Lords Sitting of 30 November 1987

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Rochester.

Severn Estuary: Tidal Barrage
Lord Gainford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what consideration has been given to the likely environmental consequences of constructing an electricity-generating tidal barrage on the Severn Estuary.
Viscount Davidson: My Lords, the current programme of work on the Severn barrage includes studies of environmental aspects. Indeed, to facilitate this the Severn Tidal Power Group has set up an environmental advisory panel which will look into these aspects.
Lord Gainford: My Lords, I thank my noble friend for that Answer. Has he any information about a survey of the soil and the ground-bearing strength for this project and have any conclusions been drawn?
Viscount Davidson: My Lords, core samples of the estuary bed have been taken by a drilling barge. Sonar and seismic surveys have also been made of the area along the possible line of the barrage. However, a fully detailed survey will not be completed until it is required for final design purposes.
Viscount Hanworth: My Lords, does the noble Viscount agree that any large project has some unfortunate environmental effect, and provided that it is not excessive, that is no reason for turning the project down?
Viscount Davidson: My Lords, I agree that tidal energy is one of the most promising of our renewable resources. The current research programme which concentrates on the Severn and Mersey estuaries is aimed at reducing uncertainties on cost, performance, regional and environmental issues.
The Earl of Lauderdale: My Lords, will my noble friend say whether any other estuaries have been examined for that purpose, and notably Kylesku on the West Coast of Sutherland?
Viscount Davidson: My Lords, I do not have any details about that particular estuary but I can say that outline feasibility studies have been carried out for the Dee estuary, Morecambe Bay, Solway Firth, the Humber and the Wash. However, all those areas are less favourable economically than the Severn or Mersey estuaries.
Lord Moran: My Lords, while acknowledging and paying tribute to the efforts that the Severn Tidal Power Group is making to deal with environmental problems, including the problem of the passage of migratory fish through any barrage, is the noble Viscount aware of the scientific work undertaken in the United States which suggests that fish passing through Kaplan turbines of the kind planned on the Severn barrage have an instantaneous mortality rate of between 11·5 per cent. and 80 per cent. and that 43 per cent. of salmon smolts passing through such turbines lose 20 to 28 per cent. of their scales; moreover that 75 per cent. of those that survive have gross or microscopic lesions? In the light of that knowledge, will the noble Viscount ask those responsible to consider very carefully alternatives to migratory fish passing downstream through the turbines, such as the establishment of free gaps at each end of the barrage?
Viscount Davidson: My Lords, I shall certainly draw the noble Lord's remarks to the attention of those involved.
Lord Stoddart of Swindon: My Lords, does the noble Viscount agree that in fact there may very well be environmental gains in the Severn estuary in that a tidal barrage could encourage a greater diversity of flora and fauna in the area? Will he confirm that the creation of a tidal renewable energy source will bring environmental gain, in that fewer coal-fired and nuclear generating plants will be required, thus reducing any increase in the amount of carbon dioxide, nitrous oxide, sulphur dioxide, nuclear wastes and radiation released into the environment?
Viscount Davidson: My Lords, the noble Lord, Lord Stoddart of Swindon, may well be right on both points. The environmental studies that are now in train are designed to clarify areas of uncertainty and to explore those that require further study, so as to assemble information which can be developed into an environmental impact assessment to support a decision to proceed with construction.
Lord Campbell of Croy: My Lords, while the barrage scheme for the Severn has been under consideration it has been possible for assurances to be given about damage to birds and other wildlife. Is my noble friend again able to give assurances that a difference in the levels of the water will not seriously damage wildlife?
Viscount Davidson: No, my Lords, I am afraid that I cannot give any assurances at this stage, as this is part of the study that is being carried out at the moment.
Baroness White: My Lords, is the noble Viscount able to tell the House whether anyone is looking at the possible inter-relationship between the smaller Taff barrage which is proposed and the adjacent Severn barrage, which could have considerable effects on birds and other wildlife?
Viscount Davidson: No, my Lords, I am afraid I do not know the answer to that question, but I shall draw it to the attention of those involved.
Lord Cledwyn of Penrhos: My Lords, the House debated the Bondi Report five years ago, since when there have been at least three inquiries into the viability of the scheme, in addition to the Wimpey Atkins Report. Can the noble Viscount say what has happened to all those reports? Why are the Government taking such a long time to make a statement and to make up their mind? Will he be good enough to indicate the conclusions at which the Government have arrived on the three major inquiries that have taken place and when they are likely to make a statement?
Viscount Davidson: My Lords, the Government have reached the conclusion that we should get on with further in-depth research and planning into the practical rather than the theoretical. Your Lordships may not understand quite how large the scale of the Severn barrage project is, affecting as it would an extensive regional area and the interests of many individual and institutional bodies. The depth of knowledge acquired so far on many topics does not allow us to satisfy at the moment all the relevant questions which can be asked on the various aspects of the scheme. If we had gone ahead without looking further into these matters we should have been criticised.

Electricity Charges: Effect on Exports
2.43 p.m.
Lord Ezra: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what impact the proposed increase in electricity charges will have on the competitiveness of British industry's exports.
The Secretary of State for Trade and industry (Lord Young of Graffham): My Lords, the proposed increase will add one-sixth of 1 per cent. to industry's costs. The impact on competitiveness will depend upon a variety of factors, including the movement of labour and other costs, many of which are under industry's own control.
Lord Ezra: My Lords, does the noble Lord not agree that, while British industry has done extremely well in recent months in increasing its exports, it now has many obstacles in its path; that interest rates in real terms are still higher than those in most of our competitor countries; that it is faced with a currency which is increasing in value every day and therefore making competition more difficult; and that, on top of that, the Government have chosen this very moment to add to electricity costs, which in the case of many leading export industries are very serious indeed?
Lord Young of Graffham: No, my Lords. I do not agree with the noble Lord, Lord Ezra. Indeed, our
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exports depend in many instances upon non-price competitiveness—matters such as design, quality, delivery and after-sales service. The electricity supply industry has a current return on current cost assets of 3·75 per cent. for 1988–89 and 4·75 per cent. for 1989–90. This compares with an average real rate of return of 10 per cent. for all United Kingdom industrial and commercial companies in 1986.
The Earl of Lauderdale: My Lords, are we right in taking it that when my noble friend speaks of one-sixth of 1 per cent. as the on-cost of electricity to industry, that is an average taken over industry as a whole? If that is the case, does he not agree that in cases of capital intensive industries, such as chemicals and petrochemicals, the difference is very much greater?
Lord Young of Graffham: My Lords, it follows that in large parts of industry it will be much less than one-sixth of 1 per cent. It is true to say that even chemicals and textiles, the most intensive cost sectors, will have increases of less than 1 per cent. in 1988. Wages have been rising at about 3 per cent. over the rate of inflation for the past five years in manufacturing industry. I believe that we should look at both in perspective.
Lord Tordoff: My Lords, does the Minister accept that the chemical industry, in which I declare an interest, uses something like 18 per cent. of the total electricity, and that some of the major users of electricity find themselves being made totally uncompetitive with people on the Continent? Will he also accept that, in particular, the producers of French chlorine are buying electricity at something like half the price which the chemical industry in this country is paying? This surely cannot be to the benefit of an industry which has a £2 billion export surplus.
Lord Young of Graffham: My Lords, it is true that in narrow areas in the realm of industrial gases the cost of electricity is very high. It may well be that some Continental users have special price arrangements, as indeed we have in the industrial consumers' scheme, which gives discounts of up to 11 per cent., with an average of 6 per cent. across industry. But on average our power costs are about half those prevailing in Japan and lower than those in many countries of Europe.
Baroness Gardner of Parkes: My Lords, is the Minister aware that the regional electricity boards in this country have been able to offer some small reductions to their largest industrial consumers?
Lord Young of Graffham: Yes, my Lords. I am very grateful to my noble friend. We have seen reductions in power costs, electricity costs, of 15 per cent. in real terms over the past five years, and the proposed increase does little more than take back some of those reductions. Industry would be much more concerned if by the year 2000 we did not have an adequate supply of electricity. Surely it must be our first charge to see that this takes place.
Lord Shackleton: My Lords, can the noble Lord say what is the increase for the aluminium smelting industry, which above all is sensitive to this cost?
Lord Young of Graffham: My Lords, if the noble Lord cares to put down a Question on specific industries I shall be only too happy to answer.
Lord Taylor of Blackburn: My Lords, how much attention is paid to recommendations from consumer boards, which in the North-West in particular are saying that there is no need for any increase at all?
Lord Young of Graffham: My Lords, I am quite aware that consumer boards may well say that, although I should be interested to have evidence of such. Nevertheless, in order to meet the demand as we approach the year 2000 we have to invest some £30 billion at 1987 prices. A rate of return of 3¾ per cent. going to 4¾ per cent. is hardly an excessive rate of return and is necessary to ensure that we can begin to finance on any basis this very considerable investment programme.
Lord Barnett: My Lords, while I accept the points that the Minister has made, perhaps I may ask him whether he can tell us why these price increases did not start last year.
Lord Young of Graffham: My Lords, we have been waiting for some years for the results of planning inquiries in order to allow this investment programme to proceed. It is only now that the investment programme is in the process of proceeding. It is only now that the commercial return will be necessary.
Baroness Seear: My Lords, is it not true that the percentage profit that the noble Lord has given us is based on current cost accounting, whereas it is normal to do it on historical cost? What would be the figure for the electricity industry if it were not based on current cost accounting?
Lord Young of Graffham: My Lords, I am happy to assure the noble Baroness that it would be a great deal lower.
Lord Bruce of Donington: My Lords, is the noble Lord aware that his use of the profit return in the electricity industry by reference to current cost accounting will deceive no one? In point of fact in terms of historic cost the percentage achieved is somewhere in the region of 14 per cent., which is quite general at this time. Will the noble Lord give the House an assurance that his department's Press Notice No. 720 of 24th November has been sent to his right honourable friend the Secretary of State for Energy? That press notice revealed that the trade deficit for manufactured goods in the United Kingdom is running at some £9 billion per annum and that the industry cannot afford to have its prices made less competitive than those which already exist at present under the disability of quite inane exchange rate policies on the part of the Government.
Lord Young of Graffham: My Lords, first, I must apologise to the House and to the noble Baroness, Lady Seear. On historic cost accounting the return would be higher.
I point out to the noble Lord that recent estimates have shown that the balance of payments for this year will be in the range forecast by the Chancellor. It is the non-price competitiveness which determines in many instances the success of our exports. That will not be affected by an average increase of one-sixth of 1 per cent. in electricity costs.
Lord Cledwyn of Penrhos: My Lords, will the noble Lord confirm that the basic reason for increasing electricity costs is the Government's plan to privatise the electricity industry?
Lord Young of Graffham: No, my Lords. The basic reason for increasing electricity costs is to ensure that we get an adequate and commercial return out of which we can prepare to meet an investment of £30 billion which is needed by the end of the century to maintain continuity of electricity supplies.
The Earl of Lauderdale: My Lords, my noble friend has twice mentioned the total cost of £30 billion for this new investment. Are we to understand that that will be underwritten by the Government or, the industry having been privatised, will it fall on the private investors?
Lord Young of Graffham: My Lords, some of the investment which goes ahead now will of course fall within the period of public ownership. I hope that a very large bulk of the cost will be met by the private sector.
Lord Molloy: My Lords, will the noble Lord say whether the increases in electricity costs will also affect the domestic area? Will the Government endeavour to see that poor old-age pensioners and other people who could be put in difficulties by the increased charges will receive some assistance from the DHSS to meet the electricity increases which the Government now intend to impose?
Lord Young of Graffham: My Lords, I am sure the noble Lord will understand that a Question about the competitiveness of British industry's exports in the light of the increase of electricity charges to industry is a long way away from the DHSS and old-age pensioners.
Lord Denham: My Lords, we are going a little bit far on this particular Question. We have spent eight or nine minutes on it. It is the general agreement of the House that the average time should be five minutes per Question. Perhaps we may pass on to the next Question.

London Underground: Graffiti
2.53 p.m.
Lord Nugent of Guildford: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what action they are taking to stop the defacement by graffiti of London Underground trains and stations.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, action against this sort of vandalism is one of the priorities of the programme against crime which London Underground Limited are undertaking following the Department of Transport's report of last year on Crime on the London Underground. The Government have made £15 million available over three years for this programme.
Lord Nugent of Guildford: My Lords, I thank my noble friend for that hopeful Answer. However, is he aware that this nuisance has now reached such serious proportions that pretty well every train on the Underground is defaced at least once a week? A large part of staff time is spent cleaning the trains of this kind of paint and ink which is particularly difficult to remove. Would my noble friend consider strengthening the police resources of London Underground so that it has a better prospect of catching the culprits?
Lord Brabazon of Tara: My Lords, I agree that there is a serious problem. It is estimated that it will cost London Underground three-quarters of a million pounds in the current year. As regards the police, the number of British Transport Police on the Underground has been increased by 25 per cent. in the past year, from 280 to 350 officers. Therefore the problem is taken very seriously.
Viscount Ingleby: My Lords, would it not be the most effective deterrent for those responsible to have to spend several hours of their own time cleaning up under police supervision?
Lord Brabazon of Tara: My Lords, that would be a matter for the prosecuting authorities or the magistrates. However, I certainly think that it would be a very good idea.
Lord Underhill: My Lords, does the Minister agree that normal crime (if one can use the word "normal") on the Underground is rather different from this matter of graffiti and vandalism to which the original Question referred? Could it not be connected with the diminution of staff, particularly on the suburban Underground stations? Those are frequently completely unstaffed. Has the Minister seen the scheme launched by the Tyne and Wear Passenger Transport Executive called Metro Watch, which is carrying out educational work, particularly in schools, and through publicity? It also pays special attention to patrols.
Lord Brabazon of Tara: My Lords, executing graffiti is a crime whatever way one looks at it. I have not seen the Tyne and Wear scheme but I shall certainly look into that. The Government's programme has started with a pilot project in one
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particular depot. Most of this damage is done to trains in depots and in sidings. That project is showing successful results. If it proves to be a success, it is capable of being extended over all the depots. I hope that that will have a good effect.
Lord Gainford: My Lords, I have been informed that certain railway stations actually provide some spaces which graffiti artists are encouraged to use instead of messing up trains and other places. Is there any truth in that, and has there been any result from it?
Lord Brabazon of Tara: My Lords, I have not heard that that is the case. I am not certain that we should do anything to encourage graffiti whether or not by providing places in which to do it.
Lord Annan: My Lords, will the noble Lord confirm that he will be following up the proposal that was mentioned a moment ago? That was in relation to the graffiti being cleaned up by first-offenders who have been sentenced to community service rather than sending such first-offenders to custodial sentence in prisons and institutions which are already overcrowded. Will the noble Lord also look into the question of whether this kind of work in community service is in any way being impeded by trade union restrictive practices?
Lord Brabazon of Tara: My Lords, I shall have to look into those questions as they do not specifically relate to the London Underground. It is certainly a matter for the magistrates, but I shall draw the attention of my right honourable friend to the noble Lord's remarks.
Lord Nugent of Guildford: My Lords, I hope my noble friend will be encouraged to do what he can to help London Transport at this time when it is spending some £80 million to improve the appearance of trains and stations. That will generally tend to reduce the risk of the unpleasant crimes we now see there. Will my noble friend kindly pursue the point that has been made about the kind of punishment that may be meted out to the culprits should they be caught?
Lord Brabazon of Tara: My Lords, I shall indeed. This is a serious and a dangerous problem. Not very long ago a young boy of only 11 was making graffiti when he was hit by a train and killed. This matter should be taken seriously; it is not a joke. I hope that that will soon be seen to be the case.
The Countess of Mar: My Lords, will the noble Lord say whether or not most of these offences are committed by young people? If that is so, is it not the responsibility of parents to see what their children are doing rather than that of the Government?
Lord Brabazon of Tara: My Lords, the noble Countess makes a very good point. I understand that most of the offences are committed by young people. At the moment, there is a particular cult, mainly composed of teenagers, who take part in this crime. As I have already said, the other day there was a

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tragic fatality involving one of those young people. Parents and teachers should certainly discourage children from doing this.

Security Services Ombudsman: Access
3 p.m.
Lord Molloy: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether Members of both Houses of Parliament will have access to the ombudsman for the security services.
The Minister of State, Home Office (The Earl of Caithness): My Lords, no.
Lord Molloy: My Lords, may I ask the Minister why?
The Earl of Caithness: My Lords, the reason, as my right honourable friend the Prime Minister said on 2nd November, is that a staff counsellor will be available to be consulted by any member of the security and intelligence services who has anxieties relating to the work of his or her service.
Lord Mishcon: My Lords, will the Minister agree that Members of both Houses of Parliament, representing as they do in the lower House the people of this country and in this House the wisdom of this country—
Noble Lords: Hear, hear!
Lord Mishcon:—could make a contribution that is invaluable and that in any event ought to be their right as public representatives?
The Earl of Caithness: My Lords, the noble Lord is on a slightly different point which has to do with the oversight of the security services. As I explained in our debate in this House on 17th December 1986, we believe that the direct ministerial responsibility which pertains at the moment is the best way to continue.
Lord Molloy: My Lords, is the Minister aware that Members of both Houses of Parliament, as well as many political commentators, think that the creation of such a post would be very worth while? It could possibly prevent a future destabilisation of a democratically elected British government, which is a task that many of us believed to be its primary objective. Do the Government not care that security services might be involved in a possible destabilisation of British governments? Will the creation of the office of ombudsman not help to deter such future behaviour?
The Earl of Caithness: My Lords, I am grateful that the noble Lord agrees that the creation of the post is worth while. We believe that it will serve a useful purpose for the members of the security and intelligence services. However, it is distinct from and not related to the oversight of the services.
Lord Cledwyn of Penrhos: My Lords, perhaps I may follow up the point made by my noble friend Lord Mishcon. Does the noble Lord not agree that there is a difference between ministerial scrutiny and parliamentary scrutiny? Is there not a strong case for setting up a committee of Privy Counsellors, for example, to whom the new security ombudsman can report?
The Earl of Caithness: My Lords, there is indeed a case for what the noble Lord the Leader of the Opposition has suggested. That was put forward in our debate on 17th December. For the reasons which I gave then, we think that the present arrangements are the right way forward.

Business
3.4 p.m.
Lord Denham: My Lords, it may be for the convenience of the House if I announce that the Committee stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Merchant Shipping (Passenger Ship Construction) (Amendment No. 2) Regulations 1987 will be taken.

Landlord and Tenant Bill [H.L.]
Lord Coleraine: My Lords, I beg to introduce a Bill to make new provision for imposing statutory duties in connection with covenants in tenancies against assigning, underletting, charging or parting with the possession of tenancies without consent. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read a first time.—(Lord Coleraine.)
On Question, Bill read a first time, and to be printed.

Scottish Development Agency Bill
Brought from the Commons; read a first time, and to be printed.
Urban Development Corporations (Financial Limits) Bill
Brought from the Commons; read a first time, and to be printed.

Norfolk and Suffolk Broads Bill
Lord Hesketh: My Lords, on behalf of my noble friend Lord Belstead, I beg to move the Motion standing in his name on the Order Paper.
Moved, That, as proposed by the Committee of Selection, the Lords following be named of the Select Committee to whom the Bill has been committed:

Craigavon, V.

Dormand of Easington, L.

Grey, E.

Murton of Lindisfarne, L. (Chairman)

Trafford, L.; and

That the Committee do meet at eleven o'clock on Tuesday the 8th of December.—(Lord Hesketh.)
On Question, Motion agreed to.

Highland Region Harbours (Miscellaneous Powers) Order Confirmation Bill
Read a third time, and passed.
Lerwick Harbour Order Confirmation Bill
Read a third time, and passed.

Coroners Bill [H.L.]
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of recommitment be discharged.
Moved, That the order of recommitment be discharged.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, perhaps I may thank the members of the Consolidation Committee for the work they put in on the Bill. This is not a unique consolidation, but perhaps it is appropriate from time to time for the House to express its gratitude to those applying their minds to such arduous and often difficult labours.
The Lord Chancellor: My Lords, I speak for the committee, since I was its chairman until recently. I am sure that the gratitude of noble Lords is much appreciated. I see that my immediate predecessor as chairman of the committee, the noble and learned Lord, Lord Brightman, is in his place. I am sure he is equally grateful.
On Question, Motion agreed to.

Copyright, Designs and Patents Bill [H.L.]
3.8 p.m.
Lord Beaverbrook: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Beaverbrook.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD ABERDARE in the Chair.]
Clause 1 [Copyright and copyright works]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 1:
Page 1, line 12, leave out ("original").
The noble Lord said: I beg to move Amendment No. I standing in my name and in the name of my
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noble friend Lord Morton of Shuna. In moving the amendment, I take the opportunity to declare an interest which I should have declared had I been able to speak on Second Reading. I am a director of Pergamon Holdings Limited, which, through various subsidiaries, has many interests in publishing, films, broadcasting and cable programmes, covering a wide spectrum of the Bill. I hope that that does not preclude me from leading for the Opposition on this particular matter.
I should also like to take the opportunity of explaining to the Committee how the Opposition intends to conduct itself during the Committee stage. There are a number of amendments which are of a probing nature, and I hope that the Government Front Bench will take them as such. The Bill is long and complex. We take the view on this side of the Committee that we do not like legislation to pass without at least having an understanding of what it is about and making sure that the Government have an understanding of what it is about.
As my noble friend Lord Morton of Shuna warned on Second Reading, there will also be a number of clause stand part debates. I apologise for that. It is not a technique that I particularly like because I believe that one should give the Government notice of points to be raised. Nevertheless, there are clarificatory questions which we shall ask which are not proper as amendments but which are the subject of clause stand part debates. I therefore apologise to the noble Lord opposite if I get up and put a number of clarificatory questions to him when the Question is put.
Amendment No. 1 is a probing amendment which is not intended as an amendment to the Bill as such. Therefore, I hope that the noble Lord will throw away the first part of his brief which says that if this word were to be cut out of the Bill it would destroy the foundations of the Bill.
The question of what is meant by the word "original" has concerned the courts since the 1911 Act and the 1956 Act. In neither of these Acts was there a definition of "original" and the problem is to know whether one should leave the question of defining what Parliament means by "original" to the courts or whether Parliament should properly put a definition into the present Bill.
The Notes on Clauses, which have been extremely helpful in the case of this particular Bill, contain a summary of the case law which has arisen out of the 1911 and 1956 Acts, particularly the 1956 Act. They quote a judgment which I believe was made in the case of University of London Press Ltd. v. University Tutorial Press Ltd., one sentence of which states that the courts have approved,
"a rough practical test that what is worth copying is worth protecting".
The question before us is therefore, is it right to leave this to the courts? It is after all a fundamental part of copyright law that it is for the protection of original work. In the Bill as drafted is not the argument in danger of becoming rather circular? If Parliament leaves the word "original" without a definition in the Bill then it will be for the courts to determine what it means. What we shall be saying to

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the courts in effect will be, "Parliament says, 'Here is a statute but it is up to you to determine what it means since we decline to say what it means'." Since this is such an important part of the Bill the argument does indeed become completely circular and we find that the courts are to determine what is to be protected and will give proper protection.
I recognise that the definition of what is original is extremely difficult. I recognise that the courts have had a lot of problems with this particular expression. I also recognise that in Clause 192 of the Bill there is some attempt to define what is not original—that is to say, what is commonplace in the question of designs.
I ask the noble Lord and indeed the Committee whether it would not be sensible and right for the Government to propose and the Committee to consider a definition of what constitutes "original" so the courts can be given clear guidance on this matter. I beg to move.
Lord Denning: I oppose this amendment. The word "original" was in the 1911 Act and also the 1956 Act and it is fairly simple to understand. "Original" means that the author has written it himself and not copied it from someone else.
I have written a number of judgments and books and so forth. People may take part of my writings and put it forward as their own so that the reader thinks that it is the other person's writing. The copier is not original; he has copied my work. He would have no right to claim copyright for his copy. I believe that in the University of London case it was a question of somebody taking some questions out of one examination paper and putting them into his own without any alteration or acknowledgement. The idea of being original and not a copy is a simple one and I am sure that the court can work it out perfectly well when a case comes before it. I should leave in the word "original".
Lord Williams of Elvel: I am sorry to reply immediately to the noble and learned Lord, whose objections I understand. Would he regard Brahms's Variations on a Theme by Paganini as being original to Brahms or original to Paganini?
3.15 p.m.
Lord Lloyd of Kilgerran: While the noble and learned Lord is thinking of the answer to that question, may I in some way dilute the apparently nice things I have been saying about the Front Bench team of the Government? I deplore the lateness with which we have received the amendments of the Government. They put in a large number of amendments and a new schedule. They rewrote Schedule 1 to Part 1. In addition, the Marshalled List was not available.
I am sorry to keep on complaining, but this has upset a number of industries and their advisers, many of whom have come to me to ask for advice. Although the noble Lord, Lord Denham, is not in his place, I hope that we may be compensated for the trouble we have been caused over this weekend by
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rising early this evening and not being pressed to go right through until the morning, as I understand there is a threat to do. I hope the Minister can get that message to the Chief Whip. It would be some compensation to us who have been working so hard on this Bill.
I am in a similar dilemma to the noble Lord, Lord Williams, on the matter of this amendment. A colleague of mine at the Patent Bar wrote to the Financial Times a few days ago saying that this was a "Humpty Dumpty Bill' because what the Government are trying to do is to recite the law as it was in the 1911 and 1956 Copyright Acts, with a few variations. One of the most curious clauses that any Bill could possibly contain can be found at Clause 156. It states:
"This Part restates and amends the law of copyright, that is, the provisions of the Copyright Act 1956, as amended."
I suppose that saying that they are restating it and amending it is not too bad, but the clause continues:
"A provision of this Part which corresponds to a provision of the previous law shall not be construed as departing from the previous law merely because of a change of expression."
That is most curious. The previous law is to apply although we have changed the words in the Act. That sounds very curious from a lawyer's point of view. The clause then continues:
"Decisions under the previous law may be referred to for the purpose of establishing whether such a provision of this Part departs from the previous law, or otherwise for establishing the true construction of this Part."
It really is a Humpty Dumpty kind of Bill, in that it takes certain parts of the 1956 Bill and sits them on the wall, as it were, but there is no reference at all to any fall arising. Perhaps therefore my learned friend at the Patent Bar may be wrong in referring to a Humpty Dumpty Bill.
As the noble and learned Lord has said, the word "original" appeared in the 1911 and 1956 Acts. There is a lot of law about that and, with very great regret, I am inclined not to follow the noble Lord, Lord Williams, in approving this amendment but to say, "This part restates the law. Why not leave the law as it is at the moment, having regard to the history of the courts in dealing with this word?".
Lord Kilbracken: I should like briefly to support my noble friends in this amendment, largely because in the course of the Bill we realise that copyright does not subsist if a work is a copy. Therefore the word "original" here is certainly unnecessary and possibly otiose. I do not see why it should be thought necessary to include the word "original" in paragraph (a) but not at the beginning of paragraphs (b) and (c). It appears to me that if it stays in then it should be included in those other paragraphs.
Lord Howie of Troon: At this early stage I should declare a multiplicity of interests. First, I am involved in the publication of magazines in the engineering world and, therefore, may be thought to be interested in copyright. I am also an engineer and when we discuss architecture I shall be interested in that. I am also involved in higher education as Pro-Chancellor of the City University and therefore will be involved in the clauses involving education. I hope to be brief

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on all occasions and I also hope that this declaration of multiple interests will satisfy the Committee so that I need not repeat it every time I rise to my feet.
First, I do not believe that my noble friends Lord Williams and Lord Morton should apologise for their strategy of putting down probing amendments and discussing them and also discussing at some length the Question, that the clause stand part. That is exactly how Parliament and this Committee should proceed on a Bill of this nature. There is no need to apologise at all and I sincerely hope that they will stick to that strategy, no matter how long it takes. However, I am entirely in favour of the comments of the noble Lord, Lord Lloyd of Kilgerran, who suggested that we should not sit unduly late on the first night of our proceedings due to the manner in which the Government have delayed them—to my mind unduly and unfairly. With those general remarks, I propose to be very brief on the amendment.
I am not sure whether or not I agree with the amendment but I am interested in it in the sense that if we discuss the nature of a magazine article—and that is what I am professionally and principally interested in—it is very difficult to define who is the actual author.
Let me illustrate the problem by referring to an article which I wrote myself a fortnight or so ago and which was published, I am happy to say, by one of my editors with only minor changes. I was, in a sense, the original author in that I wrote down the article. However, I wrote it at his behest so that, though I was perhaps the author, he might be considered the originator. Not only that, but when considering the article a problem arose involving lawyers who felt that I might have made statements which could be thought unseemly by the persons referred to in the piece. That meant that what I had written was changed by the lawyers. Were they, in a sense, also original authors of the piece? The discussion with the lawyers was a triangular one, also involving myself and the editor. Does that make the editor a part author or part originator? I felt that the article was still mine but other hands had played a part in it.
Of course, that is not the end of it. Once the editor, the lawyers and myself had chewed this over and arranged the piece of work into a form which we thought suitable for consumption by the public as a whole—or, at least, that small part of the public which consists of our readers—we then had to pass it on to the sub-editors who proceeded to change a comma here and there; unfortunately, they tend to take commas out instead of putting them in, which is something to which I object. However the sub-editors had a hand in it. Moreover, the man who writes the headline had a hand in it—a very dangerous hand as a rule, let it be said. It was not my hand, and it was not that of the editor or the lawyers, though I dare say the lawyers cast their shadow over it in some way. Therefore, that was another author.
Furthermore, the article was emblazoned with a photograph of the principal person about whom I was writing. The photograph was no doubt produced by a photographer and dealt with by a sub-editor, the editor and looked at by a lawyer. It was looked at by
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just about everybody in the firm except me. I saw it at the same time as our readers saw it. Therefore, if you are dealing with Gulliver's Travels or a book of that nature, you might conceivably be able to identify the author—though I know Jonathan Swift does not come within the ambit of this Bill—but when it comes to the kind of writing with which I and other hacks in the Chamber are concerned, it is very difficult indeed to identify the original author; though I dare say if it came to a matter of libel he would be identified fairly swiftly. However, that is a matter of internal business within the company and not really a matter for the Bill as a whole.
I strongly support my noble friends Lord Williams and Lord Morton in probing the Bill because, as I have tried to show right at the outset, this Bill is by no means a simple one as the noble and learned Lord, Lord Denning, appears to think. It is very complicated and difficult. My last comment is this. Were I writing another article, nothing on earth would persuade me to plagiarize the noble and learned Lord, Lord Denning, because I am sure that that would be a very dangerous path to pursue.
Lord Somers: Perhaps I may just clear up one or two points. In terms of the creative market, even though someone has been asked or even commissioned to do work for which he receives money, that does not mean that he ceases to be the author or the composer. I have myself been asked to write a work on some occasions but I did not lose my ownership of the copyright. One may take the painting of a portrait as an example. Does the artist lose his copyright because the subject of the portrait owns part of it? Of course not.
Lord Donaldson of Kingsbridge: The noble Lord, Lord Williams, asked a question of the noble and learned Lord, Lord Denning, and as I share an interest in music, I shall answer it for the noble and learned Lord. The Brahms variation of a theme by Paganini is a long and extremely complex work composed entirely by Brahms with the exception of about eight bars at the beginning which constituted the theme by Paganini. I do not believe that any judge would have a moment's hesitation in deciding it to be an extraordinarily original work.
Lord Lloyd of Hampstead: I should perhaps declare an interest, if only a minor one, as a part-time author, but perhaps I may say a few words on the question of originality to bring the issue down to earth. The concept of originality and copyright, as the noble and learned Lord, Lord Denning, pointed out, goes back to 1911. It was not defined then and never has been defined. The only question that really concerned the court and created any real difficulty was whether this idea of originality involved some notion of real creativity. Does it have to be something like a poem by Keats or a play by Bernard Shaw to qualify for copyright? The court had little difficulty in accepting the notion that it was not that kind of originality which was being stipulated. Therefore, there has been a whole series of decisions which have held that even things like railway timetables—not great specimens of literary creativity—qualify as original works and are entitled in appropriate circumstances to claim copyright.

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The concept of originality is, of course, not in itself an easy one. There can be all kinds of marginal cases but one cannot help but ask the question: will it really help for Parliament to strive to produce a very complex definition which is likely to create more problems than already exist? I think this is one of those cases where it is better to trust our courts to reach common sense decisions on these matters. The courts have been operating on this concept for 76 years or so without any severe criticism having been levelled. So far as I can remember, the Whitford Committee that went into these matters and the copyright Act in very great detail did not suggest that any great help would be afforded by giving a definition. Therefore I certainly support the view of the noble and learned Lord, Lord Denning, that it is far better to leave this matter alone, as it has been adequately resolved, and it does not appear likely to give rise to any grave problems in the future.
3.30 p.m.
Lord Beaverbrook: I am most grateful to all noble Lords who have spoken, and to those who have broadly welcomed the Bill. In response to the noble Lord, Lord Williams of Elvel, I welcome him telling the Committee how he intends to treat the Bill during the Committee stage. The Government, for their part, will listen very carefully to what all noble Lords have to say. I hope that we shall be able to deliver the Bill in due course in the very best possible form as a result of that.
It is a long and complicated Bill. No doubt we are going to have to battle on. I cannot say what hour we are going to be able to adjourn on any particular day. That of course would be a matter for the usual channels, but I do hope that we will be able to meet our target without too much difficulty. I would say to the noble Lord, Lord Lloyd of Kilgerran, that in mentioning the criticism he levelled at the Government as to the lateness of some of the government amendments being tabled, that in fact the Marshalled List was available on Friday, and that is perhaps earlier than some other Bills that we have had before us.
Lord Howie of Troon: I spoke to the committee office on Friday. They told me that the Marshalled List would not be ready on Friday, otherwise I would have picked it up. I may have been wrongly informed, but it leaves a certain amount of doubt in my mind.
Lord Beaverbrook: Of course it would have been desirable for it to have been available earlier. The new schedule that the Government have tabled, as mentioned by the noble Lord, Lord Lloyd, and all government amendments to this part of the Bill to be discussed this week were also in print by Friday. However, again I would say, with all these things: the earlier, the better.
Lord Lloyd of Kilgerran: I had the privilege of hosting a party in the Cholmondeley Room on Friday, and the Printed Paper Office very kindly set aside for me one of the Marshalled Lists; but I found in the Printed Paper Office piles of the Marshalled Lists, unpacked. So to say they were available to
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everybody seems to be a very strange connotation of words.
Lord Beaverbrook: Everyone concerned in dealing with this Bill, particularly in my department, has worked very long hours and very hard indeed in order to get things out as quickly as possible. If inconvenience has been caused because the amendments were not ready in time then I can only apologise today.
Turning to the amendment put down by the noble Lords, Lord Williams and Lord Morton, I should like to say to the noble Lord, Lord Lloyd, that I do not accept that this is, as he described it, a "Humpty Dumpty" Bill. It is an ambitious attempt to reword and simplify the existing law. In doing that we had no wish to deprive the courts of helpful guidance from case law deriving from earlier copyright Acts. That is why Clause 156 was included. It is intended to be helpful rather than confusing. But perhaps we can debate that at the appropriate time.
Turning to the amendment itself, the noble Lord, Lord Williams, suggests that I throw away my brief on this subject; but I think other noble Lords have mentioned the substance of this amendment, so I ought to dwell just for a minute on the detail of it. In order to attract copyright protection, a literary, dramatic, musical, or artistic work must be original, and the requirement in Clause 1 of the Bill is not new. It is to be found as a basic requirement in both the 1956 Act and the 1911 Act which preceded it. Indeed, it is a requirement that forms one of the foundations of copyright law. It is clear that copyright protection should not be given to works that are themselves copies, but that would be the consequences of accepting the amendment as it stands.
As I have already said, "original" is not defined in this Bill or in earlier legislation; but there is a substantial body of case law to assist in its interpretation. Original does not mean novel or unique, but that the author created the work independently, and that the creation involved a sufficient degree of skill, knowledge, creative labour, taste or judgment to merit protection.
The noble Lord, Lord Kilbracken, wondered why original is not also applied to the works listed in paragraphs (b) and (c). The reason is perhaps partly tradition, but we have ensured that only originals and not copies are protected by provisions of the relevant clauses. Clause 5 is an example, and there are analogues in Clauses 6, 7, 8 and 14.
The noble Lord, Lord Howie, raised the difficulty of identifying who is the author of a work. This is a quite separate question from that of what is original. I would rather not deal with it here. There will be another opportunity if the noble Lord wishes to return to that point at that time. The noble Lord, Lord Williams, has indeed said that this was a probing amendment. I hope that I have been able to answer some of the points that have been made. In the meantime, I wish to resist this amendment.
Lord Howie of Troon: I quite understand there will be a further opportunity to discuss the problem which I raised, and I interpret originality exactly the

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same way as does the noble Lord. I do not have any dispute with him on that. No doubt we shall return to this. I should like to hear from him some preliminary response to the preliminary remark which I have made.
Lord Williams of Elvel: Can the noble Lord very kindly turn his attention to the point that I made about Clause 192, where the concept of originality and commonplace does seem to be somewhat defined?
Lord Beaverbrook: I shall have to look carefully at the Official Report before responding to the noble Lord, Lord Howie, and also to the noble Lord, Lord Williams, as I have basically said what I have to say on this point. I shall respond to them in writing.
Lord Williams of Elvel: I am most grateful to the noble Lord for his response, and indeed to other noble Lords who have taken part in this short debate on the first amendment. I very much hope that the Committee will not divide itself into lawyers versus the rest, because I see a danger in this. Speaking as it were, as the original man on the Clapham omnibus, I feel it is part of our duty as the Opposition to make sure that those who will try and operate this Bill when it becomes an Act (as opposed to those who actually appear in the courts or who make judgments in court) understand what is meant by Parliament, and can operate without having to engage the services of learned counsel. If I may say so with the greatest respect, no noble Lords engage the services of learned counsel every time they wish to write a book, a play, an article or anything else.
I take the point of the noble Lord, Lord Donaldson, that the courts would certainly decide in the way he has described. I wonder, if both Paganini and Brahms were alive, or if their copyrights still persisted, whether Paganini would take such a sanguine view as the noble Lord. But again this is the point that I am trying to make, that both Brahms and Paganini, if they were alive today, have to understand what the Bill is about. It would be wrong to engage in legal discussion about what the courts might or might not do if the ordinary person—the ordinary author, the ordinary painter, the ordinary musician and the ordinary composer—does not understand it.
I am grateful to the noble Lord for his response, I believe that this is a matter which still hangs in the air. I accept what a number of noble Lords have said. It is not right that Parliament should lay down a definition of the word "original" largely because the Bill, when it is enacted, as we hope it will be, will have to last for 20 or 30 years. The concept of originality may change during that period. The courts may decide that the concept has changed, and so in many ways I am sympathetic to the Government's view that this matter should be left open.
However, I wish to reiterate what my noble friends Lord Howie of Troon and Lord Kilbracken said. It is a point which is of some interest to practitioners as opposed to the lawyers involved in this section of the law. Having said that, and thanking all noble Lords, I beg leave to withdraw the amendment.
Lord Broxbourne: May I ask the noble Lord one question before he withdraws the amendment? He prays in aid for his amendment and the definition of "original", Clause 192 which deals with design right. The definition is contained in subsection (4). Does he agree that that is merely a negative definition to show what is not original? It is not a positive definition and therefore not analogous with the amendment he seeks to make.
Lord Williams of Elvel: I am grateful to the noble Lord. He is right. I think that I said that the word "commonplace" was brought in as a negative—what is not original. I hope that I made that point clear in my second intervention. Nevertheless, once the Government embark on even a negative definition of what is and what is not original, they start on a path that they might regret in the future. One might walk further down that path. That is the point that I was trying to make.
Amendment, by leave, withdrawn.
On Question, Whether Clause 1 shall stand part of the Bill?
Lord Williams of Elvel: Before we leave Clause 1, there is a theoretical point to be made about the distinction that has previously been made between copyright works and what I would call other subject-matter; that is, neighbouring rights. I notice from the Notes on Clauses that those who enjoy neighbouring rights have, in some way, felt themselves to be second-class citizens. They are the rights described in Part II.
It is easy to make the elision of neighbouring rights and copyright—in its proper sense "copyright works". The Government have gone some way towards doing that. As the Notes on Clauses explains, that is because they wish to get away from the feeling that there are superior rights and inferior rights. Nevertheless, it might well be' clearer—I should be grateful to hear the noble Lord's views on this—if that distinction were not blurred. Should we not follow European laws which strive to keep authors' rights and neighbouring rights apart? I am not sure that this is a matter upon which the United Kingdom should wilfully fall out of line with other European countries.
If the Government were sympathetic, the type of amendment that would be appropriate to Clause I would be to Clause 1(1) which states:
"Coyright is a property right … in the following description of work,"
"and other subject-matter" could be added. That might be an appropriate way to draw attention to neighbouring rights. It is not something that I wish to press, and it has not been put in the form of an amendment. I should be pleased to have a clear idea of the Government's thinking behind this point.
3.45 p.m.
Lord Beaverbrook: I hope that I can help the noble Lord on this point. As lie will be aware, the United Kingdom is a signatory to the Rome Convention for the protection of performers, producers of phonograms and broadcasting organisations, so we

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also have obligations in respect of performers, record producers and broadcasters. Their rights are often called neighbouring rights to distinguish them from the rights granted under the Berne Convention.
Owners of neighbouring rights believe that they are sometimes regarded as second-class citizens compared with those authors who benefit under the Berne Convention. The removal of the distinction between Parts I and II of the 1956 Act, and the treatment of sound recordings, broadcasts and cable programmes, as works, will be rightly perceived as enhancing the status of those rights. Similarly, the provisions of Part II of the Bill in respect of performers recognise their importance.
Lord Howie of Troon: Before we pass from Clause 1, could we think about Clause 1(1)(c) which deals with the typographical arrangement of published editions? It takes us back to the comment I made not long ago on my noble friend's amendment. When we deal with the page of a magazine which contains a substantial body of original work by various hands, to what extent is the copyright invested in the author of the words, as it were, the photogapher or artist who produced the pictures? To what extent is it in the hands of the art editor or lay-out man who lays out the page in its visual form? And to what extent is the copyright in the hands of the typesetter who seems to be of some significance in the typographical arrangement of published editions? I dare say that we shall have ample opportunity to discuss those matters later, but I should be grateful if the Minister would reflect upon them for a moment.
Lord Beaverbrook: The noble Lord, Lord Howie, is correct. The third category of work recognised in the Bill is the typographical arrangement of published editions. The right of the publisher to protect his investment in the lay-out of the printed page is one that is seldom recognised in foreign laws but is one that we believe to be vital. The current provisions are therefore re-enacted in this Bill. As the noble Lord said, we shall have an opportunity to debate this matter in some detail at the appropriate time.
Lord Howie of Troon: I put on the table a question which can be answered now or later. Is it the intention of this provision to protect the publisher or the typesetter?
Lord Beaverbrook: There will no doubt be considerable discussion on that point at the appropriate time. A number of views will be expressed by the Committee. Perhaps we could come to the point then. I note what the noble Lord has said.
Lord Jenkins of Putney: Before we pass to the next clause I shall make just one point. A number of organisations have not appreciated the speed at which this place moves. They have put forward proposals which have in some cases arrived too late to be fully considered. The result is that not all the suggested amendments to Clause 1 are on the Marshalled List. I have, for example, one from the Library Association which presumably knows something about copyright. It makes a point similar to that made by the noble Lord, Lord Howie. It has
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suggested that the words "or combinations thereof should be added to cover a song which has a lyric writer, a composer and so on. There are one or two such points. I hope that it will be possible to return to these questions at a later stage, as the Minister has suggested.
Lord Williams of Elvel: Before the Minister finally replies to this debate, may I ask again whether he approves of the Government's gradual elision of neighbouring rights and authors' rights, which is in conflict to a certain extent with our partners' laws in the European Community? They seem to be going a different way. Do the Government deliberately wish to go in this direction, or have they gone this way for some other reason which I do not understand?
Lord Beaverbrook: In reply to the noble Lord, Lord Jenkins, the subject he mentions will probably be debated at some length at the appropriate time when specific matters such as music scores of films come up. On the point raised by the noble Lord, Lord Williams, I shall look at what he said. I shall respond in writing to him on this point.
Lord Lloyd of Kilgerran: I am sorry to interrupt. The Minister has been good enough to say that he will write to a number of noble Lords on a number of points. Will he include me on his postal list? Many of the points have been raised with me by many people. I have not raised them so far in order to save time.
Lord Beaverbrook: I shall include the noble Lord on my mailing list and I shall place copies in the Library so that all noble Lords will have access to the correspondence.
Clause 1 agreed to.
Clause 2 [Rights subsisting in copyright works]:
The Earl of Stockton The Earl of Stockton moved Amendment No. 2:
Page 2, line 5, after ("do") insert ("or authorise another to do").
The noble Earl said: I beg leave to move the amendment standing in my name on the Marshalled List. It may be for the convenience of the Committee if I speak also to Amendment No. 65.
It is of great interest to me to know why the Government have chosen to go in completely the opposite direction from the 1956 Act by not including the words "or authorise another to do". I must here declare an interest as a publisher of magazines and books and also as the chairman of a film development company, to say nothing of being a one-time hack—that was the word used on the other side. It is very important for the publisher or the editor to be able to authorise another person to do work, and similarly for the creator of the article or written work to authorise the publisher to do certain things with it.
This amendment was also in the consultation document that was published during the summer. We are rather mystified as to why it should have been left out. I should be most grateful if my noble friend would give his assurance that it could be reinserted. Perhaps I may also say that I should like to be included on the mailing list.
Lord Denning: I sympathise with this proposed amendment. If one looks back to the 1956 Act, Section 1(1) included the words "authorise to do". If they are omitted in this Bill we should have the lawyers saying at once that it was a deliberate omission and therefore there is a variation from the whole. That view is supported by Section 156, which says that in the ordinary way one follows the previous wording as interpreted by the courts and one does not alter it because if there is an alteration one may suspect some alteration of meaning. Therefore, in order to make it conform with the 1956 Act, I support this amendment in order to make the position clear.
Lord Broxbourne: Perhaps I may be forgiven a very brief Proustian evocation, having dipped my madeleine appropriately into the tea. Casting my mind back to the proceedings on the 1956 Bill, as it then was, I do not remember any clamour to have these words omitted in our lengthy proceedings at that stage. Nor do I remember any suggestion that they should be omitted. I may well be wrong on that as on so many matters, but that is my recollection. No doubt the Minister's advisers have carefully ransacked the files of the proceedings in that Committee and can tell us whether there was a suggestion that the words should be omitted which are now omitted from this clause, and, if so, what grounds were adduced in support thereof.
Lord Morton of Shuna: We also support this amendment. The words of the amendment do not precisely copy the Copyright Act 1956. No doubt the noble Earl will explain why he has changed "authorise other persons to do" to "authorise another to do". We support the amendment.
Lord Lloyd of Kilgerran: I had also noticed that difference between the amendment of the noble Earl and the 1956 Act. Nevertheless, I think it is a good amendment to include.
Lord Howie of Troon: I hope that when the Minister is compiling his mailing list he will include me only for those parts which refer directly to me. I do not wish to overburden the Minister. I fear that he will have quite enough problems on this Bill without writing to me on matters which are none of my business. I hope that he will bear that in mind.
However, he should consider this amendment very carefully. Whether the words are the right words or not, if he cannot accept the words as they stand—and some doubt has been cast upon that—let him accept the meaning and understanding which lie behind the amendment which has been put down by the noble Earl, Lord Stockton. It has significance later in the Bill and it also bears a little on the last exchange the Minister and I had concerning the publisher.
The amendment refers in part to a debate which we shall have later on the relationship between the employer and the employee. In that respect it is extremely important that in those areas where the copyright lies with the employer and not with the employee—I notice my noble friend Lord Willis giving me what might be called a sidelong glance at this moment as he has a great interest in this matter—it is proper that he should have the right to
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require certain things to be done. I hope that I have not offended the noble Lord, Lord Willis, by that remark, which I couched in as cautious terms as I could standing on my feet.
Lord Willis: The noble Lord has offended me deeply!
Lord Beaverbrook: I have to say that we believe these amendments to be unnecessary. The copyright owner has the exclusive right to do certain acts by Clauses 2(1) and 16(1). Clause 16(2) then provides that copyright is infringed by any person who does any of those acts without the licence of the copyright owner or authorises another person to do them. Thus the result desired by the noble Earl, Lord Stockton, is already provided in the Bill.
The amendment seeks to restore wording at present found in the 1956 Act. It was discovered, however, in drafting the Bill in what we hope is simpler language that the 1956 wording was a positive hindrance to simplicity. The exclusive right of the copyright owner is to do the things listed in Clause 16(1). Authorising someone else to do them is merely a means of enjoying or exploiting that right. The important thing is that if anyone other than the copyright owner purports to authorise someone else to do any of those things there is a breach of copyright, and that, as I have said, is already in Clause 16(2). Certain clauses, including in particular Clause 21, on adaptations, would be more complex and probably less clear if the amendment were accepted and all necessary consequential amendments made.
Therefore, I believe that we are heading on the right course in not accepting this amendment. We wish to try to improve the language.
Lord Williams of Elvel: Does the Minister agree that if the words are in the 1956 Act and if they add to the clarity of the Bill, they should be put back into the Bill?
Lord Beaverbrook: That is not necessarily true, but on the other hand I am sensitive to the views of the Committee. If my noble friend would like to withdraw the amendment at this stage, I shall without commitment look at what all Members of the Committee have said on the amendment.
Lord Wilberforce: I hope that the noble Lord will not look at this too hard because I found his answer entirely convincing. Just because these words were in the previous Act is no reason for keeping them here if they are surplusage. I should have suggested that if they are clearly surplus in Clause 2, it is a nonsense that the owner of the copyright has the exclusive right to authorise the acts. Who else has the right to authorise them? What is the point of saying that somebody else can authorise them? Who else can authorise the doing of those acts except the owner of the copyright? I found the Minister's explanation entirely convincing. The matter is dealt with in Clause 16 in a totally satisfactory way. If anything is to be added, what one needs to say is that if someone is authorised positively by the owner of a copyright

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that is all right. Clause 16(2) is a negative which says that if it is done without authority that is wrong, but if anything needs to be added we should say the converse. However I do not think that is necessary. I support the Minister in what he has said. I hope that he will not look at it too hard but will stick to the text of the Bill.
Lord Denning: I had not examined Clause 16 before and I am brought round to the Minister's point of view.
Lord Hailsham of Saint Marylebone: I also agree with my noble and learned friend Lord Wilberforce and my noble and learned friend Lord Denning in his second view. One of the very first maxims in law that my father taught me, using his old-fashioned schoolboy pronounciation of Latin, was qui facit per alium facit per se.
The Earl of Stockton: I am grateful to my noble friend for his assurances and I bow to the weight of noble and learned opinion. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 2 shall stand part of the Bill?
Lord Williams of Elvel: Before we leave Clause 2, I should like to ask the Minister a quick question. As I understand it—and he will correct me if I am wrong—the only time that the expression "moral rights" occurs in the Bill is in Clause 2(2). The phrase "moral rights" forms the heading of a chapter in the Bill, but is not part of the Bill itself. Am I right about that and can the Minister give us some feel for how the expression "moral rights", which I understand is a Roman law convention, sits with English law—or perhaps I should say United Kingdom law in deference to my noble friend?
Lord Beaverbrook: If I said a few words about Clause 2 at this time it might be helpful to the Committee. Clause 2 acts as a signpost to later provisions in Part I which set out the rights attaching to copyright works. The copyright owner has the exclusive right to do certain acts which are specified in Chapter II. It is by exercise of those rights that a copyright owner can get an economic benefit from the exploitation of his works and we shall be discussing those when we reach Clause 16. The author of certain descriptions of copyright work has the moral rights as set out in Chapter IV. These include the right to be identified as author and not to have his work subjected to unjustified modification. Provisions for these moral rights under the Copyright Act 1956 and the common law of contract, passing off and defamation are not sufficient to meet the requirements of the latest Paris text of the Berne Copyright Convention, which we intend to ratify. Chapter IV introduces statutory moral rights in a manner which complies with the Berne requirements and discussion of the details is best left until then.
Perhaps I should say to the noble Lord, Lord Williams, that I understand that this is not the only place where "moral rights" are mentioned in the Bill,
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but I am not absolutely sure of that. If I am wrong, I shall of course come back to him.
Clause 2 agreed to.
4 p.m.
Clause 3: [Literary, dramatic and musical works]:
The Earl of Stockton The Earl of Stockton moved Amendment No. 3:
Page 2, line 12, leave out ("written") and insert ("created").
The noble Earl said: This is by nature a probing amendment. I should like some assurances from my noble friend the Minister that he is including the whole area of children's book publication under the expression "written". There is quite often an arrangement of words in a particular form or shape which can better be covered by the loose term "created". I am sure the Committee is entirely familiar with the mouse in Alice in Wonderland in which the arrangement of words is such that the letters become smaller and smaller as the tail grows shorter. It was in the light of this that I hope he will be able to assure us that the word "written" includes such implications.
Lord Beaverbrook: The purpose of my noble friend's amendment was not entirely clear to us. No work, literary or otherwise, can exist until it is created. That is surely self-evident. If my noble friend Lord Stockton wishes to ensure that works can be regarded as such before they are written down and recorded, such as an impromptu speech, I can assure him that this is the case. However, I should point out that copyright will subsist only in such a work when it is recorded in some way as provided for in Clause 3(2).
Lord Williams of Elvel: I am not sure that the noble Lord has answered the noble Earl's point. If the noble Earl is satisfied perhaps he will say so. The question of Alice in Wonderland is rather interesting.
Lord Graham of Edmonton: Thereby hangs a tale!
Lord Beaverbrook: I am sure that we can find all sorts of literary connotations. My noble friend asked me whether when something is written down that is an act of recording it. I have said that copyright will subsist in such a work only when it is recorded in some way, which of course includes writing it down.
Lord Harmar-Nicholls: Perhaps the noble Lord opposite is not aware that the grandfather of my noble friend Lord Stockton used Alice in Wonderland for many of his quotations when making a point. It is good so see that the tradition is still alive.
The Earl of Stockton: I thank the Minister for his assurances and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 4:
Page 2, line 12, after ("sung") insert ("or intended to be sung").
The noble Lord said: This amendment again is a probing amendment to make sure that I fully understand what is the meaning of the expression

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"sung" in Clause 3(1). Does it include works intended to be sung or does it only include work which is actually sung? The amendment brings Clause 3(1) into line with the later definition of "musical work" which uses the expression "intended to be sung". If my amendment is superfluous perhaps the noble Lord will be kind enough to tell me.
Lord Kilbracken: Perhaps it also means "spoken" or "intended to be spoken".
Lord Howie of Troon: This is a convenient moment to raise a worry of mine which relates to Clause 3 as a whole, which hinges upon the words "intended to be sung'. I am seeking enlightenment; I am not attempting to attack the Bill. I am wondering where in Clause 3 the libretto of an opera comes in. It is sometimes sung and it is usually intended to be sung, but the subsection relating to literary work includes the words:
"which is not a dramatic or musical work"
which would cause difficulties with the libretti of certain operas. The reference to "a computer program" would exclude many of them, although not some of the more recent ones. "Dramatic work" includes, so far as I can see, only dance or mime but might be expected to include opera and the libretti of opera. "Musical work" consists of,
"music, exclusive of any words or action intended to be sung, spoken or performed with the music".
I may be shortsighted in this respect but it seems to me that the libretto of an opera is excluded from Part III, and with the exception of certain of the longer works of Wagner that is a pity.
Lord Beaverbrook: The concern of the noble Lord, Lord Williams, appears to be one of ensuring that the lyrics of a song are protected in the same way as other literary works. I believe that the clause as drafted achieves that result without the amendment. If, as is probably the case, the words of a song are written down before it is sung there is no difficulty. Under those circumstances it is a written literary work. Difficulties may arise, however, when a work is not written down before delivery: for example, a speech or an impromptu song. We have covered these by the addition of the words "spoken or sung", although Members of the Committee will note that under subsection (2) copyright does not subsist in such works until they are recorded in some way, either by being written down or perhaps more commonly today by use of a tape recorder.
The lyrics of a song—that is, words that are intended to be sung—are fully covered. Either they are written down first, in which case they are literary works, or they are sung in an impromptu performance, in which case they are still literary works but not protected unless and until recorded in some way. Words intended to be sung which are still in the composer's mind cannot be covered any more than the ideas in the minds of other authors and artists. Copyright is about protection of the expression of ideas, and once a song is expressed and fixed in some way it is protected. It is not, however, about the protection of mere ideas which have received no expression.
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I turn now to the questions put to me by the noble Lord, Lord Howie. Dramatic works are principally intended for performance and so are separated from literary works which are generally read. The term includes works of dance or mime. "Musical work" means a work,
"consisting of music, exclusive of any words or action intended to be sung, spoken or performed with the music".
Thus such accompanying words and action will need to qualify for protection as literary or dramatic works in their own right. However, musical annotations or directions on a score are part of the musical work.
There appears to be a misunderstanding about the definitions of "dramatic work" and "musical work". "Dramatic work" includes all plays, libretti and so on. "Musical work" is the music, not the accompanying works.
Lord Howie of Troon: I am not sure that the Minister has completely removed my doubts. He has told me that "dramatic work" includes a variety of things but the Bill does not tell me that. The Bill only tells me that "dramatic work" includes a work of dance or mime. It does not seem to include the interpretation that he put upon it though I must say that the Minister's interpretation appears to include a fair amount of sense. I dare say that if he turns his mind to this question between now and Report stage he will be able to satisfy me a little more.
As the clause stands at the moment one cannot get a copyright on an opera libretto until presumably somebody has actually sung it. That does not always happen to these things although such matters might be published in a variety of ways. It might be that I am wholly wrong—
Lord Hailsham of Saint Marylebone: You are.
Lord Howie of Troon: Well, maybe, but I should like to be convinced that I am wholly wrong. When I am convinced that I am wholly wrong, I am convincible.
Lord Donaldson of Kingsbridge: I should like to support the Minister against the noble Lord, Lord Howie. It is perfectly clear that an opera libretto is a document. It is something written. It does not deserve and cannot acquire copyright until it has been written down. There is nothing more to be said about it.
4.15 p.m.
Lord Williams of Elvel: I understand what the noble Lord, Lord Donaldson of Kingsbridge, has said and I am sure that he is right. I am grateful to the noble Lord for clarifying the point that "intended to be sung" is almost certainly included here in the word "sung". However, as the noble Lord, Lord Donaldson, will be the first to recognise, modern music contains a number of instances where it is not entirely clear whether what is being sung or proposed to be sung is or is not words. Perhaps I may refer to the work of the composer Stockhausen, who wrote a work called Stimmung. It is for six vocalists who do in fact sing but they sing things which sound to certain ears like words and to other ears like simple plain notes. There is a difficulty in sticking to what I

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would regard as a rather traditional definition of words and music. The two can become muddled up in modern music and I think they will increasingly be so.
Lord Donaldson of Kingsbridge: I have not seen the Stockhausen score and I would not be able to read it if I had. However, I am sure he writes "La" or Lo" or whatever it may be as something that is said.
Lord Williams of Elvel: I am sure that he does not write that. The score is extremely complex. He says in his instruction to singers, "Echo more or less the sounds that were made by the person who was speaking in front of you".
Lord Howie of Troon: Perhaps I may enter this interesting discussion. There is a duet for two sopranos in an opera the name of which I have forgotten. It might possibly be by Ravel. The two sopranos echo the sound of two cats. The words are "miaow" "miaow" in a number of variations, if they are indeed words. I am familiar with this musical work, which is extremely enjoyable, only because there is a remarkable record of it sung by Elisabeth Schwarzkopf and Victoria de los Angeles. I have probably infringed somebody's copyright by mentioning it. They are not singing words at all. They are not words in the sense that I understand them although they might possibly be words in the sense that lawyers understand them.
Lord Donaldson of Kingsbridge: There cannot be a copyright as regards the word "miaow". I do not know what we are talking about.
Lord Hailsham of Saint Marylebone: The matter is very plain indeed. The arrangement of "miaow" in the particular musical work to which the noble Lord referred is an original work of art. I have heard it myself and I can assure him that any sensible court would come to that conclusion.
Lord Williams of Elvel: This discussion has reached its end for the moment. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 5:
Page 2, line 13, leave out ("which") and insert ("but").
The noble Lord said: This is intended to be purely a drafting amendment but when in the past I have put down purely drafting amendments, they have turned out to have more significance than I intended.
The amendment seeks to leave out the second "which" in the definition of "literary work" and to substitute the word "but". Perhaps I may first say that the relative pronoun "which" appears all the way through the Bill and in practically every case it would be correct to use the relative pronoun "that". I do not intend to go into a long dissertation about when "which" should be used and when "that" should be used because very few people outside or inside the Chamber know the answer to the question. It is responsible for more mistakes of grammar than perhaps anything else in the English language. If
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Members of the Committee want to look it up they will find that it occupies no fewer than four pages of Fowler's Modern English Usage. They are pages 625 to 628 of the edition in the Library. I am prepared to tolerate the misuse of "which" all the way through the Bill but when the word appears twice—in close proximity and without any conjunction or punctuation of any sort—it is something that I do not like to put up with. The passage reads:
"'literary work' means any work which is written, spoken or sung which is not a dramatic or musical work".
As an old sub-editor I cannot let that pass from my desk without using a blue pencil. I therefore propose that the second "which" should be replaced with the conjunction "but" to read:
"any work which is written, spoken or sung but is not a dramatic or musical work".
I beg to move.
Lord Denning: I support the amendment as a matter of literary style. Instead of having "which" twice, let us have "but" in the second place.
Lord Beaverbrook: I can probably be helpful to the Committee. The noble Lord's amendment is purely a matter of drafting, as he said. I can sympathise with the view that the use of "which" twice in rapid succession is a little clumsy. However, I am not convinced that "but" is the right word. If the noble Lord will withdraw his amendment we shall look at the drafting. Should a change be desirable, we shall see what we can come up with.
Lord Kilbracken: I am grateful to the Minister. Of course. I shall withdraw the amendment. However, can the noble Lord give me an inkling of what the word should be if not "but"? Is it likely to be "and"?
Lord Beaverbrook: No; we shall look at it.
Lord Williams of Elvel: Before the noble Lord withdraws his amendment, would the noble Lord like to remove the word "accordingly" which seems to us superfluous?
Lord Beaverbrook: I am not sure. We shall look at that as well.
Lord Kilbracken: As my noble friend has made the point, perhaps I may add that I, too, feel "accordingly" is unnecessary here. It is much better that the word should be omitted. Perhaps the Minister will look at that point. In the meantime I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Chairman of Committees (Lord Aberdare): If Amendment No. 6 is agreed to, I cannot call Amendment No. 7.
Lord Kilbracken Lord Kilbracken moved Amendment No. 6:
Page 2, line 13, leave out from ("work,") to end of line 16 and insert ("including a computer program,").
The noble Lord said: The Committee will see that the definition of literary work begins:
"'literary work' means any work which is written".

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Any work that is written quite clearly includes "a written table or compilation". There is therefore no need to include in the Bill the words "a written table or compilation". Under this amendment the word "accordingly" would be deleted. I consider it to be unnecessary. My proposal therefore is that the definition should conclude,
"is not a dramatic or musical work, including a computer program".
I beg to move.
Lord Somers: As the noble Lord has spoken about the purity of English, I suggest that we keep the entire Bill in English. He will see that the word "program" is in the American form. I suggest that we add the "me" at the end.
Lord Howie of Troon: The difficulty with my noble friend's amendment is that if we exclude the word "written" we might get into some difficulty were someone in future to compose something similar to the Catalogue Song towards the beginning of Don Giovanni.
Lord Beaverbrook: The effect would simply be to remove the specific reference to tables and compilations being literary works in which copyright can subsist. It would not necessarily result in tables and compilations ceasing to qualify for copyright protection because such works could very well still qualify as literary works in any event. I should point out that the Bill as drafted is exactly the same as the 1956 Act, which expressly includes written tables and compilations in the meaning of "literary work". This must be right.
A very great deal of skill and effort goes into tables and compilations and such works need and deserve copyright protection. Of course, where little skill and effort is involved, the normal rules of whether there is sufficient to qualify as a work and, indeed, whether the work is original, will apply. But that is just the ordinary operation of copyright principles. Since, in our view, there should be no doubt that tables and compilations do qualify for copyright protection, it follows that I cannot accept the amendment.
Lord KilbrackenI turn first to the noble Lord, Lord Somers, and his comment on the spelling in my amendment, as in the Bill, of the word "program". I raised this matter some months ago in your Lordships' House. I said on that occasion that it was wrongly spelt and that it should have "me" at the end. It was pointed out to me that a computer program, in contrast to a theatre programme, is spelt that way. That is the usage that has arisen in this country following its usage in the United States. I accepted that that was the case. I therefore used the spelling that has been handed down and that is found in other Bills.
I accept what the Minister says. I am bound to say however that I do not see the necessity of specifying "a written table or compilation" where the table or compilation clearly involves work of some kind. The person who compiled it or made out the table did work, and it is work that is written. But, in view of what the noble Lord has said, I do not intend to
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persist with my amendment. I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 7:
Page 2, line 15, leave out ("written").
The noble Lord said: I was in some dilemma about putting down this amendment. The word "written" seemed to me to be unnecessary in defining a literary work in relation to a table or compilation. Subsection (2) of Clause 3 says "in writing or otherwise", and when one looks at the definition in Clause 161 another point of difficulty appears to arise.
However, I understand that a message has been sent to me that the Minister may be sympathetic to my amendment. I hope that is correct; if so it will save time. If that is not the case, I can go on. But in view of the sympathy suggested—the Minister is nodding his head—I shall now sit down. I beg to move.
Lord Beaverbrook: We are happy to accept this amendment since it removes a superfluous word with an unintended limiting effect.
On Question, amendment agreed to.
[Amendment No. 8 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 9:
Page 2, line 22, leave out ("otherwise") and insert ("in another recognisable form").
The noble Lord said: Again, this is a probing amendment to discover the meaning of the words "or otherwise" in Clause 3(2). I would have hoped that we would either have been able to get a clear response from the Minister on what the Bill as drafted means or else put in something which is fairly clear to the average layman. I beg to move.
Lord Lloyd of Kilgerran: I have some difficulty here. I wondered whether the amendment might undermine the copyright, or the rights in copyright, in any work which is created directly on to a magnetic or other medium. That was the only point I had in opposing this amendment.
4.30 p.m.
Lord Beaverbrook: Subsection (2) sets out the requirement that, for copyright to subsist in a literary, dramatic or musical work, it must be recorded in some way. Usually this will be in writing, such as the script of a play or the manuscript of a novel. But increasingly other ways are used. For example, an author may dictate a work on to tape, a composer may record one of his works without ever writing it down.
We believe that subsistence of copyright should not depend on whether the author chooses to write his work out long hand, use a typewriter or dictate it. Subsection (2) is therefore drafted in the widest terms. The amendment could narrow this considerably. The words of the author on a magnetic tape may not be regarded as in another recognisable form. One tape looks much the same as another and it is only by playing the tape back through a machine that enables recognition of the original. The problem

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of what constitutes recognisable form becomes more acute with computer programs. We believe the subsection is best left as drafted so that any recording of the work will give rise to copyright subsistence.
Lord Williams of Elvel: I am grateful to the Minister, and understand exactly what he says. In the light of what he said, however, I do not see how anyone who is not well versed in these matters can tell whether a work is under copyright protection if it is not recorded or fixed, to use the relevant expression, in some recognisable form. If the author of the work puts it on tape directly and jumbles up the tape so that no one can recognise it, I can understand that, as the clause is drafted, that is recorded and fixed. I do not see how anyone is to know that. I hope that the noble Lord understands the problem.
As it is clear that I am not going to get much further, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Kilbracken Lord Kilbracken moved Amendment No. 10:
Page 2, line 22, leave out ("but") and insert ("and").
The noble Lord said: This is another drafting amendment. The Oxford dictionary tells us that "but" is a conjunction to introduce words of a contrary tendency as in,
"It was fine today but it will rain tomorrow".
In this subsection we read,
"Copyright does not subsist … unless and until [a work] is recorded … but it is immaterial who makes that record".
That is not contrary intent; it is emphasising and adding to what has appeared before. I believe that the conjunction "and" should be inserted.
Lord Beaverbrook: This is a purely linguistic point. While I cannot say that the noble Lord's amendment is wrong, it does seem to me that the conjunction used here should be making a contrast rather than an addition. The first half of the subsection concerns cases where copyright does not arise and the second half, cases where it does. In these circumstances I think "but" is the right word and I therefore oppose the amendment.
Lord Kilbracken: I am well accustomed to Ministers defending their draftsmen. I do not for a moment expect to be able to budge the Minister in that opinion or indeed to muster overwhelmining support, although I have received one or two encouraging nods and winks from different parts of the Chamber. I suppose that I shall have to withdraw the amendment although I feel more inclined to sit down and say "Content" rather softly. In view of what the noble Lord has said, however, I do not intend to take it any further.
Amendment, by leave, withdrawn.
On Question, Whether Clause 3, as amended, shall stand part of the Bill?
Lord Williams of Elvel: I wish to ask the Government about the omission in Clause 3(2) of the full recommendation of the Whitford Committee. Paragraph 590 of the Whitford Report says:
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"Speeches and lectures delivered extempore do not require copyright unless and until fixed. We think it would be right to make clear that as and when such material is fixed, albeit by someone else, a copyright in the material should be created which will vest in the speaker."
I believe that the Bill as drafted accepts that recommendation. The report continues:
"There would also come into existence at the same time a separate copyright in the recording or transcript as such whether or not made with the consent of the speaker, such copyright to vest in the maker of the recorded version. To exploit the recorded version it would therefore be necessary to obtain the consents of the copyright in the speech or lecture and the owner of the copyright in the recorded version thereof".
As I understand it, the Bill as drafted does not accept that second recommendation. I should be grateful if the Minister could tell me the Government's reasons for rejecting it.
Lord Kilbracken: I wish to raise a couple of points. The first was mentioned earlier in the debate. For some strange reason there is no definition of "dramatic work". Both "literary work" and "musical work" are defined. In the case of a dramatic work, we are told merely that it:
"includes a work of dance or mime"
without being told what it is. It may be thought that it is obvious what a dramatic work is. I should have thought it is obvious that a literary work is a work that has been written, but a definition is included in the Bill. There are a number of cases in which it may not be at all clear whether something is a dramatic work. I mention in particular an original screen play for a motion picture. Is that a dramatic work? We are given no guidance.
I find it curious also that the definition of "musical work" states that it does not include any action intended to be performed with the music. I am sure that there cannot be copyright in an action. I do not understand therefore why an action intended to be performed has to be mentioned in the Bill as being part of a musical work.
Lord Denning: When I gave judgments in the courts I gave them orally in open court. The reporter took them down in court and transcribed them. I always understood that the copyright was in the reporter and not in me because he was the person who had recorded the judgment permanently in writing. I hope that at some point in the Bill—and perhaps this does it—the copyright exists in me, the person who composed the words and wrote the speech, and not only in the reporter who took it down.
Lord Howie of Troon: I feel a slight sense of shame that I did not support Amendment No. 10 which was tabled by my noble friend Lord Kilbracken. I think that he was right and that the Minister dismissed him far too perfunctorily. I hope that the Government draftsmen will give this matter further thought. I wish to support what my noble friend said about the definition of "dramatic work". I know—we have heard this in the Chamber many times—that it is bad law to produce lengthy lists. The longer a list becomes the more important are the things that are omitted. I learnt that from the noble and learned Lord, Lord Hailsham.

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I think that my noble friend Lord Kilbracken is right. In a sense we know what a dramatic work is; it is a play. This presumably includes the libretto of an opera, a point with which I was concerned earlier. However, is it not also true that a work of dance or a ballet is a dramatic work and that a work of mime is a dramatic work? We know that such things are dramatic works, yet they are not laid down in this Bill. It seems a little odd that the main dramatic work—that is, the play, or whatever—is not defined as well. I think that the noble Lord, Lord Kilbracken, is quite right, and his views about this definition ought to be supported.
Earl Attlee: If the Committee had accepted the amendments of the noble Lord, Lord Kilbracken, this Chamber would have been in danger of producing a Bill couched in good English and understandable to everyone.
Lord Beaverbrook: I should like to answer some of the specific points made by the Committee. The noble Lord, Lord Kilbracken, said that there was no definition of "dramatic work" and asked whether an original screenplay was a dramatic work. Yes, it is. I should not have thought that there was any doubt about that. In preparing this Bill it did not seem necessary to have the complication of the definition as in the 1956 Act.
The noble Lord made a point about the definition of "musical work" and asked about the significance of the reference to "action intended to be … performed with the music". Those words are there mainly in order to avoid any doubts in the matter. One response to the draft clauses that were sent out for consultation during the summer concerned the need to distinguish between words to be sung or performed with music which are not to be part of the music—for example, literary or dramatic words and words instructing a musician how to play, such as crescendo, which are not to form part of the music.
I can tell the noble Lord, Lord Williams, that the Government are not convinced that the mere recording of an extempore speech in general should attract a separate copyright from the speech itself. In most cases the process will be purely automatic, involving a skill and effort—for example, when a tape recorder is used. The position of a shorthand writer is perhaps somewhat different. I agree that we should have a further look to see whether there should be a separate copyright in that case.
Lord Williams of Elvel: I am grateful to the noble Lord for that assurance. I believe it is right. I understand that a mere amanuensis copyright is not something that the Government would wish to grant, but it may well be that shorthand or other forms of recording are something at which the Government will wish to look. Have I understood the noble Lord correctly? Is that what he meant?
Lord Denning: I think that this matter requires to be looked into again. I always understood that the shorthand writer who took down a speech held the copyright. I think that that position ought to be
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altered and I believe that in a way this Bill does it already; namely, that when a speech is recorded, copyright resides in the person who makes the speech at the time that it is recorded but not in the mere amanuensis who takes it down. I hope that that is the result but I think that it will be made clear in the Bill in any case.
Clause 3, as amended, agreed to.
4.45 p.m.
Clause 4 [Artistic works]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 11:
Page 2, line 25, leave out ("irrespective of artistic quality").
The noble Lord said: This amendment stands in my name and that of my noble friend Lord Morton of Shuna. It may be for the convenience of the Committee if I speak also to Amendment No. 17, tabled by the noble Lord, Lord Lloyd of Kilgerran.
My amendment is a probing amendment. As I understand it, it paves the way for the type of amendment tabled by the noble Lord, Lord Lloyd of Kilgerran. It is not an instruction to the courts to take a view on the artistic merit of a particular graphic work but is designed to ensure that engineering or other drawings are included in the provision and that the courts cannot preclude those drawings from being considered graphic works if they fail in terms of artistic quality for some reason. I should be grateful if the noble Lord could reassure me on that point. I support the amendment of the noble Lord, Lord Lloyd of Kilgerran, because I think that it is a necessary clarification. I beg to move.
Lord Simon of Glaisdale: The noble Lord will tell me if I am wrong, but my recollection is that those words go back at least as far as the 1911 Copyright Act. I am speaking now to Amendment No. 11. It is absolutely necessary to avoid arguments such as "That is not a graphic work; that is a mere scribble" or "That is not a painting; that is a mere daub". As I understand it, that is why the words were originally included and have been maintained for over 70 years.
Lord Denning: I agree that those words are there to make sure that the court does not have to inquire through experts or otherwise about artistic quality. If the work is graphic, or whatever, let it be taken as such, irrespective of its quality. I am against the amendment.
Lord Kilbracken: I cannot see any reason at all for including those words. The Committee has just been told that "literary work" means any work, and does not have to be told further "irrespective of its literary merit". If it were said, as could be said of a second-rate literary work, that it is a mere scribble, that would not stop it from being a literary work because it is so irrespective of literary merit. Similarly, one does not have to be told that a dramatic or musical work is irrespective of merit.
Lord Hailsham of Saint Marylebone: I think that it would be a pity to alter the draft. Curiously enough, in its judicial capacity the House of Lords has discussed this matter at least twice in the past three

839
years, and engineering drawings have been covered. It has long been established that the artistic quality of such things is not material to the question of whether they are copyright. There has been one case about it called Swish and another called British Leyland Motors that I can remember in the past three years.
Lord Hutchinson of Lullington: I am against this amendment for the very reason put forward by the noble and learned Lord, Lord Simon. Perhaps I may say to the noble Lord, Lord Kilbracken, that we are dealing with artistic works. At the drop of a penny, the cognoscenti will say that a work has to have some aesthetic quality in order to be artistic. At the Tate Gallery there is a fine sculpture by Carl Andre called "The Bricks", and there are those who say that it is not a sculpture because it does not have any aesthetic quality.
I strongly support this amendment. One does not want copyright to be ruled by the cognoscenti. We do not want copyright to be ruled by the Philistines. We want copyright to be ruled by those who have some common sense. I am very much against this amendment.
Lord Beaverbrook: For the convenience of the Committee, I shall speak also to Amendment No. 17. I do not know whether such a course fits in with the plans of the noble Lord, Lord Lloyd of Kilgerran, but I should like to speak to both amendments if that is agreeable to him.
Lord Lloyd of Kilgerran: Whatever is convenient for the noble Lord is convenient for me.
Lord Beaverbrook: I am most grateful to the noble Lord. Amendment No. 11 would remove words which were introduced by the Copyright Act 1956 for the purpose of making plain that a work is to be regarded as artistic if it is the product of one of a number of specified processes such as painting, drawing or photography, irrespective of whether it has artistic merit.
The effect of the amendment therefore would be to reintroduce into law the very doubts that those words were intended to remove; namely, whether an artistic work requires artistry in execution as opposed to ordinary skill and effort on the part of the author. It is very important that there should be no doubts on that score. In this sense, artistry is not a prerequisite for copyright protection. Industry and commerce need and deserve copyright protection for technical drawings, charts, plans, engravings etc, since they are valuable assets resulting from the investment of skill and effort. It is inconceivable that competitors should be allowed to copy them with impunity.
Nor is it inconsistent, as has been suggested, to provide a qualification of this kind in relation to artistic works when there is no equivalent qualification for literary, dramatic and musical works in Clause 3. It is well established that literary merit is not a prerequisite for protection as a literary work. Moreover, the word "literary" does not have the same connotations of merit as the word "artistic". It merely denotes expression in a form that is essentially linguistic.
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I turn now to Amendment No. 17, in the name of the noble Lord, Lord Lloyd of Kilgerran. The effect of this amendment would be to make it clear that engineering drawings qualify for protection as an artistic work even though they have no artistic pretensions. I agree that it is very important that there should be no such prerequisite for copyright protections. It is inconceivable that competitors should be able to copy technical drawings, blueprints, charts, and so on. However, I am bound to say that if there is anything in copyright law which does not need to be clarified, it must be this.
The protection of non-artistic drawings is guaranteed by the words "irrespective of artistic quality" which were introduced into the Copyright Act 1956 for this very purpose and which are repeated in Clause 4 of the Bill. Indeed, this is the very foundation of the industrial design copyright problem because the protection extends to the making of articles represented in such drawings. We are of course seeking to cure that particular problem in Clause 51 of the Bill; but so far as concerns the protection of technical drawings as such, the position is already guaranteed.
Accordingly, I have to resist the amendments standing in the names of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, and the noble Lord, Lord Lloyd of Kilgerran.
Lord Howie of Troon: As an engineer who has very often committed engineering drawings to paper, wholly irrespective of artistic merit, I must say that the Bill seems to me to provide quite adequate protection. I think that on this occasion the Minister is right.
Lord Williams of Elvel: I am grateful to the noble Lord. I hope he accepts that when I move amendments and call them probing amendments, they are just that. They are not meant to be amendments which we intend to press to Divisions. They are amendments designed to elicit from the Government exactly what the expression means. I hope, if I may say so, that he will not castigate me for trying to amend the Bill in a way that the House of Lords Judicial Committee may or may not have approved, but will accept that I am simply trying to find out what he means.
The first page of his brief says, "We must reject this amendment because if we accept this amendment it will wreck the Bill". Perhaps he will cast that aside and tell me exactly what it means. He has satisfied me, and I hope he has satisfied the noble Lord, Lord Lloyd of Kilgerran, that the Bill as it stands is adequate protection for the things we had in mind. He has also satisfied me on the point that my noble friend Lord Kilbracken raised—that it is not necessary to have a similar expression in terms of literary work because a mere scribble, if I can use that expression, is a literary work. So the definition "artistic quality" does not actually need to be made.
I am most grateful to the noble Lord. I beg leave to withdraw the amendment.
Lord Beaverbrook: I should perhaps say to the noble Lord that of course I accept that his

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amendments in many cases are probing, but I hope he will accept that I have to put the case. I try to the best of my ability to explain to him why we regard an amendment that he has put down as perhaps not the best course to take. That is done with the intention of keeping the Bill, as we believe it to be, in its very best form.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees (The Earl of Listowell): Before I call the next amendment, No. 11A, I should point out that if this amendment is agreed to I cannot call the manuscript amendment, No. 11B.
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 11A:
Page 2, leave out line 27 and insert—
("(b) a work of architectural or engineering construction being a building or other structure or a model of a building or other structure").
The noble Lord said: I intend to move this amendment in the same spirit as the noble Lord, Lord Williams of Elvel, is moving his amendment. I wish enlightenment rather than anything else and I do not intend to worry the Committee by moving to a Division or anything of that sort.
However, I am a little worried about an underlying conception which has nothing to do with the law. I do not really want to be told on this occasion that the Copyright Act of whatever year it was—1911—said something, and here we are now. I am interested in the concept which suggests that an architectural work being a building is an artistic work whereas certain other forms of construction are not. Further, I am wondering a little about who holds the copyright and of what does the copyright he holds consist. I can readily see that an architect or engineer or other designer can hold the copyright in drawings or models which he makes. That is sensible enough and straightforward.
Does the Bill suggest that the architect here would hold copyright in the building? That would be an interesting idea, and I think it has had some precedence in the past when that very question came up in relation to whether buildings could be altered.
If we are thinking merely of who holds the copyright in a building, we are back to the precise question which I raised earlier in relation to magazine articles; that is, in whom does the copyright exist? With regard to this Chamber, if a copyright existed, it might be in the hands of Charles Barry, who was the principal architect; or others might say it should be in the hands of Pugin, who designed everything that we can see; or it might possibly be in the hands of the peculiar Edinburgh consulting engineer who designed the heating and ventilating system which failed and has since been replaced. A building of any kind is a very complicated matter and it is difficult to determine with whom the copyright lies.
It may be that I am wrong and it may be that the Bill does not mean that at all. I should be very grateful if the Minister would explain to me what it does mean and remove those doubts which I obviously have.
The other matter which worries me is this question of the architect and the architect's place in relation to a building or, as I say in my amendment, a piece of construction. It rests, it seems to me as a non-lawyer, on whether or not only a building can be artistic or whether, for instance, Waterloo Bridge, just over the road, can be artistic. I happen to think that it can, in so far as that matters. I think, to be quite frank, that Waterloo Bridge is far and away the best building or piece of construction which has been produced in London for many a long day—I would say since about 1930 or thereabouts when the Daily Express building was built (which may please the Minister).
What I have in mind here is that although the architect of Waterloo Bridge was Giles Gilbert Scott, he did not actually do anything—or at any rate he did not do anything which was of any interest to anybody except himself and the man who paid his fee. The design of Waterloo Bridge was entirely in the hands of a consulting engineer who produced a construction based upon mathematics and engineering principles. It has aesthetic qualities which are excelled, I would suggest, by no other structure in London. Should not constructions other than buildings be included in this part of the Bill?
To come a bit closer to home, it raises questions like the recent Lloyd's building in the City which was designed by a very famous architect, Richard Rogers, with very considerable help from extremely eminent engineers, Ove Arup. That building received an award today from the Financial Times. The award was given by the Secretary of State for the Environment, who remarked that Lloyd's had been founded originally in a coffee shop and now at long last it had got the percolator. But whether that be right or wrong, the point is that it is a building of substantial artistic merit which has an architect in a key position and an engineer also in a key position.
The same is true of many other buildings, such as the Pompidou Building in Paris and, even more important, the Sydney Opera House. In the case of the latter, the original concept was by a Scandinavian architect who shortly dropped out of the picture and the building was, in fact, designed to all intents and purposes by engineers.
I am merely wondering what the Government have in mind underlying this amendment, and am trying to ensure that when responsibility for the authorship of such structures comes up, as it will in later parts of the Bill, there will be fair play between architects, engineers, heating and ventilating engineers and others concerned in these quite complex enterprises. I beg to move.
5 p.m.
Lord Beaverbrook: The noble Lord raises a number of important points. This amendment would add engineering constructions to the list of works that constitute artistic works. I note that the noble Lord, Lord Howie, does not seek to cover engineering constructions generally, but only those that are buildings or structures. The 1911 Act contained a very long definition of what constituted an architectural work and included both buildings and structures. The 1956 Act merely referred to buildings

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and models for buildings and this is carried over into Clause 4.
The noble Lord's amendment has raised questions in our minds as to whether the present definition would encompass such structures as the Blackpool Tower or the Severn Bridge. And if these are included, is a chemical plant or even the big wheel in a fairground included? The existing case law suggests that the courts would come to the right conclusions without much trouble on the basis of the present wording of the clause. But we are prepared to go away and give the matter further thought. Therefore, if the noble Lord would agree to withdraw the amendment at this time we should like to look at it and see whether we can come forward with something that would improve matters.
Lord Howie of Troon: Whenever a Minister suggests that he will pay careful attention to what I have said, consider my words and possibly adopt them, or at least think about them, I accept with alacrity. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Williams of Elvel Lord Williams of Elvel moved manuscript Amendment No. 11B:
Page 2, line 27, at end insert "or of part of a building or of an extension to a building".
The noble Lord said: This amendment, which stands in the names of my noble friend Lord Morton of Shuna and myself, is simply designed to clarify the possibility that architectural plans—like, for instance, the extension to the National Gallery—could be in themselves a work of merit deserving copyright protection and that the Bill as drafted does not exclude this possibility. It seemed to us to be a sensible way of clarifying the position and it is in that spirit that I beg to move.
Lord Beaverbrook: The amendment would expressly include in the definition of "artistic works" architectural models which do not represent complete buildings. We were not aware of any doubts as to whether such models benefit from copyright protection under the existing law to which this subsection restates. However, we are prepared to accept the amendment in principle, as we have no wish to see protection denied in these circumstances. We should just like to consider the drafting and any further thoughts we might have on the subject, and perhaps come back with our own amendment at the next stage if the noble Lord would find that agreeable.
Lord Williams of Elvel: I am most grateful to the noble Lord. I have always taken the view that it is not the Opposition's job to draft Bills; it is the Government's job to draft Bills. I am very happy to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Earl of Stockton The Earl of Stockton moved Amendment No. 12:
Page 2, line 27, at end insert—
("( ) a typeface,").
The noble Earl said: In moving this amendment, it may be for the convenience of the Committee if I also
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speak to Amendments Nos. 13, 16, 23, 24 and 266. Many typefaces are very old and the noble Lord, Lord Kilbracken, who was at one time a sub-editor, will be familiar with venerable friends such as Caslon and Bodoni. However, in recent years typesetting has no longer been carried out by the process of hot metal being squirted into brass founts, but by a computer typesetting which is susceptible to enlargement or reduction by optical or photographic means. We are now in an era of machine readable typefaces and optical character recognition.
I believe that the design of a typeface, which also has a design function, is a matter of artistic skill and judgment. The amendments also refer to the typographical arrangements on the page, referred to earlier by the Minister, and I think he will admit that a large part of our appreciation of some of the classic editions stems from the arrangement of the type on the page. I beg to move.
Lord Williams of Elvel: We support the noble Earl's amendment; and I am very glad to see the noble Viscount, Lord Long, who is to respond for the Government on this amendment. The problem with the Bill as drafted is that typeface is mentioned in subsequent parts of the Bill, but is not actually put up front in Clause 4 as a specific work entitled to copyright protection. I see that the noble Viscount is not now going to respond, so I shall address my remarks to the noble Lord, Lord Beaverbrook. This seems to us to be a major flaw in the design of the Bill, I have no doubt that this is a question of drafting. I also have no doubt that the noble Earl's case is well made and we support the amendment.
Lord Beaverbrook: I apologise for my momentary absence. I am most grateful to my noble friend Lord Long for taking over for a moment. The amendments standing in the names of my noble friends Lord Mottistone and Lord Stockton would expressly provide that a typeface is an artistic work. We are not persuaded that amendments of this nature are necessary or desirable. The Government did indeed draw attention to the position of typefaces in copyright law in the 1986 White Paper on Intellectual Property and Innovation and said that we would amend copyright law to provide the necessary protection.
However in preparing the Bill the Government realised that the essential protection was already in place and all that was needed was provision to limit full copyright protection in certain circumstances. This situation arises because the design of a typeface, being an abstraction, needs to be represented in some material way and all such respresentations will be graphic works in their own right. Typically the designs will be represented in a drawing. Reproducing the typeface will therefore be an act restricted by the copyright in the drawing or other graphic work.
Consequently the only special provisions which the Bill makes for typefaces are to be found in Clauses 54 and 55, which puts limits on copyright protection appropriate to the particular characteristics of typefaces. The wording of subsection (1) of Clause 55 in particular can leave no doubt that copyright

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subsists in typeface designs embodied in artistic works.
The design of a typeface is an abstraction. All other types of artistic work are concrete, including a drawing embodying the design of a typeface. To introduce an abstraction into an otherwise concrete concept may cause confusion. It will certainly not clarify anything. I hope that in the light of the explanations the noble Earl will accept that the amendment is perhaps not necessary.
Lord Williams of Elvel: Before the noble Earl decides what to do with his amendment, am I right in thinking that the Government put this in the draft Bill sent round for consultation in the summer and then took it out?
Lord Beaverbrook: Yes, that is the case.
Lord Williams of Elvel: So the Government started from the position that "typeface" should appear in this part of the Bill. Why did the Government change their mind?
Lord Beaverbrook: Because the Government took the view that it was better to proceed with the wording in the Bill as it is now drafted.
Lord Howie of Troon: Is not a typeface at least a close relative to a woodcut which turns up in line 34 on page 2 of the Bill? One might possibly suggest that a woodcut was a very big bit of typeface. One would not be wholly right or wholly wrong to suggest that. If not wholly correct, it would be a kind of analogy. If a woodcut, which, presumably at some time, derived from a drawing (as a typeface, in some cases, does) can be included, I should have thought that there was also a strong argument for including typeface in the Bill.
Lord Kennet: I hope that the noble Lord will be so kind as to answer two questions at once. Is it really the Government's opinion that a typeface is abstract and that all other works of art are concrete? I think that is what the noble Lord said just now unless I misheard. Imagine an abstract picture or a reproduction of an abstract picture containing white squares and white triangles on a black background and nothing else except a bit of print across it. Is it the Government's contention that the print is abstract and the squares and triangles are concrete? If so, what is their general approach to the question of semantics in art criticism?
Lord Beaverbrook: I shall deal first with the point raised by the noble Lord, Lord Williams of Elvel. In preparing the Bill it was realised that it was unnecessary to create a separate class of work to achieve the desired result. We realised that a mistake had been made here and that therefore we should go back to the wording as printed in the Bill.
On the question of the noble Lord, Lord Kennet, I did say that the design of a typeface is an abstraction and that all other types of artistic work are concrete, including a drawing which embodies the design of a
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typeface. I think I am right in saying that where a work of art includes both it would probably come under the heading of an artistic work that is concrete. If I am wrong in that, I shall come back to it.
Lord Lloyd of Kilgerran: It would be churlish of me not to thank the noble Earl, Lord Stockton, for having taken over so many of the amendments that stand in the name of the noble Lord, Lord Mottistone, and myself and for developing a very attractive theme that will save time in a few moments. By way of explanation in respect of Amendments Nos. 16, 23 and 24, I must say that the noble Lord, Lord Mottistone, is unable to be here tonight but has asked me to speak on his behalf, declaring his interest in acting for the CBI. I have been concerned with a printing firm whose name I have forgotten. There is an error on the Marshalled List where Amendments Nos. 23 and 24 should have my name associated with that of the noble Lord, Lord Mottistone.
Noble Lords: They have.
Lord Lloyd of Kilgerran: I see. There has been a correction. Again, I thank the Minister for having referred to the amendments which I shall of course not move when they are called.
Lord Howie of Troon: Will the Minister let me have his views on the points that I made about woodcuts?
Lord Morton of Shuna: I wish to add to the list of questions for the Minister. Am I not right that there is a particular convention on typefaces? Anyone looking at this part of the Bill to find out what "copyright" covers and who knew about that special convention as regards typeface would look for it but not find it. It would seem logical that it should be there.
Lord Beaverbrook: As regards the point made by the noble Lord, Lord Howie of Troon, a typeface is not the same as a woodcut. Woodcuts are concrete if that is possible, but a typeface is in the shape of letters, figures and the light on the page itself. I shall write to the noble Lord, Lord Morton of Shuna, on the point that he made.
The Earl of Stockton: I am rather unhappy to hear the Minister dismiss typeface in such a cavalier fashion. It has long been established that typeface has a particular and extremely concrete quality. I have no doubt that the noble Lord's grandfather who made his fortune out of the use of typeface in its most concrete form would probably have agreed with me. I support the point made by the noble Lord, Lord Morton of Shuna, but I do not care to delay the Committee any further. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment Nos. 13 and 14 not moved.]
5.15 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 15:
Page 2, line 29, leave out paragraph (c).
The noble Lord said: This is a probing amendment to leave out paragraph (c):
"a work of artistic craftsmanship".
The amendment is designed to get the Government to define what a work of artistic craftsmanship is. The paragraph virtually repeats the words of the 1956 Act which stated:
"works of artistic craftsmanship not falling within either of the preceding paragraphs".
Those words:
"not falling within … the preceding paragraphs"
are omitted for some reason. What is a work of artistic craftsmanship? Since the 1956 Act there has been the case of Hensher v. Restawile where the judicial committee of this House refused to accept that a suite of modern furniture could be a work of artistic craftsmanship. It has been suggested that the judges and the counsel in that case came out with about nine different meanings of that expression. It seems that it is easier to decide what it is not rather than what it is. At present it may be that few works are likely to qualify as artistic craftsmanship where they are functional or where they have functional purposes
However, some articles must qualify, even if they are functional as well as artistic. This is a very difficult matter to deal with. It must be important for industry to know what is or what is not a work of artistic craftsmanship. I beg to move.
Lord Beaverbrook: The noble Lord, Lord Morton of Shuna, asked me to define what is meant by works of artistic craftsmanship. These works comprise a small and imprecisely delimited class of copyright work. To qualify for protection a work must involve both artistry and craftsmanship. Those questions can be answered only by assessment of the particular work. This contrasts with the treatment of other artistic works such as drawings or photographs which are defined simply as products of the particular process. Case law has mainly served to deny particular works protection under that category. Examples include an infant's cape, rods used to teach mathematics and, for instance, a particular piece of furniture.
I readily admit that this class of works causes some difficulty. It is not entirely satisfactory that the public cannot be confident in predicting whether copyright subsists in a given work. However, the category gives some flexibility to the definition of artistic works so that works which do not qualify for protection as graphic works, photographs, sculptures or works of architecture may find their protection here. To deny that possibility might deny protection for works of genuine artistry such as pottery, embroidery and other forms of craftsmanship with an artistic element.
Lord Howie of Troon: Does the Minister include among the works of craftsmanship a certain form of typeface which does not occur in a drawing or as an impression on paper but which is an item you can hold in your hand? If the Minister has any time on his hands in the next week or two, perhaps he would care to pay a brief visit to Camden Passage. It is not far away. There he will find set out in a number of stalls
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a sizeable number of pieces of typeface. Many of them are of very high aesthetic quality and considerable craftsmanship. Perhaps if he cannot answer me immediately he will wander down Camden Passage and see the pieces I refer to.
Lord Donaldson of Kingsbridge: Has anyone consulted the Crafts Council, which is an important and highly subsidised body under the Minister for the Arts? I am sure that it can give a better definition than we have had so far.
Lord Hutchinson of Lullington: Perhaps the Minister can reply to the case which the noble Lord, Lord Morton, has made for furniture. I believe that Mr. Chippendale would have been amazed that he was not covered by the copyright Bill.
Lord Simon of Glaisdale: I do not propose to discuss before the Committee in its legislative capacity a case in which I took part in noble Lords' deliberations in a judicial capacity. However, in the case of Hensher noble Lords did not decide that a suite of furniture was not a work of artistic craftsmanship but merely that that particular suite of furniture was not. That was decided on the basis of the expert evidence.
Lord Beaverbrook: I am grateful to the noble and learned Lord, Lord Simon of Glaisdale, for clarifying that point. I agree that case law has mainly served to deny particular works protection under the category; in many cases that included a particular piece of furniture.
In reply to the comments of the noble Lord, Lord Howie of Troon, I shall certainly look into the matter even if I do not have time to go down to Camden Passage and examine the items that he has described. I hope that I have been able to clarify what is meant by works of artistic craftsmanship. I acknowledge that it is not an easy area. I hope we can at least agree that it is something which should remain in the Bill.
Lord Morton of Shuna: Before the Minister sits down, he does not appear to have taken the point made by the noble Lord, Lord Donaldson, concerning the Crafts Council. Was it consulted?
Lord Beaverbrook: I apologise to the noble Lord, Lord Donaldson. I understand that the Crafts Council was not consulted. I shall look into that matter further.
Lord Morton of Shuna: I do not intend to press the amendment. It appears odd that on the matter of artistic craftsmanship a court must look at the question of what is or is not artistic when that is something at which it is forbidden to look in relation to graphic works, photographs and sculpture. Where the distinction is drawn between sculpture and artistic craftsmanship seems to be an area of supreme difficulty. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 16:
Page 2, line 29, at end insert ("; or
(d) the design of a typeface.").
The noble Lord said: I was also disappointed like the noble Lord, Lord Howie, and the noble Earl, Lord Stockton, that no reference could be made in the Bill to the design of a typeface. However, I have listened to what has been said and, subject to returning to the matter at a later date, I do not propose to move the amendment.
[Amendment No. 16 not moved.]
[Amendment No. 17 not moved.]
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 18:
Page 2, line 32, at end insert ("or composition of any of them,").
The noble Lord said: The amendment is designed to draw attention to a type of graphic work which may not be one particular of any of the items mentioned in the Bill or which may even be a composition of a number of such types of work—the collage. The principle of collage is well known. One takes a part of a painting, for example, or of a diagram, map, chart or whatever, and makes a composition which is stuck on a piece of canvas. That is then a work in its own right. There may be other forms of composition and different types of works which are spelt out in the Bill. All the amendment seeks to do is to draw the Government's attention to that type of work and, if it is appropriate, to widen the definition to include those types of work that I have mentioned. I beg to move.
Lord Beaverbrook: We were somewhat puzzled as to the content of the noble Lord's amendment. I am grateful to him for raising the matter at this time. I should like to look at what he has said and perhaps write to him as soon as possible concerning our opinion.
Lord Williams of Elvel: I am most grateful to the Minister. Perhaps I should have let him know my intention in tabling the amendment. I hope that in writing to me he will consider carefully whether the Government should bring forward an amendment on Report. If that is to be the result, I am happy to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Chairman of Committees: Before I call Amendment No. 19, I should point out that if it is agreed to I cannot call Amendments Nos. 20, 21 and 22.
Lord Brain Lord Brain moved Amendment No. 19:
Page 2, line 36, leave out from ("any") to ("which") in line 37 and insert ("image produced by a photographic method or retrieved from any image storage system for recording radiation").
The noble Lord said: I believe that the Government are seeking a definition of photography which covers not only the present state of the art but also future developments. I am not sure that they have done so successfully. I think that Amendment No. 19 will probably cover most of the worries giving rise to Amendments Nos. 20, 21 and 22, particularly about holography.
Photography is defined in the Oxford English Dictionary as:
"The process or art of producing pictures by means of the chemical action of light on a sensitive film on a basis of paper, glass, metal, etc.; the business of producing and printing such pictures".
That definition covers the traditional processes which have been used for nearly 150 years. In particular, it covers holography, which is a specific application of a process for colour photography defined in 1890 or thereabouts by Lipmann using interference patterns on a very thin film of emulsion.
I do not think that the original definition covers many of the processes currently under development, some of which have been described and others which are a natural sequence of events. We already have a still version of what I think is most easily described as a video recording whereby one takes an image and records it electromagnetically on a magnetic film. I think that that is hardly akin to photography. It may be said that the fact that the light comes onto a sensitive plate in an electronic device falls just within the definition of chemical action of light on a sensitive surface. If one then takes the image digitally, puts it into a computer and subsequently prints it digitally on a screen, is that akin to photography?
I thought that something like my definition, which involves retrieving images which have been stored, would be appropriate. They may be stored photographically; they may be stored by lasers on a compact disc, as I have recently seen described in a paper published before the Imaging Technology Committee of the Royal Photographic Society. There is so much scope for recording methods which are likely to be brought out in the future. It may be retrieving images by radiation; it may be an electron beam; it may be infra-red radiation. But none of this is covered by the definition of light shown in the Oxford English Dictionary.
5.30 p.m.
Lord Howie of Troon: I wonder just how far this amendment includes the whole field of computer-aided drawing. Am Ito understand that a computer-aided drawing becomes subject to copyright at such time as it is printed on paper in some way? Can it be covered by copyright while it is still in the computer and available to be retrieved from the computer?
Lord Morton of Shuna: I have my name in the same group as that of my noble friend Lord Williams relating to Amendment No. 21. It is to leave out,
"or of a process akin to photography".
That was merely a probing amendment to try to find out what might be intended by the words "a process akin to photography". It is in the same group as the amendment spoken to by the noble Lord, Lord Brain.
If one looks at the definition in Clause 4 of the Bill, it is similar to the definition in the 1956 Act, which defines a photograph as meaning any product of photography, or of a process akin to photography other than a part of a cinema film. There it stopped. It went on to define the author. Here the definition goes one stage further and refers to a graphic work and a reprographic copy.

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It is not at all clear to me what may be the limits of being akin to photography and what the limits of kinship may be. It was with the aim of the finding out that I put down this amendment. In general, I support the thinking and the drafting of the amendment of the noble Lord, Lord Brain, so far as I am competent to do so.
Lord Lloyd of Kilgerran: I am sure that the Members of the Committee are deeply grateful to the noble Lord, Lord Brain, for his very clear explanation of this highly technical matter. In moving this amendment he said he was not quite satisfied with the wording of it. He said that he was open for some improvement to be made later in order to deal with this matter.
I should declare an interest in that I was entertained by the famous international patent agents, Marks and Clerk, on the centenary, I believe, of the birth of a Member of this House, Lord Marks, who founded the firm. After I had given my address to a large gathering of 700 people in Birmingham, I was presented with a hologram. It has been a very difficult operation to get it fitted up in any place in my abode convenient to my wife. Nevertheless, the hologram is still there.
I bear in mind the advice given to me by the British Computer Society. The noble Lord, Lord Morton of Shuna, refers in his Amendment No. 21 to a process akin to photography. I do not think it is fair to say that holography is quite akin to photography in that sense. I support the theme of the amendment of the noble Lord, Lord Brain, but I suggest to him, if I may presume to do so, that the word "holography" or "hologram" should be included somewhere. Not everybody knows the difference between a hologram and a photograph.
Lord Beaverbrook: I am most grateful to the noble Lord, Lord Brain, for putting down this amendment, to the noble Lords, Lord Lloyd of Kilgerran and Lord Mottistone, and also to the noble Lord, Lord Morton of Shuna, for his amendment. In speaking to Amendment No. 19, with the leave of the Committee I shall speak also to Amendments Nos. 20, 21 and 22. These amendments seek to broaden the scope of the definition of a photograph although they approach the matter in different ways.
This is something we considered when drafting the Bill but in the end we decided merely to repeat the definition contained in Section 48 of the 1956 Act. This was on the grounds that the definition has the merit of being openended and would allow the courts to reach sensible results which a closed definition might prevent. We considered holograms in arriving at this conclusion and took the view that they are products of a process akin to photography. We are now told that this may not be so, and in these circumstances it is clear that we must look again at this point. I add that if the representations are correct there may be a logical difficulty in calling a product a photograph when it is the result of a process having no affinity with photography.
The alternative approach to this question is to attempt a generalised definition as the noble Lord, Lord Brain, proposes in his amendment. I have
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referred to the danger that a closed definition of this kind might prove unduly limiting in the future, but we have by no means closed our minds to this approach. However, we see a fundamental difficulty with the definition the noble Lord has proposed, in that the protected work would be an image and that image need not be a tangible one. This contrasts with the existing law and with the Bill as drafted, where a photograph is a tangible product, as indeed are all the other forms of artistic work specified in Clause 4. To extend copyright protection to, say, projected images or holographic images as distinct from the protection afforded to the film or hologram itself would be a major step with considerable and possibly undesirable implications.
Nevertheless, the Government are prepared to look again at this definition in the light of the views expressed by noble Lords, giving particular consideration to the latest technologies for recording images of all kinds.
As regards the question put by the noble Lord, Lord Howie, concerning computer-aided drawings, copyright in a computer-aided drawing will subsist as soon as it is recorded even in the bowels of the computer. One does not need to wait for a printout of the drawing, but this really has nothing to do with photographs or holograms.
Lord Brain: I should like to thank the Minister for his reception of my amendment. I mildly cross swords with him as to whether or not a hologram is a photographic item. I certainly agree that there is no reason why it should not be added to the definition of a photograph even though in its original form as a hologram it has nothing visible on it until it is illuminated. Then the illuminated thing is an intangible image. I am sure the Minister will enjoy trying to sort that one out. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 20 to 24 not moved.]
On Question, Whether Clause 4 shall stand part of the Bill?
Lord Broxbourne: Perhaps I may take up a few moments of the Committee's time on the question of the definition of artistic work, in particular graphic work, which is dealt with in this clause. I preface my remarks by making a declaration of interest, ex abundanti cautela. I am a director of the William Weston gallery which specialises in particular in graphics. That gallery may be known to the Committee. In any event, a visit from any member of the Committee will be more than welcome and there will be a warm reception with expert instruction. I shall join in the warm reception, if present, but the Committee will be relieved to know that the expert instruction will be given by others.
On the subject of graphic work, subsection (2) of the Bill says:
"'graphic work' includes … any engraving, etching, lithograph, woodcut, print or similar work".
The Committee spent some time debating the words "irrespective of artistic quality" and properly reached the conclusion that artistic quality is not

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justiciable. Indeed, it changes from generation to generation, apart from individual to individual.
What is justiciable and important is originality. An original print is a work on which the creator, the artist, has individually worked. Bearing that definition in mind and appreciating (as I am sure the Committee will) that that is the only type of graphic which should have a copyright, we then look at the catalogue of words and see, "print or similar work". I have looked in vain for a definition of "print" for the purposes of the Bill, but I have not found one. The Minister will correct me if, among the voluminous pages of this Bill, there lurks a definition. He will be able to identify it and I will be both grateful and apologetic.
The word "print", in the absence of a definition, is almost bound to lead to confusion and in modern usage is considerably debased. In the terminology of some people, the word "print" includes not only graphics on which the artist has personally worked—an original print in the terms of the definition that I have just given—but also works which are merely the result of mechanical or photographic process. Therefore, to include the word "print" in the catalogue of definitions is inviting confusion and to include, after that, the words "or similar work", thereby attracting all the perils of the ejusdem generis interpretations, is adding to it.
I am sorry to appear critical of a clause which is obviously the result of much devoted labour and consideration. Like the noble Lord, Lord Williams of Elvel, I do not consider it my duty to draft the Bill, but I think it is the duty of us all to take account of imperfections in it. Therefore, I should be grateful if my noble friend will look at this particular point between now and Report with a view to introducing a clarifying amendment.
Lord Kilbracken: I have been worried about the points raised by the noble Lord, Lord Broxbourne, and I am glad that once again we have an expert in the Committee who can tell us exactly what is meant by engravings, etchings, and so on.
I want to draw attention to the next definition: that of a photograph. There is one point here on which I am not entirely clear. We are told, among other things, that it means any product of photography which is not part of a film. Film is defined here as being what one would normally call a cinematograph film, and it also covers a video tape. What is the position when a single frame from a cinematograph film is used to make a still photograph, which is possible and an everyday thing to do, or when a still photograph is made from a video tape by photographing the screen, which I suppose is the technique. In those cases it would seem to me that we are talking about a photograph. It is a still photograph which is published or used in a way which any other photograph can be used but still appears to be part of a film. Therefore, I wonder whether it is right to exclude part of a film completely from the definition of a photograph.
5.45 p.m.
Lord Howie of Troon: I strongly support the stance taken by the noble Lord, Lord Broxbourne. As he
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said, there are two distinct kinds of print. One group clearly covers artistic works and the other group something quite different. The Government should certainly think closely about what the noble Lord said.
What really worries me in Clause 4 also worries me in Clause 3. It is on a definition of a kind which interested the Committee earlier. I notice in Clause 4(1) that artistic work "means", whereas in subsection (2) graphic work "includes". In Clause 3 literary work "means" but dramatic work "includes" and musical work "means". Why is the locution that something "means", and appears to be in the form of a definition, used in some parts of the clause, whereas the locution that something "includes" merely one or two things—and I think in that sense excludes a definition—is used in another part? I have no doubt that there is a legal precedent for this—probably many of them—but I should like an explanation of whether that precedent is sensible.
Lord Hayter: I should like to say something about the phrase "artistic craftsmanship". It was suggested to the Minister that he should consult the Crafts Council and I think that is good advice. It would also be good advice to consult the Design Council. The word "design" does not appear anywhere in this particular part of the Bill and yet one would have thought that one could copyright a design. Surely the design comes before the craftsmanship, which is a point I should like the Minister to consider.
Lord Beaverbrook: We shall look at that and see whether the Design Council should be consulted on that matter. To respond to my noble friend Lord Broxbourne, there is no definition of "print". The word was used in the 1956 Act and has caused no problems. It should not be forgotten that a print is protected by copyright only if it is original as provided in Clause 1(1)(a) and we have already looked at that. Of course, we will consider what my noble friend has said and see whether we can improve the drafting.
The noble Lord, Lord Kilbracken, raised the point as to whether a still photograph taken from a single frame of a film would be both a photograph and part of the film. I do not believe that that distinction matters. It is important that a single frame should not be regarded as a photograph and that is what Clause 4 achieves.
Regarding the point made by the noble Lord, Lord Howie, the word "means" is an exclusive definition which covers everything within it. "Includes" is a non-exclusive definition and the word in question has its natural meaning but includes other things.
Clause 4 agreed to.
Clause 5 [Sound recordings and films]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 25:
Page 3, line 7, after ("work") insert ("or part").
The noble Lord said: The amendment will correct a flaw in the drafting of the clause as printed. It clearly cannot be a condition, for a sound recording to be classed as such, that the whole of the work may

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be produced from the recording if only a part of the work was recorded in the first place.
For reasons I explained to the noble Lord, Lord Williams, this amendment will prove a more complete remedy than the one he tabled. It was his amendment which first alerted us to the fact that something was wrong, and I am most grateful to him for identifying our mistake. I beg to move.
Lord Kilbracken: Can the Minister explain why paragraph (b) is necessary at all? We read in paragraph (a) that a sound recording means a recording of sounds. The subsection continues,
"or (b) a recording of the whole or any part of.
But that of course, is a recording of sounds. Surely paragraph (b) is already embraced by paragraph (a).
Lord Beaverbrook: Perhaps I can take the noble Lord's point now. There is obviously a very great overlap between the two paragraphs. But there are things in paragraph (b) that are not in paragraph (a). Paragraph (a) refers to a recording of sounds; paragraph (b) covers all recordings of works from which sounds may be reproduced, whether made by recording sounds or not. Old fashioned piano rolls and modern electronic recordings may both be works made without recording sounds. So they must be covered by the definition.
On Question, amendment agreed to.
[Amendment No. 26 not moved.]
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 27:
Page 3, line 9, leave out ("and").
The noble Lord said: In moving this amendment, I should also speak to Amendment No. 30. The purpose of these two amendments is to insert a definition of a film sound track. This is felt to be necessary, especially as Clause 61 specifically refers to a film sound track. It would therefore appear requisite that one should have a definition of what it is.
As proposed by Amendment No. 30, a film sound track means a sound recording accompanying a film. I do not think I need to provide much explanation. No doubt the drafting is not perfect. I beg to move.
Lord Lloyd of Kilgerran: May I very briefly say that I support the amendment. It seeks to clarify the term "film sound-track" which is used for the first time in copyright legislation.
Lord Beaverbrook: Under the Bill as drafted the sound-track for a film qualifies as a sound recording in its own right. This approach is different of course from that in the 1956 Act under which it was treated as part of the film. We have carefully picked up the few points in the Bill at which the sound-track needs special treatment, for example in Clause 61.
The problem is that in all of those cases, we are dealing with a sound recording which does not inevitably accompany a film as its sound-track but in some circumstances does. Consider for example a musical sound-track equally capable of separate existence as a record or tape. Thus it is not possible, as the amendment would propose, to define a sound-
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track as a sound recording accompanying a film. Sometimes it will; sometimes it will not.
The absence of a definition in the Bill is not for want of trying. But we have been unsuccessful. We have concluded that a sound-track is what lawyers call an elephant. It is easier to recognise than to describe. I am sure that in practice no one will have any doubt, in circumstances in which it matters, as to whether he is dealing with a sound-track or not. I hope that that explanation goes some way towards satisfying the noble Lord.
Lord Morton of Shuna: I can of course see the difficulty in defining elephants. I have spoken on that in trying to define a crime of violence. As regards a film sound-track, if you are going to use, in an Act these words, I would have thought it might help to define them, especially when you define almost everything else. While the sound-track is accompanying the film, it is a film sound-track; thereafter, it is a sound recording. I would have thought that fairly clear.
I really do not see that the amendment complicates the Bill. I would have thought that it is made simpler. However, I have no intention of dividing the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 28:
Page 3, line 11, leave out ("moving picture") and insert ("picture of movement").
The noble Lord said: This amendment is a pure matter of semantics. A moving picture is not really the correct description, I would have thought, of what is happening. One sees a picture of movement. That is all that this attempts to get across. The idea is not that the picture moves, but that it is a representation of movement. I beg to move.
Lord Lloyd of Kilgerran: I hesitate to get involved in any semantics but I am advised by industrialists that it has become commonplace to define film images and that the correct definition of what a film shows is a moving picture. To change the words seems to me not helpful.
Lord Kilbracken: I raised this point on Second Reading. I do not like at all this reference to something being merely semantic. I hope that the noble Lord is not being anti-semantic. I happen to believe that there is no particular reason why a Bill should not be written in reasonably good English. I wish other noble Lords would sometimes join me in putting down semantic amendments. I did point out that we really do not any more talk about "moving pictures". A long, long time ago we said, "Shall we go to the moving pictures?" That became, "Shall we go to the movies?" We all know what that means. But it is not a word that is used in the 1980s any more. And, really, it should not appear in a high-tech Bill.
My noble friend's amendment is certainly an improvement. But can we not do better—even to say "from which a motion picture may by any means be

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produced". What we call a film is always known in America as a motion picture. It is a phrase also frequently used here. Somehow it seems to belong more to the 1980s and less to the 1930s.
Lord Lloyd of Hampstead: Perhaps I may suggest the appropriate phrase here would be: a moving image. We are, for example, in the process of creating a museum of the moving image at the moment under the auspices of the British Film Institute on the South Bank, and that has become the recognised phrase when one is talking about images which move on a screen.
Lord Denning: We all know what a moving picture is and that is good enough. We do not want these other phrases.
Lord Hutchinson of Lullington: A film is a moving picture. It is not a picture of movement. A picture of movement may be a still picture. A film surely is a moving picture.
Lord Brain: I think also we have missed the point that certain images—and I must accept that term—are perfectly still and the camera moves. There is no movement in the picture.
Lord Hailsham of Saint Marylebone: Moving picture is part of the English language. Let it remain so.
6 p.m.
Lord Beaverbrook: I shall have to agree with my noble and learned friend and with the noble Lords, Lord Lloyd of Kilgerran and Lord Hutchinson. I recall that on Second Reading the noble Lord, Lord Kilbracken, expressed some surprise at finding the expression "moving picture" in a Bill intended to meet the demands of the present day and into the next century. The Government would be only too pleased to accommodate the noble Lord, or any others who feel that way, if an alternative definition could be found; but I am afraid that the alternative proposed in the amendment cannot be accepted.
A picture of a movement includes a photograph of, for example, a racing car crossing a finishing line in a grand prix and a painting of waves crashing on the sea shore. A picture of movement does not include a film of a building unless it is taken during an earthquake. We believe that "moving picture" is the best definition that can be provided. It appears in the 1956 Act, and has caused no problems. While we wish to be up to date, we should not discard well-established and understood expressions lightly, particularly if the gain in modern expression is outweighed by a loss in clarity.
Lord Morton of Shuna: I assure my noble friend Lord Kilbracken that I have an interest in semantics. By referring to "mere" I was not meaning to diminish that interest.
Lord Kilbracken: It was the noble Lord, Lord Lloyd, who said "mere semantics".
Lord Morton of Shuna: I thought that I did.
Lord Lloyd of Kilgerran: I think that this is a matter of semantics. I agree with the noble and learned Lord, Lord Hailsham. It is part of the English language. Let it remain so.
Lord Morton of Shuna: All I was going to do was to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 29 and 30 not moved].
On Question, Whether Clause 5 shall stand part of the Bill?
Lord Williams of Elvel: Before we leave Clause 5, perhaps I may ask the noble Lord about copyright in the compilation of older material. As I understand it, in the Bill as drafted, there is no copyright in a sound recording, film or broadcast which is a compilation of older material which may or may not still have an independent copyright. If so, why is there a difference between that and a literary work which I believe is protected? What is the difference between literary works, and sound recordings and films in that respect?
Lord Beaverbrook: I think that the noble Lord, Lord Williams, is talking about a long-playing record that is made up of previously recorded material into one compilation album. Am I right in assuming that?
Lord Williams of Elvel: I shall give an example. A sound recording may be made up of excerpts of this or that. A film or broadcast may take excerpts from something else which has its own copyright. Together they form a work. A broadcast may be a description of the Second World War, for instance. The broadcaster would take excerpts from material which is already copyright. It seems to me, from the drafting of the Bill as it stands, that that work (which includes other works which are copyright) has no copyright in its own right. I may be mistaken about that. I would be happy if the noble Lord can tell me that I am wrong. That is the point upon which I should like elucidation.
Lord Willis: I think that my noble friend is slightly wrong here. There could be no copyright in the final object because if one is doing a compilation, for example, of the Second World War or of the life of Fred Astaire, one has to go to other copyright owners to obtain the material. That material is vested in them. If one wants them to extend the life of the compilation that has been made or if one wants to sell it, whoever buys it from the maker has then to go to the original copyright owners once again to obtain their permission. No problem arises here. The original copyright owners are protected. There is no copyright in the compilation, in my view quite rightly.
Lord Beaverbrook: A compilation may have a copyright of its own if it is a fresh recording. That would of course not extend the copyright in the individual items themselves.
Lord Williams of Elvel: I am grateful to the noble Lord. Does he believe that my noble friend Lord Willis is wrong when he says that the compilation itself has no copyright? I understood him to say that it may have copyright it it is recorded.
Lord Beaverbrook: I believe that I am right when I say that a compilation may have copyright of its own if it is a fresh recording.
Lord Willis: With respect, I think that the noble Lord is wrong. A compilation is usually made up of excerpts from other copyright material. That copyright material remains static for as long as the copyright exists. One cannot repeat the compilation unless one has bought the rights of those copyright owners. Let us take my example of the life of Fred Astaire. One would have to take excerpts from his films. One would have to pay the writers (the owners of the copyright) for those excerpts. They would want to know at the time that they were being bought what was to be done with the compilation. They might sell the rights to the excerpts for two showings of the compilation. There would be no long life to that compilation unless one bought the whole copyright, which in most cases would be impossible. I do not think a problem arises here because the copyright is protected at the very beginning.
Lord Beaverbrook: I am most grateful to the noble Lord. If what I have said is incorrect, I shall of course return to the noble Lords concerned and let them know.
Clause 5 agreed to.
Clause 6 [Broadcasts]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 31:
Page 3, line 16, after ("reception") insert ("by members of the public").
The noble Lord said: I beg to move Amendment No. 31 standing in my name and that of my noble friend Lord Morton of Shuna. It may be for the convenience of the Committee if I speak also to Amendments Nos. 32, 33 and 34. In Clause 6 we are dealing with broadcasts. All these amendments are intended for clarification.
Amendment No. 31 deals with the expression "general reception". We can conceive of circumstances where "general reception" is general to people who are members of a class and not necessarily members of the public. I use the word "class" in the mathematical sense—a sub-universe if one likes—not in a political sense. When reading the Bill carefully, it seemed to us that to insert the expression "by members of the public" would clarify what "general" meant in the Bill.
Amendments Nos. 32 and 33 are designed merely to reinforce what many noble Lords have said in Committee—a respect for the English language. We do not recognise the words "to access" other than in computer jargon. We recognise the verb "to accede". Something is "accessible to" rather than "accessible by". Other noble Lords may have different views on the English language, but that seemed to us to be sensible clarification.
Amendment No. 34 is perhaps more substantial. It deals with those who receive broadcasts and it interprets what is accessible to members of the public by the definitions contained in subsection (2)(a) and (b). It does not seem to us that the word "lawfully" in Clause 6 (2)(a) is necessary. Indeed it is possible to conceive a broadcast being received by members of the public which should properly be in Clause 6. Nevertheless, that reception may be unlawful. Perhaps I may give an example. I am not sure whether it is lawful or not for United Kingdom residents to receive the BBC World Service. Nevertheless, a number of United Kingdom residents receive the World Service. It seems that the word "lawfully" here unduly restricts the definition of accessible to members of the public.
It is a slightly more substantial point. I do not believe that it is a point of enormous materiality but it is something we should consider. For that reason I beg to move Amendment No. 31.
Lord Kilbracken: I had no idea that I was breaking the law by listening to the World Service which I do quite frequently. I am not sure why that should be illegal.
However, I should like to rise briefly to support my noble friend on his Amendments Nos. 33 and 34, which would alter accessible "by" to accessible "to". It seems to me without any doubt that that is correct. As my noble friend said, there is now a computer-speak word "to access". If applied here, that which can be accessed is accessible by members of the public. However, that is the only meaning of the word under which "accessible by" should be used and it certainly does not apply here.
Lord Denning: I do not think that there is any need for the word "lawfully" to be left out.
6.15 p.m.
Lord Beaverbrook: With the leave of the Committee I shall speak to Amendments Nos. 31, 32, 33 and 34 in that order. On Amendment No. 31, in the name of the noble Lords, Lord Williams and Lord Morton, the purpose of subsection (1)(a) is to provide a broad definition to embrace all transmissions which are intended to be generally available. "Broadcast for general reception" seems about as wide as you can get and I do not believe that there is anything to be gained by limiting the category to transmissions to a particular class of person, even when that class is so large as to constitute all members of the public. Adding these words seems to imply that there could in theory be an opposite type of transmission; namely, "a transmission broadcast for general reception by persons other than the public". That seems to me to be a contradiction in terms.
Turning to Amendment No. 32 the purpose of subsection (1)(c) is to deal with all those satellite transmissions which are not intended primarily for direct reception by the public but which a member of the public may nonetheless lawfully tune into if he has the appropriate equipment and what is called a "Television Receive Only" or TVRO licence from the

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Department of Trade and Industry. A typical example would be Skychannel which is aimed first and foremost at cable networks rather than individuals.
The paragraph brings within the concept of a broadcast all such satellite-delivered programme services which are either transmitted unencrypted (colloquially known, I believe, as "in the clear"), or for which, if encrypted, decoding equipment is made available by the operator to anyone willing to pay the necessary sum for rental or purchase. Under the 1956 Act such transmissions are not broadcasts and the satellite programme providers are not required by law to obtain consent from copyright owners to include their works in their transmissions, though in practice they normally do so.
The only satellite transmissions not covered by paragraph (c) will be encrypted transmissions not falling within paragraph (a) or (b) and for which decoding equipment is not generally available to the public. By "not available" is meant the case where even if a member of the public applies and is willing to pay for such equipment he will be refused. Transmissions of police, military or weather data by satellite would be an example of restricted services excluded from paragraph (c). Members of the Committee will have noted that under Clauses 269 to 271 it will remain illegal to market decoding equipment without the authority of the programme provider (as is at present the case under Sections 53 and 54 of the Cable and Broadcasting Act 1984).
With regard to Amendment No. 34, the practical effect of retaining the word "lawfully" in line 23 may not be very great but we would, I believe, be unwise to omit it. The effect of removing it would be that certain classes of private transmission by satelite which are not intended for the public, and which it is unlawful for the public to receive, might have to be treated as broadcasts for copyright purposes. Again I am thinking of police and military transmissions should these be made by satellite in unencrypted form. This outcome would be unwelcome because it would oblige the persons responsible for such transmissions, by virtue of their being broadcasts, to obtain the consent of the copyright owner if for any reason they included copyright material in their transmissions. This is not required under present law and we do not think it would be approprirate to make it so. The private communication of copyright material between two parties is not a restricted act in other spheres of copyright and it should not be so in the broadcasting field.
At present it might make little difference to omit the word "lawfully" because the receiving licences available to the public, including the Department of Trade and Industry's "Television Receive Only" licence which covers satellite transmissions, do not entitle you to listen in to transmissions such as those of the police and the armed forces. These transmissions would therefore fall outside the class of services which are defined in subsection (2) as accessible by the public by virtue of being available if you hold "any necessary licence". In reality a member of the public would not hold the necessary licence. However, this Bill is intended to last for a
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long time and there can be no certainty that the present system of licensing under the Wireless Telegraphy Acts will endure throughout its term. Inclusion of the word "lawfully" is a useful safeguard and I believe that we should retain it.
The noble Lord, Lord Williams, asked me whether he and the noble Lord, Lord Kilbracken, can listen to the World Service lawfully. The answer is yes, but that is not a relevant case. The World Service is broadcast for general reception, and is therefore referred to in paragraph (a), and the point about "lawfully" arises only in respect of other satellite transmissions in paragraph (c).
Lord Kilmarnock: Before the noble Lord, Lord Williams, decides what he wishes to do let me say that I also find my hackles rising somewhat on the point of "accessible by". I am in agreement with the noble Lord, Lord Kilbracken, on keeping good, transparent English in the statute. The verb "to access" is clearly a jargon term and I would submit that it is unwise to have it on the face of a statute. Could we not get round the difficulty by using the phrase "capable of access by" and then we should not be introducing into the statute the verb "to access".
Lord Kilbracken: This is not a context in which the verb "to access" would be used. It is used when working with computers. The Minister has been extremely good in dealing with all the points that arose from Members of the Committee. However, it seemed to me that he did not give a proper reply to Amendments Nos. 32 and 33 put forward by my noble friend.
Lord Beaverbrook: As regards Amendments Nos. 32 and 33 I gave as full an answer as I felt I could. Perhaps I may finish speaking to Amendments Nos. 32 and 33 specifically. I accept that these amendments are intended only to improve the drafting of Clause 6 but I do not believe that they necessarily do so. The phrase "accessible to" is a more passive one than "accessible by" and carries an implication that only those satellite services should be included that a member of the public could easily obtain without going to any special effort. The phrase "accessible by" is broader in that it more obviously encompasses services which the viewer may receive but only with a certain amount of enterprise and resolution. It is fair to say that that is still true of the direct reception of most satellite services. As regards the use of the word "accessible", I shall carefully consider what has been said in the Committee this evening to see whether we could not improve on that expression.
Lord Kilbracken: I must point out that "accessible by" is the passive term and "accessible to" is active.
Lord Williams of Elvel: On the last point, I am most grateful to the noble Lord for being willing to reconsider this use of the English language. Even in computer-speak I cannot see how anybody can access a satellite broadcast; but if the Government feel that they can, it is up to them. I believe that the noble Lord, Lord Kilmarnock has suggested another

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version which meets the Government's need and is in English.
On the question of general reception, I take what the noble Lord said and accept that he means the expression "general reception" to be as wide as possible. Therefore any qualification of "general" would be restrictive rather than widening. I thought it important to emphasise that members of the public would be able to access a satellite broadcast, if I can imitate the language of the Bill, rather than anybody else. I accept what the noble Lord has said and shall not press that point.
On the question of the word "lawfully," I again accept what the noble Lord said about the possibility that the law might change. But we have to deal with the law as it is at present. I could easily understand if the noble Lord were to say that the Secretary of State, or whoever it might be, might have powers to widen the definition or to introduce new laws. But simply to leave it on the basis that the Bill when enacted will have to last for 20 years and anything might happen, seems to me to be a rather dangerous phenomenon. I hope that the Government will think again, bearing in mind the words of the noble and learned Lord, Lord Denning, that this perhaps is not necessary at present but is something that might be thought about again in the future. Perhaps the noble Lord might wish to respond.
Lord Beaverbrook: Our view is as I set out on the inclusion of the word "lawfully". I believe that as I said before it would be unwise to admit it. Of course we shall look at what all noble Lords have said this evening. If we feel that there is any change to our view we shall come forward at that time. In our belief the need for the word "lawfully" does not relate to change in the law, but to the licensing arrangements under the existing law. However, we shall consider this very carefully.
Lord Williams of Elvel: I am grateful to the noble Lord. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 32 to 34 not moved.]
The Deputy Chairman of Committees (Baroness Serota): In calling Amendment No. 35, I should point out to the Committee that if this amendment is agreed to I cannot call Amendment No. 36.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 35:
Page 3, line 30, leave out paragraphs (a) and (b) and insert ("to the person who has responsibility for the transmission").
The noble Lord said: This amendment addresses a rather different problem because it is essential to know, when considering a Bill of this nature, exactly who is responsible for the transmission. I should say in parentheses that we used the word "transmission" rather than "broadcast" because we have been told that "broadcast" is not a verb, it is a noun. We have notice that in certain places in the Bill the word "broadcast" rather than the word "transmit" is used as a verb rather than as a noun. I have that on advice, I am not pretending that I am an expert on this matter.
The substance of the amendment seeks to fix the person who is making the broadcast: in other words, the person who is responsible. The Bill as drafted refers to,
"the person by whom the transmission is made if he has responsibility to any extent for the contents of the broadcast; … if he has not, to the person who has such responsibility and makes with him the arrangements necessary for the transmission".
It seems to us that the proper definition of the person making a broadcast, broadcasting a work and including a work in a broadcast, should properly rest with the person who has the responsibiilty for the transmission. This is a probing amendment; it is not meant to be an amendment which we shall force, but it seems to us to simplify subsection (3) and also to place the responsibility where it should properly lie.
I am sure the noble Lord and his advisers will have good reasons why we are wrong. I should very much like to hear the reasons because, although this is a probing amendment, it has more substance than some of our earlier drafting amendments. I look forward to hearing what the noble Lord has to say. I beg to move.
Lord Beaverbrook: Subsection (3) defines who is the broadcaster for copyright purposes. This is important in relation to authorship and ownership of copyright, which will be dealt with in Clauses 9, 10 and 11. Our intention is that it should be the person by whom a transmission is made if he controls to any extent the contents of the broadcast. This is provided by paragraph (a). It would not be appropriate in all circumstances however, for the person making the transmission to be regarded as the person making the broadcast and thus its author. British Telecom, for example, provides common carrier services for several broadcasters—that is by transmitting services to satellites, without being in any way responsible for or necessarily even aware of the contents of the programmes. In these circumstances, the proper person to be regarded as making the broadcast should clearly be the person controlling the contents; and, with the common carrier, making the arrangements necessary for the transmission. This is provided for by paragraph (b), and it is the situation that both broadcasters and common carriers such as British Telecom and Mercury have told us they wish to see.
I believe that an amendment such as the one put down by the noble Lord would introduce precisely the confusion on this issue that we have been at pains to remove.
Lord Williams of Elvel: I hear what the noble Lord says. It seems to me that we are trying to get at the same point—who is responsible for the transmission. The person who is responsible for the transmission must in all circumstances be responsible for the contents of the transmission. It does not seem to me that he can avoid his responsibility and say, "I am just a common carrier and will transmit whatever anyone tells me to do". He has responsibility and entitlements under that responsibility. I hear what the Minister says; but I do not quite understand why the draftsman's words are better than ours. He has not solved my problem. If the Minister can perhaps

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help me a little more, I may be able to withdraw my amendment; but I do not know whether he can do so.
Lord Beaverbrook: I am not sure that I can. The view that we take is that the common carrier, such as British Telecom, may not even be aware of the content of the transmission. Therefore, the responsibility should not rest with the common carrier.
Lord Kilbracken: Is the reason the draftsman's words are better, that they are the draftsman's words?
Lord Williams of Elvel: I am grateful to my noble friend for suggesting that the draftsman's words are better than my words. Indeed, they certainly are, because I am not a parliamentary draftsman.
As long as we are absolutely satisfied that we are getting at the same point—and I am not sure that we are—I am happy to withdraw my amendment. In the light of what the noble Lord has said, I do not see that I can go much further this evening. I shall look carefully at what he has said and perhaps he will do me the favour of looking carefully at the arguments I have put forward and then at a later stage we can come back to this point, which is one of a little more substance than some of the earlier points I raised. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Lord Kilbracken Lord Kilbracken moved Amendment No. 36:
Page 3, line 31, leave out ("the contents of the broadcast,") and insert ("its contents,").
The noble Lord said: The remarks just made by my noble friend reminded me once again that irony is a dangerous weapon.
Amendment No. 36 is a drafting amendment which is intended to clarify the meaning of subsection (3). Clause 6 begins by telling us:
"In this Part a 'broadcast' means a transmission by wireless telegraphy".
We start off by knowing that a broadcast and a transmission are the same thing. However, when we reach subsection (3)(a) we read:
"to the person by whom the transmission is made if he has responsibility to any extent for the Contents of the broadcast".
The reference to broadcast and the reference to transmission are precisely the same thing. There is no reason other than what Fowler used to call "elegant variation" for using first "transmission" and then "broadcast". Under my proposed amendment the subsection would read:
"to the person by whom the transmission is made if he has responsibility to any extent for its contents".
To achieve that, I beg leave to move the amendment.
Lord Beaverbrook: The noble Lord's amendment would have the effect of blurring the question of who is the maker of a broadcast, and therefore of who is
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responsible for ensuring that consent is obtained from copyright owners for the inclusion of their works in the broadcast. The Bill is at pains to avoid this for the reasons I have given.
The amendment would remove the reference to "the contents of the broadcast" and insert one to "its contents"—that is, the contents of the transmission. I would not go so far as to say that that was positively wrong, but is raises questions which the words "the contents of the broadcast" do not. There is no doubt what the contents of a broadcast are—words, music, other sounds, live pictures, film, computer graphics, and so forth. Are those the contents of the transmission? It is arguable that the contents of the transmission are the broadcast as a whole, not its component parts; and that would lead to the wrong answer to the question of who should be responsible for copyright clearance.
Lord Kilbracken: I must say that I cannot understand the noble Lord's argument. I began by pointing out that under the definition at the beginning of Clause 6 "broadcast" means the transmission. That is the definition. They are the same thing. "Broadcast" means the transmission. Therefore, there cannot be a distinction between them.
Lord Howie of Troon: Surely it is not possible to make a broadcast without transmitting it. Therefore when the clause refers to,
"the person making a broadcast"
that must include the person transmitting it.
Lord Beaverbrook: We feel it is arguable that the contents of the transmission are the broadcast as a whole and not its component parts. That would lead to the wrong answer to the question of who should be responsible for copyright clearance.
Lord Kilbracken: I am completely unconvinced but I do not think I shall divide the Committee. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 6 agreed to.
Clause 7 [Cable programmes]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 37:
Page 4, line 22, leave out ("or other persons receiving it") and insert ("for conveyance to other persons receiving the service").
The noble Lord said: In Clause 7 we enter a new era because it deals with cable programmes, which were not dealt with in the Copyright Act 1956. My amendment is directed to the important matter of the kind of service which is excluded from the definition of a cable programme service. The first part of Clause 7 defines what is meant by a cable programme service but my amendment is directed to what does not comprise a cable programme service. It appears to me that the draftsman may have got the matter slightly wrong.
The service with which I am now dealing and which is to be excepted has as its essential feature the transfer of material sent for reception by the person providing the service but also material sent to that person for conveyance to other persons receiving the service. It is said that the service comprises a service of material not only to the person providing the service but also to other persons receiving it. That is not so. The service comprises sending material to the person who is supposed to receive it and deal with it in some way or other, but he may be instructed to convey it to other persons. Therefore, the service is not to convey material to other persons receiving it. That is the strictest definition in practice of what this service comprises and it should be excepted from the definition of the cable programme service in Clause 7. I beg to move.
Lord Beaverbrook: The noble Lord, Lord Lloyd of Kilgerran, has raised an important matter. Drafting in this area is a tricky problem. We have to be careful that in bringing within the definition of a cable programme service activities which clearly should fall within it we do not incidentally bring in activities which should not. Examples are ordinary telephone conversations, teleshopping, telebanking or video conferencing services, all of which are communications of an essentially private kind.
We do not, however, dispute the principle that electronic mail boxes should be excluded from the definition of a cable programme service. The amendment moved by the noble Lord, Lord Lloyd, may have the effect of excluding electronic mail boxes but it would bring back within the definition ordinary two-way communications between a provider of a service by telephone and a user. If the noble Lord will withdraw his amendment we will have a further look at this question and come back with a government amendment if this proves to be necessary.
Lord Lloyd of Kilgerran: In view of that undertaking, I shall withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 38:
Page 4, line 33, leave out ("it") and insert ("the system").
The noble Lord said: With the leave of the Committee, I should like to move Amendment No. 38 and speak also to Amendment No. 39. These are drafting amendments and contain no points of substance. They concern the exceptions to the definition of a cable programme service as it applies for the purpose of Part I. The particular exception affected is the one that applies to a system which is purely domestic. It is dealt with in subsection (2), paragraph (c) and is intended to ensure that equipment in the private home, not linked to any outside cable system, does not get caught by the definition. If such a system were within the definition, this would mean that the householder would have to obtain copyright consent to run a video on a simple video recorder/television set combination.
All the amendment does is clarify that the word "it" in lines 33 and 35 applies to the hardware rather than to the "service", which is in any case a rather
868
inappropriate concept in the context of a domestic system. I beg to move.
Lord Williams of Elvel: The noble Lord has said that this is a drafting amendment, and indeed it is an amendment of the draft Bill. It does however go a little further than just clarifying the draft because, as he rightly said, it reduces the effect of subsection (2)(c)(i) to the hardware—that is the system—rather than the general service which is run by a single individual.
I do not have any particular problem with this, but I ask the noble Lord whether in the case of the amendment that he is putting forward it is fully understood that "system" refers only to hardware. Having quickly looked through the definitions in the Bill, I do not seem to find that adequately explained, but I may be quite wrong. I should be grateful if the noble Lord can reassure me on that point.
Lord Beaverbrook: If the noble Lord finds it acceptable, I should like to look into that a little more carefully as I do not have an answer now. I shall write to him on that point.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 39:
Page 4, line 35, leave out ("it") and insert ("the system").
On Question, amendment agreed to.
On Question, Whether Clause 7, as amended, shall stand part of the Bill?
Lord Willis: I should like to ask the Government to look at one phrase in the Bill, particularly on page 5 line 2, the phrase "run as a business". There is a certain confusion about this; and I think it occurs later in the Bill in Clause 98. What exactly is a public performance? For example, at the moment if you hire a video tape from your local video shop you are not allowed by the process of hiring to show it in a pub to an audience, although we all know that people show it in their homes to audiences.
It is unclear whether this applies to housing blocks or to prisons. For example, if the Government were to privatise prisons and video tapes were then shown to the prisoners, would that be a public performance because the prison was run as a business? I raise the question only because I think the industry needs some kind of clarification on this point, "run as a business". I would urge the Government to look at this before we come to Report stage and Third Reading.
6.45 p.m.
Lord Williams of Elvel: Before we leave Clause 7, the noble Lord, Lord Beaverbrook, rightly pointed out, as did the noble Lord, Lord Lloyd of Kilgerran, that we are here on somewhat unfamiliar territory. The question I have about Clause 7 is that relating to what are known as "interactive services". For the benefit of the Committee, I ought to explain that I am a director of a cable company and interactive services are regarded as being the future of many cable services.

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In the new technology you can press buttons on your television set and have a response from the operator or indeed whoever runs the service or other people who can use the service. You can have a sort of correspondence between yourself and those people who, as it were, lurk in a mysterious manner behind the set itself.
I understand that subsection (2)(a) is designed to cover this particular question. The difficulty is that where subsection (2)(a)—and it is not clear from Notes on Clauses whether this is clear—refers to "an essential feature" does this except (that is, remove from copyright) those cable services which have interactive facilities and where those facilities are not necessarily an essential feature but are all part of the same service?
It is rare that you would have at the moment a cable service which is either entirely one, interactive, or entirely the other. In the future you will have services which transmit images broadcast to you in the home and which also can be used as an interactive arrangement. I am worried that the mixed cable programme, as I call it, is not suitably catered for in Clause 7(2)(a) because of the expression "essential feature".
I put this forward asking for guidance from the noble Lord because I have no clear perception of whether the Government have thought this fully through, and if so what the views of the Government are; and I should like to hear them.
Lord Beaverbrook: I should like to take the point raised by the noble Lord, Lord Williams, first. Paragraph (a) excepts services where it is an essential feature that in addition to material being sent by the provider of the service the person receiving the service can send material back to him other than signals sent for the operation or control of the service in question. This is the point that we debated on the amendment moved by the noble Lord, Lord Lloyd of Kilgerran. I think it is better that we consider this further as it is a complicated field. I am grateful to the noble Lord for bringing this up. I accept that he has a considerable practical knowledge of this matter and that there are bound to be technical developments in this field over the years that this Act will be in force.
Regarding the point raised by the noble Lord, Lord Willis, the Government announced in the White Paper their intention to repeal the provision in Section 48(3)(b) of the 1956 Act. This is an exception which at present excepts from the definition of a cable programme service all cable systems, whether self-contained or connected to other systems, operated by businesses engaged in keeping or letting premises where people reside or sleep as part of the amenities for residents or inmates. Whether that would include prisons (whether public, private, or whatever they may be) I shall have to look into and let the noble Lord know. Paragraph (d) is drafted in such a way that "exception" will no longer have effect where there is a business element in the running of the establishment in question.
Lord Lloyd of Kilgerran: I had proposed to intervene, but I did not want to protract matters. I
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support what the noble Lord, Lord Williams, queried. Subsection (3) appears to indicate that this is a complex and difficult field of new technology because the Secretary of State has taken powers
"to add to or remove from the list of excepted cable programme services any description of service"
by order. If the noble Lord is going to explain this more fully to the noble Lord, Lord Williams, I should again be grateful to be on his mailing list.
Clause 7, as amended, agreed to.
Clause 8 [Published editions]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 40:
Page 5, line 22, after ("dramatic") insert ("artistic").
The noble Lord said: This is a short point. I do not know why the word "artistic" is excluded. As the Minister will be aware, it is included in Section 88 of the Australian Copyright Act. It is intended that, with this amendment, one should speak to Amendment No. 41. I announce my support in advance should the noble Earl, Lord Stockton, move Amendment No. 41.
Lord Hutchinson of Lullington: I support the amendment. Surely,
"typographical arrangement of a published edition"
may include photographs, graphics drawings and prints. One notes that "artistic" is included in Clause 93, which deals with computer-generated works. I do not understand why it is not included here. If the amendment is accepted, it will cater for Amendment No. 41, in the name of the noble Earl, Lord Stockton.
The Earl of Stockton: I thank the noble Lord, Lord Morton of Shuna, for proposing the amendment standing in my name! I think that this must be an oversight on the part of the Government, one in which they have a vested interest, for both the Stationery Office and the Ordnance Survey claim copyright in maps and the Hydrographer Royal in charts. Perhaps my noble friend can sort out the matter in dispute in this area as Ordnance Survey maps extend down to the low tidemark and the Hydrographer Royal's charts up to the high tidemark. Could it be that this strip of shingle, seaweed and crabs is the source of a great territorial dispute?
More seriously, I contend that the configuration of graphics in a diagram, map, chart or plan must fall within the term "published edition".
Lord Howie of Troon: When we speak of,
"typographical arrangement of a published edition"
presumably we are speaking of a book. Are we by any chance inadvertently speaking also about a newspaper or a magazine.
Lord Beaverbrook: Clause 8 provides definitions relevant to the copyright in a typographical arrangement. It is not our intention that this copyright should be more extensive than under the 1956 Act and we cannot therefore accept this amendment.

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As the term implies, typographical arrangement is about the layout of words or symbols on the printed page. It is therefore restricted to published editions containing literary, dramatic or musical works and does not include artistic works. Of course, a book may include diagrams, maps, charts and plans as well as photographs, but these do not form part of the typographical arrangement. Whereas the publisher makes a contribution in setting up the typographical layout of a literary, dramatic or musical work, he merely reproduces an artistic work. His investment in the layout merits a copyright.
Protection of copies of artistic works appearing in books, on the other hand, must rest solely on the copyright in the original work. That copyright will of course start with the author or his employer, but there is nothing to prevent the publisher from acquiring the copyright by assignment if he is prepared to pay for it and the artist is willing. If my noble friend Lord Stockton is seeking a separate publishers' copyright in respect of diagrams which themselves are out of copyright he is, in effect, asking for that copyright to be revived simply because he republishes it. That proposition has only to be stated for it to be apparent that we could not accept it.
The noble Lord, Lord Howie of Troon, asked whether there is a copyright in the typographical arrangement of newpapers and magazines. The answer is, yes. The publishers of magazines and newspapers merit this kind of protection as much as publishers of books.
Lord Kilbracken: Does the Minister agree that drawings, photographs and other illustrations are all part of the layout?
Lord Beaverbrook: As I said, the typographical arrangement is about the layout of words or symbols on the printed page. It is therefore restricted to published editions containing literary, dramatic or musical works and does not include artistic works. But of course a book may include diagrams, maps, charts and plans as well as photographs, although these do not form part of the typographical arrangement.
Lord Howie of Troon: I was wondering about the prints that the noble Lord, Lord Broxbourne raised earlier under another heading. I know that they are not strictly speaking typographical, but they have something to do with printing. The objects to which he was referring were unquestionably artistic works. Might there not be some sense in including artistic works here on the strength that they must include prints that are printed?
Lord Hutchinson of Lullington: Can the Minister explain more fully what he means by
"layout of symbols on the printed page",
which apparently includes literary matters but not artistic matters? I am very confused about this. Symbols on the printed page could equally be drawings, photographs or prints of one kind or another. I do not understand why those are excluded while literary layout is included.
Lord Broxbourne: I am grateful to the noble Lord, Lord Howie of Troon, for recalling my references to the matter of prints in the debate on Clause 4 stand part. What he says and the position under this clause reinforce the necessity for clarifying the position on the exclusion of prints. Now that my noble friend has confirmed that there is no statutory definition in the Bill, would it not be better to consider whether such a definition can be introduced between now and Report, thereby reducing the complications of this clause and of Clause 4?
Lord Kilbracken: There seem to be two separate stages involved, according to whether it is words or illustrations. If it is words, the copyright in the words resides with the author. This concerns the way in which the typeface and layout are used. It is quite separate in regard to the typography. A different copyright resides in the typography. The same applies in the case of illustrations. There is only one copyright in the illustration and it belongs to the person who makes the drawing. That also forms part of the layout and as such comes under the copyright regarding the typography. The two are separate.
Lord Denning: The words "published edition" refer back to Clause 1, which says that copyright subsists in,
"the typographical arrangement of published editions".
Thus we are considering the copyright in the typographical arrangement. What the Government are saying at present would appear to be correct in that there are no typographical arrangements in artistic works or other such works.
The Earl of Stockton: I beg to differ with my noble friend the Minister. His comment on maps and charts implied that they are always generated from a third party, who would be the copyright holder. In many cases, particularly in the provision of such material in educational books, they are generated by the publisher of the original work and should attract the same copyright as the rest of the typographical arrangement.
7 p.m.
Lord Willis: I think that we are really making heavy weather of this matter and that we have come back to our old friend "compilation". If a publisher decides to publish a book about, for example, the First World War, he will first commission an author to write the words and that text will be printed. In consultation with the publisher the author may decide that he wants photographs of the First World War which may be in copyright. He may also wish to have maps which have to be designed and drawn by an artist. Copyright for those maps and photographs rests with the people who own the copyright and the publisher will pay for them. If it is a children's book that is being published, it may be decided that illustrations are needed and one applies to an artist who will share in the royalties of that book.
It seems to me that we are making terribly heavy weather of this question. I think that the Government have got it right as it stands and that the contract

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between publisher and author or illustrator will take care of the other problems.
Lord Denning: Let me say just a word or two about compilation and arrangement. The law is and always has been quite clear that there is a separate copyright in regard to compilation and arrangement, simply because some of the pieces that one is compiling may not be the subject of copyright. Some may be out of copyright and some may be in it. It needs a great deal of skill to make an anthology, compilation or arrangement, and there is copyright in the compilation as well as copyright in the original author of the pieces. However, that is merely a sidelight on the law. As I said before, it seems to me that the Government have the right approach.
Lord Morton of Shuna: In alliance with the noble Earl, Lord Stockton, I just do not see the Government's objection to this amendment. For example, the ordnance survey maps have changed in their typographical arrangement over the years since 1856 and there is an interest in that just as there is an interest in anything else. There is a published edition of the ordnance survey maps.
The noble Lord referred to a children's book containing illustrations. I should have thought that when an illustration is put on to a page it affects the typographical arrangement of that page, because words are put beside, underneath, above or on the left or right of that illustration.
If we are so right in our 1956 Act, why is Australia so wrong in their 1968 Act? The noble Lord did not take up the point about Australia. I should like to know where he thinks that the Australians have gone so badly wrong in adding the word "artistic"? What difficulty is there in including the word "artistic" and why does it raise such difficulty?
However, if the noble Lord is not in a position to answer now, perhaps the best solution will be to withdraw Amendment No. 40 at this stage, in the hope that perhaps he can come back with a convincing answer before Report stage.
Lord Beaverbrook: Before the noble Lord sits down, there are two points that I should like to make. Having said that, I am not in a position to answer for the Australian Government but I shall look into the noble Lord's remarks. I do not think that he expects me to comment on the position of copyright in Australia, which is a matter which could lead us into very deep water indeed.
As regards the point made by the noble Lord, Lord Hutchinson of Lullington, the layout of letters and other symbols on the page is a typographical arrangement. The words on the page may be a literary work but the protection is not of the work as such. To extend this clause to cover artistic works including prints would lead to extra protection of artistic works.
As regards the point made by my noble friend Lord Stockton, it does not matter if the publisher is also the first owner of copyright in an artistic work. He will enjoy that copyright not as a publisher but as the
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owner of copyright in the artistic work. In my view the noble Lord, Lord Willis, understood that perfectly.
Lord Morton of Shuna: Before withdrawing the amendment, I should like to say that we are trying to legislate in copyright in order to comply with conventions. If conventions are accepted by countries such as Australia and such countries view things differently, it does not seem to me to be an adequate answer to say that one will not look at Australia. When other countries in the English speaking world take a different view of the conventions, we should not be so proud; we should at least be clear why we take a different view. I hope that the noble Lord will return with an answer before Report stage but at this time I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 41 not moved.]
Clause 8 agreed to.
Viscount Davidson: Before moving that the House do resume, perhaps I may suggest that we return to the Committee stage of this Bill at ten minutes past eight o'clock. I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Merchant Shipping (Passenger Ship Construction) (Amendment No. 2) Regulations 1987
7.5 p.m.
Lord Brabazon of Tara: My Lords, I beg to move that the draft Merchant Shipping (Passenger Ship Construction (Amendment No. 2) Regulations 1987, that were laid before the House on 6th November 1987, be approved.
These regulations, made under Section 21 of the Merchant Shipping Act 1979 as modified by Section 11(1) of the Safety at Sea Act 1986, will apply certain safety requirements to non-United Kingdom roll-on/roll-off pasenger ships from 1st March 1988 while they are in United Kingdom ports. The requirements are identical to those applied to United Kingdom registered ships by the Merchant Shipping (Passenger Ship Construction) (Amendment) Regulations 1987, Statutory Instrument 1987 No. 1886, which were also laid before Parliament on 6th November 1987 under the negative resolution procedure and which come into effect on 1st January. I shall say more later about the reasons for affirmative and negative procedures, but first I should explain the background and the substance.
Your Lordships will recall that during our debate on the Merchant Shipping Bill on 10th November, I referred to the substantial number of measures that the Government intend to introduce to implement the recommendations of the report of the court of formal investigation that examined the circumstances attending the tragic capsize of the "Herald of Free Enterprise". The regulations before us today, in

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association with those to which I have just referred which apply to UK-registered ro/ro passenger ships, are the first of a series of statutory instruments which the Government have in preparation to give effect to the court's recommendations. Others, to name just a few, are measures to require the installation of draught gauges, the introduction of boarding cards, and making it mandatory to close the main vehicle deck doors before leaving the berth or as soon as it is physically possible thereafter. Those and others are being prepared as quickly as possible having regard to proper and necessary consultation to ensure that the measures taken to improve the safety of ro/ro passenger ships are appropriate and will be effective.
The effect of the regulations now before the House will be to require the installation of certain items of equipment upon which the report of the court recommended that immediate action should be taken. Your Lordships will recall that the primary cause of the loss of the "Herald of Free Enterprise" was the ingress of water on to the vehicle deck through open bow doors. To assist in preventing a recurrence of such an event, the regulations call for an indicator light system to be installed on the doors and on all other closing devices in the superstructure which, if left open, could lead to major flooding of the vehicle deck. The system would provide indication on the navigating bridge showing when the doors are open and when they are closed and secure. In addition, facilities to monitor the vehicle loading doors by television from a position at the navigating bridge will be required.
A particularly harrowing aspect of the "Herald of Free Enterprise" incident was the conditions inside the ship after the capsize, the passengers' difficulties being exacerbated by the absence of light from the emergency lighting system which, as is normal, was only required to operate at angles of list up to 22½ degrees. The regulations will require the installation of supplementary emergency lighting that will operate at angles of list up to 90 degrees in all public passenger spaces and alleyways. The lighting will be self-contained with accumulator batteries within each fitting so that illumination of escape routes will be provided for at least three hours. Similar lighting with, in This case, the option of rechargeable battery-operated handlamps will be required in the crew spaces.
The last item of equipment that these regulations require is again a television surveillance system or its equivalent but, in this case, of the entire vehicle space. This was proposed to ferry operators in statutory consultation as a valuable addition to safety precautions as recommended in the report of court. The advice received from industry coupled with the results of an investigation made by my department led to the conclusion that effective television surveillance was impracticable on many ships, particularly when highsided freight vehicles were loaded. There is simply not a clear line of sight across the vehicle deck. The regulations therefore permit the operator an alternative, which is to maintain continuous patrols of the vehicle spaces whilst the ship is on voyage.
Finally, I come to the legal background. Statutory Instrument 1987 No. 1886, the negative order
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applying to UK ships, took effect by amending the voluminous 1980 and 1984 regulations on the construction of passenger ships, whose full titles are given in the explanatory note. The 1984 regulations impose, in certain respects, higher standards than the 1980 regulations, reflecting more recent amendments to the Safety of Life at Sea Convention, and apply to new ships. The 1980 Regulations apply to other ships. SI 1987 No. 1886 made identical amendments to the two sets of regulations in respect of the new equipment I have just described, but only in respect of UK ships.
The instrument now before the House extends those amendments to foreign ships, and is required to be made by affirmative procedure by the terms of Section 21(1) of the 1979 Merchant Shipping Act, the enabling power, and by Section 49 of that Act which sets out the parliamentary procedures for Section 21 orders; modified in both cases by Section 11 of the 1986 Safety at Sea Act. In summary, the requirement of the enabling legislation is that orders applying to foreign ships must be made by affirmative procedure unless the requirements are the subject of an international agreement.
Your Lordships will be aware that the normal procedure for improving the safety of ships plying internationally is to submit proposals to the International Maritime Organisation. With this in view, the United Kingdom during October urgently communicated proposals to the secretary general of the IMO that are essentially the same in content as the draft regulations before us today. These proposals will be considered for adoption as amendments to the Convention for the Safety of Life at Sea, 1974 (SOLAS '74) by the Maritime Safety Committee during April 1988. The UK Government have offered to cover the cost of two additional days of that meeting to enable a decision on our proposals to be reached. Pending such agreement however, it is necessary for any UK action to be by the affirmative procedure. We have also offered to pay for a week's consideration of our further proposals by the appropriate subcommittee.
Your Lordships will no doubt observe that, for similar reasons, the other measures that the Government plan to take will also have, in relation to foreign ships, to be made by the affirmative procedure. For the convenience of the House, it will be the Government's intention where possible to group such affirmative measures so that a number or more may be considered simultaneously.
In making the present regulations, we will be enhancing the safety of foreign roll-on/roll-off passenger ships which visit our ports and the persons on those ships, many of whom are Her Majesty's subjects. I commend these measures to your Lordships' House. I beg to move.
Moved, That the draft regulations laid before the House on 9th November be approved. [6th Report from the Joint Committee.]—(Lord Brabazon of Tara.)
7.15 p.m.
Lord Underhill: My Lords, I thank the Minister for explaining the regulations. We welcome the action taken by the Government both in the original

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regulations and in these regulations applying now to non-UK ships. I am delighted to learn what the Minister has said about action to be taken with the International Maritime Organisation. We welcome that because it must not be overlooked that there have been some ferry tragedies in overseas countries as well as our own disaster at Zeebrugge.
I do not want to nit-pick, but I am very interested in what the Minister has said about the need for affirmative resolutions as against the negative procedure for others. In the light of our discussions last Thursday on the Merchant Shipping Bill, I shall look very carefully to see whether or not some of those might not have been covered by the affirmative resolutions, if we so pressed it. Otherwise we welcome the new regulations applying to non-UK ships.
I wonder whether the Minister could explain the question of dates? There must be a good explanation. So far as I can understand it, the dates when the No. 1886 regulations come into effect for the access door indicator lights and the TV surveillance system are 1st January 1988 and for the supplementary emergency lighting it is 31st July 1988. However, when I read the memorandum on the regulations before us tonight I see Item 1 of the regulations, states,
"These regulations may be cited as … and shall come into force on 1st March 1988".
That would imply, from my elementary way of looking at it, that the supplementary emergency lighting for non-UK ships will come into operation on 1st March, whereas the original regulation, (which so far as I can see has not been changed) for the UK ships, will not come into operation until 31st July. Is there some explanation for this? Having put those two points, we welcome these regulations most wholeheartedly.
Lord Greenway: My Lords, I also welcome the regulations. It seems to me to be only right that the same things that apply to our ferries should apply to those foreign ferries which regularly operate from our ports. I take it that this is meant to refer only to those regular ferries that operate to the Continental ports. I wonder whether the Minister can tell me what would be the position until such time as a general ruling is given by IMO were a ro-ro passenger ship to visit one of our ports either on a one-off cruise or perhaps with a floating exhibition. This is something that takes place from time to time.
I particularly welcome the fact that the indicating systems apply to all access doors and not just the bow or stern doors through which vehicles drive on or off. It is just as important, with these types of ro-ro vessels, for all doors to be treated in this way because even the leaving open of a comparatively small door in the hull can indeed produce the same sort of tragic results as we witnessed recently.
Lord Brabazon of Tara: My Lords, I am grateful for the remarks of the noble Lord, Lord Underhill. and the noble Lord, Lord Greenway, on this order. It is, as I said, the first of several which will come before your Lordships over a period of time covering the
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measures which we have undertaken in the light of the Zeebrugge disaster.
With regard to the point made by the noble Lord, Lord Underhill, about IMO, of course we would very much rather have proceeded through the usual channels and done everything through IMO. However, in this case we felt that because the cross-Channel routes were so busy and such a large number of people used them, we had to proceed unilaterally. As I have said, we very much hope that the IMO will adopt our measures next year. We have offered, as I say, to pay for extra consideration for that purpose.
The noble Lord, Lord Underhill, asked me about the dates of applications. The explanation is that the order that is now before the House has the effect of extending the amendments already made by negative order to the 1980 and 1984 regulations, so that from 1st March they apply also to non-UK ships. The result of that is that from 1st March all the measures in the 1980 and 1984 regulations that are already in force (including the requirement for indicator lights and TV introduced on 1st January 1988) apply immediately to foreign vessels. The emergency lighting amendment which applies from 31st July 1988 is also extended to apply to foreign vessels and therefore applies to them as soon as it applies to UK vessels; in other words, not until 31st July. I hope that that explains that point.
The noble Lord, Lord Greenway, asked about a ro-ro ship not on a regular passenger service visiting this country. This order only applies to passenger services. It would not apply to a ro-ro which, for instance, was driven here by adverse weather or for some other reason. It applies only to regular passenger services. As regards doors other than vehicle doors, yes, these regulations refer to closing devices—a term which includes hatches, weathertight ramps and other potential sources of major flooding.
Viscount Simon: My Lords, before the noble Lord sits down, I do not quite understand how one can have regulations which apply only to regular services. Surely the regulations must apply to any passenger-carrying ro-ro vessel even if it comes here only once in its life.
Lord Brabazon of Tara: My Lords, it is my understanding that it would only apply on passenger services. If the vessel came here on a passenger service it would apply, but if it came here for another reason, such as was outlined by the noble Lord, Lord Greenway, then it would not.
Lord Underhill: My Lords, before the noble Lord the Minister sits down, the point that the noble Viscount, Lord Simon, raised is very important. The regulations refer to ro-ro passenger ships
"while they are within a port in the United Kingdom".
There is no qualifying statement there about services and so on.
Lord Brabazon of Tara: My Lords, I can say that it applies on all passenger services. It applies also to irregular services, but not if the ship is used for

879
another purpose, such as the noble Lord, Lord Greenway, said, when passengers are not carried.
On Question, Motion agreed to.
Viscount Davidson: My Lords, I beg to move that the House do now adjourn during pleasure until ten past eight.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.22 to 8.10 p.m.]

Copyright, Designs and Patents Bill [H.L.]
House again in Committee.
Clause 9 [Authorship of work]:
Lord Kilbracken Lord Kilbracken moved Amendment No. 42:
Page 5, line 40, at end insert—
("( ) in the case of a photograph, the photographer;").
The noble Lord said: This amendment seeks to write into the Bill the fact that in the case of a photograph the creator of the work is the photographer. Members of the Committee have been busily announcing their interests in this Bill. I have not done so today because I already did that on Second Reading. However, I repeat that my interests are those of having been a writer whether in journalism or books for the past 40 years. I have also been a photographer.
I became a photographer because the cameraman did not turn up when I was on a particular assignment and I borrowed a Leica. The pictures that I took appeared on the front page of the Daily Mail. That occurred because I had just had a row with the Daily Express. I made so much more from the photographs than from the articles I wrote that I subsequently took a camera around with me wherever I went on foreign assignments.
Clause 9 commences with the words:
"'author', in relation to a work".
That means the person who creates it. The clause continues in subsection (2) to define who the person who creates a work is in those cases, I suppose, where that may be in doubt. It tells us who the author is in the case of a sound recording, a film or a broadcast, but not in any other cases. We are not told, for instance, who the author of a book or a painting is. I agree that in the case of a book or a painting we are fairly clear about who the author is, but the case of a photograph is different.
I wish to draw attention to the rather strange situation that exists in that case, which is different from any other case. If one takes a book, the copyright resides in the manuscript that the author produces, whether it is a handwritten manuscript, a typewritten manuscript, whether it is fed into a computer, or in whichever manner it is produced. That is the physical object through which the copyright is created as soon as it has been copied.
As regards an oil painting, that object which the author has created is the object in which the copyright resides. But the case of a photograph is quite different. I am not at all sure that it is clear—in fact, I am sure that it is not—in precisely who as the creator the copyright resides. After all, when a photographer takes a photograph all he does is activate the shutter. He allows life to enter and reach the emulsion. Very often, particularly if he is a foreign correspondent or if he is working under pressure for an evening newspaper or something of that kind, he sends the undeveloped film off to his newspaper. Someone goes to the darkroom with it and at that point no picture exists. Even if he goes to the darkroom and develops the film himself all he produces is a negative which is by definition the exact opposite of the print which will appear in the paper.
In any case, no picture is in existence at the time the photographer takes it. Then the picture is developed, a print is made, and I suppose the copyright comes into existence and is created as soon as that first print comes out of the tray in the darkroom. That makes it a quite different property from anything else.
It could be said that a photograph is created by the man in the darkroom when he develops it. Then it is printed; then it is decided to use this or that part of it. Various experiments are tried out with different papers, and so on. All the time the photographer may be in the middle of the Gobi Desert or at any rate not in the darkroom. I feel that the question of who is the creator of a photograph is something that should be dealt with in the Bill. The creator of a photograph should be the photographer. We all understand perfectly well what is meant by the photographer.
That would in principle mean that the copyright belonged to the photographer. That is not the case at present. It is a very curious fact that under the 1956 Act—the current Act—the copyright belongs to the person who paid for the film that the photographer is using. That is the most extraordinary provision. That means that the copyright belongs to the person who owns the film that is being used by the cameraman in question. That means that if I am tearing off to Yemen, for example, and I ask my brother to buy a film for me and he, having bought the film, says "Here you are. Off you go", he is the person who owns the film and he is the person who has the copyright of the pictures that I take. That may be a ridiculous example but I think it would be the case. That situation seems to me to be complete nonsense.
It is not clear from the Bill as it is drafted at present that the copyright resides in the man who takes the picture and who exposes the emulsion to the light. There should be a provision in the Bill which could be made simply by the inclusion of one line in this part of the Bill to state that in the case of a photograph the creator is the photographer. That is what I am proposing. I beg to move.
The Deputy Chairman of Committees (Lord Hayter): I think that there must be a misprint on the Marshalled List. The wording should be:
"Or in the case of a photograph, the photographer".
Lord Kilbracken: No, that is not so. If the amendment were accepted, subsection (2) would say:
"That person shall be taken to be—in the case of a photograph, the photographer … in the case of a sound recording"
someone else.
Lord Brain: I have every sympathy with the amendment and I think it is right that the person who exposes the negative should have prior rights to the use of that negative. However, the words which have just been used by the noble Lord, Lord Kilbracken, lead to some difficulties. He used the words "exposes the emulsion". When I print from a negative onto a print, I am exposing an emulsion. The idea that the person who takes the photograph should have rights to the use of that negative is very important. However, I wonder whether the wording which the noble Lord has used is the right answer. There are many occasions when photographers create pictures from negatives in the way they print them. That may cause further confusion. I support the idea behind the amendment. I am not sure that the means of getting there are right.
Lord Kilbracken: Before the noble Lord sits down, let me say that when I referred in my remarks to the exposure of the emulsion to light and so on. I was giving what was probably an inaccurate or inadequate version of what happened. Those words would not appear on the Bill. All that appears in the Bill is that the photographer creates the photograph.
Lord Brain: I am grateful to the noble Lord. However. I still think that we may end up by having to define the word "photographer".
Lord Ardwick: I wish to declare an interest. I am a life member of the National Union of Journalists, which has many thousands of photographers, both freelance and staff, among its membership. I wish to support my noble friend very strongly. His argument may have a weak spot, as has been pointed out. However, I am wholly in accord with the sentiments and feeling behind the amendment. The photographer is the man at the sharp end; he is the man who creates the picture, who gets praised when it is good and who gets fired when it is bad; he is the man who risks his life. He should be identified as the author of the photograph.
Lord Greenway: I also declare an interest in that I still receive a considerable part of my earnings from photography. There is a difficulty here. The noble Lord, Lord Kilbracken, mentioned previous legislation whereby the rights were held by the person supplying the film. As a photographer, I sometimes ask another photographer to take a picture for me when he is abroad, for example, and I supply film for that purpose. How will that lie under the present amendment?
Lord Willis: I believe that we have returned to the question of contracting. If you ask another photographer to take a picture for you, you have a
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contract with him in one way or another. That contract may or may not imply certain rights.
The important and difficult thing is to keep the Bill simple. We have been at it for only three hours, and I feel we are going to produce a dromedary with three or four humps. Put simply, the man who actually takes the picture is the man who creates the picture. I do not care who manufactures the film, produces the negative, or whatever. The photographer is the man who creates it. If you commission a photographer to take a picture, you must make a contract with him. You decide what the contract will be. It is simple: the man who takes the picture is the creative artist and he is the man who must be recognised in the Bill.
Lord Howie of Troon: When the noble Lord, Lord Willis, and I discussed this matter briefly earlier today, he said he thought that we were producing a camel. He has now said that we are producing a dromedary. Perhaps it will be the Loch Ness monster with even more humps before the night is over!
I do not think the matter is quite as simple as the noble Lord says it is. The matter can be simplified and brought down to the rudimentary notion that the man who takes the picture is the whole story. However, he is not. We shall be considering that matter in looking at later clauses in the Bill.
Where we are talking about a simple situation where a photographer is commissioned and has contracted, the matter is quite simple. To that extent, I agree with the noble Lord. Lord Willis. However, that is not always the situation. Quite often the photographer will be a staff man who is employed by a magazine or newspaper or other organisation. He will be sent on assignment to take photographs. He is not commissioned; those are part of his general duties. He owes a responsibility to his employer, who has supplied him with the wherewithal to pursue his calling as a photographer, including film.
The employer may well have set up the assignment, which he himself was unable to do. The employer has in all probability given the photographer his bus or airline ticket or his taxi fare. He may have provided subsistence over and above the photographer's salary. When a man is commissioned, there is a clear case. When the photographer or other journalist is a staff employee, the situation is more complicated.
Finally, I too am a member of the National Union of Journalists—until it hears of this speech!
Lord Lloyd of Hampstead: I think we are losing sight of the issue under this provision. We are only considering who the author is. Surely it is as plain as plain can be that the man who is the author of a photograph is the man who has taken it—the photographer. That has no immediate consequences so far as copyright is concerned; that is a rather different question which we shall be discussing at a later stage. However, from the point of view of authorship, I should have thought, with respect, that it is perfectly plain that the photographer is the man who is the author of the picture. He is the person who

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ought to be treated as the author for the purpose of the Bill. He is in the same position as a man who writes a book or paints a picture.
Lord Beaverbrook: The effect of this amendment would be to provide that the photographer is the author of a photograph. As the Bill is drafted, the question of authorship of photographs is dealt with by the general proposition in subsection (1) of Clause 9. In other words, the person who creates a photograph is the author, just as the person who creates a literary work is the author of that work.
The view has been expressed that creation is an imprecise concept and that in the context of photography a person who develops and fixes a photograph could be said to create it. I do not accept that merely mechanical acts of this kind amount to acts of creation in the sense that would be understood here, any more than a secretary can be said to create the literary work dictated to her. In the vast majority of cases the person who operates the camera will be the person who creates the photograph and no other person will make a creative contribution to it.
But this is not a good reason for adopting the apparently simple formulation of this amendment. In certain cases someone other than the person who operates the camera will make a substantial creative contribution to the final image—perhaps in the darkroom, perhaps in composing the picture through the viewfinder without actually pressing the button—and it would not be right to deny him a copyright in it on the grounds that he was not the actual photographer.
We therefore believe that the drafting of the Bill should stand unamended. Under it, there will be no doubt that the photographer owns copyright in his photographs in virtually all situations but there is sufficient flexibility to deal with the special cases when some other creative person deserves the copyright or a share in it.
The noble Lord, Lord Kilbracken, mentioned the point in time at which a photograph is created. It is not correct that no photograph is created until it is developed and printed. It is created immediately upon exposure. The fact that it cannot be seen or appreciated until it is printed is irrelevant. That is similar to the point raised in Amendment No. 9 on Clause 3, when we considered the inclusion of a reference to a recognisable form. Recognition is irrelevant to the subsistence of copyright. The existence of the work, recognisable or not, is what matters.
8.30 p.m.
Lord Williams of Elvel: Are we to understand from the response of the noble Lord that the question of who creates a photograph is a matter for the courts in the future? There is a certain confusion in what he said that input could come from the photographer or it could come from other people. Is that something which is going to be decided by the courts, and are we content to leave the Bill open as drafted?
Lord Beaverbrook: The point that I am making is that there may be more than one contributor to the creative element of the photograph. That would be a matter of discovery of those facts. For instance, a professional photographer may arrange the layout of the things or people being photographed. He may set up the position of the camera and he may arrange the set and the props. At the end of all that his assistant may actually press the button. Are we to say that the professional photographer who employs that assistant does not have any ownership in the copyright?
Lord Williams of Elvel: Perhaps I may ask the noble Lord a further question. Supposing a photographer is taking a photograph of a model. The model is sitting there and the photographer presses the button, having arranged the lights and all the rest of it. Is it to be said that the model is somebody who has a part in the creation of the photograph?
Lord Beaverbrook: As I understand it, that would not he the case.
Lord Lloyd of Hampstead: In the case which the Minister has adumbrated for us, the only question is who is the photographer? Is it the man who has organised the session or is it the assistant who just mechanically presses the button when he receives a direction? I think that the court would have no difficulty in a case of that sort in saying that the photographer was the man who was functionally organising the whole operation. I do not believe that that is a case which would create any problem.
Lord Kilbracken: That is precisely the point that I was going to make. My amendment does not say that the creator is the person who pressed the button as it seems to be thought. It says that the creator is the photographer. Therefore it has to be decided, if there is any doubt about it, who in any particular case is the photographer. In a case such as this where there is an assistant who exposes the film, that does not affect the fact that the photographer is the creator.
I find myself on my feet and perhaps I may continue with one or two remarks in reply to what has been said. Firstly, like my noble friends Lord Ardwick and Lord Howie, I, too, am a member of the NUJ, which is a further interest I have to declare.
The photographer can make any arrangements he wishes with his employer, with the person who commissions the photograph or whoever it may he, about who is going to be the second owner of the copyright. He will be the first under the copyright. He will be taking the picture and he will negotiate suitable terms with the person who commissioned it or the person who is employing him or whoever it may be. In the case of a staff photographer that will he in his terms of employment. I do not feel that is an important consideration.
The Minister has said that in practically every case it will be the photographer who is the creator. That does not give me much consolation because sometimes we have a feeling in this House that

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because a Minister has said something at Committee stage, that is something we can rely upon or the photographer can rely upon if a dispute arises. It may be said, for example, that when this came up at Committee stage in the House of Lords the Minister said so and so. That is something which never happens at all. What is said tonight is something of great interest to us and we shall all read it tomorrow or next week and then it will be completely forgotten about. The kind of undertaking which has been given by the noble Lord, Lord Beaverbrook, is of very little consolation at all.
Then the Minister continued by saying that there could be exceptions. He said that there might be cases where, for example, I take a picture out in Mozambique or somewhere. I am the person who gets the picture, and I am the person who should be paid because I have gone out there and I have got the picture.
However, we are told that there may be cases where the creator is going to be the technician in the dark room. He may improve my picture, particularly if it is a colour picture. We have been talking about black and white pictures all the time. With colour pictures there is not a negative because we are always working from transparencies, and the technician in the dark room can do a great deal to improve the picture. He can improve the colour; he can make it less blue or less yellow, and he can make it more red. The technician in the dark room can do a great deal to improve the picture or sometimes even to "disimprove" the picture.
The noble Lord, Lord Beaverbrook, has indicated that in such cases it may be that the creator or the author of the picture is the dark room technician. I do not agree with that. The dark room technician is probably a very good man. He may do a great job on the pictures which come to him. He is paid to do that. But he is not the author or the creator of the picture, and he is not entitled to any share in the copyright.
The point that I am trying to make is that in every case it is the photographer who should have the copyright in the photograph. It is perfectly simple and the language is absolutely clear. I maintain that the facts which have been revealed show there can he a doubt as to who is the owner of the copyright in a photograph. There is a doubt and there should not be one. The way to remove the doubt is to accept my amendment and to say quite simply "The creator of a photograph is the photographer." What could be simpler than that? That is what I ask Members of the Committee to say.
Lord Beaverbrook: There is not much more that I can say except to answer the point made by the noble Lord, Lord Lloyd of Hampstead. There are cases where a creative contribution may be made by someone who does not operate the camera, as I have already said. It may be somebody who does not take responsibility for the composition of the photograph. Creative dark room techniques may be used after an initial exposure and the person applying those techniques may or may not be the same person as the camera operator.
Lord Morton of Shuna: The difficulty is that as regards the courts we cannot refer to anything which is said in discussion on the Bill. The court will interpret the Bill as the Act which is finally passed. Nothing which is said here helps in that sense. There is something to be said for an amendment which just puts it onto somebody in particular and then leaves it to the contract to put it onto somebody else.
Lord Ardwick: Although the dark room lad does something with the picture, and the picture editor does something with the picture, nevertheless the man who takes the picture is the photographer. There are famous photographers, but there are no famous dark room chaps. There are no famous picture editors. There are great photographers such as Kent Gavin of the Daily Mirror. Wherever they go in the world they send back the most wonderful and distinctive pictures which are a cut above the rest. Surely, such people deserve, for their individuality, to be credited as the authors of the pictures.
Lord Hutchinson of Lullington: We are beating the air. I am absolutely with the Government and the noble Lord, Lord Willis. Should we not all be happy that at long last, in this Bill, the photographer is put in exactly the same position as other artists? That is the great thing about this Bill. In Clause 9(1) the photographer is covered. For the first time he is in the same position as other creative artists. That is the whole essence of the Bill. The photograph that he takes no longer belongs to somebody else; it belongs to him. He is in exactly the same position as other artists.
If there are all these problems about people in darkrooms and so on, the same problem applies to all other artists. One has to apply contract to the matter. That is perfectly straightforward and I think that we should all be very happy about it. I agree with the noble Lord, Lord Willis, that everybody is making very complex something which is straightforward.
Lord Kilbracken: I do not agree. I do not believe that it does apply to other authors. For example, in the case of a writer, it is perfectly clear that the author is the person who produces that manuscript. That is what the copyright is for. With a photograph. it is not 100 per cent. clear; I believe it should be. I appreciate the support I have received from other Members of the Committee. I do not want meekly to withdraw the amendment. Therefore, although I will not divide the Committee, I do not intend to withdraw the amendment.
On Question, amendment negatived.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 43:
Page 5, line 31, leave out from ("person") to end of line 33 and insert ("who commissions that recording and pays or agrees to pay for it in money or money's worth and the recording is made in pursuance of that commission, or in the case of a film the director of the film and the person by whom the arrangements necessary for the making of the film are undertaken;).
The noble Lord said: The wording of the amendment is rather long and complicated but

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essentially it is simple. I believe that it contains certain points of principle which I wish the Government to note. The first concerns commissions: who actually commissions a work of copyright which is under copyright protection; and what his rights are. In paragraph 9 of Schedule 1—before the Government amended Schedule 1—the transitional provisions—the rights of somebody who commissions a portrait—are withdrawn. There is nothing in the Bill which says that those rights should continue. Indeed, the Government appear to reverse certain provisions in previous copyright legislation. It seems to us that anybody who commissions a portrait, or commissions something and pays money for it, should have the right to say what should be done with it. That seems to me to be a very fundamental, essential, commercial, economic and, indeed, moral right.
The second point of the amendment concerns directors of films. As I interpret Clause 9—an extremely important clause concerning the authorship and ownership of copyright—the director of a film has no right in the Bill as drafted to copyright protection. The person who has a right is,
"the person by whom the arrangements necessary for the making of the recording or film are undertaken"
As I understand it, and indeed as my advisers understand it, the Bill is giving copyright protection to the producer but not to the director of the film. It is only right to say that, in almost every film that Members of the Committee have seen, they will probably remember the director more than the producer. For example, who would remember the producer of "Stage Coach"? We all remember that John Ford was the director, but we do not know who the producer was. I could go through a number of films where the director has been the essential creator of the work. What we propose is that the director—in many ways the person with whom the film is associated—should at least have some protection, if only joint protection, with the producer, over the copyright in the film.
This amendment covers two points, both slightly complicated but both, in essence, very simple. I beg to move.
Lord Willis: I am sorry to differ from my noble friend on the Front Bench, but I think he has misunderstood the process of film creation. Film creation begins with the writer. Somebody comes along and commissions a script. In my time I have been commissioned on 30 film scripts. On other scripts I have written speculatively. However, the fact is that the essence of the film begins with the writer. The producer is a man who has vision, as did Richard Attenborough with "Cry Freedom". He got the whole thing together, with the writer, and so on. To single out the director, as this amendment does, is a fundamental error. Film making is essentially a collaborative and collective effort, rather like in the theatre. However, if you search for the wellspring, it is the creative writer.
We shall be moving to Clause 11 and to other aspects of ownership of copyright; who is the
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employee and who is not. I do not want to discuss that area until we come to it. Fundamentally, I am against this amendment because it singles out one member of the creative process—a very important member but not the essential one. Obviously, I have a vested interest. But, essentially, the process begins with the writer. You cannot name any film that has ever been made which has not been based on the creative juices of a writer. That is why I oppose the amendment.
Lord Morton of Shuna: Does not the noble Lord, Lord Willis, understand that the writer has a copyright in the filmscript? The difficulty about the present position of the director is that, as director, he has no specific rights in the film.
Lord Willis: The present position is that the writer does not have a copyright in the script. I have about 25 films which are being shown on television at regular intervals from which I do not receive a penny because they were bought out by my employer.
Lord Morton of Shuna: That is a matter of contract. If they have been bought out, they have been bought out by contract. The script takes copyright with it and unless it is bought out the copyright is in the script, as I understand the position.
Lord Willis: What the noble Lord does not understand is that when one is a young writer one is screwed into the ground. One cannot argue.
Lord Kilbracken: The same applies even when one is an old writer.
Lord Lloyd of Hampstead: I should not like in any way to diminish the immense contribution that my noble friend Lord Willis has made to many films or depreciate his creative role. Although I agree with him, I feel considerable sympathy for the amendment because, in a sense, the film director is regarded as a kind of author of the film. The French use the word "auteur" to indicate the director's role. I think the amendment falls down because first, when one looks at what my noble friend has said about the realities of film making, it is not a practical proposition. It is inconceivable that a film could be made where the ownership of the copyright is not settled beforehand. It is an essential part of the process. It is not necessary to go into this kind of refinement because it will not do anyone any good.
Secondly, the Bill follows the pattern of the 1956 Act by giving ownership, in the first instance, to the producer as the man who has brought the whole thing together, and directly or through distributors or other finance has been able to organise the film. On the whole, that formula has worked reasonably well. I have never heard anyone complain bitterly that the provisions of the 1956 Act gave that initial right to the producer rather than to the director. Although I feel great sympathy for the viewpoint which holds,

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"After all, the director should receive his recognition under the Bill", in practice, that is not a serious issue. It would be better to leave the matter as it has stood for many years in the 1956 Act.
Lord Hutchinson of Lullington: I agree with the noble Lord, Lord Lloyd of Hampstead. I find this amendment retrograde. It provides that he:
"who commissions that recording and pays or agrees to pay for it"
shall be the person who has the copyright. The noble Lord, Lord Williams, said that he who commissions the work should have the right to say what happens to it. I find that a retrograde principle having regard to the Bill which at last gives the copyright to the artist and not to the person who commissions the work. To try to incorporate that phrase into this clause is the most retrograde step.
Lord Kilbracken: We come to moral rights later in the Bill. It is right that the director should be given the moral right to be identified as the director and not to have his work unnecessarily adapted. With that I agree. I do not see that the director of a motion picture should have any automatic, special right to the copyright in that motion picture. He is hired to direct the movie. Of course his work is of immense importance. Everyone who has been on the set while a film is being made knows how important is the director. I had the great privilege of working for two months with John Houston when he was making "Moby Dick". I think that he made a total hash of the film, but his work shone through the whole of it. He influenced the entire making of the film.
Of course the director is the most important person, but he is not entitled to an automatic copyright in the film. He can negotiate that when he is hired to direct. He can say, "Yes, I will direct the picture, but how much will I get? What percentage of the box office will I receive?" He is paid his salary, fee or share of the box office as director of the picture. It is not a question of copyright. He should be credited for what he does, but not on the basis of copyright. I do not know why a director is included in the Bill.
Lord Auckland: As a consumer of films, particularly of films of the 1930s and 1940s, this amendment strikes me as having some relevance. Let us suppose, as does happen, a director has a row with the author of the film and another director is appointed. In such cases, who then, under the Bill, is involved in the copyright? If a director who has directed part of the film dies or has a row with the author, surely an important legal problem crops up.
Lord Morton of Shuna: The point of the amendment, if I understand it aright—I hope that I do because it is in my name—is to identify who is involved. In Clause 9(2)(a) we are dealing with:
"in the case of a sound recording or film, the person by whom the arrangements necessary for the making of the recording or film are undertaken"
Who is that in relation to a film such as "Moby Dick"? Who is the one person who makes those
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arrangements? It is unclear. Is it the producer, the director or the film company; for example Warner Bros.? All the amendment seeks to do is to identify someone. It is easy to take that person out, if necessary, by contract, hut, as it is, the wording of the Bill is unclear.
Lord Beaverbrook: As the noble Lord, Lord Williams of Elvel, has explained, the amendment deals with the authorship of sound recordings and films. Its effect so far as sound recordings are concerned would be to provide that someone who commissions and pays for the making of a sound recording should have the copyright. It would also leave undefined who is the copyright owner when there is no commission, but I am sure that this is an unintended effect.
We feel that it is unnecessary to deal with commissioned recordings in this way. It was necessary to have such a provision in the existing Act because under that Act copyright belongs to the person owning the tape at the time the recording is made. However, the Bill deals with copyright in sound recordings in the same way that the present law treats films; namely, that the first owner is the person who makes the necessary arrangements for the recording.
This approach works satisfactorily for films and we believe will do so for sound recordings. It largely sweeps up the question of commissions since record companies commissioning independent recording studios will be the body making the necessary arrangements, not the studios. We therefore feel that the Bill should remain as drafted in this respect.
The second effect of the amendment is to give film directors a joint copyright with the film maker. We do not think that that would be right. As the noble Lord, Lord Kilbracken, said, the Government have recognised that film directors have a special interest in their films by providing later in the Bill that they shall have moral rights in those films. To go further than that and to give the director a copyright in the film would not be fair to the person who has made and paid for the arrangements for the film production. In making those arrangements he will of course have negotiated appropriate remuneration for the director. It would be wrong for the director to be able to claim additional remuneration on the basis of his copyright.
9 p.m.
Lord Williams of Elvel: I am grateful to the noble Lord for his response, and to the noble Lords who have taken part in this debate. I am bound to say that I am not wholly convinced by arguments adduced by the noble Lord. I do not believe what we are suggesting here is particularly retrograde, if I can quote a noble Lord from the Benches on my right. I think it is a fairly sensible suggestion, because I do believe there are very complicated issues involved which cannot be just dismissed by statements of: "it is all wrong".

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However, it is getting late and we want to get on with the Bill. I do not propose to press this, and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No.44:
Page 5, line 41, leave out ("publisher") and insert ("designer of the typographical arrangement")
The noble Lord said: In this case the purpose of the amendment is quite straightforward. It is to put in, instead of the publisher, the designer of the typographical arrangement. To allow this amendment would mean that the author would be the person who created the work; and of course publishers would be able, in the case of contracts of either employment or of services, to include in their contract that they would take the copyright in whatever their servant or agent took. But it is appropriate, we consider, that the actual creator should have the primary right, and the employer (who is in the position of power from the point of view of any contract for the work to be done) should be the person who insists or can insist that the right should be transferred to him. I beg to move.
The Earl of Stockton: It will come as no surprise to my noble friend that I am in support of him and not in support of the noble Lord, Lord Morton. In the case of the publisher as opposed to the designer of typographical arrangement we are of course referring primarily to the question of the person employed in the publishing house. Clearly, it is of paramount importance that the copyright in work produced within a publishing house remains with the employer. For example, I have the honour to have published a number of novels by the noble Lord, Lord Willis. Obviously, the copyright in his manuscript is his. However, it has been the occasion that my noble friend Lord Hardinge has been employed by me to write what is called the "blurb" on the inside of the jacket. It has also been the occasion that I have found Lord Hardinge's praise of Lord Willis' skills and acumen insufficiently adulatory. I have chosen to amend it. This amendment would—
Lord Willis: I always write my own "blurbs".
The Earl of Stockton: Very wise! But hypothetically this amendment would imply that the copyright in the "blurb" would he vested simultaneously in my noble friend Lord Hardinge and in me, and in the publishing company, which is clearly an absurd situation.
Lord Hardinge of Penshurst: Is this not an amendment that is basically embraced by Clause 11, which we are to debate shortly?
Lord Howie of Troon: For that reason we should not pass the amendment in a hurry. We are talking
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about authorship rather than copyright just at the moment, and the difficulty here in the case of magazines with which I am primarily concerned, is that of identifying who is the author of the typographical work.
In general terms, a magazine page is laid out against a design which has been obtained by the publisher from a designer at some stage as a generalised guide which the art editor or the subeditor or other editors will use in producing the final visual effect. So we already have the problem of the original designer, the immediate art editor or production editor or whatever he cares to call himself.
As I have already said today, the typesetter must play some part in this process, and so must ultimately the printer. The chain of authorship here is to me far too complex and far too confused for us to say that there is a single designer who can be identified as the man who should be the author. It seems that this is a case where the Government have got it right in the words used in the discussion on the last amendment by the noble Lord, Lord Beaverbrook: the publisher is the man who makes the necessary arrangements; who organises the whole thing. In this kind of complex situation where we can either have one author, which is sensible, or a multiplicity of authors, which is absurd, the Government have got it right, and my noble friends on the Front Bench, although what they say is extremely interesting, are slightly agley.
Lord Willis: The heart of my noble friend on the Front Bench is in the right place, but I think that he has got this wrong. We are getting far too complicated. You cannot go into this error. You will eventually get the situation where the taxi driver who actually drives the typographer to the printing works will ask for a royalty because he played some part in the creation of the thing. No, no. We know there are authors, that there are artists, and that there are designers. If you go beyond that into typography you get into a forest, a nightmare, a jungle which I do not think anybody can sort out.
Let us keep it simple. The simplest way I think is the way the Government have got it at the moment.
Lord Beaverbrook: I am grateful to the noble Lords who have spoken. As I said in connection with our discussions on Clause 8, it is not the Government's intention to make any significant changes to the provisions governing copyright in the typographical arrangement. We believe that, as now, the publisher should he the first owner of the copyright.
The amendment would make the designer of the arrangement the author. But who is to be regarded as the designer? The person who arranges the layout, the person who selects and sets the typeface, or the editor who supervises all these function?
The amendment seems to be a recipe for chaos. It is the publisher who must own copyright in the

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arrangement since it is his investment that is protected. He would have to acquire it by contract if the amendment were accepted and given the difficulties in assessing who the designer is, this would cause total confusion. I believe that the right course here is to ascribe authorship, and hence ownership, to the publisher.
Lord Morton of Shuna: I am obviously not very popular with those Members of the Committee who have spoken. However, I think it is remarkable that the Committee has not so far heard from anybody who is an expert in typographical arrangement. The interests of authors, artists and other are spoken to. But it is quite easy for an employer to set the terms of his contract of employment. It is very much less easy for an employee to set the terms of his contract of employment. That was the purpose of my amendment.
However, as the amendment is clearly not one that meets with the favour of all in this Chamber at the moment I shall not press it to a Division. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 45:
Page 6, line 3, leave out ("without previous knowledge of the facts").
The noble Lord said: I suggest that to leave out the words:
"without previous knowledge of the facts"
in the third and fourth lines of page 6 makes the Bill clearer and removes totally unnecessary words. If it is not possible for a person to discover the identity of a work by reasonable inquiry, it is not possible to discover that fact. Why it has to be qualified by
"without previous knowledge of the facts"
I do not know. If a person had previous knowledge of the facts he would know something different. It appears to me that these words are totally unnecessary, confuse the issue and make the position less clear. I beg to move the amendment.
Lord Kilbracken: I completely support my noble friend on this amendment. I cannot understand why the words:
"without previous knowledge of the facts"
are included here. What facts are we talking about? If the fact is the identity of the author then obviously it is completely meaningless. In any case it adds absolutely nothing.
I should like to ask a further question. Subsection (4) says:
"if it is not possible for a person … to ascertain his identity".
What person are we talking about? Are we talking about a congenital idiot or about a highly skilled reporter who is working for a gossip column on the Daily Express? What sort of person has to be able to
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ascertain the facts? Some of us are very skilled and experienced at finding out facts and some are hopeless fools. Does it mean any person or every person? I simply cannot understand how the wording of subsection (4) came to be written.
Lord Bonham-Carter: Can the noble Lord help me with a simple question? What is meant by "the identity of the author"? Supposing someone writes a hook under a nom de plume. Do you know his identity by the nom de plume, or do you not know it if you do not know what his real name is? I should like elucidation on this matter.
Lord Beaverbrook: The wording of subsection (4) is derived from that in the 1956 Act. It has not caused any difficulties as far as we are aware. A person with knowledge of the facts can always identify the author.
If coming to the question afresh, the test is this. Is it possible to find out who the author is by reasonable inquiry? In some cases the answer may be yes. For example, the true identity of Lewis Carroll could probably be discovered without too much effort. But the identity of the author of an anonymous letter may well defeat even the most rigorous investigator.
Lord Morton of Shuna: Nothing that the Minister has said has given any meaning to the words:
"without previous knowledge of the facts".
I thought that the purpose of the Bill was to rewrite the copyright law in clear language. Part of that process would be to take out provisions and even phrases that were unnecessary. If these are unnecessary why should they remain?
To deal with the point raised by the noble Lord, Lord Kilbracken, "person" would cover any limited company. What some of the large publishing companies might be held to be able to ascertain by reasonable inquiry is difficult enough without trying to work out what, say, Mr. Murdoch's company, or Mr. Maxwell's company, might have as previous knowledge. I should have thought that the words:
"without previous knowledge of the facts"
were totally unnecessary. I cannot yet see why the Minister wants them in. Perhaps he could explain what purpose the words serve.
Lord Beaverbrook: As I have said, a person with knowledge of the facts can of course identify the author because he has that knowledge. As I also said, the test is whether it is possible by reasonable inquiry for someone without previous knowledge of the facts to ascertain and find out who the author is. That is why we want the words included.
Lord Morton of Shuna: Obviously I am hitting my head against the proverbial brick wall. Perhaps the Minister will read what I have said and think about it. In order to help him I shall beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
9.15 p.m.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 46:
Page 6, line 4, at end insert—
("(5) the author in relation to any copyright work who is an employee shall as between him and his employer be entitled to apply to the employer or in case of a dispute to the Copyright Tribunal for an award from the employer as will secure for the employee a fair share having regard to all the circumstances of the benefits which the employer has derived or may reasonably be expected to derive from the work or from the assignment assignation or grant to a person connected with the employer of the property or any right in the work".)
The noble Lord said: This amendment raises questions of social justice to an employee. It also raises the problem of how to encourage the creation of more ideas in industry. That is a matter which the Prime Minister herself has often spoken about as being of importance.
It often happens in industry that an employee produces a good invention in the course of his employment and as a result of the exploitation of that invention the company makes a lot of money. It sometimes happens, especially with small successful firms, that an employee's invention is the lifeblood of that company.
I had the privilege of raising this matter during the passage of the Patents Act 1977. I was able to persuade the Government at the time that there should be included in that Act clauses which in effect said that if an inventor, an employee of a company, produced a substantial invention—substantial in the sense that it brought success to the company—then that employee should be permitted to make a claim against the company for a fair share of the profit of the company. His share of the profit would depend upon how he had been treated in the course of his employment in terms of promotion and such aspects—certain parameters in relation to his life—and also upon the nature of the invention. That was accepted.
The object of the amendment concerns an author who is an employee who in spite of being subject to contract, should have the right to go to his employer and say "This is what I have done and this is how the company has performed as a result of my contribution". In spite of his contract of employment it is right in social justice that he should be considered for a share of the profits or the successful aspects arising from his invention. If the company fobs him off completely, as so often happens, he should have the right to go to the copyright tribunal.
In speaking to this amendment I ask leave of the Committee also to speak to Amendment Nos. 255 and 256 because they deal with the functions of the tribunal. Those amendments seek to enable a tribunal to have regard to an application of that kind. That is the simple position. Justice to an employee is desirable in this age in order to help encourage the creation of new ideas. The amendment does not state that as of right the employee should receive an award of any kind. It gives the employee the right to apply to the company for an award. In the case of a dispute
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the matter should be referred by the employer, by the employee or by both for consideration by an independent copyright tribunal. I beg to move.
Lord Williams of Elvel: We should like to support the noble Lord, Lord Lloyd, in his amendment. As he pointed out on Second Reading, he was in large measure responsible for getting his provision written in to the Patents Act. We recognise that the noble Lord has performed a great service. We should like to see those rights of employees in some manner written into the Bill. We shall be discussing this further on Clause 11. We cannot follow the noble Lord in his grouping of Amendments Nos. 255 and 256. We should like to keep the copyright tribunal to a later stage of the Bill. No doubt the noble Lord will come back to us in his own time.
Lord Lloyd of Kilgerran: I am not very much concerned with the government grouping on this matter. I am suiting my own convenience. I thought it would be fair to the Committee to indicate that I had considered what should be done with the terms of reference of the tribunal and I referred therefore to further amendments that I have tabled in order to help the Committee.
Lord Williams of Elvel: I apologise to the noble Lord if I was in any way out of order. I understand that this grouping may have been agreed. I would simply say that we agree with the thrust of the noble Lord's amendment while reserving the right to continue discussion of the copyright tribunal when it comes up.
The Earl of Stockton: We have to draw a clear distinction here between employees of inventing companies and the employees of other companies. An inventor is employed to invent. Publishers employ their staff to assist the author in the necessary transformation of his manuscript so that it can be read and appreciated by a wider public; and in doing this the copyright material is created. But this is purely incidental to their employment. It is a good estimate to say that only 2½ per cent. of the authors in this country are employed, whereas more than 70 per cent. of the inventors are employed.
Finally, I think that it would be a most divisive measure in going behind the normal structure of an employee-employer relationship and the pay negotiating structure through the trade unions or whatever form of bargaining exists between the employer and the employee.
Lord Willis: We are now moving towards one crunch point of the Bill which has a great effect on, for example, Clause 11 in respect of which I have an amendment down.
I should like warmly to support the noble Lord's amendment. I understand the point that was made by the noble Earl, Lord Stockton, but I do not think this amendment affects the situation that he has described.

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Let us come back again to simplicity. A great deal depends on contract and on the contract that is arranged between the employer and the employee. One of the points we must remember about that relationship is that very often the employer is in a position of power and authority. The employee is sometimes rather frightened. He has a mortgage to pay, he is a little worried about things and he does not like to go to the employer and say, "I am not getting a fair deal". In publishing, with all its processes, I do not think there is a problem but there are problems in other areas. There are problems, for example, in the creation of films.
A problem was drawn to my attention by a servant of the Crown who has worked for the Royal Mint. He is a professional designer trained at the Royal College of Art and his officially commissioned works include Her Majesty's Privy Council Seal, the greater and lesser Royal signets, the Seal of Her Majesty's Dependencies and even the seven-sided 20p coin. He is an employee of the Royal Mint. He took on a contract and that was it. He makes no complaint about that. What he objects to is that the Royal Mint has issued many of these items not in the normal way of currency but has sold them. For example, it has sold as collectors' pieces 25,000 of those 20p seven-sided coins at £11.50 each. That is 57 times their face value. He designed them. He made them. It was his inspiration that did it. He has not made a penny out of it. The Royal Mint has made a lot of money.
I agree with the noble Lord, Lord Lloyd, that that man should have the opportunity to go to the copyright tribunal or to his employers and say, "I want a cut of this". What is more, I think that the Royal Mint would be wise to give him something because he is obviously a good designer. That is just one example. There could be many others in which the employee is in this delicate relationship with his employer and needs to have some support in law.
I believe we really ought to go back to basics—this is where we come to Clause 11, and I do not want to trespass on that—and that the author, the creator, is the first copyright owner and everything flows from that. That is the simplicity of the situation. But given the delicate relationship between employer and employee, I think that this amendment is a good one. It does not impose any obligations on the employer or on the employee. It just gives the employee a fair crack of the whip, and I therefore support it.
Lord Howie of Troon: I am rather uncertain about this amendment. I want to make two comments on the contribution just made by my noble friend Lord Willis. The example that he raised of the employee in the Mint whose work was marketed to the great profit of the Mint but not to the employee is a good example. It illustrates exactly the point that the noble Earl, Lord Stockton, made; that is, that there is a difference between the kind of examples which the noble Lord, Lord Lloyd of Kilgerran, raised at the beginning of somebody making a thing and somebody involved in publishing. That point is real
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and distinct and is relevant to this part of the Bill. The example of my noble friend Lord Willis, although an interesting one, is not really related to this part of the Bill.
There is only one other comment I want to make in relation to my noble friend's remarks. Both he and I are well aware of the calibre of the members of the National Union of Journalists, and I do not see in them the same meek, downtrodden employees that he described in his opening remarks; but let that be as it may. This amendment, in so far as it relates to publishing—and that is what I am principally interested in at this moment—is almost the same as Amendment No. 44, which we discussed a short while ago and which we decided to throw out. I think that we should throw out this amendment at this point for the reasons we have discussed already.
Lord Brain: We have had a slight tendency all through this debate to get stuck a little on journalists and publishing because of the use of the word "author", which has a traditional meaning. An author can design a computer program for a small firm. At the start it may be a computer-aided design program, and it may lead nowhere; but he may have the flair that the noble Lord, Lord Lloyd, indicated in the design side on engineering and patents. The balance here between a patentable thing and a copyright thing is getting close in the inventiveness of computer programs.
We must not just have the journalists' and the publishers' thoughts on this matter; we must look wider because this Bill will be going on for 30, 40 or 50 years. We need to look at the wider aspect of the matter. I support the amendment.
Lord Lloyd of Kilgerran: I should like to say something about the support I have obtained from the noble Earl, Lord Stockton because apart from his use of the emotional word "divisive" in a context which I did not quite understand, what in effect he said was simply that social justice for employees occurs when the idea is of an inventive nature. Seventy per cent. of employees who are employed to invent therefore have that kind of right under the Patents Act 1939. They can go to a tribunal to have their claim for an award of a share of the profits determined.
The noble Earl also said that there is a difference in publishing. There were only 2½ per cent. of persons employed in the capacity of designing in the publishing field. He in effect supports the idea of an award claim being possible in the case of an inventor, and surely on his own argument he supports my case although it only happens to 2½ per cent. of the employees concerned.
Surely social justice these days for an employee requires that he should have the opportunity, as of right, to ask his employer for a fair share of what arises from his idea. Whether it is in the publishing trade, the electronics field, or whatever field it is, it is an idea that has been of value to that employer. All

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that the amendment states is that as of right the employee can ask the employer for an award. He may be very extravagant about the amount of award that he requires and a dispute arises. He should then as of right be able to take it to an independent tribunal.
In this Chamber, which has representatives of so many areas of industry, journalism and so on, it is difficult to understand why the sympathy for the amendment expressed by the noble Lords, Lord Williams of Elvel and Lord Willis, should not be felt unanimously by noble Lords. We are not dealing with a political matter. This is completely nonpolitical. We are dealing merely with an elementary question of social justice in regard to an employee who has an idea. The author should have the right to make this kind of claim to the employer and, in the case of dispute, to go to a tribunal.
We have so far been concerned with legalistic matters. It is about time—and it is getting late—that we considered the human relationships between an employee and an employer where the employee, in this case, the author, has some ideas which improve the value of his work to the employer.
9.30 p.m.
Lord Beaverbrook: I listened carefully to what noble Lords said in regard to the amendment. The fundamental reason why the work of an employed author belongs to the employer when it is created in the course of employment is that the author has been paid for his work and the employer is therefore entitled to the fruits. This is not unusual. It is probably the usual way in which employees are paid.
The amendment would entitle an employed author to a share in the fruits of every copyright that belongs to his employer.
Lard Lloyd of Kilgerran: With great respect to the Minister, that is not the purpose of the amendment. The employee has no right whatever to a share in the profits of the employer. Under the amendment he has the right to ask for a share. If there is a dispute, the matter should be referred to a tribunal. I am sorry to contradict the Minister so early in his speech, but he has that part utterly wrong.
Lord Beaverbrook: As I understand it, the amendment would entitle an employed author to a share in the fruits.
Lord Lloyd of Kilgerran: With great respect to the Minister, he would have no right to a share in the fruits. In spite of his contract he has the right only to go to the employer and to say, "You have done very well out of my design, I feel I ought to have a little more than I am getting in the way of salary and promotion". There would not be a share in the fruits. He has a right to ask for something. That claim will be dismissed. His only other right is to say to the employer, "I am sorry about this; I realise this, that and the other; let us go to the tribunal".
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Perhaps the Minister would like to think about this before he comes to any decision. The preface to his speech is entirely wrong and he has wholly misunderstood the purpose of the amendment.
Lord Lucas of Chilworth: The noble Lord, Lord Lloyd of Kilgerran, said that the employee has no right to a share in the fruits but that he is to be given a right to ask the employer, who has done very well out of the authorship, for an advancement perhaps in terms of promotion or salary. Whichever way the noble Lord likes to look at the matter, he is looking at a share in the fruits, by whatever name it is called. There is nothing wrong with that so long as the noble Lord, Lord Lloyd, does not mislead the Committee into thinking that he is only asking for a share by way of salary or an enhancement of promotion. However, he expressly said, "no fruits". My noble friend said that this was an entitlement to enjoy some of the fruits. I do not think that my noble friend was wrong in that.
Lord Lloyd of Kilgerran: I am grateful to the noble Lord, Lord Lucas. He is trying to help the Committee to consider this very important social problem of the employee, and I am grateful to him.
The only right that the employee is given is to ask for something. That is all. During the course of asking he may quantify the request but he has no right to have any share. His right simply consists in going to the employer. It is very difficult for an employee to go to an employer and ask for anything. It is terribly difficult for a young man who has done very well in designing, for instance, to go and ask for anything. It is difficult for him. This situation only arises when it is clear that the author has produced something which has been very successful and the company has made something out ot it.
In this amendment I am asking for the right to say to the employer, "Don't you think I ought to get a share of this in some way?" That is not a right to have it but a right to ask for it. I am sorry that I have not made myself as clear as I thought I had. I have repeated my words several times and there must be some reason why I have not been able to get the message across. Should the employer refuse, the employee could go to an independent tribunal to ask about it.
I am asking for such a simple thing. I am not asking that the employee should be paid anything or that he should be promoted.
Lord Denham: Perhaps the noble Lord would give way. My noble friend is replying and at this Committee stage the noble Lord, Lord Kilgerran, has every right to interrupt him, but could my noble friend possibly be allowed to finish his argument and then the noble Lord can come back again to this question?
Lord Lloyd of Kilgerran: I am much obliged to the noble and learned Lord for advising me in that way. When I heard the noble Lord say something so totally wrong and apparently having totally misunderstood

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the terms of this amendment, I thought that I was justified in coming in at once in order to save time.
Lord Beaverbrook: I am very grateful to the noble Lord; but I believe that we have not totally misunderstood the thrust of his amendment. If the amendment is intended to have the meaning attributed to it by the noble Lord, I am afraid that the words do not appear to come out in that way. If the employee goes to the copyright tribunal, on the words of the amendment it is difficult to believe that he will not obtain an award. That is why I have to resist this amendment.
Lord Willis: Before the noble Lord sits down, perhaps I may say that I think there is great sympathy in the Committee for the general drift of this amendment; in other words, that the employee should be given some rights, although not a total right. Irrespective of the wording of the amendment which the noble Lord seems to criticise, are the Government sympathetic to it and will they come hack at another stage with an amendment that will
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take into account the general human approach expressed by the noble Lord, Lord Lloyd of Kilgerran, in this amendment?
Lord Beaverbrook: I have to say that the Government are not very sympathetic to the thrust of the noble Lord's amendment. I am prepared to look at everything that has been said this evening. I am not able to make a commitment to bring anything back at a later stage; but for the convenience of the Committee perhaps it might be best if the matter were left on that basis.
Lord Lloyd of Kilgerran: I am very grateful to the noble Lord. He said that perhaps part of the amendment is not very clear. On the basis of what the noble Lord has now said, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 9 agreed to.
9.40 p.m.
Clause 10 [Works of joint authorship]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 47:
Page 6, line 7, leave out ("separate") and insert ("separable").
The noble Lord said: This is perhaps another amendment that deals with the meaning of words. Clause 10 deals with joint authorship. If I may give an example, if some lawyers were to attempt (as no doubt they may) to write a textbook on the Copyright, Designs and Patent Act 1988 or 1989, or whenever it manages to get through, it might be that several authors would each deal with certain separate sections. But it would not be clear from the book what was done by which author. Therefore, it would be appropriate that the word should be not "separate" as it is in the clause but "separable". For that reason, I beg to move.
Lord Beaverbrook: This amendment raises an interesting point which has had us scratching our heads. It has a certain superficial attraction, but in the short time available to consider it we have been unable to decide whether it is right. I should like to come back to it at a later stage. That will enable us to consider the existing law on this point, what the effect of the amendment would be and whether this would be a good thing or not. The Bill here is the same as the 1956 Act. I hope the noble Lord will be able to agree to that course of action.
Lord Broxbourne: I am most grateful to the noble Lord on the Front Bench. I only hope, though without much confidence, that my few remarks may justify his magnanimity in giving way.
I declare an interest to this extent. I am a joint author, and have been for many years, of that fascinating work of which I am sure all Members of the Committee are keen readers, the Annotation of Standard Forms of Building Contracts. That is the name, impersonal if unexciting, with which it has gone through the decades. A few years ago the publishers renamed it Walker-Smith on the Standard Forms of Building Contract. I pull their legs and say, "I notice you waited until I changed my name before you changed the name of our publication".
It is a joint authorship. We have several joint authors. They are all lawyers—and very good lawyers, most of them—but I do not suppose that they have any fixed understanding of where the copyright lies. I hope it lies with myself, but that may only be wishful thinking.
The real point when you have joint authorship is that you do not just look at the law. Have a good understanding and a good fellowship, and no disputes will ever arise. That is my experience of, alas, approaching nearly half a century. I commend it to the authors of this Bill and to all students of copyright, including the noble Lord, Lord Lloyd of Kilgerran, who has forgotten more about this subject than most of us could ever hope to know.
Lord Morton of Shuna: I am very willing to withdraw the amendment and shall do so in a moment. Perhaps I may say to the noble Lord, Lord Broxbourne, that of course anybody who takes lawyers' advice before they have an argument, avoids the argument. If they wait until they have the argument, they need two lawyers, one on each side. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 10 agreed to.
9.45 p.m.
Clause 11 [First ownership of copyright]:
The Deputy Chairman of Committees (Lord Renton): If Amendment No. 48 is agreed to, I cannot call Amendments Nos. 49 and 50.
Lord Willis Lord Willis moved Amendment No. 48:
Page 6, line 14, leave out subsection (2).
The noble Lord said: We are going over the same ground as we did a few moments ago, so I shall not long delay the Committee. It is again this question of the employer and the employee and their relationship. Under the Berne Convention (which we have recognised for many years) the author is the prime owner of the copyright, and I am using the word "author" in the broadest sense. This Bill lays down firmly—and probably for the next 30 or 40 years—that the employer is the owner of the copyright. The onus, in order to keep in step with the Berne Convention and with natural justice, must be reversed. The employee is the creator and the owner therefore of the copyright.
We come back to the simple thing that we were saying earlier in the debate. It is all a matter of contract. We know very well that the employer in most cases has the muscle. I could name a dozen young authors who, given an opportunity by a publisher, would sell their souls for the smallest possible advance simply to get the book published. That does not happen with reputable publishers, but we all know—and I am sure that the noble Earl, Lord Stockton, knows—many publishers who do this, and as I said earlier they screw authors into the ground.
An author does not really have very much bargaining power when he is desperate, a learner and a beginner. It is the same in films, in television and in every area of creativity. If you are young and eager and somebody comes along and says will give you an exhibition", "I will publish your book" or will put your play on" you say "Oh, my God! Thank you" and you take anything that he is prepared to offer. He normally then takes over the copyright.
All this amendment does is, as I said, to stand by the Berne Convention, to stand by something that is accepted throughout the world; that is, that the author is the irrevocable owner of the copyright. He can make a contract selling that copyright. He may make a bad contract, but there is nothing we can do about that unless he goes to the Writers' Guild who

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will protect him. But if he does not go to the Writers' Guild or the Society of Authors, he may make a bad contract. That is too bad. But we must lay down in this Chamber, and in this Bill, the basic principle that the author is the owner of the copyright, whether he is employed at £25 or £100 a week by a firm, or whether he is a freelance. But it must be him. That is the point. I beg to move.
Lord Williams of Elvel: We from the Opposition Front Bench support the amendment moved by my noble friend Lord Willis; and for the convenience of the Committee I shall speak to Amendments Nos. 49 and 50. I cannot add to the arguments that my noble friend has put forward because I think that they are wholly right and were very clearly stated. I have to tell the noble Lord opposite that we regard this as a matter of fundamental principle in the Bill, and were it not that we are at a late hour this evening we would wish to pursue this amendment. All I can do at the moment is to say that I firmly agree with what my noble friend has said. I believe that this follows the Berne Convention absolutely in the right direction.
I do not agree, I am afraid, with Amendment No. 50 which may be moved by the noble Lord, Lord Brain. I believe that the author should be the employee under these circumstances. I can do no more than say very briefly that I fully support my noble friend and I hope that the Government will pay attention to what he has said.
Lord Hutchinson of Lullington: May I support—
Lord Beaverbrook: Before the noble Lord sits down, may I ask him which amendments he is speaking to at the moment, because the grouping would indicate that we are discussing Amendments Nos. 48, 49, 50 and 52 together.
Lord Williams of Elvel: I was unclear whether Amendment No. 52 was in that grouping. I was speaking to Amendments Nos. 48, 49 and 50. Amendment No. 52 seemed to be slightly different, but perhaps my noble friend Lord Willis would accept that it covers the same point, in which case I am very happy to be deemed to have spoken to that grouping.
Lord Hutchinson of Lullington: Although my name is down to Amendment No. 49, I support Amendment No. 48 and everything that the noble Lord, Lord Willis, has said. I wish to develop the discussion a little further.
I too feel that this amendment is the most important amendment that we have discussed so far in the debate. The employer can always acquire copyright by contract. That is his protection. The creative artist under the Berne Copyright Convention is the person for whom the benefit of that convention is laid out. It is not for the employer; it is for the creative artist. He is the individual without whom there would be no literature, no museums, no theatre, no galleries and nowadays in many cases no millionaires.
The owners of creative works of art in our present society do extremely well. With great respect to the
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noble Earl opposite, the publishers, the auction houses, the galleries in Bond Street, the rich with their status symbols such as their Van Gogh's all do extremely well. The Minister could assist the Committee by giving a list of the artist millionaires who exist as of today.
Subsection (2) simply removes at a stroke the effect of subsection (1). What is the origin of subsection (2) going back through previous legislation? The orthodox legal reasoning is that when an employee carries out an act on behalf of his employer it is to be regarded as the act of the employer. The act of a servant or agent is to be regarded as his act. This arises from a consideration of the legal effect of those acts upon third parties. It is not as between the relations of employer and employee. It is utterly unjust to import this doctrine into a situation where the employer has no share in the design or the execution of the work.
Surely to force the employee to substitute the employer for himself as owner of all the rights and benefits arising out of the performance of his contractual obligation at large cannot in this day and age be right. We have now reached a position of equality as between worker and employer. So the general law should apply to the employee as it does to everyone else, with a contractual relationship entered into freely and equally. If the individual wishes to assign his rights he is entitled to do so but the onus should be the other way round. It should be quite straightforwardly and quite simply that the copyright of the work belongs to the creator of it. That is the basis of the convention and surely now, in this day and age, we have reached that point. I very strongly support this amendment tabled by the noble Lord, Lord Willis.
Lord Hardinge of Penshurst: For many years I worked as a publisher's editor or editorial director for a number of companies. I have written literally thousands of reports and comments for them, giving my best and most honest opinion. I stress the word "honest" in the context of the point I wish to make. We were all young once, and I can imagine that some of those notes were frivolous and possibly occasionally humorous although not necessarily always right. It would not be beyond the skill of lawyers to argue that those are works of literature or of literary criticism. One has to consider the power that is placed in the hands of the employer. I am not being egocentric. Many thousands of people in the whole entertainment industry must be similarly affected starting with publishers' outside readers, some of whom are freelance and some of whom are employed.
It does not necessarily end with the entertainment industry. It seems likely that lawyers could succeed in demonstrating that internal memoranda from employees of engineering companies, boatbuilders, grocers or any employer were works of literature and thus, in a sense, at the mercy of the employer.
There is another situation which would make employees even more vulnerable. I am advised that neither bankruptcy nor receivership is referred to throughout this long Bill. Should any company—I am thinking particularly of the entertainment

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Industry—go into receivership, it would surely be the first duty of the receiver to raise cash by selling off anything that was worth anything, including notes written by employees under the misapprehension that such documents were written under the protection of privilege.
I basically agree with the Government that employers should own the copyright in what their employees write. If every individual obtained a copyright every time he put pen to paper, anarchy would prevail. I also agree with the noble Lord, Lord Willis, when he says that some degree of restraint should somehow be imposed on the use of it, in addition to those restraints already in the Bill. Uncountable numbers of employees—often the bravest and cleverest—daily put on paper their best convictions about what should be done. As the law stands at present and may stand in future, they would be safer to stick to anodyne flattery. That would not do much for British industry.
It has occurred to me that there may be a compromise. I put forward the following suggestion at the risk of making a fool of myself. May it be possible to devise an embargo of, say, 20 years on the uses an employer is free to make of the copyright belonging to him under this heading? Such a plan would of course extend to receiver, should that situation arise. If that were possible, the author and the copyrighter would be free to negotiate with each other any arrangement that suited them so long as the embargo lasted. I can only say that I hope the suggestion is worth serious consideration. I hope that it would also serve to encourage and warn everyone, including young starting-off authors and especially creative writers, whom the noble Lord, Lord Willis, I believe, has in mind, to look at their legal, copyright and contract positions before putting pen to paper.
Lord Howie of Troon: I was very interested in the remark made by the noble Lord, Lord Willis, because it brought to mind a predicament in which I find myself at the moment. As joint author of a hook, I am haggling with the publisher who is trying to screw me into the ground. The difficulty arises from the fact that the company which is publishing the book is my own company. The head of the book division is in fact my employee. Because he is my employee, I feel morally bound not to pull rank on him and I hope that my co-author will coerce him into doing justice.
Perhaps that illuminates the problem in terms of the simple approach which the noble Lord, Lord Willis, is adopting. It is an interesting way of dealing with the law. However, everything is not simple. I would be on the noble Lord's side in the simple case of the book which I have just mentioned, especially as it is mine. In general terms, I would be on his side.
If noble Lords can recall the debate which we had several hours ago on the first clause (where we first foreshadowed this debate on Clause 11) noble Lords will remember that I went into some detail concerning the difficulty of identifying the author of a magazine article. I do not wish to go over all that ground again in detail but merely to remind the Committee that the details are there in the debate which we held about 4 o'clock. In brief, what I am saying is that the author of a magazine article is only
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partially identifiable because he is a compound of the original author, the sub-editors, the editor and other people who have handled his work which becomes the final work.
I see that the noble Lord, Lord Willis, is shaking his head and I assume that he is shaking his head from side to side in disagreement.
Lord Willis: No, I am tired.
Lord Howie of Troon: That means the noble Lord is shaking his head from side to side in agreement. At all events, I do not want to go over that ground again. In certain cases the situation is simple and this amendment can apply. In the case of a magazine article it is not simple and the amendment cannot apply. Therefore I am on the side of the Government on this occasion and I cannot support the amendment.
10 p.m.
The Earl of Stockton: The noble Lord, Lord Willis, and a number of other noble Lords appear to have confused the position of authors and employees. Nobody is in contention with subsection (1) of this clause. However, the employee is in a different position to that of the author. The employee receives a regular salary; he receives holiday pay, sickness benefit, pension entitlement and a regular review of his salary. Therefore his or her work belongs to the employer.
On the other hand, the author is self-employed and has none of the benefits of being employed. Quite rightly, he is the owner of the copyright and it belongs to him or her in the first place. It is in the contract between the author and the publisher guided by a literary agent or lawyer that these arrangements are organised. The author is not an employee, and the employee is not an author. We must make that distinction absolutely clear. This presumption is retained in the Bill in subsection (4) of the 1956 Act. It is very important that the Government retain it now. We shall be coming back to this question on moral rights in Clause 71.
Lord Brain: We are back again to authors only writing. They take photographs. They may be part-time photographers who are on a minimal salary or wage. I quite agree that my amendment was a bad one but it was an effort to reach a compromise. I support this amendment and if this one fails I would certainly support one which gives copyright direct to the employee. This amendment is much simpler and the employee needs to start with rights on his side. I quite agree that subsequently by contact they will be eroded; and knowing publishers in the literary sense, they will be eroded very vigorously. I support the amendment.
Lord Morton of Shuna: In the contribution from the noble Lord, Lord Howie of Troon, there seems to be a difficulty or a misunderstanding because we are not concerned here with identifying the author. We presume that the author is identified. We have an author of whatever we are dealing with. We are dealing with whether, when he is employed, something that he produces should belong to him or his employer.

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As the noble Earl, Lord Stockton, has said, the employee has a contract of employment. The contract of employment can include anything. It can contain the condition that the employer is to have the ownership of anything of which the employee is the author. All that these amendments seek is to put the basic position first; that the employee has the ownership subject to contract. Surely it is perfectly clear that the employer is in a much stronger position than the employee as regards the terms of a contract and, therefore, there is much to be said for these amendments.
Lord Beaverbrook: With the leave of the Committee, I shall speak first to Amendments Nos. 48, 49 and 52 and then to Amendment No. 50 in the name of the noble Lord, Lord Brain. Regarding Amendments Nos. 48, 49 and 52, Clause 11 (2) restates the existing law in Section 4 (4) of the 1956 Act which was in turn based on provisions of the 1911 Act. We believe this longstanding principle to be the correct one.
It is the employer who pays for the work to be done; he pays the employee and pays for any necessary raw materials. The employees of a company manufacturing cars, or washing machines, or anything else that springs to mind, would not expect to own what they produce. The product of their labour belongs to the employer—and rightly so. Why should it be any different when the employee produces a literary work instead of building a computer?
In general it is right that the author should own copyright in his work; but the situation is very different if the author opts for the security of employment and relies on the employer to provide all the material and other support he needs, and often to provide clear guidelines on the works to be made. If the author were to have copyright in such circumstances, the employer will pay for the work twice over; first, in the wage or salary to produce it and, secondly, in acquiring the copyright so that he can exploit the work.
Amendment No. 50, tabled by the noble Lord, Lord Brain, seeks to resolve an impasse by making employer and employee joint owners. This commendable attempt to find a compromise will create more problems than it solves. It immediately doubles the number of consents required before a work can be exploited. Neither employer nor employee can move without the consent of the other. Therefore, the impasse is crystallised rather than resolved. In practice the provisions would have to be negated in favour of one of them, usually the employer, so that the work can be used. The point of my noble friend Lord Hardinge about embargo on uses of employer's copyright is unnecessary. Clause 155 (1) (d) preserves the law of breach of confidence. In any appropriate case that law, which of course is entirely case law, applies. The noble Lord's point is really not appropriate to the law of copyright as set out in the Bill. For the reasons stated, I resist these amendments.
Lord Hutchinson of Lullington: Before the Minister sits down, I thought I heard him refer to an employee
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who works on washing machines. I do not know whether the Minister appreciates that Clause 11(2) covers a literary, dramatic, musical or artistic work. We are not discussing washing machines, or at least I had not appreciated that we were. Does the Minister really equate what is in Clause 11(2) with the worker who works on the creation of a washing machine? Is that the level on which we are discussing this clause?
Lord Beaverbrook: The noble Lord is well aware that I am making a comparison with other types of business.
Lord Ardwick: I have never worked on a washing machine but I have worked on many newspapers. I have written articles, as have my colleagues. They have been printed in the newspaper and the employer has had his money's worth. He is then in a position to sell the secondary rights—to syndicate the work. Journalists are asking for a share in the remuneration from that work. They want to participate in the employers' good little earner. It is not an enormous sum. Important money comes in only if one has a great blockbuster such as a Prime Minister's indiscreet memoirs. The average newspaper makes a great deal of money out of syndication. Journalists who create that wealth feel that they should have a share in it. They can only have a share in it through some form of collective agreement, hut to make that collective agreement they must have a right, or an employer can say, "Sorry, it is mine. It is my copyright. I am giving you nothing at all".
Lord Bonham-Carter: May I give the noble Lord an example of what I think we are talking about? Publishers often have dust jackets on their books. They are created by artists. The publisher uses them merely to display the book. Who owns the original? The original may well be a considerable work of art. As I understand it, under the Bill the original would belong to the publisher. I see no reason for the publisher to own the original. It should revert to the artist. The publisher has had his whack from using it as his dust jacket.
Lord Willis: That is an apt point. The noble Earl, Lord Stockton, is bringing out a new novel of mine in February. I have just bought from the artist the picture that she has drawn for the jacket. Macmillan must be an enlightened firm, because it allows the copyright to remain with the artist. Is that so?
The Earl of Stockton: It is the practice of the industry that the copyright in the jacket is held by the artist.
Lord Willis: That is commendable. I thank those noble Lords who have spoken and who have supported the amendment. As has been said, it is a vital one. It was wrong for my noble friend Lord Howie to return to the dreary business of magazine articles and so forth. If he cannot control his own firm, he should not complain about his problems in this place.
We all know who writes the magazine article. It is the author. We do not want to go into who is the typographer and all the matters we discussed a few

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hours ago. The noble Lord, Lord Ardwick, has said that journalists can write brilliant articles. It is not the photographs or the way the article is set out by the sub-editor; it is the way that it is sold around the world that is important.
The amendment reverses the situation and gives the employee some right. I think that the noble Lord, Lord Hardinge, was drawing a longbow when he spoke about secretaries and such other people writing memorandums and claiming some kind of copyright. That is irrelevant. What is relevant is that there is a relationship between the employer and the employee. In 95 per cent. of cases the employer is in the strongest position. He can call the shots.
We must therefore give the employee some muscle. In the Bill we talk about the author having moral rights. If he has the moral right, even if he is employed, he should also have the other right so that he can say to his employer, "OK. I own the copyright. Let us make a contract". If his relationship is a good one he will obtain a good contract; if his relationship is a bad one, the employer will fire him. That is his option. We must put the right where it belongs. That is what the amendment seeks to do.
Lord Beaverbrook: I should perhaps return to the point of comparing this provision with industry. We are not only talking about literature and art; written instructions for operating washing machines are copyright works. In this context, we are therefore talking not only about publishers but about employees and employers throughout industry.
Lord Willis: I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 49 and 50 not moved.]
10.15 p.m.
Lord McGregor of Durris Lord McGregor of Durris moved Amendment No. 51:
Page 6, line 17, leave out subsection (3).
The noble Lord said: Clause 11, as it stands, perpetuates a long-standing discrimination against newspapers and introduces a new discrimination. The old discrimination gives to the publishers of newspapers and periodicals the right to sell their employees' work only to other print media. A similar restriction does not apply to other employers in the literary, dramatic, musical or artistic fields. They can sell to anyone. They remain the first owners of any copyright in their employees' work made in the course of their employment, subject only to any contractual agreement to the contrary.
This discrimination may not have been serious for newspapers and magazines in 1911. But the development of the electronic media has produced an entirely new situation. One example may suffice. Recently the Croydon Advertiser wanted to provide a new service to the Croydon cable television company. The newspaper was advised that it would be in breach of the Act if it went ahead without getting its journalists' permission. This proved difficult to obtain, although negotiations with NUJ chapels
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eventually led to an agreement. Of course, on other occasions, the NUJ may instruct its members to refuse any agreement.
Agreement in the case of the Croydon Advertiser was obtained through the provision by the newspaper of extra money for the journalists. I cannot discern a rationale for such discrimination among employers. I do not think the inequality ought to be perpetuated in the new technical and economic circumstances to the growing disadvantage of the press.
A new discrimination arises under Clause 11 because the Bill vests the copyright of photographs in the photographer. Newspaper publishers will no longer have the right to sell them to the public. This will result in a serious loss, particularly to local newspapers which sell photographs of weddings, local sports, carnival queens and their attendants and the like. They sell these to the public to the extent of some £3 million annually. Surely it is unjust to provide that newspapers, whose staff photographers have been working in their employers' time, using their employers' cameras, films and darkrooms and photographing functions to which they have ridden in their employers' cars, should be stripped of the right to sell to the general public the photographs so produced.
All the Bill leaves the employers is the right to print such photographs in their own newspapers and to supply them to other publications while their staff photographers will obtain the income which used to be derived from the public by the local press.
I wish to make it clear that I am not talking here about the star photographers to whom the noble Lord. Lord Ardwick, earlier referred, or to those who go on dangerous missions. I am talking about regularly employed staff photographers who are on a contract of employment. I assume that the stars will in any event make their own contracts with their employers.
The effect of the amendment which I am proposing would be as follows. It would give newspaper publishers the same copyright in the work of their employees as that to be possessed by other employers, and thus avoid the substantial economic loss which would result from changing the present copyright law in the ownership of photographs.
That proposal is entirely in line with what the Minister said in his reply to the amendment of the noble Lord, Lord Willis. The Minister used the phrase—I think I have it accurately—that the product of the labour of employees belongs to the employers. That is exactly what I am urging in the case of newspapers. I can see no reason why, when a newspaper is an employer, it should be treated less favourably than other employers in the same field. I therefore beg to move the amendment.
The Deputy Chairman of Committees: I should point out that if this amendment is agreed to I cannot call Amendments Nos. 52 or 53.
Lord Morton of Shuna: As one who tries to practise the law. I am astonished that the employers about whom we have heard as regards this and previous amendments are in such dire straits. I should have

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thought that the employer was always in the position of presenting to the prospective employee a contract and had far greater muscle to put forward the terms of the contract.
As I understand it, in Clause 11, we are dealing with what the position will be without the contract. One can deal with the ordinary staff photographer quite easily by his normal contract of employment. I should have thought that the non-staff photographer was in no very strong position against an employer such as a newspaper proprietor to negotiate his terms of contract and it would be better, if the bias has to be left on one side, that it should always be left on the side of the employee rather than putting it where the employer has the power to include it in the contract of employment.
Lord Hutchinson of Lullington: Perhaps I may very quickly express my embarrassment at seeing my name on this amendment. It somehow crept on to it. I think it must be because of my well-known admiration of the noble Lord, Lord McGregor. Nevertheless it should not be there.
Lord Kilbracken: Perhaps it might be of interest if I briefly gave an example from my personal experience. For five happy years I had a contract with the London Evening Standard. I was not employed by it. The contract said that I could write for no other English daily newspaper. That meant that if my work was syndicated it was not covered by that original contract. My noble friend Lord Ardwick said that in most cases syndication rights were not of any importance. However, I assure him that in many cases very often that is not the case.
The fact that I was not employed by the Evening Standard meant that I was able to negotiate the terms with the editor before starting work, both on what I should receive when my work was syndicated and on what I should receive for any photographs of mine that were taken. I negotiated very favourable terms so that I received 50 per cent. of syndication fees and a standard rate for any of my photographs. That was the position of a journalist who was not on the staff and not an employee. If I had been doing exactly the same work and had been a staff man, I should not have been entitled to those advantages unless I had negotiated them with the editor when I started work for that newspaper. But a staff journalist who takes up employment of that kind is not in a position to negotiate with the editor on such subsidiary rights with the degree of freedom that a freelance finds himself in.
I believe that the position of the staff man should be improved by leaving out this subsection so that he automatically is in the same position. It is a psychological matter. It gives him a psychological advantage in his bargaining with the editor when he takes up his employment and the staff man should be put in the same position of advantage as the freelances.
Lord Howie of Troon: I should like to support the amendment of the noble Lord, Lord McGregor. I do not recognise the employer-employee relationship
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which was described by the noble Lord, Lord Morton of Shuna. I listen very carefully to a Scots lawyer, no matter what he says. When the noble Lord, Lord Morton, described the journalist quailing before the editor and fearing to negotiate a decent contract, I believe he is showing a somewhat out-of-date picture of how things are done in a large part of the newspaper industry—perhaps not all of it.
Lord Willis: In your firm.
Lord Howie of Troon: My firm is wonderful, as we all know, and it is enlightened. What happens is that house agreements are reached by negotiation, not between powerful editors and feeble individuals but between feeble editors and powerful unions.
Lord Morton of Shuna: Is the noble Lord saying that there is a grave shortage of 18 to 20 year-old people who want to be journalists in the employment of newspapers and that the editors have to hunt for them? Or is there a number of people looking for each job that comes up, because that is the real issue?
Lord Howie of Troon: No, I was not saying that. To say such a thing would not cross my mind. It would not cross my mind because it does not depict the reality of the situation. There may be a substantial number of 18 to 20 year-olds who would like to become journalists, but that does not mean that a substantial number of 18 to 20 year-olds are capable of becoming journalists. The two things are not the same.
The vast reservoir of potential employees which the noble Lord, Lord Morton of Shuna, sees is a mirage. As an employer of young journalists I do not see it. I see something quite different. I see a situation where we negotiate quite properly. I have no objection to negotiating an agreement with the union because I think that is how things ought to be done. We reach what are thought to be amicable arrangements and amicable agreements with the union. The difficulty here, as my noble friend Lord McGregor of Durris has said, is that the newspaper and periodical industry is being treated differently in its relationships with its journalists from other employers of journalists. That is the matter to which he objects and which he describes. I do not want to lengthen the discussion unduly at this stage; but I think that the noble Lord, Lord McGregor, is right and he ought to be supported.
10.30 p.m.
Lord Beaverbrook: The provision in Clause 11(3) is based on Section 4 (2) of the 1956 Act and has its roots in the 1911 Act. The Committee will understand that the Government are reluctant to change such a long-standing provision without fully exploring the implications.
The change made to the definition of the author of a photograph has brought a further group of newspaper employees, such as staff photographers, within the terms of subsection (3). From the newspaper proprietor's point of view, this makes a had situation worse; but we must not allow the change in authorship provisions to obscure the

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fundamental issue here. Either a newspaper employee should own some of the copyright in his work, or he should not. It should not depend on whether he is a journalist or a photographer.
The Government have considerable sympathy for the newspaper proprietors' case that they be treated on the same footing as all other employers. In particular, we appreciate their disgruntlement that they are in a less favourable position than, for instance, broadcasters and cable operators who also employ reporters. However, we believed this to be a matter which should be aired in the Committee before we overturned long-standing provisions. We would now like to digest what has been said today before coming to a final conclusion.
Lord McGregor of Durris: I am most grateful for that reply and I hope it is to be understood as, if not an undertaking, at least a willingness to come back to the Committee having reconsidered the discriminatory situation perpetuated in and created anew by Clause 11. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 52 not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 53:
Page 6, line 22, at end insert ("or stored on a computer database.")
The noble Lord said: This is a simple amendment. Subsection (2) of Clause 11 operates according to subsection (3). It applies only so far as it relates to the publication of work in,
"a newspaper, magazine or similar periodical, or to its copying for the purposes of being so published".
This amendment merely adds to that list to which Subsection (2) applies material stored on a computer database. This amendment has the support of the British Computer Society. I beg to move.
Lord Beaverbrook: I was not entirely clear as to the purpose of this amendment. Its effect would be to extend the rights of newspaper and magazine proprietors over their employee's works to include copying for the purpose of storing them in a computer database.
The Government are aware that newspaper proprietors are seeking to extend their ownership of copyright over their employee's works. I am not sure however that they would regard the extension provided by this amendment especially helpful. I should have thought however that the proper way to address that issue is to debate the principle of whether it is right to divide the ownership of copyright between proprietor and journalist in the way set out in Subsection (3) of Clause 11. I wonder whether the noble Lord will be agreeable to that.
Lord Lloyd of Kilgerran: I am grateful to the Minister for that suggestion. It seems to me that that would be a useful way to proceed at this stage. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 54:
Page 6, line 26, leave out ("(2)").
The noble Lord said: This amendment will correct a cross-reference to Subsection (2) of Clause 152 which is not correct. I beg to move.
On Question, amendment agreed to.
The Deputy Chairman of Committees: I have to call Amendment No. 54A on the supplementary list, in the name of the noble Lord, Lord Howie of Troon.
Lord Howie of Troon Lord Howie of Troon moved Amendment No. 54A:
Page 6, line 27, at end insert—
("(5) Where a person commissions the making of a work and that work is made pursuant to that commission the copyright subsisting therein shall pass to the commissioner upon payment for that work subject only to prior agreement to the contrary.").
The noble Lord said: At this late hour I shall be,extremely brief in moving this amendment. It picks up the law as it used to be and keeps it going as once it was. Essentially, my amendment gives the copyright to the person who makes the arrangements. That is the phrase that the noble Lord, Lord Beaverbrook, will remember using at least once earlier today. It was correct then that the person who made the arrangements should have the copyright and it is correct here as well. I beg to move.
Lord Morton of Shuna: Dealing with this amendment saves me troubling the Committee on clause stand part. The Minister will no doubt recollect that in Clause 194 dealing with the design right, in Clause 245 dealing with registered design, in Clause 151 dealing with Crown copyright, and in Clause 152 dealing with international organisations the commissioning provision is in, and it is difficult to understand why the commissioning proposal is out of Clause 11.
It would seem logical that if there is to be a right in the commissioner for various rights it should be consistent throughout the Bill. I have great difficulty in understanding why, for example, if someone commissions that a portrait be painted or a photograph be taken of a person, that copyright remains in the photographer or painter whereas if it is a design it goes to the commissioner. No doubt the Minister will say that this is deliberate and will explain why.
Lord Brain: I have some sympathy for the idea behind this amendment in that if I, as an individual, commission a photograph of myself I wish to have at least some control over the copyright. But I understand in relation to photographs that in the past young photographers have commissioned photographs of individuals and others for the purpose of building up a library. They may then become eminent photo-portrait artists and things like that, and they have lost control at an early stage in their career of what could be a significant archive for their future benefit. This needs looking at, and this is why I have certain reservations about this amendment as a whole although thinking that the principle behind at least part of it is valuable and significant.
Lord Beaverbrook: This is a difficult area. Section 4 (3) of the 1956 Act provided that the author was the owner of the copyright in a commissioned literary, dramatic, musical or artistic work, except for photographs, painted or drawn portraits and engravings where the copyright was vested in the commissioner. These provisions were subject to agreement to the contrary.
It was strongly represented to us that the provisions of the 1956 Act were anomalous. For example, the commissioner owns copyright in a photograph but not in a video film made of the same event, such as a family wedding. The commissioner owns copyright in a painting if it is a portrait but not if it is a landscape. We accept that these anomalies should he removed and the question then becomes: who should own copyright in the absence of agreement to the contrary—the author, as proposed in the Bill, or the commissioner, as proposed in the amendment of the noble Lord, Lord Howie?
We have concluded that it should be the author who owns copyright in a commissioned work, subject to agreement to the contrary. First, that is the present law for the majority of works. Secondly, if the commissioner needs the copyright for any reason he can acquire it contractually by assignment of future copyright under Clause 81 when entering into the agreement for the work to be made.
Lord Howie of Troon: I am grateful to the Minister for his reply. I do not think that there is a wide gulf between us. The Minister will notice that the amendment is subject to prior agreement to the contrary although admittedly the original boot is on the other foot. The bridging provision is the same. I should be happy if the Minister would agree to look at this. If he is able to do that, I shall withdraw the amendment.
Lord Beaverbrook: We put considerable reliance on the acquisition of the copyright contractually by assignment. The noble Lord said that there is not very much between us. On balance we feel that we have it right in this instance. I believe the balance that we have struck is the right one.
Lord Howie of Troon: Unfortunately, I do not agree. I think that the balance is slightly wrong, although not wildly so.
In view of the time, I shall withdraw the amendment. However, I intend to think about the matter again and I shall pay close attention to several points that have been made in the debate. I may return to the matter later. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 11, as amended, agreed to.
Viscount Long: The Committee may feel that we have reached a suitable moment at which to break. Therefore, I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.
House adjourned at eighteen minutes before eleven o'clock.