and 279AB, and to Amendment No. 279AC which was not on the original groupings list and refers to being accompanied by a police officer. They seem to fit together. This is a serious matter of individual rights which ought to be taken seriously by the Committee. I beg to move.

Lord Williams of Elvel

The noble Lord, Lord Tordoff, has raised an important question. It is a question that is not free from difficulty. I very much hope that we shall be able to consider this at a later stage or in discussion, perhaps outside this Chamber. I understand that the Government are placed in a certain difficulty here. They have to ensure that there is a possibility of doing what is required under the Bill. Nevertheless, there is the question of liberty that the noble Lord, Lord Tordoff, has raised. Having said that, I look forward to hearing what the Minister has to say. However, I hope very much that the noble Lord, Lord Tordoff, will not press the amendment at this time.

Lord Beaverbrook

I am most grateful to the noble Lords, Lord Williams and Lord Tordoff. Clause 176 deals with forfeiture and delivery up, as already explained. In circumstances where a person has illicit recordings in his possession, custody or control, and an order is made against him that they can be forfeited and delivered up, he would at that point become aware that they were illicit, even if he did not know before. For the convenience of the Committee I should say that I am also speaking to the amendments spoken to by the noble Lord, Lord Tordoff. I shall also speak to Amendment No. 279AC.

In any case, not knowing that recordings are illicit could not be a defence against forfeiture and delivery up if the recordings are indeed illicit, because you would always know by the time that the order was made against you. Amendment No. 279ZD is therefore neither necessary nor acceptable.

On Amendment No. 279AA, rights in performances arc solely economic rights in any case. There is therefore no need to restrict damages to economic losses. No other damages will arise. I do not see what would be achieved by Amendment No. 279AB. It is already the case as a matter of general law that the plaintiff will need to establish his case on the balance of probabilities that the recordings are illicit before an order can be made. Indeed, to require only a prima facie case would not be enough, and the amendment would tilt the balance unfairly in the direction of the plaintiff.

In connection with Amendment No. 279AC, I am grateful to the noble Lord, Lord Williams. We debated this issue last Thursday. On that occasion my noble friend Lord Dundee undertook, without commitment, to consider this matter again in the light of the debate. That undertaking also applies here. I hope that the noble Lord will understand that we have not yet had time to give the matter the attention it deserves. It is an issue that we wish to consider carefully and discuss with noble Lords, perhaps outside this Chamber, before the next stage.

It may be helpful to the noble Lord, Lord Tordoff, if I tell him that Clause 176 provides no right of entry or search; neither does Clause 177. Entry is permitted only to premises open to the public, and force may not be used.

3.30 p.m.

Lord Monson

Can the noble Lord, Lord Beaverbrook, explain in connection with Amendment No. 279AC what is the legal position if the person attempting to seize the illicit recording was physically obstructed by the person in possession of that recording?

Lord Beaverbrook

That will be a matter for the courts. What happens in any circumstance is impossible to say. All we can provide for is the possibility of seizure. I suppose ultimately in those circumstances he must desist and take the matter to the courts.

Lord Williams of Elvel

I believe that we have to be very careful in discussing these difficult matters in Committee. I hope that the noble Lord who asked that pertinent question will accept that this is indeed a very difficult area and that the Opposition Benches would not wish to pursue the matter further.

Lord Tordoff

Nor do I wish to pursue it. I am grateful to the noble Lord for his explanation of each of these matters. I welcome the fact that he is considering Amendment No. 279AC in connection with other matters that have already been discussed. I shall merely ask my noble friend to read what he said, because I was interested to hear the suggestion that Amendment No. 279AB tilted the balance in what I think my noble friend would regard as the wrong direction. That clearly was not in his mind when he put down the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Williams of Elvel moved Amendment No. 279A: Page 77, line 17, leave out subsection (2).

The noble Lord said: In moving the amendment, for the convenience of the Committee I shall speak also to Amendment No. 279B, which is substantially on the same subject. The amendment is a purely probing amendment to find out whether the Government have good reason for inserting subsection (2). It seems to us that whatever the result of a civil case, whatever damages may be awarded, nevertheless there is an illicit recording somewhere and that illicit recording should be suppressed in some manner. The fact that in the Bill as drafted, No such order shall be made if damages in an action for infringement of the right conferred by this Part would be an adequate remedy", does not seem to solve the problem of the illicit recording still being in existence. I beg to move.

Lord Beaverbrook

I am grateful to the noble Lord. For the convenience of the Committee, I shall speak also to Amendments Nos. 279A and 279B.

These amendments correspond to Amendments Nos. 210 and 211, which we discussed in connection with Clauses 88 and 89. The point here is the same: should an order for forfeiture be made when damages would be an adequate remedy? I feel that there is not very much I can add to what my noble friend Lord Dundee said at that time on those corresponding copyright clauses.

To allow the delivery up and forfeiture of illicit recordings in every case would be to introduce some of the undesirable features of the remedy of conversion into the new regime of performers' protection. Conversion damages are generally accepted as wholly inappropriate in the field of copyright and there is no reason to introduce them into Part II. If the owner of the performer's rights or recording rights is entitled to the full value of illicit recordings by having them forfeited to him where damages would be adequate, this would introduce the effect of conversion damages.

No doubt it will be said: should we not aim to have bootleg material withdrawn from the market? The answer will in many cases be yes, and if the court finds that damages are not an adequate remedy it can order delivery up and forfeiture. Damages probably would not suffice in the case of bootleg cassettes being sold in a street market, and in such cases the courts would be able to make an order for delivery up. Forfeiture and delivery up are not precluded. All we are saying is that the court is not required to make an order if, in its judgment, damages are sufficient.

We believe these clauses strike the right balance. The courts will have the flexibility to decide when delivery up and forfeiture are appropriate. We do not want to limit their room for manoeuvre. They should be able to adjust the remedy to the seriousness of the case.

Lord Williams of Elvel

I am most grateful to the noble Lord. We started from the principle from which I think he started—that bootleg recording, if I may use that expression, should in some way be subject to forfeiture. If he seeks to give the courts greater flexibility in this matter I do not think we would challenge that. Nevertheless, I think I will have to take advice on what he has said, and indeed on what his noble friend said on the previous occasion. We may well come back to this matter at a later stage. I am aware that this is a complicated area of the law and it is not one on which I personally would wish to trespass. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 279AA and 279AB not moved.]

Clause 176 agreed to.

Clause 177 [Right to seize illicit recordings]:

[Amendments Nos. 279AC and 279B not moved.]

Clause 177 agreed to.

Clause 178 [Criminal liability for dealing with or using illicit recording]:

Lord Jenkins of Putney moved Amendment No. 279C: Page 78, line 8, leave out ("and which he knows or has reason to believe is").

The noble Lord said: This amendment seeks to remove from the Bill the words, and which he knows or has reason to believe is".

At the moment the Bill provides: A person commits an offence who without the appropriate consent". Then there are a number of provisions, among which paragraph (d) says: in the course of a trade or business—

1. (i) sells or lets for hire, or
2. (ii) offers or exposes for sale or hire, or
3. (iii) distributes,

a recording which is. and which he knows or has reason to believe is, an illicit recording".

My amendment seeks to take out the words, and which he knows or has reason to believe is", so that the paragraph would read: a recording which is an illicit recording".

I believe that the damage is to the performer and the insertion of the words in brackets provide an "out" in almost every case. One can see no reason why a person cannot say, "I did not know". That is the classical answer of the man found in possession. He can say, "I had no idea that this case contained what you have discovered it contains. I had no idea that this recording was obtained in an illicit fashion".

In other words, the insertion of these words invalidates the clause. In those circumstances I hope that the Minister will agree that the clause becomes ineffective if there is such an easy "out", and that those words ought not to remain part of the Bill.

Lord Beaverbrook

I spoke to this amendment when dealing with a previous grouping. However, it may be helpful to the noble Lord if I repeat what I said in relation to the purpose of this amendment.

Even if it were right that there should be no test of guilty knowledge for secondary civil liability, it would not be right that there should be no such test for criminal liability. This is not the kind of offence which should be capable of being committed, even in ignorance, while acting in good faith because nothing that a person can do can prevent him for committing the offence if he does not have at least reason to believe that the recordings in question are or would be illicit. Strict liability is imposed in criminal offences only where the person in question is able to avoid ignorant commission of the offence, such as breaking the speed limit, as I said earlier.

I do not think that I need say anything more about that kind of offence and I hope that my reply is helpful to the noble Lord.

Lord Jenkins of Putney

As I understand it, the Minister is saying that the civil remedy remains. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 280 to 281ZD not moved.]

The Principal Deputy Chairman of Committees

In calling Amendment No. 281A, I should point out to the Committee that if the amendment is agreed to I cannot call Amendment No. 281AA.

Lord Beaverbrook moved Amendment No. 281A: Page 78, line 16, leave out subsection (3) and insert— ("(3) The references in subsections (1) and (2) to "the appropriate consent" shall be construed as follows—

1. (a) for the purposes of subsection (1)(a) (making of recording) the appropriate consent is—
1. (i) in the case of a qualifying performance. that of the performer, and
2. (ii) in the case of a performer subject to an exclusive recording contract, that of the performer or the person who at the time the consent was given had recording rights in relation to the performance (or, if there was more than one such person. of all of them); and

1. (b) for the purposes of subsection (1)(b), (c) and (d) and subsection (2) (dealing with or using recording) the appropriate consent is—
1. (i) in relation to a recording of a qualifying performance. that of the performer, and
897
2. (ii) in relation to a recording of a performance subject to an exclusive recording contract, that of the person who at the time the consent was given had recording rights in relation to the performance (or, if there was more than one such person, of all of them),

and in relation to a recording of a performance which is both a qualifying performance and subject to an exclusive recording contract, both those consents.").

The noble Lord said: I have already spoken to this amendment. I beg to move.

On Question, amendment agreed to.

Clause 178, as amended, agreed to.

Clause 179 [Forfeiture of illicit recordings]:

Lord Beaverbrook moved Amendment No. 281B: Page 78, line 41, leave out ("copy or").

The noble Lord said: This amendment corrects a drafting error in Clause 179(2) by removing the words "copy or-which are superfluous. No copies are referred to in subsection (1) nor elsewhere in this part. I beg to move.

On Question, amendment agreed to.

Clause 179, as amended, agreed to.

Clause 180 agreed to.

Clause 181 [False representation of authority to give consent]:

Lord Jenkins of Putney moved Amendment No. 281ABA: Page 79, line 33, leave out ("unless he believes on reasonable grounds that he is so authorised").

The noble Lord said: To be brief, I believe that this issue should be an absolute offence. Either a party is authorised to make a recording or he is not. The belief of the person making a recording in the matter should not be sufficient to remove the liability, unless the noble Lord is again able to tell me that the civil liability remains. I shall be interested to hear the noble Lord on that matter. I beg to move.

3.45 p.m.

Lord Beaverbrook

This amendment would remove the defence of innocence in a case where someone represented falsely that he was authorised to give consent in relation to a performance for purposes of Part II. It would not be reasonable or just to subject someone to the penalties under this clause, possibly including imprisonment, who had genuine reason to believe that he had authority to consent to, say, the broadcasting or recording of a performance, and gave such a consent mistakenly. We could not accept that proposition, which runs counter to natural justice.

A person falsely giving consent who wished to invoke this defence would have to produce evidence of his claim that he had good reason to give consent. That surely is an adequate safeguard, and should ensure that only the genuine mistake escapes the penalties of this clause.

Lord Jenkins of Putney

In view of that explanation, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 181 agreed to.

Clause 182 agreed to.

Clause 183 [Supplementary provisions with respect to forfeiture orders]:

[Amendments Nos. 281ABB to 281ABD not moved.]

Clause 183 agreed to.

Clause 184 [Qualifying countries, individuals and persons]:

[Amendment No. 281ABE not moved.]

Lord Morton of Shuna moved Amendment No. 281AB: Page 81, line 17, at end insert— (""Convention country" means a state which has ratified or acceded to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention 1961.").

The noble Lord said: My understanding is that this subsection is intended to deal with and to comply with the Rome Convention. It is for that reason that this amendment is put down. I think that I am supposed to be speaking to Amendments Nos. 281BA, 281BAA and 281BAB as well. The purpose is to bring the convention on to the face of the Bill and I should have thought it was an obvious follow-on from the procedure that has been dealt with on copyright, where the copyright convention countries have the same applicability dealt with. I beg to move.

Lord Beaverbrook

I do not think it is wise or necessary to write into the Bill a reference to a particular international convention, unless some provision of the Bill positively depends on or is linked to membership of that convention. The content and membership of international conventions changes over the years and the Rome Convention may not necessarily remain the main convention providing for protection of performers. The Bill allows other countries to be designated as qualifying countries for purposes of Part II on a reciprocal basis. I can assure your Lordships unequivocally that all Rome member states will be so designated if, and to the extent that, they adequately protect British performances, as by definition they almost certainly will do.

Nonetheless, I agree that it might be worth introducing the concept of "convention country" in a more general sense, in the same way as Clause 148 does for copyright. I should like to consider this point and we may well come back to it at a later stage.

Lord Morton of Shuna

With that unexpectedly friendly welcome I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 184 agreed to.

Clause 185 agreed to.

Clause 186 [Countries enjoying reciprocal protection]:

[Amendments Nos. 281BA to 281BAB not moved.]

Clause 186 agreed to.

Clause 187 [Territorial waters and the continental shelf]

[Amendment No. 281BB had been withdrawn from the Marshalled List.]

Lord Williams of Elvel moved Amendment No. 281BBA:

Page 82, line 10, 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: We have already had a discussion at an earlier stage of the Bill on this matter. Indeed this particular amendment was spoken to, but nevertheless I suspect that the Minister may have rather more to say about the matter than he was able to say at the earlier stage. I beg to move.

Lord Beaverbrook

We had a long debate on 14th December, last Monday, on a similar proposal regarding extension of copyright law. I do not think that I need repeat everything that was said on that occasion by my noble friend Lord Dundee since the arguments are exactly the same. I am aware that we did not appear to convince all of the Members of the Committee who were present on that occasion but we continue to believe that it would not be appropriate to extend these provisions to aircraft concerned with exploration of the seabed or to all British registered ships and aircraft.

As we said on Monday, the concept of an aircraft present in the United Kingdom sector of the Continental Shelf for purposes directly connected with seabed exploration is scarcely 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. Although they are 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. The exception to our inability to exercise jurisdiction is when a ship or aircraft is British. But as we understand the position few countries have such a provision. As a result we should be giving something to overseas owners of copyright which in the main their countries, we believe, do not give to us. In doing so we would put our domestic airlines and shipping companies possibly at a competitive disadvantage.

Since we debated this point in regard to copyright we have taken very careful note of what was said and we are considering the matter further. We are looking particularly at the practices of other countries. I should like to come back to the Committee on this point when we hope we shall have more information and shall have completed the necessary research in this respect.

Lord Williams of Elvel

I am most grateful to the noble Lord. I understand that this is a complicated issue which involves very different aspects. I look forward to hearing what he has to say at a later stage in the Bill. In the meantime I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 187 agreed to.

Clause 188 [Meaning of "illicit recording"]:

[Amendment No. 281 BC not moved.]

Lord Jenkins of Putney moved Amendment No. 281BCA: Page 82, line 22, after ("his") insert ("written").

The noble Lord said: The existing legislation requires the written consent of the performer. My amendment seeks to restore that necessity for written consent into the Bill. I believe that that should remain the case. The present legislation only requires that consent should be given and does not specify that it should be in writing.

I believe that if it is not in writing there would be vast evidential problems apart from anything else. Moreover, the giving of consent is a serious matter and it deserves to be done through the formality of writing. Why should the existing rights of performers be taken away in any degree in the course of giving them additional rights? The existing rights have worked perfectly well for decades without any problems. I hope that the noble Lord will feel able to accept the amendment. I beg to move.

Lord Beaverbrook

I covered this point when dealing with Amendment No. 274AA. I then spoke to various amendments, including Amendments Nos. 281 BCA and 281 BDA. I refer the noble Lord to that reply, which I think he will find covers the point. I shall not go through the case again if that is acceptable to the noble Lord.

Lord Jenkins of Putney

I did not hear the noble Lord speaking to the amendment. Had I done so I should probably not have moved it. In view of what he says, I shall look at the matter again. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 281BD to 281BDB not moved.]

Clause 188 agreed to.

Clause 189 [Meaning of "for private purposes"]:

On Question, Whether Clause 189 shall stand part of the Bill?

Lord Morton of Shuna

The question arises whether this clause is necessary. It is a statement of the obvious. It seems blindingly clear that: An act done with a view to a recording of a performance being sold or let for hire, or played or shown in public, or broadcast or included in a cable programme service, shall be treated … as not done for private purposes". Whoever would have thought that it was being done for private purposes? Can the Minister explain why the clause is necessary?

Lord Beaverbrook

We felt it advisable to provide a general definition in the clause of the meaning of "for private purposes" because there is no general definition in Part I. The only occasion on which that expression is used in Part I is in Clause 63 where it is defined in the same terms as in this clause. By contrast the expression is used in several cases in Part II; namely, Clauses 165, 167, 169, 170 and 178.

Lord Morton of Shuna

I am grateful to the Minister. It is stated that An act…shall be treated…as not done for private purposes". That is not a definition of what "done for private purposes" means. It states only the various things that are not done for private purposes. As a definition I should have thought that it is useless.

Lord Beaverbrook

We think that in some cases it might be useful. That is why we have included it in the Bill.

Clause 189 agreed to.

Clauses 190 and 191 agreed to.

Schedule 2 [Rights in performances: permitted acts]:

4 p.m.

Lord Beaverbrook moved Amendment No. 281C: Page 136, line 8, leave out ("this Part") and insert ("Part II").

The noble Lord said: Perhaps it will be for the convenience of the Committee, if, in speaking to Amendment No. 281C, I speak also to Amendments Nos. 281D, 281F, 281G, 281H, 281J, 281K, 281L, 281M, 281N, 281P, 281R, 281S, 281T, 281U and 281V. The purpose of that series of amendments is to avoid any confusion by replacing the expression "this Part" with "Part II" throughout Schedule 2. I beg to move.

Lord Williams of Elvel

I note with great gratitude that this is an amendment moved by the Government which is also supported by a member of my own party. I think that that is a milestone in the Bill!

On Question, amendment agreed to.

Lord Jenkins of Putney had given notice of his intention to move Amendment No. 281CA: Page 136, line 11, leave out sub-paragraph (1).

The noble Lord said: In speaking to Amendment No. 281ZDA—

Lord Beaverbrook

Perhaps I may help the noble Lord. I believe that this amendment No. 281ZDA is grouped with Amendment No. 281CA.

Lord Jenkins of Putney: I shall seek to move Amendment No. 281ZDA.

[Amendment No. 281CA not moved.]

Lord Beaverbrook moved Amendment No. 281D: Page 136, line 11, leave out ("this Part") and insert ("Part II").

The noble Lord said: I have already spoken to this amendment, which stands in my name and the name of the noble Lord, Lord Jenkins of Putney. I beg to move.

On Question, amendment agreed to.

[Amendment No. 281DA not moved.]

Lord Jenkins of Putney moved Amendment No. 281ZDA: Page 136, line 11, leave out ("incidental") and insert ("unintentional").

The noble Lord said: We now come to the amendment which I sought to move prematurely. The amendment seeks to substitute the word "unintentional" for the word "incidental". It seems to me that the word "incidental" is vague. Precisely what does it mean? Why should actions not be in breach simply because they are incidental? In any event, how can there be such a concept in the recording of a performance? Surely it can only be done deliberately. If what is meant is incidental small usage, why should small usage be permitted? It is not permitted at present and that has not caused any problems. I see no reason why it should be permitted in future. In those circumstances, I hope that the noble Lord will feel able to accept either Amendment No. 281ZDA or the following amendments, Amendments Nos. 281DB and 281DC. Perhaps I may be permitted to include those amendments in what I have said to the Committee. I beg to move.

Lord Beaverbrook

Amendment No. 281ZDA, in the name of the noble Lord, Lord Jenkins of Putney, would substitute the word "unintentional" for the word "incidential" in sub-paragraph (1). That is almost exactly the same point as was made in relation to Clause 31 by Amendment No. 135, which the Committee debated on 8th December, and the same arguments apply. The point is embroidered to some extent by the noble Lord's Amendment No. 281DB. With his agreement, I shall speak also to that amendment and Amendment No. 281BC at this time.

Amendment No. 281DB stresses that the intentional inclusion must be by way of background or incidental to the principal subject matter. Amendment No. 281DC is consequential upon Amendment No. 281ZDA and echoes Amendment No. 137 to Clause 31. The noble Lord may not have been present when that was discussed. However, at that time we had quite a long debate. Basically, in regard to copyright we have deliberately used the word shown in the text to deal with the situation where, for instance, in a news broadcast a band perhaps marched by playing a song that happened to be in copyright. That would be only incidental to the news broadcast although it might not necessarily have been unintentional. Again perhaps where the maker of a documentary film is filming on location and the camera happens to swing through a series of advertising posters, the copyright in those works may well be protected. The inclusion of those posters is merely incidental, although it may not be unintentional.

That is the thrust of the matter and it is exactly the same as regards the performer's rights. In my example of the advertising posters there may well be no performers' rights. Certainly in the case of the band marching by there may well be performers' rights. That is why we believe that the performance (if I may refer to it as such) would be incidental. It may not be entirely unintentional on the part of the person making the news broadcast—the director, let us say—that the band should go by. It may well be part of the news item and essential to it.

Perhaps the noble Lord would like to read what I have said on this point. I refer him also to the earlier debate on this subject, which may well be helpful to him in coming to a conclusion.

Lord Tordoff

I trust that there is no danger in the use of the word "incidental" in this case in that it may be confused with the use of the word "incidental" in other cases—for instance, "The incidental music to A Midsummer's Night's Dream" in which there will undoubtedly be performing rights. I take it that the Government have made it quite clear that the use of the word does not overlap into that area as well.

Lord Jenkins of Putney

The noble Lord has gone sufficiently far to persuade me that the word "incidental" might be better than "unintentional". In the circumstances I feel that I should withdraw the amendment in order to consider the two words. If necessary I shall come back to the matter. I certainly accept his invitation to read what he said earlier on the subject. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 281DB and 281DC not moved.]

Lord Beaverbrook moved Amendment No. 281E: Page 136, line 18, leave out sub-paragraph (3) and insert— ("(3) A performance or recording so far as it consists of music shall not be regarded as incidentally included in a sound recording, broadcast or cable programme if it is deliberately included.").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 281F: Page 136, line 23, leave out ("this Part") and insert ("Part II").

On Question, amendment agreed to.

[Amendment No. 281FA not moved.]

Lord Beaverbrook moved Amendment No. 281G: Page 136, line 30, leave out ("this Part") and insert ("Part II").

On Question, amendment agreed to.

[Amendment No. 281GA not moved.]

Lord Beaverbrook moved Amendments Nos. 281H to 281N:

Page 136, line 45, leave out ("this Part") and insert ("Part II").

Page 137, line 8, leave out ("this Part") and insert ("Part II").

Page 137, line 11, leave .out ("this Part") and insert ("Part II").

Page 137, line 16, leave out ("this Part") and insert ("Part II").

Page 137, line 26, leave out ("this Part") and insert ("Part II").

Page 137, line 29, leave out ("this Part") and insert ("Part II").

On Question, amendments agreed to.

[Amendment No, 281NA not moved.]

Lord Beaverbrook moved Amendment No. 281P: Page 137, line 36, leave out ("this Part") and insert ("Part II").

The noble Lord said: I beg to move the amendment standing in my name and that of the noble Lord, Lord Jenkins of Putney.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 281Q: Page 138, line 4, at end insert—

("Incidental recording for purposes of broadcast or cable programme.

.—(1) A person who proposes to broadcast a recording of a performance, or include a recording of a performance in a cable programme service, in circumstances not infringing the rights conferred by Part II shall be treated as having consent for the purposes of that Part for the making of a further recording for the purposes of the broadcast or cable programme.

(2) Such a further recording—

1. (a) shall not be used for any other purpose, and
2. (b) shall be destroyed within 28 days of being first used for broadcasting the performance or including it in a cable programme service.

(3) A contravention of sub-paragraph (2) is actionable as a breach of statutory duty owed to the person or persons whose consent to the making of the recording would be required apart from this paragraph.

(4) Expressions used in this paragraph have the same meaning as in section 62.").

The noble Lord said: The Committee will recall that Clause 62 in Part I of the Bill contains a special exception which allows broadcasters and cable operators to make recordings of works without infringing copyright provided they are used solely for broadcasting or for inclusion in a cable programme service and are destroyed within 28 days of first use.

In drafting the Bill we omitted to provide a corresponding exception in relation to rights in recorded performances. This amendment rectifies that by providing an exception to Part II of the Bill—rights in the appropriate terms. The exception is limited to re-recording of existing recordings; for example, making a re-recording of a programme which includes gramophone records. I emphasise that this exception in no way impairs the rights of performers to control whether their live performances are recorded, broadcast or included in a cable programme service, and whether their recorded performances are re-recorded for any other purposes. I beg to move.

On Question, amendment agreed to.

[Amendment No. 281QA not moved.]

Lord Beaverbrook moved Amendment No. 281R: Page 138, line 8, leave out ("this Part") and insert ("Part II").

On Question, amendment agreed to.

[Amendment No. 281RA not moved.]

Lord Beaverbrook moved Amendment No. 281S: Page 138, line 28, leave out ("this Part") and insert ("Part II").

On Question, amendment agreed to.

[Amendment No. 281SA not moved.]

Lord Beaverbrook moved Amendments Nos. 281T and 281U:

Page 138, line 37, leave out ("this Part") and insert ("Part II").

Page 139, line 11, leave out ("this Part") and insert ("Part II").

On Question, amendments agreed to.

[Amendment No. 281UA not moved.]

Lord Beaverbrook moved Amendment No. 281V: Page 139, line 20, leave out ("this Part") and insert ("Part II").

The noble Lord said: I beg to move this amendment standing in my name and that of the noble Lord, Lord Jenkins.

On Question, amendment agreed to.

Schedule 2, as amended, agreed to.

The Earl of Dundee

I beg to move that the House do now resume.

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

House resumed.

Lord Denham

My Lords, I beg to move that the House do now adjourn until 5.30 p.m.

Moved, That the House do now adjourn until 5.30 p.m.—(Lord Denham.)

Lord Howie of Troon

My Lords, is the House permitted to ask why?

Lord Denham

Yes, my Lords. We are expecting a Bill for First Reading, and it will he for the convenience of the greater part of the House if we have that First Reading today. The Bill has to come up in the normal way from another place. I apologise to your Lordships for this but it has happened because—I do not complain about it—of the commendable way your Lordships have processed our ration of amendments this afternoon.

Lord Howie of Troon

My Lords, it is now 4.15 p.m., and 5.30 is quite a while away. Could we not do some business between now and when this important matter comes from another place?

Lord Denham

My Lords, no. This is not a frequent occurrence but it is something that happens from time to time. It has been agreed through the usual channels that we should stop at this point in this Bill. It is perfectly in order for the House to be adjourned during pleasure to await a Bill for First Reading. It has been done many times in the past.

Lord Howie of Troon

My Lords, it may have been done before, but is it a good idea at this moment?

Lord Denham

My Lords, this is the sort of procedure that should be discussed through the usual channels and not across the Floor of the House.

On Question, Motion agreed to.

[The Sitting was suspended from 4.15 to 5.30 p.m.]