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

HL Deb 30 November 1987 vol 490 cc879-917

House again in Committee.

Clause 9 [Authorship of work]:

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 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 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 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 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 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 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, "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 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".

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 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 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 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 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 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 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 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.

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 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 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".

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 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 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 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 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 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 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 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 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.

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 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 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 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 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 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 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 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 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 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 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.