HL Deb 23 February 1988 vol 493 cc1054-120

3.10 p.m.

Report received.

Clause 1 [Copyright and copyright works]:

Lord Kilbrackenmoved Amendment No. 1: Page 1, line 10, leave out ("in accordance with") and insert ("under the provisions of").

The noble Lord said: My Lords, this is a drafting amendment. We must now consider a further 400 or 500 amendments to the Bill, which begins with the words: Copyright is a property right which subsists in accordance with this Part in the following descriptions of work".

My amendment relates to the words: which subsists in accordance with this Part".

I have tabled the amendment because at present the words mean nothing. Copyright cannot subsist in accordance with a part; it subsists under the provisions of a part. That language is normally used in legislation. For example, Clause 12 reads: subject to the following provisions of this section",

and Clause 16 reads: in accordance with the following provisions of this Chapter".

If the language of Clause 1 was used in Clause 16 it would read: the owner of the copyright in a work has, in accordance with this Chapter, the exclusive right".

That does not make sense and therefore I propose that the subsection should read: a property right which subsists under the provisions of this Part".

That is the purpose of my amendment and I beg to move.

Lord Beaverbrook

My Lords, I am afraid to tell the noble Lord that I can see nothing at all in his amendment. I certainly do not see it as an improvement. If anything, the Bill as it stands is better because copyright is not something which subsists under the Bill but in accordance with it. I would urge your Lordships to reject the amendment on those grounds.

I should like to point out that the House has plenty of amendments of substance with which to deal. Perhaps we should not spend too much time on amendments which do not require a great deal of discussion. I believe this to be such an amendment.

Lord Kilbracken

My Lords, we all appreciate the amount of time that the Minister gave to our amendments at Committee stage. However, I regret that he has taken that point of view. I should like to point out to him that in Committee I tabled a number of drafting amendments intended to improve the language of the Bill. We need only look down to Amendment No. 4 tabled in the Minister's name, to find that my point about bad wording and bad drafting has been taken up and that he has tabled an amendment accordingly. We could go on to Amendments Nos. 33, 34, 35 and 40, all of which relate to proposals which I put forward and which have been taken up by the noble Lord. Amendments have now been tabled along the lines I suggested in order to improve the wording.

From time to time it may happen that for no apparent reason my proposal does not find favour in the Minister's eyes. However, I should like to point out that my suggestions are valued and used by him. In my opinion, I am right about this matter and he is wrong.

Lord Donaldson of Kingsbridge

My Lords, I must say that the noble Lord on the Front Bench has been a little sniffy about my noble friend's series of drafting amendments not only in this Bill but in others. I sometimes find him to be a little long-winded but, generally speaking, he has had more successes than failures and I believe that they should be welcomed.

Lord Beaverbrook

My Lords, with the leave of the House, I should like to say that I welcome the contributions to our debates from the noble Lord, Lord Kilbracken. At the Committee stage he made many helpful suggestions. Between that stage and Report I have taken as much trouble as possible to deal with the matter and I have come back with government amendments hopefully satisfying a number of the points raised by him. However, there is a limit to the number of drafting amendments which have no substantial effect on the Bill. I was making the point that there are many issues of importance which we must discuss in the Bill and I do not believe that this amendment makes any improvement.

Lord Kilbracken

My Lords, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

3.15 p.m.

Lord Kilbracken moved Amendment No. 2: Page 1, line 13, after ("(b)") insert ("original").

The noble Lord said: My Lords, I hope that it will save time if in speaking to Amendment No. 2 I speak also to Amendment No. 3. I should point out that a further matter is involved with regard to that amendment. Amendment No. 2 is not a drafting amendment. In Committee there was a proposal to omit the word "original" in line 12. That was hotly contested by noble Lords and noble and learned Lords, including the noble and learned Lord, Lord Denning. He said that it was essential that the word "original" should be included in paragraph (a) which reads: original literary, dramatic, musical or artistic works".

When the amendment was being moved I pointed out that there appeared to be no reason why, if the word is included in paragraph (a), it should not also be included at the beginning of paragraphs (b) and (c). On that occasion the Minister assured me that was not necessary but he gave no good reason. He said no more than that it was traditional that the word "original" should not be used in the two paragraphs.

I suggest that it is a matter of substance. As the Bill appears at present, there can be no doubt that the person reading it sees that the copyright, if it is to exist in a literary, dramatic, musical or artistic work, must be original. That point is specified. He then sees that with regard to sound recordings, films, broadcasts or cable programmes the word "original" is ostentatiously omitted. What does that mean? Is it not logical to infer that in the cases of sound recording, typographical arrangements and so forth the work need not be original? That is the only conclusion that one can draw.

With regard to Amendment No. 3, your Lordships will see that I have not only included the word "original" but I propose that the paragraph should read "typographical arrangements" instead of "typographical arrangement", because all the instances under paragraphs (a) and (b) are in the plural—artistic works, broadcasts and so forth—and I believe that for the sake of consistency the word should be plural in paragraph (c). I beg to move.

Lord Williams of Elvel

My Lords, noble Lords will remember that in Committee we debated whether the word "original" should appear in this clause, and that was an instructive debate. I believe that my noble friend has something of a point, although it can probably be explained satisfactorily by the Minister. The question is: if the word "original" is included in paragraph (a), does that by implication mean that paragraphs (b) and (c) are devoted to unoriginal works? I believe that there may be involved something more than a slight drafting point, but perhaps the Minister can explain the matter.

Lord Beaverbrook

My Lords, this is more than a drafting matter; Amendment No. 2 is clearly a matter of substance. It is precisely because the concept or originality does not work in the case of sound recordings, films, broadcasts and cable programmes that the Bill treats them differently. Sound recordings and films are covered by Clause 5(2), which provides that: Copyright does not subsist in a sound recording or film which is, or to the extent that it is, a copy of a previous sound recording or film". Amendment No. 17 would replace the word "of" with the words "taken from" to resolve a doubt about that formulation. However, that point does not affect this matter. Broadcasts and cable programmes are covered by Clauses 6(6), 7(7)(b) and 14(2) and (3). Together they provide that there is no copyright in an infringing broadcast or cable programme and that copyright in a repeat broadcast or cable programme expires at the same time as that in the original—"original" here meaning simply "first".

The reason for this treatment of sound recordings, films, broadcasts and cable programmes is that to insert "original" in Clause 1(1)(b) as proposed by the noble Lord, Lord Kilbracken, would produce the wrong result. What is an original sound recording? It could be said that once one person has made a recording of a particular work, no other recording of that work could be original, so that the first person to record Beethoven's Fifth Symphony made an original recording but everyone else who did so, at least after they had heard and been inspired by the first recording, did not make an original recording and therefore did not acquire copyright. This is not what we intend for films and sound recordings, and if it was, the relevant industries would be aghast, and rightly so. Copyright should subsist in a sound recording or a film except to the extent that it is made by taking an existing recording or film and making a copy from it. Identity of subject-matter, and thus lack of originality in subject-matter, is irrelevant. We went through all this at some length in Committee and we shall do so again in a few minutes—rather more shortly, I hope—when we consider Amendments Nos. 17 and 39 in my name, and I hope that the House can accept that originality is not a concept appropriate to sound recordings and films.

Similar arguments, although not identical, apply in respect of broadcasts and cable programmes, and I do not propose going into further detail now. I explained the point to the noble Lord, Lord Kilbracken, in our debate on Clause 14 stand part in Committee. To deprive a repeat broadcast of all copyright on the grounds that it is not original would substantially undermine broadcasters' copyright, because a repeat is not a copy of the original, it is a repetition, and a person who wrongfully exploited the repeat could say, perfectly correctly, that he was not doing anything, even indirectly, in respect of the original. Therefore, I must resist Amendment No. 2.

Turning to Amendment No. 3, I must resist this amendment as well. The originality of typographical arrangements is adequately catered for by Clause 8(2), and nothing is gained by inserting "original" here. As to whether the singular or the plural should be used, I am sure that we could spend many hours exploring every possible avenue; but I see no point in doing so or in accepting this amendment. The Bill is clear enough as it stands. I hope that in view of the explanation I have given, the noble Lord will feel able to withdraw his amendment.

Lord Kilbracken

My Lords, I am very grateful to the Minister for the length at which he has dealt with the points that I raised. I find it a complicated matter and I find it strange that it should be essential to specify originality in one case but wrong to specify it in others. I want to read carefully what the Minister has said, and I am sure I shall then feel happy about having withdrawn the amendment. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 3 not moved.]

Clause 3 [Literary, dramatic and musical works]:

Lord Beaverbrook moved Amendment No. 4: Page 2, line 14, leave out from second ("work") to ("and") in line 15 and insert (", other than a dramatic or musical work, which is written, spoken or sung,").

The noble Lord said: My Lords, I trust it is for the convenience of the House to move together the two amendments to Clause 3 which are standing in my name. I shall also speak to Amendment No. 6 in the name of the noble Lords, Lord Williams and Lord Morton of Shuna. The first of my amendments removes the repetition of the word "which" in the definition of "literary work", which was criticised in Committee.

The second amendment follows on from a point raised by the noble Lord, Lord Kilbracken, in Committee. He suggested that the word "but" after the semi-colon in Clause 3(2) should be replaced by "and". I promised to consider his suggestion for improving the drafting. Having looked at the matter afresh, we believe it worthwhile to spell out the proposition in Clause 3(2) more fully. The amendment will make it plain that it does not matter whether the record is made with, or without, the permission of the author.

This amendment also clarifies a point which was of concern to the noble and learned Lord, Lord Denning, and perhaps others. There can now be no doubt that the author of an extempore speech, or one given from memory, or an impromptu song, is the speaker or singer concerned, and not the person who records the words or music. The Bill does not expressly deal with any claim to copyright that the person who records it might have.

Amendment No. 6 in the names of the noble Lords, Lord Williams and Lord Morton of Shuna, would add the additional words to the effect that any copyright subsisting as a result of the act of recording the oral work does not affect the position of any copyright which might be vested in the person doing the recording. Where the oral work is fixed by means of a sound recording or film, that is clearly the case. There will be a copyright in the sound recording or film as well as in the literary work. But I do not think that is the point the noble Lords opposite seek to address.

What is the position of the shorthand writer who records an extempore speech? As I understand the amendment in the name of the noble Lords opposite, they accept that the author of the speech is the speaker. Their concern is the position of the shorthand writer who has no sound recording or film copyright to rely on. Has he any copyright in his written record of the speech? The case of Walter v. Lane, which was decided before the 1911 Act was passed, ascribed copyright to a reporter, but it is not clear whether that still represents the law.

There is obviously a difference between a shorthand typist, taking down words from dictation, and a reporter making a note of a speech at a political meeting with no assistance from the speaker. It may be that the courts would give the latter copyright, although it is fairly clear that they would not give it to the former; but the impossibility of drawing a line between the two in general legislative terms has led us to avoid dealing with the point in the Bill at all. The amendment in the names of the noble Lords opposite deals with the matter rather clearly, if I may say so. They do not say that reporters do have copyright, or attempt to draw the line between those who ought to have it and those who do not, but they admit the possibility and leave room for the courts to fill in the details.

We are attracted by that approach. Reporters' copyright has been a difficulty throughout the preparation of this Bill, and it may be that what is now proposed represents the best solution. If the noble Lords, Lord Williams and Lord Morton of Shuna, would be willing not to press their amendment today, I shall see whether something should be done on Third Reading. In the meantime, I beg to move the amendment in my own name.

Lord Williams of Elvel

My Lords, I am most grateful to the noble Lord for his response to our Amendment No. 6. I am course speaking to Amendment No. 4 and also, in the same grouping, Amendments Nos. 5 and 6. The noble Lord is entirely correct in his interpretation of our amendment. We seek to establish that a separate right from that of the creator of the material might also come into existence in the recording, whether it is a recording by a shorthand typist or a folk song recorder or a ballet notator, or whatever. In the light of what the noble Lord has said, I shall be very glad not to move my amendment and hope that the Minister will bring something forward on behalf of the Government on Third Reading.

Lord Lloyd of Kilgerran

My Lords, as I was the mover of the first amendment accepted by the noble Lord in Committee, perhaps I may be the first to congratulate him on the work that he has done in preparing so many amendments to deal with the matters raised at Committee. I should also like to congratulate the staff and his colleagues in his department for the tremendous amount of help that they have given in preparing this matter.

Lord Kilbracken

My Lords, the Minister was kind enough to say that I was at least partially responsible for his Amendment No. 5. He might have gone on to say that I was almost wholly responsible for Amendment No. 4.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 5: Page 2, leave out line 25 and insert ("whether the record is made by or with the permission of the author.").

On Question, amendment agreed to.

[Amendment No. 6 not moved.]

3.30 p.m.

Lord Lloyd of Kilgerran moved Amendment No. 7: Page 2, line 25, at end insert— ("( ) The copyright in a spoken literary work shall not be infringed by the use for broadcasting purposes of a recording made of the author's speaking of such work, if the recording was not made by him or at his direction.").

The noble Lord said: My Lords, the law at present in regard to copyright is that it is a precondition for copyright protection that words should first have been written down by or on behalf of the author. The effect of Clause 3(1) in extending the definition of literary work to include the spoken word—that is, the present position under the Bill—would be to alter the present position where extempore speech was in the public domain.

It is accepted that the mischief which this change in the law is designed to cure is the situation where perhaps a brilliant off-the-cuff lecturer, an interviewee or a public speaker should be able to prevent a third party from making a recording of his speech, or a transcript of it, for commercial or other purposes without further reference to the speaker. The giving of copyright protection, therefore, to the spoken word per se puts broadcasters in a uniquely disavantageous position. Therefore, my amendment is directed to this: The copyright in a spoken literary work shall not be infringed by the use for broadcasting purposes of a recording made of the author's speaking of such work, if the recording was not made by him or at his direction".

With the leave of the House, I shall speak also to my Amendment No. 135.

This amendment is important because the unique advantage of broadcasting over the print media is that it can prevent people speaking. Sometimes a speaker may regret what he has said, or for any other number of reasons may try to prevent his speech being broadcast. It seems to be inherently undesirable that, if the Bill is not amended, it will provide the speaker with a means of so doing. That disadvantage seems to be out of all proportion to the general mischief that the Bill is designed to cure.

I have been asked to put forward a series of amendments by ITV and the BBC. I say at once that I have no interest in either of those organisations except as a viewer. Both ITV and the BBC have in mind the type of programme one commonly sees on television and hears on radio, known as an investigative programme, which seeks to explore an alleged wrongdoing to a member or class of members of the public. In those circumstances the alleged miscreant may be interviewed, albeit unwillingly, and then be advised by his lawyer that he could invoke the copyright in his spoken words to prevent the recording of his speech being broadcast.

There are three arguments which may be held against such an amendment. It may be said that the fair dealing provisions are adequate to cover the point. In my view they are not. A current event is not defined and, in common parlance, is unlikely to be wide enough to cover historical or retrospective programmes, or programmes which cover matters of public interest which are not topical or in the current news.

It may also be said that the spoken words may not constitute a work within the meaning of the Bill; that is, they are too insubstantial to amount to a work. It is accepted, of course, that monosyllabic responses to, say, an interviewer in the street may not amount to a work, although the definition of a spoken work is inevitably untested. If one looks at precedent in relation to written works, even the smallest written work can be held to be such in certain circumstances and to be able to maintain copyright.

The third argument which may be raised against this amendment is that there is implied licence. The first airing of the broadcasters' concerns over the spoken word was met with a suggestion that a broadcaster faced with an inhibitory claim by a speaker on the programme to prevent his words being broadcast could rely upon that which lawyers know as implied licence. The argument would run that if a speaker had voluntarily gone into the broadcasting studio and had been interviewed he could be taken to have impliedly consented to his words being broadcast. That may be so in respect of the first broadcast, but it could hardly be said that it has been a precondition for copyright protection that words should first have been written down by or on behalf of the speaker.

To have permission to license the reuse of his contribution later in the programmes or in a news bulletin would be difficult. Nor perhaps could he be said to have licensed the broadcaster to edit his words, which is sometimes necessary because of the time constraints of broadcasting. That last point needs to take account of the other side of the coin, which is to give the speaker protection against unjustified editing of his words. We shall come to that in a later amendment.

I am sorry for having taken so long on this matter, but it is an important amendment for broadcasters. I beg to move.

Lord Beaverbrook

My Lords, I assume that in addition to Amendment No. 7 we are speaking also to Amendment No. 35, in the noble Lord's name, as they both cover essentially the same point.

Amendment No. 7, moved by the noble Lord, Lord Lloyd of Kilgerran, closely parallels the amendment which he moved in Committee to insert a new clause after Clause 30. Its purpose is the same; that is, to prevent those whose spoken utterances are recorded by a broadcaster—for example, in an interview—from being able to invoke copyright to prevent or control the editing of the recording by the broadcaster.

The noble Lord's Amendment No. 135, to Clause 73, is allied to the first but goes a good deal further in that it would suspend the application of the right to object to unjustified modification to all works made for the purposes of broadcasting. There is, however, a saving in this case aimed at curbing the scissors of the overzealous editor. This provision would allow the integrity right to operate in respect of speech recorded for broadcasting which was subject to the proposed new copyright exception in Clause 3.

I understand the concerns of broadcasters which underline these amendments. We have considered them carefully since they were discussed by your Lordships in Committee and indeed have discussed the issue with the broadcasters themselves. As regards the proposed exception to copyright in the spoken work, I have to say that we remain unconvinced that there is here a potential problem serious enough to warrant the curtailment of rights that this amendment would involve. As I said in Committee, we believe that in most cases the spoken words that are recorded will not be copyright works at all. In the rare case where there is a copyright work the broadcaster will in many instances be able to claim benefit of the fair dealing exception in Clause 30.

Finally, there is the point that if a person willingly goes into a studio to be interviewed, or allows an extempore speech to be recorded by a broadcaster, he will almost certainly be held to have granted that broadcaster an implied licence to use the material in question in the way such material is normally used.

On the other side, we must not forget that copyright is about protecting works. If a spoken item has sufficient substance to it to amount to a work, and it is given material form by being recorded, why should the author not receive the same protection as if he had written it down?

In spite of these reservations we do not want to create unnecessary difficulties for broadcasters, and if we can find a way of reconciling their concerns with the degree of protection which those whose spoken words are recorded for radio or television are entitled to, we are willing to consider it. We cannot accept the amendment as it stands since it would remove protection not only from those who know their spoken words are being recorded but also from those who are recorded unawares, and that seems wrong. However, we shall reflect further on the matter and if necessary discuss it further with the broadcasters.

I now turn to the noble Lord's Amendment No. 135, to Clause 73. I have to say that I see no justification for a general exception to moral rights for all works made for broadcasting. That goes very wide and I cannot believe the broadcasters really need it. The proposed saving to the exception for spoken words excepted from copyright control is, however, an interesting suggestion which we should like to consider further in our general reconsideration of the issues we have just been debating. I cannot say now whether it provides the right answer but we shall look at it.

In conclusion, I shall anticipate our later debates on Chapter IV of the Bill by saying that, among other amendments to the moral right provisions, we are seriously considering an exception for those modifications to a broadcast or cable programme which may be required by a regulatory authority in pursuance of its statutory duties, for example, to prevent obscenity. If that is adopted it will remove one important obstacle which broadcasters have told us they see in the provisions as they stand at present. I hope that that is reasonably clear and that, in the light of the undertaking I have given to the noble Lord that we should like further to consider this without commitment, he may feel able to withdraw the amendment at this stage.

Lord Lloyd of Kilgerran

My Lords, I am very grateful to the Minister. I thought that I had drawn the teeth of his argument against my argument by putting forward the fact that fair dealing would not be of any help to the broadcasters. The definition of "work" would not cause as much trouble as the noble Lord indicated and there was no question of an implied licence.

However, the noble Lord recited those difficulties against my amendment without giving any reasons for them or arguing them. In view of his undertaking given in relation to both these amendments, I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Clause 4 [Artistic works]:

Lord Mottistone moved Amendment No. 8: Page 2, line 27, after ("photograph") insert ("hologram").

The noble Lord said: My Lords, in speaking to Amendment No. 8 I should also like to speak to my Amendment No. 14. I believe that my noble friend would like to include Amendments Nos. 15 and 16 in this little debate.

In Committee the Minister undertook to look again at this problem of holography. He dealt with this at col. 852 of the Official Report on 30th November when we were debating an amendment, which was not dissimilar to his Amendment No. 15, moved by the noble Lord, Lord Brain. At that time I had tabled amendments similar to those that I now have here.

My noble friend has kindly done what he said. He has put down Amendment No. 15. I should like to mention in passing that I am most grateful to my noble friend. I detect some 13 amendments in this Marshalled List which satisfactorily and directly result from undertakings he made in Committee. I detect only 10 which are unsatisfactory. I believe that to be a jolly good record and I thank him very much. I hope to thank him individually as the appropriate amendment comes up, but in case I miss it I am saying so now.

I appreciate what the Minister has done with Amendment No. 15 and at first sight it looked satisfactory. However, I am advised that it is not quite satisfactory because it is felt that there is sufficient difference between photography and holography for a hologram to require a separate definition. Hence my two amendments.

Perhaps I may remind your Lordships that conventional photography records information on the amplitude of the light incident on a photographic plate. A hologram, on the other hand, records both amplitude and phase information. It is therefore possible to reproduce a three-dimension image from a holographic plate. Because a hologram records both phase and amplitude information, the image formed on the photographic plate is not necessarily recognisable by the human eye but can require the use of special optical equipment to reproduce a recognisable image. Holograms can be produced by a variety of processes, including photographic processes. They are in common use for the presentation of artistic works as well as having application to such routine items as credit cards.

The main point I seek to make is that they are sufficiently different from photographs and the photographic process is only one of those with which one can produce a hologram. Therefore one justifies the need for a separate definition as included in my two amendments. I hope that it will be possible for my noble friend to consider those points at a later time, if not now, so that we may make a little progress towards concluding this particular discussion. I beg to move.

3.45 p.m.

Lord Brain

My Lords, I thank the Minister for Amendment No. 15. I shall make a further point about that in a moment if we are going to discuss that amendment, or perhaps after he has replied.

I disagree with the noble Lord, Lord Mottistone, that we need a separate definition of a hologram. It is defined in the dictionary as a photographic plate or film containing a holographic pattern. A holographic pattern is defined elsewhere. As I said at the Committee stage, the process of a hologram was very similar to one used by Lipmann in a colour process very nearly 100 years ago. The amplitude of different coloured waves was then recorded in the thickness of the emulsion. This has always been regarded as a photographic process and I believe that in exactly the same way holograms are a photographic process.

In Amendment No. 14 it may well be self-defeating because it says that a hologram is a product which is not a photograph. I am sure that any lawyer would say "a hologram is a photograph therefore a hologram does not exist". I reject the idea that we need to define a hologram. In due course, after the Minister has spoken, I should like to come back to Amendment No. 15.

Lord Beaverbrook

My Lords, I cannot match the depth of technical knowledge which is demonstrated by my noble friend Lord Mottistone. In speaking to Amendment No. 8, I shall also speak to Amendments Nos. 14, 15 and 16.

The noble Lord, Lord Brain, initiated an interesting debate in Committee as to the definition of a photograph. As he rightly said, the Government are seeking a definition which covers not only the present state of the art but also future developments. The question was also raised as to whether holograms are adequately covered. This is a concern to which my noble friend Lord Mottistone has returned with his amendments. To make explicit mention of holograms as the noble Lord, Lord Mottistone proposes, might seem to meet that specific point.

However, it is technologically limited, which was the point made by the noble Lord, Lord Brain. It assumes a relationship between photography and holography which may not remain the same. It also implies a limit to the meaning of "photograph" which may have the effect of excluding future things from being photographs which ought to be included but which do not fall within narrow concepts of photography and holography. We believe that definitions in this field should be technologically neutral as far as possible. This is why we have taken a further look at the definition of "photograph" itself.

We believe that the definition of "photograph" offered by Amendment No. 15 in my name is technologically neutral and will embrace all works that your Lordships feel should fall within the ambit of the term "photograph", including holograms. We no longer have to concern ourselves with the question whether a hologram is a product of photography or a process akin to photography. It is unquestionably a recording of light or other radiation from which an image may be produced.

In looking at the definition of "photograph" we realised that there was merit in expressing the definition of "film" in Clause 5 in similar terms and that we have done in Amendment No. 16, which is also in my name. But there is one important difference. There is no reference to light or other radiation in order to ensure that films produced by the manipulation of computer graphics are covered. One result is that the phrase "moving picture", which the noble Lord, Lord Kilbracken—who I see is not in his place at the moment—found archaic, has been replaced by "moving image". I therefore invite my noble friend Lord Mottistone to withdraw his amendment as I believe that my amendments will meet his concern.

Lord Donaldson of Kingsbridge

My Lords, before the noble Lord sits down may I say that I am rather puzzled. I first saw a hologram a few years ago at an exhibition and it was utterly different from anything I had ever seen before. It is a perfectly clear word and if it had a definition I should have thought that one should have it defined entirely separately from a photograph, with which it shares some but not all of the technique of production. I cannot see any objection to having a separate definition.

Lord Mottistone

My Lords, I thank the noble Lord, Lord Donaldson, for his support for the principle of my amendment. He went to the root of the problem. Why not have a separate definition if it is different? In view of the fact that I am advised, and I repeat that holograms can be produced by a variety of processes, including photograph processes, I would question the definition from the dictionary that the noble Lord, Lord Brain, produced. He said that it is defined in the dictionary as a photographic plate. I suspect that the dictionary to which the noble Lord referred is not as up-to-date as it should be.

Lord Brain

My Lords, the dictionary also mentions photochromic methods of producing holograms and other things. "Photochromic" is covered by the Government's definition of photography which might not have been as it was originally described. The Government's definition of photography covers holograms and any other form of three dimensional device-making by lasers and things like that.

Lord Mottistone

My Lords, we could go on indefinitely. We have already taken nine minutes and that is not bad. This is a technical issue. I take the point that my noble friend has made and the point made by the noble Lord, Lord Brain. My advisers may or may not be satisfied with those arguments. I have to reserve the right to attack the problem again, perhaps not in your Lordships' House but in another place. It seems to me that we are jolly nearly there and perhaps we are. At this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 9: Page 2, line 27, leave out ("or sculpture") and insert (", sculpture or collage").

The noble Lord said: My Lords, the noble Lord, Lord Williams of Elvel, moved an amendment at Committee stage which sought to deal with the question of collage. At the time we were puzzled by the intent of his amendment and I promised to take the question away and think about it. The amendment will provide explicitly that a collage is an artistic work in which copyright may subsist. Whether or not the existing wording in the Bill would provide protection for collages is a moot point. This amendment removes any doubt, hopefully to the satisfaction of the noble Lord, Lord Williams. I beg to move.

Lord Williams of Elvel

My Lords, I am grateful to the noble Lord. I am wholly satisfied with the amendments that he has brought forward but have two questions. First, are the Government satisfied that collage is the only form of composite work that needs to be covered under this provision? It so happens that in Committee I raised the question of collage because I know somebody who is a great expert in collage. There may be other forms of composite work whose authors I do not know quite so well. I wonder whether it was mere chance that brought collage into the Bill or whether the Government had in fact researched all forms of composite work.

Secondly, so far as I can see, there is no definition of collage in the Bill whereas there is a definition of sculpture in Clause 4(2) and there are various definitions of works and expressions in Clause 162. Do the Government intend to put a definition of collage into the Bill as it is finally drafted?

Lord Strabolgi

My Lords, I agree and accept what the Minister says; but would it not be better if the word "collage" appeared after "graphic work"? "Collage" seems to be much nearer a graphic work. As the noble Lord probably knows, the Douglas Cooper collection at the Tate has a number of collage, several of them by Picasso and other cubists. They are much nearer to graphic work than they are to sculpture. I do not want to be unduly pedantic but perhaps at a later stage or in another place the noble Lord will consider the right place for this word.

Viscount Eccles

My Lords, following on from what the noble Lord has just said, does it really matter? Clause 4(1)(a) says, irrespective of artistic quality". They can be anything. It hardly matters.

Lord Beaverbrook

My Lords, in answering the two points made by the noble Lord, Lord Williams, I would say that in my original answer I believed that a collage was probably covered in any case. We could run up a long list of types of work, whether or not composite, but I believe that composite works are covered.

As regards the definition, we believe that no definition of collage appears because it is not needed. The courts ought to be able to recognise one if they have one before them. Regarding the point raised by the noble Lord, Lord Strabolgi, we could argue about the order in which these matters should be set out and whether a collage is nearer a graphic work. We shall of course consider what he said. I am sure that it is not a matter of enormous importance, but we want to make the Bill as correct as possible and we always look at everything that your Lordships have said. In the meantime, I beg to move.

On Question, amendment agreed to.

Lord Rodney moved Amendment No. 10: Page 2, line 30, leave out ("or").

The noble Lord said: My Lords, in moving Amendment No. 10, I shall also speak to Amendment No. 11. Perhaps I may explain that all the amendments which I have put down refer specifically to typefaces and have been requested by the major companies in this country which design and produce those typefaces. I have no connection with those companies.

Their particular concern is focused on the apparent lack of protection given in this Bill to typefaces stored on databases. It may be of assistance if I briefly remind the House of how a typeface is produced. In the first place it is designed by an artist and from his original design an industrial drawing is made. This in turn is photographed and a positive film is produced. This photograph is scanned and a grid is superimposed on it which permits the measurements to be recorded in a computer. From those, all the relevant information is recorded on a database; on a floppy disk. From this thumbnail sketch I hope that the importance of protecting such databases and ensuring that they cannot be illegally accessed by an unauthorised party may be apparent to your Lordships.

Perhaps I may now speak to the amendments. I note from Hansard of the Committee stage that both my noble friends Lord Stockton and Lord Mottistone spoke eloquently in arguing that typefaces should be categorised as an artistic work. I am not sure that I have a great deal more to add to their arguments, but I would ask the Minister to consider this once more, particularly as apparently typefaces were so designated in the draft Bill. Your Lordships will I am sure have noted that when I was describing how a typeface is born I mentioned that the first operation is performed by an artist. I must ask why the work of an artist is not designated an artistic work.

Lord Williams of Elvel

My Lords, the noble Lord, Lord Rodney, has come back to the question of typefaces. We had a long discussion on this matter in Committee, and I think we covered the ground very fully. For my part, although I started off with a view which the noble Lord, Lord Rodney, takes, I was more or less persuaded by the Government in the end that they were right; and, on further reflection, that conclusion has been strengthened. Therefore we do not support the amendments, and I hope that the Government will not accept them.

4 p.m.

Lord Beaverbrook

My Lords, I feel that I shall disappoint my noble friend and please the noble Lords opposite on that basis, because I must resist my noble friend's amendments. With those amendments we turn again to the issue of typefaces, which, as the noble Lord, Lord Williams of Elvel, has reminded us, was fully discussed in Committee. I can do little more than repeat the points that I made when similar amendments were moved. However, before doing so I should point out that Amendment No. 11 speaks of, a design for a typeface rather than the design of a typeface", which is the expression used in Clause 55. I am not sure whether any distinction was thereby intended but I have assumed that it was not.

The 1956 White Paper stated that it was the Government's intention to amend copyright law to give the creator of an original typeface the right to control reproduction of the typeface as well as the importation and commercial distribution of copies. The protection was to last 25 years and the UK would then ratify the Vienna agreement on typefaces. However, during preparation of the Bill, it was realised that it is unnecessary to create a separate class of work to achieve the desired result. The design of a typeface is an abstraction which will be recorded in a drawing, engraving or other artistic work. The reproduction of the design would therefore be an infringement of copyright.

Furthermore, it is unnecessary to protect a set of typefaces as such since infringement of the copyright in a set would be an infringement of the copyright in one or more characters of the set. Therefore the Bill allows copyright protection for typeface designs to continue as it is now; that is, on the basis of the protection now afforded to artistic works. If the typeface design is commercially exploited, then Clause 55 ensures that the effective copyright term is limited to 25 years.

Clause 54 ensures that the use of typefaces in the ordinary course of printing does not infringe the copyright. The design of, or for, a typeface is an abstract concept. Once it is fixed in some way—for example, drawn on paper—it become an artistic work which is entitled to copyright protection as such. I do not think that we should add abstract concepts to the list of works which should have copyright protection. It is rather like adding to the list the phrase "an idea for a painting". An idea, whether it be for a painting or typeface design, becomes a work only when it is set down on some medium.

I turn to the point raised by my noble friend that the Bill does not protect typefaces recorded in databases. The typeface starts life as an artistic work and it retains that characteristic for all time. The fact that it may subsequently be stored in a computer database does not affect that position. Anyone who steals the design from the database will infringe copyright in the original artistic work. I hope that my noble friend will feel able to withdraw the amendment.

Lord Rodney

My Lords, I am grateful to my noble friend for that explanation, although I must admit that I did not fully understand it. However, if I understood him correctly, he said when the work was recorded on a piece of paper it became an artistic work. But surely it starts off on a piece of paper. That is what the artist does. Therefore, it starts as being an artistic work. It ceases to be an artistic work and then when it is recorded it returns to being an artistic work. I may have misunderstood the point, but in any event I beg leave to withdraw the amendment.

Amendment by leave, withdrawn.

[Amendment No. 11 not moved.]

Lord Beaverbrook moved Amendment No. 12:

Page 2, line 32, at end insert— (""building" includes any fixed structure, and a part of a building or fixed structure:").

The noble Lord said: My Lords, while speaking to Amendment No. 12 also, with leave, I shall speak to Amendments Nos. 160 and 183. I promised that we would look again at the definition of "a work of architecture" in Clause 4 in the light of comments made in Committee by the noble Lords, Lord Howie of Troon and Lord Williams of Elvel.

Your Lordships may recall that the noble Lord, Lord Howie of Troon, was concerned that Clause 4, as drafted, could exclude structures such as Waterloo Bridge from protection and that buildings designed principally by engineers, rather than by architects, might not be regarded as works of architecture.

We have, I trust, met his concerns by defining the term "building" broadly so that it includes any fixed structure. This means that the various constructions that the noble Lord cited in Committee would all be protected. It would of course be a question of fact as to whether the author of a particular work of architecture was an architect or engineer, or whether it was a work of joint authorship. But the important point is that a work such as a bridge would be protected.

The second matter addressed by this amendment was that raised by the noble Lord, Lord Williams of Elvel. He asked that it be made clear that architectural plans for part of a building—he cited the extension to the National Gallery—should be protected by copyright. I said at the time that we did not think there was any doubt about this, but this amendment will remove any possible doubt that might exist.

As a result of Amendment No. 12, consequential amendments will be needed in Clauses 89 and 100 to remove references to fixed structures, which are now embraced by the term "building". I beg to move.

Lord Howie of Troon

My Lords, obviously I must begin my remarks by thanking the Minister for responding so well to the amendment which I moved in Committee. I hope that I shall not seem too churlish if I look this gift horse in the mouth for just a moment. I believe that my amendment which referred to a work of architectural or engineering construction, was better than the draft which the Minister has adopted.

I say that for the following reasons. I wanted to emphasise that I had engineering structures in mind. I know that there are dictionary definitions of architecture which include structure; and I have to submit to that fact. However, it is worth recollecting that not all engineering structures are fixed. For example, many bridges are supported on rollers so that they can move. It is also true that many engineering structures, including buildings, are supported on raft foundations which move up and down, sometimes in response to the movement of nearby tides. Therefore, such buildings might be thought to be fixed but in fact are not; they can move in at least one direction, if not in all.

Let me look this gift horse further in the mouth. Last week I was in Sydney where I saw displayed side by side three great examples of British engineering and architectural merit. One was the Opera House, which I mentioned in Committee and which is clearly a building. It was described as a "typewriter full of oyster shells" by someone. Nearby is Sydney Harbour Bridge,which is almost a fixed structure. It has a hinge at either end, and it may well have one in the middle (although I cannot remember) so that it can move up and down. We can, I think, admit that it is a fixed structure within the meaning of the Minister's amendment. But between those two examples of engineering and architectural excellence was sitting "Queen Mary II", which is a boat. It is not fixed; it is not a building.

It is likely to be thought of as a work of artistic merit in the sense in which we are using the word in the Bill. But what strikes me—this is a new thought that has come to me since the Committee stage—is that, although we have dealt with structures and buildings, we have not dealt with or attempted to deal with ships; that is, unless ships are dealt with later in the Bill under the general heading "design right". One could perhaps move from a bicycle, where design right presumably applies, through a variety of forms of transport until one eventually reaches ships. I do not think that that is what is intended by the Bill, but I merely draw attention to the fact that the definition which we now seek to include by way of the amendment has some defects. I welcome it. I am grateful for the attention which the Minister has given to the point that I raised. I hope that it will be looked at further, and that at a later stage in the proceedings the formulation will come nearer to my original definition.

Lord Williams of Elvel

My Lords, I am grateful to the Minister for considering sympathetically what my noble friend Lord Howie and I said in Committee. I suppose that my noble friend and I can claim joint copyright for this amendment. Nevertheless, as always, great minds think alike. I too was worried by the fact that ships were not covered by the formulation that the noble Lord and the Government have adopted. No doubt there is some reason why they have put "fixed structure", and I am sure that the noble Lord will be able to explain that. In the hope that an explanation will arrive very shortly, perhaps I may say in the meantime that I am happy that the noble Lord and the Government have accepted the points that we made. We hope he can explain and somewhat calm the worries which my noble friend Lord Howie and I have.

Lord Mottistone

My Lords, I suggest that, "a work of artistic craftsmanship" describes a ship admirably.

Lord Beaverbrook

My Lords, in attempting to satisfy the various points raised by the noble Lord, Lord Howie, at Committee stage, we have indeed inserted the words "fixed structure". I am tempted to say to him that perhaps the only things that do not seem to be fixed are the goalposts in this particular debate. I should just like to address the points that noble Lords have made.

First, with regard to the matter of ships, I believe the original designs would be drawn by a naval architect whose drawings would be protected under the Bill. The expression "engineering structure" does, as the noble Lord said, include structures which are not fixed. The concept of moveable structures is recognised in Clauses 89 and 100. We do not want to encompass moveable engineering structures which are in no sense buildings such as chemical processing parts or indeed ships. They must seek their protection elsewhere, including under Part III on the design right in articles. It is for the courts to identify the borderline between fixed and moveable structures; but we do not want to extend works of architecture to cover the latter. I hope that is helpful to noble Lords.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 13:

Page 2, line 36, leave out (", print").

The noble Lord said: My Lords, in moving Amendment No. 13, during the stand part debate on Clause 4 in Committee my noble friend Lord Broxbourne expressed the view that inclusion of "print" in the list of graphic works was almost bound to lead to confusion. He pointed out that the term "print" could cover not only graphics on which the artist has personally worked and which merit copyright protection but also works which are merely the result of mechanical or photographic processes, which should not be protected by copyright. His concerns were echoed by the noble Lords, Lord Kilbracken and Lord Howie.

Having looked at this again, I have to say that I believe the noble Lords were right. In our efforts to restructure the 1956 Act on a more logical basis we brought together the various definitions of what constitutes an artistic work into a single clause. I believe that to be the right approach. But in taking definitions from Section 48 of the 1956 Act and putting them into Clause 4 we overlooked the fact that "print" in the 1956 Act is a sub-species of an engraving and not a category in its own right.

In the context of Section 48, the problem identified by my noble friend Lord Broxbourne does not arise, but the inclusion of "print" as a separate type of graphic work in Clause 4 could lead to difficulties, as he suggested. The simple answer is to remove the source of potential confusion. We are confident that this does not remove from the ambit of the definition of artistic work any work that should be covered by copyright. I beg to move.

On Question, amendment agreed to.

[Amendment No. 14 not moved.]

4.15 p.m.

Lord Beaverbrook moved Amendment No. 15:

Page 2, leave out lines 38 to 40 and insert— (""photograph" means a recording of light or other radiation on any medium from which an image may by any means be produced which is not a graphic work, a part of a film or a reprographic copy;")

The noble Lord said: My Lords, I beg to move.

Lord Brain

My Lords, I said I should like to listen to what the noble Lord, Lord Beaverbrook, had to say about this amendment when it was being discussed earlier. I have a brief point to make. As he well knows, I am concerned with the words "or a reprographic copy". Many photographers would regard an enlarger under the definition of reprographic copying process as a reprographic copying device. This is a genuine concern and will cause confusion in the minds of photographers seeking to protect their works. I wonder whether the noble Lord would like to consider removing those words by the next stage and amending the definition of reprographic copying to the extent that such copying does not result in the creation of a photograph.

On Question, amendment agreed to.

Clause 5 [Sound recordings and films]:

Lord Beaverbrook moved Amendment No. 16: Page 3, line 10, leave out from ("recording") to ("may") in line 11 and insert ("on any medium from which a moving image").

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

Lord Lloyd of Hampstead

My Lords, before we pass from this amendment, perhaps I may briefly say that I am naturally rather pleased that the proposal that I made in Committee stage—that the phrase "moving picture" should be replaced by the expression "moving image"—has been adopted. I mentioned at the time that this was an accepted modern phrase, and I instanced the case of the Museum of the Moving Image which the British Film Institute is now busily engaged in establishing on the South Bank. I am glad that the Government have recognised that this phrase is a more flexible one than "moving picture" for which some Members of your Lordships' House expressed a continuing affection.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 17: Page 3, line 13, leave out ("of") and insert ("taken from").

The noble Lord said: My Lords, with leave, in moving Amendment No. 17, I shall also speak to Amendment No. 39.

It is quite clear that a sound recording or film should not be deprived of copyright protection because it happens to be a recording or film of the same subject-matter as an earlier film or recording. For example, if I make a recording of Beethoven's Fifth Symphony, I should be entitled to copyright in that recording.

Clause 17(4) of the Bill as drafted would have ensured the correct result since it provided that copying in relation to a sound recording or film does not include the making of another recording or film of which the subject matter is the same or substantially similar. However, for reasons that I shall now explain, we propose deletion of Clause 7(4) in Amendment No. 39.

Clause 17(4) was included in the Bill in response to comments on the draft clauses we circulated in last summer's consultation exercise. We hoped that Clause 17(4) would make the position clear, but must confess we were not wholly confident it would do so. I think the debate we had in Committee showed that we had not achieved our objective. There is, I believe, general agreement that the tourist taking a photograph of a landscape should not be in danger of infringing the copyright of a previous photograph, even if he had been inspired by the earlier photograph. Your Lordships may recall that this was the example cited by my noble and learned friend Lord Hailsham. Similarly, a sound recording of Beethoven's Fifth Symphony should not be deprived of copyright because it is regarded as a copy of a quite independent earlier recording of the same work.

But the situation is not always that simple. Indeed, as far as copyright is concerned, your Lordships may agree with me that it never seems to be! The noble Lords, Lord Brain, Lord Morton and Lord Kilbracken, all raised examples where the approach adopted in Clause 17(4) breaks down. The noble Lord, Lord Morton, cited the case of Bauman v. Fussell as indicative of the difficulties in this area.

Since we have been unable to devise a way of narrowing Clause 17(4) so that it only covers the cases such as the tourist's photograph, we have concluded that the best course is to delete the subsection and rely on the courts to come to sensible conclusions on the basis of the facts of a particular case. The question whether one photograph is a copy of another of the same subject matter will have to be decided by the usual tests—is it original? Has it involved skill and effort on the part of the photographer? Or has he merely taken the work of another without any creative effort on his own part, as would clearly be the case of a photograph of a photograph?

To give the examples of the learned judge in the Bauman case, it should be legitimate for a painter to use a photograph of a procession on which to base his painting. He is using the photograph merely as a historical record so that in his painting everyone is standing in the right place. He is taking the arrangement of the people concerned. If the arrangement is more than the accident of where people happened to be standing at any given instant, it was organised not by the photographer but by the organiser of the ceremony.

On the other hand, if the photograph makes an original arrangement of animate and inanimate objects to create a particular design, then someone who later reconstitutes that original design and photographs it is copying the essence of his work. Since we cannot find a form of words to distinguish clearly between what is, and what is not copying, in all cases of this kind we have reluctantly concluded it is best to return to the existing law and leave the question open.

Without Clause 17(4) there is a danger that Clause 5(2) could be construed to deny copyright protection to sound recordings and films which repeated the subject matter of earlier recordings and films. The amendment makes clear that it is a copy actually taken from an existing sound recording or film—a direct copy—which is to be denied protection. This amendment seems worthwhile even if your Lordships were to decide to retain Clause 17(4). If, as I hope, the House agrees to leave out Clause 17(4), then the amendment will make the position clear. I beg to move.

Lord Williams of Elvel

My Lords, I congratulate the Government on arriving at what I think is about the only possible compromise in a very difficult situation. A lot of noble Lords from this side of the House criticised the Bill as drafted, and indeed found it very difficult to understand how the position was tenable in the long run. I accept that the Government will be taking out Clause 17(4) with reluctance, but I think that that is the only way for them to proceed and we support this amendment.

On Question, amendment agreed to.

Clause 6 [Broadcasts]:

Lord Beaverbrook: moved Amendment No. 18: Page 3, line 18, leave out from ("(b)") to end of line 19 and insert ("— (i) which is not encrypted, or (ii) which is encrypted but for which decoding equipment has been made generally available to members of the public by or with the authority of the person making the transmission, and which is capable of being lawfully received by members of the public;")

The noble Lord said: My Lords, the purpose of Amendment No. 18—and if I may have leave I shall also speak to Amendment No. 19—is to simplify the definition of a satellite broadcast which a number of your Lordships criticised at Committee stage. There is no change of substance, but we have been able to remove the phrase "accessible by members of the public" which was objected to by the noble Lords, Lord Williams of Elvel, Lord Kilbracken and Lord Kilmarnock. On consideration we felt that we could also remove as superfluous the references to "appropriate equipment", and to "any necessary licence". This is because, if a person is "capable of receiving a transmission", he must of necessity possess the means of doing so. Similarly, if he is without any licence that may be required, he cannot receive the transmission "lawfully".

We did not, however, feel that we could remove the word "lawfully" itself. What are excluded by the phrase, capable of being lawfully received by members of the public are transmissions of a kind which no member of the public is licensed to receive. There are of course several such classes of satellite transmission. My Lords, I beg to move.

Lord Williams of Elvel

My Lords, we are grateful to the noble Lord for returning us to proper English in the Bill and for accepting our objections to the original drafting. I am still a little concerned about the expression "lawfully". I do not wish to dwell on it this afternoon, but I think that we shall have to have a another look at it and see whether we wish to come back on that at a later stage.

I am not entirely satisfied with what the Minister said in giving reasons why he felt that "lawfully" had to be retained. Nevertheless, as I say, I shall not pursue the matter today. We shall have to look at it with our advisers and see what happens at the next stage.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 19: Page 3, line 21, leave out subsection (2).

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

On Question, amendment agreed to.

Lord Lloyd of Kilgerran moved Amendment No. 20: Page 3, line 31, at end insert ("or if he is responsible for the whole of the contents of the broadcast and, while not being the person transmitting it, makes the arrangements with that person necessary for the transmission").

The noble Lord said: My Lords, I beg to move Amendment No. 20 and, with the leave of the House, will speak to Amendment No. 21. We now come to amendments to Clause 6 of the Bill which deals with broadcasts. Subsection (1) of Clause 6 deals with the definition of broadcasts. Subsection (2) deals with what is meant by "accessible by members of the public". Subsection (3), to which my amendment relates, defines the persons who can be called broadcasters.

The reason for this amendment is to clarify the position as regards ITV programme contractors and the IBA, and under subsection (3) both of them should rank as broadcasters. This amendment also covers a point raised by a colleague of mine, Mr. Justice Whitford, when he was presiding over a reference to him concerning the Performing Right Tribunal under Section 25 of the Copyright Act 1956. He came to the same kind of conclusion—that both ITV programme contractors and the IBA should be permitted if they wished to take their cases to that tribunal. I understand that considerable discussion has taken place between members of the staff of ITV, particularly Miss Gillian Davis and Miss Jane Vizard, who have done so much work in these matters, and representatives of the Minister's department, so I am not proposing to give further support to this amendment. It only means, so far as Amendment No. 21 is concerned, that if my Amendment No. 20 is accepted as to the definition of "broadcasters", then paragraph (b) of subsection (3) will not be necessary. My Lords, I beg to move.

Lord Beaverbrook

My Lords, as the noble Lord, Lord Lloyd of Kilgerran, has said, the purpose of these amendments is to ensure that in the case of broadcasting by independent television the relevant programme contractor, as well as the IBA, qualifies under Clause 6(3) as the person making the broadcast, and therefore the first owner of copyright in it. As the Bill stands only the IBA will qualify as the maker since that organisation alone, not the contractor, fulfils the condition in Clause 6(3)(a), and Clause 6(3)(b) will thus not apply.

The question of authorship and ownership in relation to broadcasts is one that we have been discussing in some detail with the IBA and the Independent Television Association since the Committee stage. They have explained to us very fully why they consider that both the authority and the contractor require to be owners of copyright in the broadcasts. I am happy to say that we concur. We have put certain suggestions to them as to how this might best be achieved in the Bill and, indeed, the words of the noble Lord's amendments are not entirely unfamiliar to us.

We therefore accept these amendments in principle. We should, however, like to consider further the form they ought to take, and, indeed, as the words have been inserted, the subsection would be self-contradictory. There are still one or two minor points to sort out, such as whether a complementary amendment is needed to Clause 10, and whether we have adequately covered the position of the Welsh Fourth Channel Authority. If the noble Lord, Lord Lloyd of Kilgerran, feels able to withdraw the amendment, I undertake to come back with some proposal on Third Reading.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the Minister. In view of his undertaking, I shall of course withdraw the amendment. I understand his undertaking to be that the Government will bring forward an amendment to cover the position that has been put to him by members of the ITV legal department. I beg leave to withdraw the amendment.

Amendment, be leave, withdrawn.

[Amendment No. 21 not moved.]

4.30 p.m.

Clause 9 [Authorship of work]:

Baroness Birk moved Amendment No. 22: Page 5, line 31, leave out ("or film").

The noble Baroness said: My Lords, in Committee my noble friend moved an amendment to try to bring about a state of affairs similar to that at which Amendment No. 22 aims. However, it was rather more wordy and not as clear and crisp as the present amendment. We still feel that the director's contribution to film should be recognised not only in moral rights but in the copyright. On his responsibility depends how the script is transferred to the screen. It is an essential work of creative extension.

My noble friend Lord Willis, pointing out in Committee the importance of the producer as the man who gathers together all the resources to be able to go ahead and make the film, gave the example of Richard Attenborough's "Cry Freedom". I believe I am right in saying that Richard Attenborough also directed the film.

The difference between a good director and a director who is not so good makes the difference between a successful and an unsuccessful film artistically and can result in a great deal of enhancement to the written work of the author or mean that it is treated catastrophically. We feel that this should be given further serious consideration. Some Continental copyright laws accept this by according copyright in a film to the director. In this country we have given the copyright to the entrepreneur, who organises the production. The amendment seeks only to give an adequate recognition by according a joint interest in the copyright initially.

As the work of film-making becomes ever more sophisticated and the art of film increases every day, it seems important that the director should have his work acknowledged in this way at least. We believe that it is not sufficient to accord him moral rights, but the starting position ought to be one that recognises his essential contribution.

Lord Lloyd of Hampstead

My Lords, when I spoke to the earlier form of amendment moved in Committee by the noble Lord, Lord Williams of Elvel, I pointed out that, while I profoundly sympathised with the notion of giving the maximum recognition to the director of the film, who undoubtedly plays a crucial role in the ultimate product that emerges from the screen, nevertheless in practice in the film world it is generally recognised as considerable sense to regard the person who makes the arrangements to put the film together primarily as the author of a film. He is the person who provides the finance for that purpose or arranges for the finance to be obtained by the distributor, or whoever it may be.

When it comes to the practical problem, it is inevitable that an express arrangement will be made as to the financial interests in the film. It is therefore more likely to create problems than to solve them by having a primary situation that the director and producer are to be regarded as joint authors.

In the practical context this would be a totally undefined relationship. It would have to be resolved by express contract in every case. Although I have great sympathy for the idea of recognising the vital role of the director—it has been recognised in the Bill as drafted by way of conferring upon him a moral right, of which I entirely approve—I think that on the whole we might create more problems in attempting to reconstruct the position as defined in the existing law. So far as I am aware, this situation has not hitherto created any particular problem or dispute as between directors and producers. It is therefore with a certain measure of reluctance that I find it difficult to go along with the amendment, which substantially reproduces the earlier amendment in regard to the position of the director and producer of a film.

Lord Graham of Edmonton

My Lords, I hope that the Minister has something useful, positive and sympathetic to say about the amendment. I should like the Minister to address himself particularly to the problem in the context of the European nexus. If we are moving inexorably towards harmonisation, observance and compliance with a great many of the practices of the European scene as we in Britain understand it, the Minister has to tell the House how he sees this to be different from what I am advised by the Association of Cinematograph, Television and Allied Technicians is a disturbing feature.

This is contrary to what was said by the noble Lord, Lord Lloyd of Hampstead. He said that the present position has not caused any disturbance or upset, and indeed implied the contrary. He did not say that there had been great dissuasion and argument. The ACTT and many others are grateful for the care that the Minister has taken since Committee to consider their representations. I understand that there have been discussions not only in correspondence with the Minister and his colleagues but also with the Minister's officials.

If the position is as outlined by my noble friend Lady Birk, then on the Continent the director has the same rights that an author has. The concept is that "author" includes film director in Europe but excludes film director in the United Kingdom. We are arguing in terms of what moral rights are worth once they have been given. One might say that they are worth a great deal. Both the ACTT and the film directors who seek to have their views represented to the ACTT tell me that prima facie it does not look as though they will be worth a great deal.

I think that the Minister has also to deal with the direct question of who, in the eyes of the public and indeed of the industry, carries the greatest clout as to the credit that needs to be taken for a great many film works. My noble friend Lady Birk instanced Sir Richard Attenborough. I am certain that many of the films that were directed by Sir Carol Reed, Sir David Lean and many others are looked upon as their films. I know that the original work from which a film was produced clearly in many instances was not written by those people, but they are seen to have enhanced enormously the quality, the worth and the economic value of the work.

I should be very grateful if the Minister could tell me at this stage why a chance, as it appears to me, is being missed of creating a unique opportunity to harmonise with Europe on a relatively simple issue. What we are really asking is, should not the director, who in most instances is worth a share of the economic value in a film which he has directed, be seen on the face of the Bill to be entitled to more than that which appears, good as moral rights are, to be the value of moral rights?

Lord Willis

My Lords, I find myself more in sympathy with the noble Lord, Lord Lloyd of Hampstead, on this amendment. I hope that the Government will resist it. I think that directors on the whole can protect themselves by contract and they do not need special protection in this Bill. No one need weep any tears here about Sir Richard Attenborough. He is thoroughly protected by contract and he does have the credit of "a film by Richard Attenborough". If one goes along this road one gets into a quagmire, because an author of a film also happens to be, dare I mention it, the screenplay writer.

Whose film is "A Man for All Seasons"? Is it Robert Bolt's or Fred Zinnemann's? This amendment would give Fred Zinnemann the authorship as director but it would exclude Robert Bolt. We do not need to go down this road. The principle here can be protected by contract. I may say that I have a fierce hostility to the move which has been apparent in the past few years for saying "a film by". No film is by any particular individual. It is a collective piece of work and in most cases it is inspired by an original work. "Great Expectations" could be said to be a film by David Lean, but does one not mention Charles Dickens, on whose marvellous material it was based?

As a screenplay writer I resent the idea that the director is an author. Films are a collective and we should all, director, producer or author, have our whack of any profits that are available. But I do not think that we should enshrine in a Bill a special position for director.

Lord Graham of Edmonton

My Lords, before the noble Lord sits down, will he comment on the European situation where the position appears to be different to the point he is arguing?

Lord Willis

My Lords, the Europeans have always been awkward in this respect.

Lord Kilbracken

My Lords, I agree to a very great extent with what my noble friend Lord Willis has just said. It seems to me that in the case of a motion picture there are a number of authors or there can be considered to be a number of authors. As my noble friend said, there is the original writer, who would be Herman Melville in the case of Moby Dick; then there is the screenplay writer whom he mentioned. There may be another screenplay writer and then finally there is a director. It is a matter for the Bill to decide which of these should be described as the author. But what confuses me about this amendment of my noble friend that we are considering is that it does not make this point clear.

We are told in the Bill that "author" means the person who creates a work. Then we are told that that person shall be taken to be in the case of a film the director of the film as joint author. That is what we are told about the director of a film. But if there is a joint author it means that someone else has to be a joint author with the director. But who that other person is in the case of a film is not revealed. I should be interested to know who my noble friend has in mind as being the other joint author who is not at present specified.

4.45 p.m.

Lord Beaverbrook

My Lords, as the noble Baroness, Lady Birk, explained, these amendments seek to ascribe authorship of a film to the director. As I read the amendments tabled by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, the director is to be regarded as a joint author, although it is far from clear to me who is to be regarded as the other joint author. That is the point that the noble Lord, Lord Kilbracken, has just raised.

It would appear from the deletion of "film" in lines 21 and 32 that the person making the arrangements for the production of the film is not to be regarded as an author and so he would not be entitled to even a share of first ownership in the copyright in a film.

We believe that to be totally wrong. The Bill as drafted preserves the existing position by vesting copyright in a film in the person who has made the necessary arrangements. It is his investment of money and resources which makes a film possible and it is he who should reap the economic benefit.

In all the representations that we have received from film directors in the build-up to this Bill, their concern has always been the lack of recognition of their creative input in the making of a film. They have not been seeking economic rights: they recognise that these rights should be with the producer.

It is true that in some countries, as pointed out by the noble Lord, Lord Graham of Edmonton, directors are recognised as authors or co-authors of films and the copyright is passed contractually to the producer. I would add that we see no need for there to be absolutely uniform treatment of the legal rights of directors across Europe. We are not aware of any difficulties that have arisen because different European countries treat the ownership of copyright in different ways. We are free to look at the issue of directors' copyright on its own merits and have done so with the conclusion that I have already explained. But we see no merit in changing our long-established practices and imposing on film production companies the additional task of acquiring rights from directors and any other designated co-authors in a film, as yet unmade, for which the company is putting up the money.

We believe the legitimate aspirations of directors to receive recognition of their contribution to the making of a film are met by the provision of moral rights for directors. The directors' concern is their artistic reputations. The provision of moral rights gives them what they need to defend and to enhance these reputations. We believe it is going too far to give them economic rights as well.

I see little point in labelling the director as author, or even co-author, of a film for purely cosmetic purposes. It raises the whole thorny question of which of the many potential authors involved in a film can be said to be the author of the film. The noble Lord, Lord Willis, expressed strong views on this in Committee and has also done so now on Report. If the purpose of the amendments is to ensure that the moral rights of directors are protected, they are unnecessary. On the other hand, if the purpose is to take economic rights from the producer and give them to the director, then I must strongly resist. I certainly cannot support a change for purely cosmetic purposes to satisfy the desire of one particular group of creative people to get a special mention.

Baroness Birk

My Lords, with the exception of the stalwart support from my noble friend Lord Graham of Edmonton, there does not seem to have been all that much joy expressed on this amendment. I must confess that I think that one of the reasons for that is that this is something new which both breaks new ground and introduces a new element and new people into the general part so to speak. It is quite likely that perhaps the wording of the amendment, although I think it is very much better than that of the original amendment, is still not quite right. But that is a different point. If the principle were accepted surely that could be worked out.

The Minister, and I think my noble friend Lord Kilbracken, also asked who was the other party to this. Of course it is the writer. I think that the Minister said "co-author" and I consider that that is probably better than "joint author" anyhow. In answer to the question whether there have been, as my noble friend Lord Lloyd of Hampstead asked, any representations from directors, I can say that there have been. I have had such representations myself.

Lord Beaverbrook

My Lords, perhaps the noble Baroness will give way for a moment. She may well have received representations from directors. However, we have not.

Lord Graham of Edmonton

My Lords, I have a letter addressed to the noble Lord, Lord Beaverbrook, from the ACTT, which is speaking on behalf of directors.

Baroness Birk

My Lords, I do not know what the Minister has received. However, I received represent-ations some time ago as a governor of the British Film Institute. We are attempting to introduce directors jointly, rather than suggesting that they take over the kudos, rights or established rewards of authors. So far as concerns the producers, it remains open to them, as I said in moving the amendment, to take an assignment of that interest, and they may do so in advance of the making of the film.

My noble friends and I shall look at the matter again. It is clear that the actual wording is not correct. Even if it is simply a matter of semantics, perhaps we should get it right and then think about whether we shall take the matter further at the next stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 23 and 24 not moved.]

Lord Beaverbrook moved Amendment No. 25:

Page 6, line 1, leave out subsection (4) and insert— ("(4) For the purposes of this Part a work is of "unknown authorship" if the identity of the author is unknown or, in the case of a work of joint authorship, if the identity of none of the authors is known. (5) For the purposes of this Part the identity of an author shall be regarded as unknown if it is not possible for a person to ascertain his identity by reasonable inquiry: but if his identity is once known it shall not subsequently be regarded as unknown.").

The noble Lord said: My Lords, in moving Amendment No. 25 I shall also speak to Amendments Nos. 30, 100, 165, 166, 233, 249, 261, 270 and 272, with the leave of your Lordships.

The noble Lord, Lord Kilbracken, moved at Committee stage amendments to Clause 12 which were intended to clarify the position as to the duration of copyright in works whose author is unknown. The noble and learned Lord, Lord Denning, supported those amendments as simplifying the drafting. I conceded that this was an area where drafting could probably be improved and said I would come back at Report stage. The noble Lord, Lord Kilbracken, kindly withdrew his amendments at Committee stage, saying that if he did not see a simple amendment on the Marshalled List for Report stage he would table his amendment again.

I am sorry to have to say that I am unable to come back with a simple amendment. I hope he will agree that I have come back with an appropriate one. Our reconsideration of the issues raised by the apparently innocuous amendments of the noble Lord, Lord Kilbracken, exposed a basic defect in the way the Bill treats works of unknown authorship. Amendment No. 25 and the others in this grouping are intended to put that right.

A comparison of Clause 12(2) as it stands in the Bill, and as it would have appeared if the amendment of the noble Lord, Lord Kilbracken, had been made revealed that we were attempting in Clause 9(4) to roll up two concepts in one. The two concepts are whether it is possible to ascertain the identity of an author, and whether a work is of unknown authorship. The first is a question of fact to be determined in accordance with the facts available at the time when the question is asked. The second relates to the status of a work for the purpose of calculating the duration of its copyright. Once the identity of an author is known, his work can never again become a work of unknown authorship. The reason for that is that once a work has acquired copyright lasting for life plus 50 years, it does not lose it simply because the world loses sight of its author.

The solution was to make the first concept an element in the second while retaining its own separate existence where appropriate. That is apparent from the new subsections (4) and (5) in Clause 9, introduced by Amendment No. 25. Clauses 12, 143, and 153, as amended by amendments Nos. 30, 233 and 249, should then be expressed in terms of works of unknown authorship. In Clause 143 there is also clarification of the position of joint authors generally.

On the other hand, Clause 95 and the definition of "sufficient acknowledgement" in Clause 161, as amended by Amendments Nos. 165, 166 and 261, should be expressed in terms of ascertaining the identity of the author. A further element of this new structure is that the sentences beginning with "However" in Clause 12(2) and paragraph 11(3) of Schedule 1 are better expressed as an exception in Chapter III of Part I; hence Amendments Nos. 100 and 272. Amendment No. 270 is purely consequential.

Your Lordships will also notice that the redrafting in Clause 12 achieves the result so strongly urged in Committee; namely, removing the special provision about the duration of copyright in photographs and thus leaving them to enjoy the full term of life plus 50 years. Since I think no one spoke against that except possibly myself, I do not think that I need now spend time arguing in favour of it, save to say that the Government are now satisfied that that would be right. I beg to move.

Lord Kilbracken

My Lords, the Minister has said that my amendments were apparently innocuous. After listening to his speech, I must say that they may have been apparently innocuous to him but they were not so to me. He has now had to bring forward the long series of amendments to cope with the points which I made. I believe that that is an example of the way in which a Bill can be improved, not only by my amendments but by all of the 400 or 500 amendments which were put down concerning points which we wished to raise. That is an example of the way in which a Bill can be improved as it passes through this revising Chamber before going to another place.

I shall read carefully what the noble Lord has said concerning his amendments. However, I wish to say how much I welcome his decision to agree with what was said on the previous occasion concerning the duration of photographic copyright and additionally on the basis of the duration of copyright in other works which will go on for 50 years after the death of the photographer. That is very important. It will be greatly welcomed by journalists and photographers. I appreciate what the noble Lord has done.

Lord Williams of Elvel

My Lords, the noble Lord has introduced a large grouping of amendments. It is somewhat difficult for us to speak to all the amendments which he has grouped together. However, we are glad that he has rethought the question of unknown authorship. Before endorsing the amendments unequivocally, we shall have to read them more carefully between now and Third Reading and see whether we find that the present situation is to our satisfaction.

In the meantime, perhaps the noble Lord will clarify a point as regards Amendment No. 30. That amendment inter alia produces a new subsection (2) to Clause 12. The amendment reads: If the work is of unknown authorship copyright expires at the end of a period of 50 years from the end of the calendar year in which it was first made available to the public". That is perfectly clear. The amendment goes on: and subsection (l) does not apply if the identity of the author becomes known after the end of that period". Given what subsection (1) says, does that mean, if copyright has expired in a work of hitherto unknown authorship and the authorship becomes known after the copyright has expired, that the copyright is in some way reinstated? If that is right, it is rather curious. However, I can see the case of a young painter or a young maker of porcelain paying for his meals in a restaurant. We all hear stories of Paris in the 1920s when young, poor artists used to pay for their meals by throwing off a few paintings here and there. The restaurant owner could not remember who they were but it subsequently turned out that they were Picasso, Matisse, or whoever it may have been. If that work were reproduced and shown to the public 50 years later, Picasso might well still have been alive and established it as his work. That is liable to be a relatively rare occurrence. Nevertheless, I should be interested to know whether my interpretation of this amendment is right or wrong. If it is wrong, it seems to me that the amendment is perhaps a little unclear and might be looked at again.

Lord Beaverbrook

My Lords, I am grateful to the noble Lord. I can answer his point by saying that in the circumstances that he described copyright would not be recaptured. Once copyright has expired under the provisions relating to works of unknown authorship, subsequent discovery of authorship does not revive copyright. I hope that that is clear from the Bill, and perhaps the noble Lord will accept that response. I have listened to what the noble Lord has said and I shall double check that point. However, I believe that the drafting is correct.

On Question, amendment agreed to.

5 p.m.

Clause 10 [Works of joint authorship]:

Lord Beaverbrook moved Amendment No. 26: Page 6. line 7, leave out ("separate from the contribution") and insert ("distinct from that").

The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment Nos. 145 and 362. When the noble Lord, Lord Morton of Shuna, proposed replacement of the word "separate" in Clause 10(1) by "separable", I confessed to your Lordships' Committee, that his proposal had caused me to scratch my head. I have continued to do so since then.

At the outset we need to have a clear idea of what we are talking about in this clause, particularly since I believe that there may be some misconception as to what constitutes a work of joint authorship. We are not talking about partnerships like Gilbert and Sullivan, where one wrote the music and the other the libretto. Nor are we talking about anthologies, where a book contains the works of several authors. Nor indeed are we dealing with the case cited by the noble Lord, Lord Morton, of a textbook on the Copyright Act 1988 where different chapters are each written by different authors. In that case, each chapter would constitute a work in its own right and the finished book would not be a work of joint authorship for the purposes of Clause 10, even though it has more than one author.

In all the cases that I have cited, the contribution of one author is clearly separate and distinct from that of the other co-author or co-authors. But that is not always the case. To return to the example of the textbook on the Copyright Act, it may be that the authors, instead of each contributing a number of chapters, work together on the whole text. Perhaps one does a first draft, another makes additions and revisions and a third then makes his contribution before they all go through the text again. The end result will be that it will not be possible to say who wrote any particular part of the work; the various contributions will no longer be separate.

With that explanation, I trust that we all now have a clearer idea of the concept that Clause 10 is addressing. The question to be decided is whether there is one joint work or a number of separate works. The word which best describes this latter concept is "several"—defined in the Oxford English Dictionary as: existing apart, separate. Having a position, existence or status apart; separate, distinct".

We were reluctant to replace "separate" by "several" because we did not think that that would convey the right impression to the layman. To say that a work of joint authorship is one not having several contributions would be plain to the lawyers but not necessarily to those less learned, who could read the word "several" in the sense of "a few".

Nor did we think that the suggestion of the noble Lord, of replacing "separate" with "separable" is the answer. It opens the possibility for endless debate in court as to whether contributions to a work of joint authorship are capable of separation. To return to the case of the text book on the 1988 Copyright Act, the contributions of the co-authors may not be separate, but that does not mean that they are not separable. It may be difficult, but in many cases it will be possible to isolate passages written by one of the co-authors.

In the end, we have concluded that the best approach is to adopt the formulation used in the 1911 Act. The word "distinct" conveys exactly the right idea. If one author's contribution is distinct from another's, the work is not of joint authorship. The test can be satisfied on the face of the work. It is not a question of whether the contributions are separable or can ultimately be distinguished, but whether the contributions are distinct in the work itself.

I have so far concentrated entirely on copyright works. However, exactly the same considerations apply to joint designs and design right. It is therefore sensible to make equivalent changes to Clause 239. I beg to move.

Lord Williams of Elvel

My Lords, the noble Lord, Lord Beaverbrook, has condensed a rather complicated argument, and I understand why he has done so. I confess that it has been rather difficult to follow. If he has been scratching his head for the past few weeks, we have been scratching our heads for the past few minutes to try to find out what he has been saying. I think that we shall have to read what he has said, and if necessary we shall formulate our position at Third Reading.

On Question, amendment agreed to.

Clause 11 [First ownership of copyright]:

Lord Williams of Elvel moved Amendment No. 27: Page 6, line 14, leave out subsection (2) and insert— ("(2) Subject to any agreement to the contrary, where a literary, dramatic, musical or artistic work is made by an employee in the course of his employment, his employer is the first owner of any copyright in the work for the purpose for which it is created, but for any other purpose the employee is the first owner of any such copyright.").

The noble Lord said: My Lords, it may be convenient for the House if in moving Amendment No. 27, standing in my name and that of my noble friend Lord Morton of Shuna, I speak also to Amendment No. 29, in the name of the noble Lord, Lord Beaverbrook.

Clause 11 as it emerged from the Committee distinguished between the rights of an employee who produces a work in the course of employment by the proprietor of a newspaper, magazine or similar periodical and those of an employee who is employed on other activities. We now understand from the noble Lord's amendment, Amendment No. 29, that the current special rule for journalists dividing the copyright between them and their employers is to end, which demonstrates that some copyrights have application beyond the purposes for which the employer requires creation of the work. Our amendment is addressed to that situation. For those other purposes it seems to us that the employee has a legitimate claim to keep the copyright.

I understand that there are in effect two ways to move from the position as it stands in Clause 11 as at present drafted. One is the Government way, which resolves the question in favour of the employer. We do not think that that is appropriate because, as we argued at Committee, we feel that employees have a genuine and legitimate right in the work that they have created, even though they are working for an employer, nevertheless recognising that the employer has first right on that creation if it is for the purposes for which the employer requires that creation.

Our amendment therefore is quite simple. It seeks to make general the existing rule for journalists. There is no evidence that that was unworkable for journalists. The newspaper proprietors' case has been that they should not have to suffer when other employers do not. The general rule, in our view, should be that it should be the other way round. Employers could always alter the situation by express provision in contracts of employment, which is why we start our amendment with: Subject to any agreement to the contrary".

We believe that the employee has rights which should be protected by statute. No doubt the noble Lord, Lord Lloyd of Kilgerran, will confirm that this will bring the situation into line with the Patents Act, under which employees do have rights. We believe that employees should have similar rights in copyright. We regard this as a matter for a positive response from the Government, understanding that the Government have taken a line of which we fundamentally disapprove. I beg to move.

Lord Somers

My Lords, one point has occurred to me apropos this amendment and I wonder whether the noble Lord, Lord Beaverbrook can clear it up. Let us take the case of an organist who is professionally engaged, and, I presume, the employee of the church. If he writes some music which is performed in the church for the purpose of a particular service, who is the owner of the copyright?

Lord Willis

My Lords, I hope that the Government will consider this amendment seriously, because there is some force in the arguments. About five years ago there was a classic case in the United States of an employee of a big advertising agency who was asked by his employers to write down the philosophy of the agency—a task which I have to say horrifies me. Nevertheless, this gentleman wrote down the philosophy of the agency and its approach to business and so forth. It was so successful and went down so well that the employers decided that they would publish it. It sold millions of copies. The employee did not receive a penny but the agency did.

There was another case of a doctor who developed a diet specifically for the United States navy. The diet was successful. I am sure that many of your Lordships will have been on it: it is called the drinking man's diet. The diet was again so successful that it was published privately and sold millions of copies—again not to the benefit of the doctor.

There is a case here that the Government should consider. This amendment is very carefully drafted. It provides for the sacredness of a contract but it also provides for other purposes. It is a very useful amendment and I hope that the Government will consider it seriously.

Lord Kilbracken

My Lords, in moving this amendment my noble friend said that he spoke at the same time to Amendment No. 29. If we are now discussing Amendment No. 29, it means that we have to do so without having heard from the Minister his reasons for wishing to delete an extremely important subsection that completely changes the emphasis of this Bill for a great many journalists, whether they are writers or photographers.

If subsection (3) is deleted it means that a person who produces work for a newspaper or publication is no longer able to sell it separately because the copyright belongs to the newspaper publishers. That is not normally the case at present. We have only to think of books of newspaper cartoons by such people as Giles or collections of articles. I brought out a selection of 70,000-word or 80,000-word articles that had previously been published and in all such cases the copyright passes completely to the writer. That I feel is the correct position.

If this subsection is dropped it means that anybody who is employed does not have the right to make a collection of that work and publish it. That can be done by his employer, who owns the rights in that material. The employer can publish it and receive the royalties from sales of that book. The Government's decision to delete that subsection is a very major change. I can only hope that the Minister will be able to give a very good reason for his wish to delete it from the statute.

5.15 p.m.

Lord McGregor of Durris

My Lords, we are discussing where the line between creative work and the rights of employees should be drawn. The Whitford Committee considered this point and said as a general principle that employers must be able to expect that if they engage someone to produce copyright work as part of his day-to-day work and pay him to do this, then they and they alone should be entitled to the use of that work.

The exception to that general principle that applied to newspapers was an historical accident, because in 1911 there were no other media than print. If we make, as is suggested, only a partial distinction between creative work and what is done by an employee, we shall create in practice an impossible situation for newspapers.

It is said that newspapers can contract with their employees. It is extremely difficult for them to contract with employees who they are already employing. It is easier for them to make contracts with new employees. But what are the employers to do if the trade union representing employees instructs all its employees not to make separate contracts?

To adopt the amendments proposed by the noble Lord, Lord Williams of Elvel, would, I am informed, establish a nightmare for newspapers and periodicals. It seems to me that it is going far beyond the realities of life to present staff journalists as creative artists.

The effect of this amendment will be to extend the inherited discrimination, because it will apply to staff photographers as well. I pointed out at Committee stage that the effect of the amendment now being proposed would be to remove £3 million a year from the revenues of local newspapers, which own the copyright currently in photographs taken by their staff photographers. Under this amendment they would lose it and with it the profits of the sales of photographs of local weddings, carnivals and the like.

I welcome very warmly the amendment of the Minister and was very grateful for the way in which he responded to the points that were made at Committee stage. I very much hope that the House will not approve the proposed amendment.

Lord Brain

My Lords, I support these amendments. I do so for exactly the reasons which have been expressed by the last speaker whom I consider was wrong. As I understand it. local photographers very often, indeed normally, on small newspapers photograph the scene outside the church for the paper and are then allowed to take other photographs at the reception entirely for their own use and with their own copyright. This amendment, and in particular the government amendment, will remove something that already exists and will cost the newspapers more, because they will then have to reach an agreement with their employee for all the rights that he is forgoing and matters of that kind. I should not be in the least surprised if the journalists object very strongly to the change in the situation.

I support the one amendment wholeheartedly. The other I reject on the ground that it is removing not an old Spanish custom but one of the ways in which small local newspapers run efficiently and cheaply.

Lord Graham of Edmonton

My Lords, I am puzzled at the remarks of the noble Lord, Lord McGregor. As I read the amendments, the copyright remains firmly in the hands of the newspaper when one is considering the purpose for which the object was commissioned. His employer is the first owner of any copyright in the work for the purpose for which it is created. In using illustrations of fetes, weddings and so on, we are talking about a photographer who is an employee of a newspaper and is sent on an assignment to take those pictures for the purpose of being used in the newspaper.

I am not an expert in this matter, but my understanding is that the copyright lies with the newspaper. It has been said that to alter that will be removing something which already exists. I can understand anyone with a vested interest objecting to losing something which is at present enjoyed. However, as I understand the matter, that is not the purpose or the effect of the amendment. I fail to see how the interests of local newspapers in particular, which have my highest respect and regard, will be disadvantaged.

The Minister has yet to explain why he believes that the deletion of subsection (3) will be neither punitive nor injurious to employees of newspapers. I do not wish to see that happen but I wish to see the rights of a newspaper as at present enjoyed fully protected.

Lord Howie of Troon

My Lords, as a publisher of magazines, I welcome the Government's Amendment No. 29, about which we are speaking a little prematurely. At the same time I have, up to a point, an underlying current of sympathy with Amendment No. 27, moved by my noble friend Lord Williams. There appears to be an element of natural justice in what he says. If I knew precisely what was meant by the words: for any other purpose the employee is the first owner of any such copyright I might be strongly influenced in that direction. However, he did not make that matter clear in his remarks. It has since appeared that it is in part connected with the business of photographers and their later sales of photographs taken in the course of their employment.

By coincidence, one of my magazines is engaged in employing a photographer to replace one who has left us to go freelance. In that I see an interesting situation. We employ the gentleman as a photographer and pay him a salary. We also provide his photographic equipment and process it. We provide a motor car for his use in travelling to assignments, which we produce and not he.

Lord Willis

Are there any vacancies?

Lord Howie of Troon

If the noble Lord is a good enough photographer. I should like to see his face about our office in any event, quite apart from his photographic abilities. However, we provide the gentleman with the facilities to carry out the work and it is obviously correct that we rather than he should reap the benefits from that.

The noble Lord, Lord McGregor, mentioned that the possible losses from such revenue to local newspapers amounted to approximately £3 million. The noble Lord, Lord Brain, questioned that figure or put it in a different perspective. As I understand the matter, the figure of £3 million came from a survey of local newspapers carried out by the Newspaper Society. Therefore it is a computation of the expectation of the loss made by the proprietors, who might be expected to know.

I believe that Amendment No. 29, tabled by the Minister, is to be wholly welcomed. I should like to hear how far my noble friend Lord Williams wishes to go in his Amendment No. 27 before making up my mind. In so far as it relates to photographers, I am not impressed at the moment. However, if he will further explain the phrase "any other purposes" I may be more sympathetic than I appear to be at the moment.

Lord Lloyd of Kilgerran

My Lords, I agree with the noble Lord, Lord Willis, and adopt a rather cautious approach to Amendment No. 27, tabled by the noble Lord, Lord Williams of Elvel. He said that the amendment was intended to bring the Bill in line with the position under the Patents Act 1977. However, I do not appreciate his justification for that suggestion. I believe that his amendment does not go far enough. Where an employee, subject to contract though he may be, makes a literary, dramatic, musical or artistic work which is of such value to the employer that the employer makes a lot of money as a result, as of right the employee in all those fields should have the opportunity of asking the employer for a slice of the profit which has been made. If the employer tells him that he can have nothing, the employee should be able to go to a tribunal as of right. That would be the position under the Patents Act.

Lord Wyatt of Weeford

My Lords, the position of the photographer, as described a moment or two ago, surely is that when he is working in his employer's time taking photographs at a local wedding the copyright must belong to the employer. However, if he ceases his official work for his employer and takes other photographs in his spare time, as requested by the various guests at the wedding, that is another matter entirely. I do not believe that that situation would be interfered with an any way by Amendment No. 29 proposed by the Government.

If one takes the position of a staff employee of a newspaper, it is not sensible to say that the copyright does not absolutely belong to the employer. In the same way, someone who designs a packet of cornflakes, writes a verse or two upon it and designs a lovely picture does not expect to receive some copyright value from it if it is used for other purposes. Let us suppose that his employer, the cornflake maker, decides to use the design on a hoarding or advertisement. There is no more to be attributed to the original employee than there was in the beginning because he has already been paid to do that job in his employer's time.

We have now arrived at a new situation in which newspapers are to set up databases in order to extend the freedom of information. One will be able to apply to a newspaper—which will no doubt charge a fee—to obtain information about any particular subject by a particular person. After paying the fee, the button will be pressed and out will come all the material. If one then allows the staff employees to share in the copyright royalty each time that is done, the whole process will be impossible, because there will be myriads of pieces of information stored away and one will never be able to trace them. The process will become totally confusing.

I cannot see why one should continue with a situation in which people who happen to be employed on the staff of a newspaper should be treated differently from those who happen to be employed on the staff of a motor car design section or on designing cornflake packets and so forth. A staff employee is entitled to his paid holiday, his pension and to all kinds of benefits which a freelance journalist does not receive. It is part of his general employment. It is absurd to attempt to make a distinction and say that he may have a residual right in a copyright once it has first been used. The more electronic devices and developments there are, the more confusing the issue will become. I welcome the approach of the Government in hoping to delete subsection (3).

5.30 p.m.

Lord Lloyd of Hampstead

My Lords, I believe that Amendment No. 27 is likely to lead to considerable difficulties; and, at any rate in its present form, I believe it would pose very great problems for newspapers. For example, let us suppose a journalist is asked by his editor to write an article or series of articles on a particular topic for insertion in one or more issues of his newspaper. Is it then to be said that if that article or series of articles is to be farmed out by the journalist to some other newspaper, whether here or abroad, that is "another purpose"? It seems to me that that might well be the construction of this section and it would mean that a newspaper could not have an exclusive right in the production of its own journalists and that seems to me to lead to a very extraordinary anomaly.

On Amendment No. 29, it seems that the rather special position in which journalists find themselves under the old law is really anomalous. There does not seem to be any compelling reason for that anomalous situation and I should not have thought that they would lose very much by this change in the law. However, I certainly take the view that to try and deal with this situation by distinguishing between something which is produced for the purpose of the particular employment and something outside that employment will lead to immensely difficult questions of interpretation and create a measure of turmoil in many newspaper offices.

Lord Beaverbrook

My Lords, I am grateful to noble Lords who have spoken in this short debate on Amendment No. 27 in the name of the noble Lord, Lord Williams, and also spoken to Amendment No. 29 in my own name. At the outset I should say that I believe there is some small measure of agreement between myself and the noble Lord, Lord Williams, in that we both seek to move away from the position as it stands at the moment, which is somewhat anomalous for newspaper owners and employees. However, that is where the noble Lord and myself part company because he moves in one direction and the Government move in the other.

We return now to the question of ownership of copyright and the amendment tabled in Committee by the noble Lord, Lord McGregor of Durris, which proposed the deletion of Clause 11(3). As I explained to the Committee, the ownership provisions are long-standing and we wanted to consider the views expressed in Committee before reaching a decision.

I should like, if I may, to speak first to my own amendment dealing with newspapers. I shall then go on to the more general question raised by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. We have concluded that making a special case for newspapers and their employees is no longer appropriate. It may have been so in 1956, but the development of new technology has made this special treatment less tenable for two reasons. The growth of other methods of reporting news—by television, radio and cable—means that newspapers are treated unfavourably not just compared with other employers generally, but also with other employers of reporters. The second point is that there are many ways in which newspapers can benefit from new technology, but they are hampered by having to seek and pay for appropriate copyright clearance. I should like to give an example which I think highlights the anomaly of the situation. A newspaper can keep an archive of press cuttings without any difficulty. If, however, the editor wanted to transfer these cuttings on to a computer database, as suggested by the noble Lord, Lord Wyatt, to create an electronic archive with all its obvious advantages, special permission would have to be obtained.

We were also concerned about the effect of the change in authorship of photographs on newspapers. Newspapers would have been in a disadvantageous position in relation to staff photographers, and local newspapers particularly stood to lose considerable sums of money which at present they receive from the practice of selling photographs to the public. We have therefore concluded that newspapers should not be treated differently from other employers, and that Clause 11(3) should be deleted. I think that your Lordships' House is broadly in agreement with the proposition that newspaper employees should be treated no differently from any others, and we can now look at the question of whether employees in general should own any copyright in works which they produce in the course of employment.

The Government's position is that employers should own copyright in their employee's work. It seems to us that if an author wants the security of employment and relies on the employer to provide the materials, the guidance, and is paid for doing it, then it is only right that the employer owns any resulting copyright. The noble Lord, Lord Williams of Elvel, is proposing that all employees should have the right currently enjoyed by journalists to exploit their works when used for purposes other than their employer's business. This is not a new suggestion. It was one of the possibilities put forward in the 1981 Green Paper on the ownership question.

The Green Paper noted that: there is a clear consensus of opinion that considerable practical difficulties would arise in determining what was within the contemplation of the parties at the time a work was made". The problem of defining the purpose for which the work is created would introduce uncertainty where at present there is none, and would upset established practices in every sphere of commerce and industry. I should add that the Government received very little support in favour of this suggestion. It was therefore decided that we should continue to vest copyright in the employer.

I should like to answer two specific points raised by noble Lords. First, the noble Lord, Lord Somers, asked me who would own the copyright in the instance of an organist employed by his church. The case of an organist writing something for his church is very simple. If he is employed by his church, copyright will belong to the church. That case is no different from any other case of employment. Of course, it is always possible for the organist and his church to agree to the contrary, in which case copyright will belong to the organist.

Turning to a point raised by the noble Lord, Lord Brain, he said that the Government's amendment will remove present practice under which local photographers can take photographs for their own exploitation. The amendment in my name will not alter the present position of photographers because the present law confers ownership of copyright in photographs on the owner of the film, which will almost invariably be the newspaper employer. The Bill as drafted alters that position and my amendment restores the present position, albeit on a different legal basis. The practice described by the noble Lord, Lord Brain, must exist at present by virtue of contract or the gratuitous consent of newspaper employers and there is no reason why it should not continue. I also suggest that if insuperable problems were seen in 1981, this would be even more the case today as advancing technology opens up ever more avenues for the use of works. We believe therefore we should retain the principle that the employer owns the copyright. For that reason, I urge your Lordships to oppose Amendment No. 27 but to support Amendment No. 29.

Lord Williams of Elvel

My Lords, I am grateful to the many noble Lords who have taken part in this short debate. It has demonstrated a certain division of opinion, and, indeed, a certain division in principle. Perhaps I may take one or two points in somewhat random order. The noble Lord, Lord Lloyd of Hampstead, complained about the expression: for the purpose for which it is created and asked me to explain what it meant. I can only refer to the text of the Bill as at present drafted in Clause 11(3) where it refers to employees of newspapers, magazines or similar periodicals and states: applies only so far as relates to publication of the work in a newspaper, magazine or similar periodical". That is what we had in mind when we were drafting this amendment: to endeavour to ensure that the position relating to journalists at the moment is maintained and indeed extended.

The noble Lord, Lord Lloyd of Kilgerran, chided me for not getting my Patents Act right. The noble Lord is the great expert on the Patents Act and I believe, as he mentioned in Committee, it was the noble Lord who actually got Sections 39 to 43 relating to employee inventions into the Patents Act.

Lord Lloyd of Kilgerran

My Lords, one of them.

Lord Williams of Elvel

My Lords, one of them. Clearly we do not go as far as the noble Lord, Lord Lloyd, would like but that is precisely because we do not want to throw newspapers into the confusion into which, we are told, they would be thrown if we adopted what the noble Lord, Lord Lloyd, suggested.

My noble friend Lord Howie asked me to expand a little on the phrase "for any other purpose". Apart from what I have replied to the noble Lord, Lord Lloyd of Hampstead, I can do no better than refer to the two examples given by my noble friend Lord Willis. They were two excellent examples of exactly what "for any other purpose" means. The examples given of the advertising agency and the diet invented for the US navy are to the point and I am grateful to my noble friend for referring to them.

I believe that here we have one of the few major issues of principle in this Bill. We on our side believe that employee rights in general should be protected and encouraged and the Government have come down firmly on the side of employers retaining the copyright. That is a clear division of principle. I do not believe that it will be sorted out by argument and discussion and there is not much point in talking further. Therefore, I intend to ask the House to give its opinion.

5.42 p.m.

On Question, Whether the said amendment (No. 27) shall be agreed to?

Their Lordships divided; Contents, 60; Not-Contents, 146.

Airedale, L. John-Mackie, L.
Ardwick, L. Kilbracken, L.
Birk, B. Kirkhill, L.
Blease, L. Llewelyn-Davies of Hastoe, B.
Brain, L. Lloyd of Kilgerran, L.
Bruce of Donington, L. Lovell-Davis, L.
Carmichael of Kelvingrove, L. Mackie of Benshie, L.
Cledwyn of Penrhos, L. Mason of Barnsley, L.
Cocks of Hartcliffe, L. Morton of Shuna, L.
David, B. Mulley, L.
Davies of Penrhys, L. Murray of Epping Forest, L.
Dean of Beswick, L. Nicol, B. [Teller.]
Elwyn-Jones, L. Northfield, L.
Ennals, L. Phillips, B.
Ewart-Biggs, B. Pitt of Hampstead, L.
Fisher of Rednal, B. Prys-Davies, L.
Fitt, L. Rea, L.
Foot, L. Ross of Marnock, L.
Gallacher, L. Serota, B.
Galpern, L. Stoddart of Swindon, L.
Glenamara, L. Strabolgi, L.
Graham of Edmonton, L. [Teller.] Taylor of Blackburn, L.
Taylor of Mansfield, L.
Hampton, L. Turner of Camden, B.
Heycock, L. Underhill, L.
Houghton of Sowerby, L. Wallace of Coslany, L.
Hughes, L. Wells-Pestell, L.
Irving of Dartford, L. Williams of Elvel, L.
Jacques, L. Willis, L.
Jay, L. Winchilsea and Nottingham, E.
Jeger, B.
Ailesbury, M. Brougham and Vaux, L.
Allenby of Megiddo, V. Butterworth, L.
Allerton, L. Caithness, E.
Alport, L. Cameron of Lochbroom, L.
Ampthill, L. Campbell of Croy, L.
Arran, E. Carlisle of Bucklow, L.
Attlee, E. Carnegy of Lour, B.
Auckland, L. Carnock, L.
Aylestone, L. Cawley, L.
Balfour, E. Chelwood, L.
Bauer, L. Clifford of Chudleigh, L.
Beaverbrook, L. Colnbrook, L.
Belhaven and Stenton, L. Cottesloe, L.
Belstead, L. Craigavon, V.
Bessborough, E. Croft, L.
Blyth, L. Cullen of Ashbourne, L.
Bonham-Carter, L. Davidson, V. [Teller.]
Borthwick, L. Deedes, L.
Boyd-Carpenter, L. Denham, L. [Teller.]
Brabazon of Tara, L. Dilhorne, V.
Brentford, V. Dormer, L.
Broadbridge, L. Dundee, E.
Brookeborough, V. Eccles, V.
Elibank, L. Marley, L.
Elliott of Morpeth, L. Marshall of Leeds, L.
Faithfull, B. Merrivale, L.
Fanshawe of Richmond, L. Mersey, V.
Fortescue, E. Monk Bretton, L.
Fraser of Kilmorack, L. Montgomery of Alamein, V.
Gainford, L. Morris, L.
Gibson-Watt, L. Mottistone, L.
Gisborough, L. Mowbray and Stourton, L.
Goold, L. Munster, E.
Gray of Contin, L. Murton of Lindisfarne, L.
Greenway, L. Nelson, E.
Gridley, L. Newall, L.
Hailsham of Saint Marylebone, L. Onslow, E.
Orkney, E.
Halsbury, E. Pender, L.
Harris of Greenwich, L. Perry of Walton, L.
Harrowby, E. Plummer of St Marylebone, L.
Harvington, L. Pym, L.
Havers, L. Quinton, L.
Hesketh, L. Rankeillour, L.
Hives, L. Rees, L.
Holderness, L. Reilly, L.
Home of the Hirsel, L. Renton, L.
Hooper, B. Rippon of Hexham, L.
Howie of Troon, L. Rochdale, V.
Hunter of Newington, L. Rodney, L.
Hylton-Foster, B. Rugby, L.
Ilchester. E. Savile, L.
Ironside, L. Seebohm, L.
Jenkin of Roding, L. Selborne, E.
Johnston of Rockport, L. Skelmersdale, L.
Joseph, L. Somers, L.
Kennet, L. Stedman, B.
Killearn, L. Stockton, E.
Kilmarnock, L. Strange, B.
Kinloss, Ly. Sudeley, L.
Lauderdale, E. Swinfen, L.
Lawrence, L. Swinton, E.
Layton, L. Terrington, L.
Lloyd of Hampstead, L. Teynham, L.
Long, V. Thomas of Gwydir, L.
Lucas of Chilworth, L. Trumpington, B.
Luke, L. Ullswater, V.
Lurgan, L. Vaux of Harrowden, L.
Lyell, L. Walston, L.
McGregor of Durris, L. Ward of Witley, V.
Mackay of Clashfern, L. Windlesham, L.
Macleod of Borve, B. Wyatt of Weeford, L.
Malmesbury, E. Young, B.
Margadale, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.51 p.m.

Lord Morton of Shuna moved Amendment No. 28:

Page 6, line 16, at end insert— ("( ) Subject to any agreement to the contrary, and subject to subsection (2) above, where a person commissions the painting or drawing of a portrait, or commissions the making of a photograph or film whose subject is a person or an event of a private character, and pays or agrees to pay for it in money or money's worth, the person commissioning the work is the first owner of any copyright in it.").

The noble Lord said: My Lords, in the light of the views expressed by the House on the previous amendment it may be that this one will meet with some favour. It is intended to put the commissioner of a work in the same position as the employer of the author of the work. That was the position under Section 4(3) of the Copyright Act 1956. It was recommended by the Whitford Report. For some reason so far unexplained the Government have decided that if someone commissions a photographer to take a photograph or an artist to paint or draw a portrait it is the artist or photographer who is to retain the copyright.

In the normal way—to take the photographic scene—somebody whose daughter is getting married may arrange or commission a photographer to take photographs. One would have thought that there was a certain element of privacy attached to those photographs. The recent case of Williams v. Settle shows that photographers can be induced by journalists to sell the photographs in such a situation. In the case I have quoted it was a murder victim. The photographer may be induced to sell the photographs to the press and the subject may receive a considerable amount of publicity about what is in essence a private photograph. Therefore the amendment in my name and that of my noble friend Lord Williams would appear to cover the problem. I hope the House will agree that in this regard, subject to any agreement to the contrary, it is the person who commissions the work who should have the copyright. I beg to move.

Lord Brain

My Lords, on this occasion I do not totally follow the line of reasoning of the noble Lord, Lord Morton. If purely a private individual is commissioning a private photograph, I quite accept that that should be the property of the person who makes the commission. I am less happy about a situation where an up-and-coming portrait photographer or, as I believe happens, a portrait artist is commissioned by a gallery or an archive organisation—a photographic library—to take photographs for the library or for future sales from that gallery. I am unhappy about any subsequent lack of control over the use of those photographs.

I also have a degree of sympathy where, as in the case mentioned by the noble Lord, Lord Morton, people invite elegant young ladies to sit for a photograph. The young ladies may think (and also their parents) that they have commissioned the photograph. The photograph has been offered by the photographer and in that case he ought to retain the commission. I believe that there is some merit in the purely personal nature of the individual's commissioning the event. In view of the very broad context I cannot support the amendment.

Lord Howie of Troon

My Lords, I must come to the support of my noble friend on the Front Bench on this occasion. I believe that he is entirely right. I remember that we discussed this at Committee stage on an amendment that I put down. I forget the details of the amendment but I can remember discussing it very briefly and very late one night. At that time I made only one point and I shall repeat it again today.

It seems to me that the person who commissions the portrait, photograph, film or whatever it is referred to in the amendment, is in exactly the same position as the person who was quite often mentioned in the course of these debates by the Minister. The person who makes the arrangements, as he has said many times, should keep the copyright. In this situation the person who places the commission makes the arrangements and he, too, should keep the copyright. I believe that my noble friend is quite correct on this occasion and his amendment should be acceptable to the Government and to the House.

Lord Somers

My Lords, I believe it is quite wrong that an artist who paints a portrait or a landscape should lose his copyright simply because his picture has been commissioned. Naturally, it has been commissioned. When somebody wants to buy a work of art he pays for it, which is not unnatural. That applies to most things in this world today. It is entirely wrong that the artist should lose his copyright.

Lord Beaverbrook

My Lords, in Committee we discussed the question of who should own the copyright in commissioned works in connection with the amendment tabled by the noble Lord, Lord Howie of Troon. This amendment places a different emphasis on the matter. I explained at Committee stage that the current law is anomalous. It is our view that the author should be the first owner of the copyright in a commissioned work. It is always possible for the commissioner to acquire copyright contractually. This amendment would reintroduce most of the substance of Section 4(3) of the 1956 Act, under which the commissioner owns copyright in respect of certain commissioned works, with the addition of films. A further proviso is that in the case of photographs and films this is to apply only where the subject is a person or an event of private character.

The underlying sentiment of this amendment is a laudable one. It seeks to protect the individual by ensuring that photographs, video films and other works of a personal nature, are not exploited without the commissioner's consent. However, I am not inclined to accept the amendment as it stands for a number of reasons. Firstly, the amendment would reintroduce the anomalies that we are trying so hard to get rid of. Not only are different categories of work treated in different ways, but for a given type of work—say, a photograph—first, ownership of copyright will depend on the subject matter. That will lead to further anomalies and borderline cases. For instance, why should the commissioner get the copyright when the subject is an artist's model or some other person only remotely connected with the commissioner? Should it be the commissioner or the subject who decides how the work should be exploited?

I am also concerned about the criterion that the subject is a person or an event of private character. Perhaps the case that causes greatest concern is wedding photographs, but I doubt whether this amendment would cover weddings. Photographs taken outside a church or on the steps of a registry office would not fall within the exception since they would usually be a public ceremony in a public place.

There is a general problem here in the extent to which copyright law can be used to protect the privacy of the individual. We can clearly provide a measure of protection—and this was the intention behind Section 4(3) of the 1956 Act—but the most serious intrusions arise where copyright law could not conceivably provide a remedy. Witness the activities of the paparazzi with their telephoto lenses. It remains our view that the author should be first owner of copyright although we recognise the genuine concerns about privacy and would like to look further into this. I do not think that there is a serious problem with paintings since the commissioner is usually in possession of the physical object. It is photographs and films where the real problem lies. The answer may be that the copyright in commissioned works should belong to the author of the work, but in the case of photographs and films commissioned for private purposes the author will not be able to exploit the work without the commissioner's permission. Taking the wedding photograph example again, the photographer would own the copyright and so would be able to charge for extra prints and so on, but he would not be able to put the photograph in a local newspaper without the commissioner's permission. That seems to be the right balance.

I hope that this will meet the concerns of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. If they are prepared to withdraw the amendment today I shall undertake to come back at the next stage with a government amendment.

6 p.m.

Lord Morton of Shuna

My Lords, in principle it seems rather curious that if you employ somebody—using the word "employ" in a technologically neutral sense, whatever that may mean but it was a phrase that came from the other side—to take one photograph, the photographer keeps the copyright. If you employ a photographer to take photographs for weeks on end, you have the copyright of the photograph. Be that as it may, the Minister is prepared to consider the issue and I would not wish to do other than encourage his consideration. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 29: Page 6, line 17. leave out subsection (3).

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 27. I beg to move.

On Question, amendment agreed to.

Clause 12 [Duration of copyright in literary, dramatic, musical or artistic works]:

Lord Beaverbrook moved Amendment No. 30:

Page 6, line 32, leave out subsections (2) to (5) and insert— ("(2) If the work is of unknown authorship copyright expires at the end of the period of 50 years from the end of the calendar year in which it is first made available to the public; and subsection (1) does not apply if the identity of the author becomes known after the end of that period. For this purpose making available to the public includes— (a) in the case of a literary, dramatic or musical work—

  1. (i) performance in public, or
  2. (ii) being broadcast or included in a cable programme service;
(b) in the case of an artistic work—
  1. (i) exhibition in public,
  2. (ii) a film including the work being shown in public, or
  3. (iii) being included in a broadcast or cable programme service;
and in determining generally for the purposes of this subsection whether a work has been made available to the public no account shall he taken of any unauthorised act. (3) If the work is computer-generated copyright expires at the end of the period of 50 years from the end of the calendar year in which the work was made. (4) In relation to a work of joint authorship— (a) the reference in subsection (1) to the death of the author shall be construed—
  1. (i) if the identity of all the authors is known, as a reference to the death of the last of them to die, and
  2. (ii) if the identity of one or more of the authors is known and the identity of one or more others is not, as a reference to the death of the last of the authors whose identity is known; and
(b) the reference in subsection (2) to the identity of the author becoming known shall be construed as a reference to the identity of any of the authors becoming known.")

The noble Lord said: My Lords, I spoke to this amendment with Amendment No. 25. I beg to move.

On Question, amendment agreed to.

Clause 13 [Duration of copyright in sound recordings and films]:

Lord Kilbracken moved Amendment No. 31:

Page 7, line 37, leave out ("(a)")

The noble Lord said: My Lords, when I moved Amendment No. 1 this afternoon I did not declare an interest. I did not do so because I had declared several interests at Second Reading and again at the Committee stage. I do not feel that it is necessary to declare an interest at every stage of the Bill. However, I raise this point because your Lordships may have noticed an article in The Times at the time of the Committee stage which severely criticised noble Lords for not declaring their interests sufficiently when taking part in debates in this House. I meant to raise this point earlier but forgot about it. That is why I am bringing it up now. It will be for your Lordships to decide. The Times still wields a certain power, I suppose. If it thinks that we should declare an interest every time the same subject is debated, I suppose that some thought has to be given to it. All I state now is that I have an interest as a journalist, a writer and a photographer, and I shall leave it at that.

In moving Amendment No. 31 I shall speak at the same time to Amendment No. 32. This is partly a matter of drafting but it also raises a matter of some substance. I shall deal with the drafting matter first. Clause 13 deals with the time at which the copyright in a sound recording or film expires. Under Clause 13, it expires: (a) at the end of the period of 50 years from the end of the calendar year in which it is made, or (b) if it is released before the end of that period, 50 years from the end of the calendar year in which it is first released.".

It practically never happens, or seldom happens, that a sound recording or film is made and is not released. It is the norm that it will be released. Therefore it seems to me that the order in which paragraphs (a) and (b) are presented should be reversed. One should say: at the end of the period of 50 years from the end of the calendar year in which

  1. (a) it is first released, or
  2. (b) if it is not released before the end of that period"

as may happen in a few cases— its making is completed".

That is the drafting point.

The point of substance is that at present if a film or sound recording is released, the copyright expires at the end of the period of 50 years from the end of the calendar year in which it is made. I raised the point in Committee that the making of a motion picture takes a long time. Production may start in one year and finish in the next. It is not clear from the Bill whether the copyright expires 50 years after the end of the year in which the production starts or 50 years from the end of the year in which it finishes. That can be a matter of some importance.

I have been in correspondence with the Minister about this and it turns out that the position is not at all as I thought it to be. The position is that copyright in a film is seen by the Government as continuing for 50 years after the end of the calendar year in which that little part of the film was shot. If a certain sequence is shot in 1987, another sequence is shot in 1988 and another sequence is shot in 1989, the copyright expires 50 years after the end of 1987 for the parts that were shot in 1987, and so on. This is an absolute nonsense.

A film may start on location in November of year one. In about the summer of year two certain parts are shot in the studio. In year three the makers finally have to go back on location and do some more shots. All these pieces of film are then taken to the cutting room to be intercut and rearranged. There is a final product at the end of year three. However, it is impossible to tell which footage was shot in which calendar year. A minute or two may come from the first year and 10 minutes from another year. The copyright of that film will expire 50 years after the year in which each part of the film was made. That cannot be right, because no one will know when the copyright in that film will expire. There will be different expiry points all the way through the film.

My amendment seeks to make it all simple and to state that copyright expires 50 years after the end of the calendar year in which the film was completed. Surely that is perfectly simple. Is that not what we are trying to do: to decide a date or a year? I suggest that that is the only way in which we can ensure that it is done. I beg to move.

Lord Willis

My Lords, there is a tremendous logic in what the noble Lord, Lord Kilbracken, has said. Imagine the situation of a novelist. That is not as complicated as that of film making. The novelist may start a book this year which may take him two years to complete.

The Earl of Stockton

My Lords, it does not apply to books.

Lord Willis

My Lords, I know. However, what I am saying is that if it does not apply to books, why apply it to films? Why is it not possible for the same logic to be used? That is my point.

Lord Morton of Shuna

My Lords, there seems to be a certain difficulty here. What happens if a film is never finished? Does the copyright just sit in the open, never to be complete?

Lord Beaverbrook

My Lords, I listened with interest to the argument put forward by the noble Lord Lord, Kilbracken. He possibly went wrong when he described his suggestion as being "perfectly simple". I am sure that all of your Lordhips will agree with me that nothing in copyright is perfectly simple; it is a complicated matter.

The noble Lord, Lord Kilbracken, returns in these amendments to a point raised in Committee. I shall shortly be proposing an amendment to this clause which meets one of those points; namely, the incorrect use of the expression "first release".

I have already explained to the noble Lord that in looking at that point we have realised that the way in which the Bill, and the 1956 Act, approached the question of making a film was not correct. There was an underlying assumption that a film was not made until it was edited into its final form. I say "final", but of course it is well known that further editing of films can take place even after they have been released; for instance, to make them more popular with the public or more palatable to the censor.

That is a false assumption. The definition of "film" is a recording and, on that definition, each "take" made in the course of shooting a film is a film in itself. That must be right since those takes must have copyright protection. Once that is realised, I suggest that the drafting of Clause 13, as I shall shortly propose that it be amended, is right because it ascribes a definite period of copyright in all cases. In the amendments of the noble Lord, Lord Kilbracken, no clear meaning can be attached to the phrase "the end of that period" nor can there be any certainty about whether a film that has not been released has been completed.

In answer to the point made by the noble Lord, Lord Willis, I say that the same logic does not apply to books and films because copyright in books (literary works) lasts for the lifetime of the author plus 50 years. Copyright in films is calculated differently. I think that I have again demonstrated to your Lordships that this is not a simple matter. Therefore, on that basis, I must resist the amendment.

Baroness Phillips

My Lords, before the noble Lord replies to the amendment. I should like to raise a slightly different point. The noble Lord commenced his remarks by saying that he had declared an interest and he asked whether he had to do so on every occasion. As I understand our Standing Orders, in the House one does not have to declare an interest; I thought that requirement merely applied to the other place. The issue is slightly confused—I do not expect the Minister to answer—as obviously practising barristers, who are also peers, practise in the morning and come here in the afternoon to discuss laws; but they do not declare an interest. Perhaps, at some stage, we could learn what is meant by "declaring an interest". Is it directly related to a particular financial interest? The noble Lord described himself as an author. It seems to me that we do not need to do that.

Lord Hailsham of Saint Marylebone

My Lords, it is clear that the noble Lord, Lord Kilbracken, had no interest whatever to declare. Furthermore, he would have been entitled, for the reasons given by the noble Baroness, Lady Phillips, to remain absolutely silent on the point. The fact that one has a practice or a business of a certain kind is not the type of interest that is declarable. However, if one has a particular interest in a film or employer then of course, it would be a different matter.

6.15 p.m.

Lord Kilbracken

My Lords, I am grateful for what the noble and learned Lord said. I am sure that it was a completely authoritative statement. I thought that that was the position; but in view of what has appeared in the press, I wanted to raise the issue.

I am disappointed by what the Minister has said. He found it difficult to understand what I meant by the end of that period in Amendment No. 32. Surely he can see that I have left in the words at the beginning of the clause: Copyright in a sound recording or film expires— (a) at the end of the period of 50 years from the end of the calendar year which is the period to which I refer in Amendment No. 32.

Whatever the Government's intentions may be, surely we are merely trying to set a date when a film was made and when the copyright in that film will expire. We can make it anything we like. As I have said, the only sensible way to achieve that is to say that a film was made over a certain period of time when the cameras were turning. It then went into the cutting room and a great deal of it was left on the cutting room floor. Finally, the film was put together, and it was complete.

We should make the date when the copyright in the film expires 50 years after the end of the calendar year in which the film is completed. Otherwise, there is no date when the copyright in a film expires. One has a property. One has a film that has been made at enormous cost—perhaps millions of pounds or dollars. At present, we cannot say that the copyright expires on the 31st December this year because bits of it expired on the 31st December last year. Other parts of the film, in no particular order, will expire on 31st December next year. It creates absolute nonsense. Those facts will never be relevant. They will never be of any use or need to be considered because what matters is when the copyright of the whole damned thing expires. It seems nonsensical that it should be anything else. However, having said that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 32 not moved.]

Lord Beaverbrook moved Amendment No. 33:

Page 7, line 40, leave out ("first").

The noble Lord said: My Lords, in speaking to Amendment No. 33, I shall, with leave, speak also to Amendments Nos. 34, 35 and 234. We have already discussed the matter in connection with Amendments Nos. 31 and 32. During discussions on the clause in Committee the noble Lord, Lord Kilbracken, made the point that a film can be released only once. However, a film may be withdrawn from circulation and subsequently re-released; but it is not released a second or third time. These amendments seek to meet the noble Lord's points and to render the terminology in the Bill more consistent with that used in the industry. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 34 and 35:

Page 8, line 2, after ("is") insert ("first").

Page 8, line 4, after ("is") insert ("first").

The noble Lord said: My Lords, I beg to move these amendments together.

Lord Kilbracken

My Lords, I am grateful to the noble Lord for finding out that what I said at the Committee stage was right.

On Question, amendments agreed to.

Clause 16 [The acts restricted by copyright in a work]:

The Earl of Stockton moved Amendment No. 36:

Page 8, line 36, at end insert— ("(f) to cause by means of an electronic processing device the transmission of any signal which represents or may be used to represent the work.").

The noble Earl said: My Lords, for the convenience of your Lordships' House I shall also speak to Amendments Nos. 38 and 43 in my name and that of my noble friend Lord Mottistone, and to Amendment No. 44 in the name of my noble friend Lord Rodney.

The aim of these amendments is to make transmission of a computerised work an act restricted by copyright, with a back-up clause which extends the concept of copying to both storage and display.

Changing technology makes it imperative to extend the range of the acts restricted by copyright in order to encompass the uses likely to be made possible by technology. Only in that way will copyright owners be able to negotiate reward, however modest, for such uses. Thus the storing of a work in any computer storage device is widely accepted as being an act of copying and as such an act restricted by copyright. This status is implied by the present draft of Clause 17(7), but not categorically set out. It should be. Also, the display of a work on a VDU might or might not be protected as a performance of that work under Clause 19(2)(b). It is important, again, that presentation is explicitly secured so that coyright owners can then negotiate reward for use with copyright users.

I draw your Lordships' attention to a report of the Australian Copyright Council which said: Computer storage and retrieval systems use an author's work periodically and ephemerally and fragment his work into information in the process. Present bases of infringement apply irrationally so that the type of use is crucial rather than the nature or effect of that use. It is, for example, illogical that hard copy computer print-outs have the potential for infringing copyright as acts of reproduction whereas visual displays, which perform precisely the same function and convey the same information, do not".

My noble friend Lord Rodney will be happy not to move Amendment No. 44 if Amendment No. 43 in my name and that of my noble friend Lord Mottistone is adopted. If not, of course he reserves the right to speak to his amendment. Also, depending on what the Minister says, my noble friend Lord Mottistone may wish to speak to Amendment No. 43. I beg to move.

Lord Brain

My Lords, I support this amendment because it is already practical for a photographer using magnetic media, which is now defined as a photograph, to take a photograph in Japan, say, for it to be transmitted by fax arrangements to London, for it to be put up on a VDU for editing, and it is seen for the first time in hard copy in print in a newspaper or something similar. This deserves to be the sort of copying which is protected. I like the method of protecting it proposed by the noble Earl.

Lord Beaverbrook

My Lords, these amendments all address the very important question of the relationship of copyright to the electronic storage, transmission and display of copyright works. This relationship was extensively debated by your Lordships in Committee but it was clear that, in certain respects, there would be a need to return to the question.

Amendment No. 36, in the name of my noble friend Lord Stockton, would create a completely new right, allowing copyright owners to control the transmission of works by means of electronic processing devices. I am not sure of the breadth of this right. It would, for example, seem to cover the transmission of works over the ordinary telephone system, which in these days of digital telephone exchanges includes large numbers of sophisticated electronic processing devices for sending messages on their way. If so, then the right is clearly much too wide.

But in any event we believe that a right of this kind is not needed. Transmission of works by broadcasting them or by including them in a cable programme service is already a primary restricted act. Downloading or recording works included in a broadcast or cable programme constitutes copying, which is another restricted act. The only potential exemption from copyright control in this area might be where the only copy made by the person receiving the transmitted work is incidental to his use of the work; in other words the situation where the user simply runs a computer program or views a work stored at a remote location and transient copying is done in the internal workings of the terminal he uses. As the Bill is currently drafted, subsection (7) of Clause 17 would ensure that no infringement has been committed in these circumstances. But we have been persuaded, for reasons I shall explain in a moment in speaking to Amendment No. 43, that subsection (7) should not be retained. This removes any residual need for a new right and I must therefore resist Amendment No. 36.

It is convenient to turn next to Amendment No. 43. In responding to corresponding amendments in your Lordships' Committee I pointed out that removing subsection (7) of this clause would have the effect of granting to owners of copyright in computer programs and in works stored in electronic databases the right to control the use of their works, since they cannot be used without the kind of copying referred to in subsection (7) taking place. This would be a new departure in copyright law. We were also concerned that the right could be used oppressively in certain circumstances.

The Government have, however, carried out extensive consultation on the matter and are now satisfied that the special nature of computers and of electronic data-processing justifies giving additional protection in these fields. The most persuasive consideration is the possibility of multiple, simultaneous use of a stored program or work. Given this possibility, rights owners need to be able to specify and enforce conditions about the numbers of permitted users. The most effective legal basis for this is copyright. We can therefore accept Amendment No. 43. However, I must make clear that this is on the understanding that we shall be coming forward with an amendment to the effect that when a person acquires a legitimate copy in electronic form from a previous user who had been given a free licence to use it the acquirer may use it freely to the same extent. I hope that we can debate this properly on Third Reading.

Finally, I turn to Amendments Nos. 38 and 44. The former amendment is similar to an amendment proposed by the noble Lord, Lord Mottistone, in Committee, but now refers to "electronic processing devices" rather than "computers" and explicitly includes display of a work as an act of copying. In responding to the earlier amendment I said that subsection (2) of Clause 17 was already broad enough to encompass copying within computers. However, I accept that the case for explicit reference to electronic storage and display is strengthened if subsection (7) of this clause is deleted. We shall therefore give further consideration the definition in subsection (2), and may come back to the matter on Third Reading. In doing so, we shall also consider Amendment No. 44 which, although presented as a separate subsection, is really only another aspect of the definition of copying which should be dealt with in subsection (2).

I hope that with those undertakings the noble Lords will be able to withdraw their amendments.

Lord Mottistone

My Lords, I am indeed grateful to my noble friend for accepting Amendment No. 43 and for his very full explanation of his understanding of the problem, which has gone a long way forward on our discussions in Committee. I am also most grateful to him for considering something on the lines of Amendment No. 38 which, as he said, is similar to one that I moved in Committee, encompassing Amendment No. 44 which was my original effort in these series of amendments. Altogether, I think that we have made great progress, and I am extremely grateful to my noble friend and his advisers.

The Earl of Stockton: My Lords, I thank my noble friend for his assurances on Amendment No. 43. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

6.30 p.m.

Lord Beaverbrook moved Amendment No. 37:

Page 9, line 6, leave out (", in the latter case,").

The noble Lord said: My Lords, the noble Lord, Lord Kilbracken, put it to me privately that the expression "in the latter case" in Clause 16(3) was wrong. He said that the phrase could be construed to apply to the whole of paragraph (b) when it should only apply to indirect copying.

It is clearly the case that intervening acts can only take place when copying is indirect. But the phrase "in the latter case" has the effect of applying the tail piece of subsection (3) to both direct and indirect copying. The best answer is simply to omit the words in question. I beg to move.

On Question, amendment agreed to.

Clause 17 [Infringement of copyright by copying]:

[Amendment No. 38 not moved.]

Lord Beaverbrook moved Amendment No. 39:

Page 9, line 21, leave out subsection (4).

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 40: Page 9, line 26, leave out ("taking") and insert ("making").

The noble Lord said: My Lords, in speaking to Amendment No. 40, I shall also, with leave, speak to Amendment No. 41. The amendment standing in my name was tabled in response to a point raised by the noble Lord, Lord Kilbracken, in Committee. The noble Lord has offered his own, very similar amendment for your Lordships' consideration, which is Amendment No. 41.

As the Bill is drafted, it could be held that the photographic copying of a single image in a film or television broadcast is permissible provided a camera is not used to take the photograph. For example, a photograph could be derived from a film by contact printing, but it could then be said that no one had taken a photograph. The amendment standing in my name seeks to remove any doubt by providing that a photograph of an image in a film, television broadcast or cable programme is a copy, regardless of how it is made.

The amendment in the name of the noble Lord, Lord Kilbracken, would, however, go too far. It would certainly pick up the contact print, but it would probably leave out the photograph taken in the ordinary way by camera. My amendment would cover both, which is what we want. I beg to move.

Lord Kilbracken

My Lords, I apologise for my absence. Your Lordships reached this amendment rather more quickly than I had anticipated. I understand that we are dealing with Amendment No. 40.

Lord Beaverbrook

My Lords, if the noble Lord will give way, and with the leave of your Lordships, I should like to point out to the noble Lord that we are on Amendment No. 40 and I have spoken to Amendments Nos. 40 and 41.

Lord Kilbracken

My Lords, I am so sorry that I missed much of what the noble Lord said in speaking to this amendment. The point that I make in Amendment No. 41 is that it is surely not correct to talk about "making a photograph of—when we are making a photograph from something. This is a matter of some importance.

As your Lordships will have seen in this morning's papers, many of them carry the last photograph of the miserable hypocrite Jimmy Swaggart, the American evangelist, whose weeping face was seen as he announced his indiscretions on the television yesterday. That was a still taken from a television sequence in which he made his confession. That picture has appeared all over the world and has probably earned tens of thousands of pounds. It was not a photograph taken in the ordinary way with a still camera, but was obtained in some way—I am not sure of the technique used—from the video tape concerned. It is therefore obvious that it is possible to make a still photograph of great value from a video tape or film that has been shot. I do not know whether the noble Lord went on to discuss my Amendment No. 42—

Lord Beaverbrook


Lord Kilbracken

Then, my Lords, I should like to make a point on that separately. Reverting to my earlier remarks, that is precisely the way in which a still photograph of great value can be made from a film or a video tape and it therefore has to be seriously considered. I am glad that the noble Lord has made a proposal as a result of the point that I raised at Committee stage, but I think that my own language is surely preferable.

On Question, amendment agreed to.

[Amendment No. 41 not moved.]

Lord Kilbracken moved Amendment No. 42: Page 9, line 26, leave out ("substantial").

The noble Lord said: My Lords, here I want to leave out the word "substantial". My reason is that if a photograph of this kind is made from a single frame of a film or from a videotape, the still photograph that is made may be of the whole frame, but much more probably it will be from a part of the frame, perhaps a very small part. For instance, if Jimmy Swaggart, when he was making his confession on television yesterday, had been occupying only a very small part of the frame at that time and it was considered desirable or saleable to show a portrait of the gentleman which was occupying less than 25 per cent. of the frame, that should not affect the fact that the copyright belongs to the person who shot the film.

However, as the Bill is at present worded, it is only if a substantial part of that frame issued that copyright belongs to the person who shot it, and that seems wrong. It is for that reason that I move that the word "substantial" be deleted. My Lords, I beg to move.

Lord Beaverbrook

My Lords, Clause 17(5), as we have just amended it, provides that the making of a photograph of the image on a television screen or of a single image of a film amounts to copying the television broadcast, cable programme or film in question. The reason for this is that Clause 16(3)(a) provides that, for there to be infringement, a substantial part of a work must be copied. It is strongly arguable that a single frame from a two hour film is not a substantial part. Under the present law, a copy of a single image from a film is a reproduction of the film, but a copy of a single image from a television broadcast or cable programme is not. This anomaly arises from the difference between Section 13(10) of the 1956 Act and Sections 14(6) and 14A(7).

There can be no doubt that a single image taken from a film or television programme can have a significant value. That is why we feel that it is right to put it beyond doubt that photographing such an image requires the consent of the copyright owner. Furthermore, the value of the image may subsist in only a part of it and so we have provided that photographing a substantial part of the image may infringe copyright.

To go further than this by making the reproduction of insubstantial parts of the image a restricted act, as the amendment seeks to do, would be wrong. It would give films and television programmes greater protection than any other works. For example, copyright in a photograph as an artistic work in its own right would not be infringed by reproducing an insubstantial part of it, but, if this amendment were successful, reproducing the same proportion of a still from a film would infringe the copyright in the film.

I should point out that it would not be possible, were the word "substantial" to be left out, to rely on Clause 16(3)(a). That relates to substantial parts of works, but here we are concerned with a single image which itself is not a work or even a substantial part of a work. To achieve the right result, therefore, Clause 17(5) needs to carry its own reference to substantial part.

"Substantial" does not necessarily mean in a dimensional way. "Substantial part", for instance, in the example quoted by the noble Lord, could well mean the picture of the discredited evangelist himself. His image in that picture may well be dimensionally a very small part of the image but it is of substance as regards the importance of the image. It is very important that we do not regard "substantial" in this context as in any way constituting a major part dimensionally of the image itself. I hope that the noble Lord, Lord Kilbracken, will feel able to withdraw the amendment in the light of my explanation.

Lord Cawley

My Lords, there is judicial authority for what a "substantial part" is. One judge said that if one copied one page from a London telephone directory that was taking a "substantial part".

Lord Kilbracken

My Lords, I was reassured by what the Minister said about the definition of "substantial", although of course his reassurance will not be available as evidence in a court of law at any future date. I assume that he is right that that is the legal understanding of the word.

As a photographer one tends to think of it as being the percentage of the frame that is used in making the still. I remember shooting an attack by dive bombers on a bridge in northern Iraq in which the Hunter aircraft carrying out the attack was a very small part of the frame but could still be blown up into a very saleable picture of the attack.

In view of what the Minister has said about the meaning of "substantial", I am prepared to withdraw the amendment.

Amendment, by leave, withdrawn.

The Earl of Stockton moved Amendment No. 43: Page 9, line 31, leave out subsection (7)

On Question, amendment agreed to.

[Amendment No. 44 not moved.]

Clause 18 [Infringement by issue of copies to the public]:

Lord Lloyd of Hampstead moved Amendment No. 45: Page 9, line 36, leave out subsection (2) and insert ("(2) References in this Part to the issue to the public of copies of a work are— (a) to the act of first putting those copies into circulation for sale: (b) to the act of distributing those copies for commercial purposes by way of rental, loan, hire, exchange or similar arrangement; and not to their importation into the United Kingdom.")

The noble Lord said: My Lords, in the grouping document with which I have been supplied I find that Amendment No. 45 has been grouped with no fewer than 19 other amendments. The House will be relieved to know that I propose to make remarks to cover Amendments Nos. 46, 49 and 51 only, although I note that Amendment No. 47 is in terms somewhat similar to those of Amendment No. 45.

I moved an amendment in Committee in the same terms as those of Amendment No. 45. There followed a quite considerable debate. I mentioned that this pointed to a serious lacuna in the original Bill, which did not cover the so-called rental right, and the problem that had arisen in relation to the spread of rental shops whereby people opened shops and rented out tapes for the purpose of copying, which was obviously a most undesirable practice. It has spread widely in other countries, particularly in Japan and America, where legal steps have been taken to restrain it. The object of my amendment in Committee was to create a rental right that would enable the practice to be curtailed or at any rate to be linked with a royalty scheme under the general provisions of the Bill. Although I omitted to say that I would refer to it, it is Amendment No. 219, as included in the grouping list, which covers that aspect of the case. That amendment is to be moved by the Government.

The House will be relieved that as we approach the adjournment I can dispose of the matter quite shortly. In Committee considerable pressure was placed on the Government by myself and by other noble Lords—including the noble Earl, Lord Ferrers, who can no longer participate in the proceedings as a Back-Bencher—to give an undertaking in due course to put in an amendment, the Government having indicated considerable sympathy for the underlying intention. The Minister felt unable to give a firm undertaking on behalf of the Government. On the basis of a qualified undertaking given by him, I agreed to withdraw the amendment.

I am happy to say that the Minister, doubtless having taken full counsel, has felt able to put in an amendment. Although it is expressed in a somewhat different form and is not quite as comprehensive as the terms of my amendment, it has gone far to meet the case that I and others put in Committee that there should be some provision in the nature of a rental right linked with a royalty scheme that could be dealt with in the event of failure to agree by the Copyright Tribunal. The Minister in Amendments Nos. 46, 49 and 51 has put forward a proposal along those lines, although apparently he prefers "hiring" to "rental right".

I tabled the amendment again for this stage of the Bill because I did not know whether the Government would accede to our request that they should put in their own amendment. I felt it right to put in my amendment so that the matter could have a further opportunity of being ventilated.

Although there are some differences of detail between the two proposals, I feel that the Minister has gone a considerable way to introduce the notion of rental or hiring as deserving of restraint and to link it in a subsequent part of the Bill with a possible application in regard to royalties to the Copyright Tribunal. It seems to me right that I should not press my original amendment but I express my gratitude to the Minister for the care that he has taken on this matter and for his willingness to accede to the principle to which my argument and that of other noble Lords who took part in the earlier debate was directed.

In those circumstances I indicate, but without wishing to preclude anyone else from contributing to the matter at this stage, that it is my intention not to press the amendment when the appropriate moment arrives. I shall move my amendment at this stage and then withdraw it. Otherwise it seems to me that I shall deprive any other noble Lord of the opportunity of speaking to it. Is that not correct? I beg to move.

The Deputy Speaker (Lord Alport)

My Lords, I must inform your Lordships that if this amendment is agreed to I cannot call Amendments Nos. 46, 47, 49 or 50.

Lord Jenkin of Roding

My Lords, I was brought up as a young member of the Bar to believe that the main difference between solicitors and barristers was that barristers were expected to read to the end of a clause. I am not quite sure whether the noble Lord, Lord Lloyd of Hampstead, has appreciated the full purport of the group of amendments which my noble friend has tabled following the undertaking he gave in Committee.

The noble Lord was quite right that government Amendments Nos. 46, 49 and 51 are welcome because they recognise for the first time the case that he made that there should be a rental right. He mentioned Amendment No. 219, which of course sets out the procedure for determining the royalty that should be paid. But in between and grouped with this is government Amendment No. 106, which is a new clause and is clearly an integral part of the Government's proposal. I must say to my noble friend that, while I welcome Amendments Nos. 46, 49 and 51, which give this valuable new right, I cannot extend the same welcome to the new clause because it almost entirely takes it away again.

I am not sure whether the noble Lord, Lord Lloyd of Hampstead, recognises that his rental right, which he has welcomed with some gratitude, will last for only one year. I do not think that that goes any way at all to meet the needs of the case and to meet the case that was put with great strength from all parts of the Chamber in Committee.

Perhaps I should explain, as this is the first time that I have intervened in this highly complex piece of legislation, that my concern arises because I am the chairman of a music trust called the Taverner Concerts Trust, the function of which is to sponsor the Taverner Group under its able director Andrew Parrott. The group makes records, tapes and compact discs of a wide range of classical music from the very earliest European music. It places very special emphasis on baroque and late baroque music. The music is of the highest quality and it appeals to an enthusiastic but small audience. It is almost universally true of the records that the group makes that it takes a good many years for the record producer to recoup his costs.

The records made by this and many other comparable groups who make such recordings can be on sale for upwards of 20 or even 25 years and can still command an audience. But of course it is a long time before the money comes in. Indeed the record producers in these cases frequently require sponsorship to cover what one might call the front end costs. It is part of my function and that of my fellow trustees to try to find sponsors for such operations.

But even with sponsorship the record company may take seven, 10 or 12 years to recover its outlay before it begins to make a profit. It is against that kind of figure that one has to judge the one year, or it may be one year plus, which my noble friend has written into his Amendment No. 106.

The mischief of that amendment, or new clause as it is on the Marshalled List, is that by conferring what is in effect a statutory licence of right to rent after one year the Government are putting at grave risk the revenues from sales after that period because once a compact disc is put into circulation it is wide open for copying, particularly in the form of illegal home copying.

I supported the Government against the levy on a blank tape because I was persuaded by the bureaucratic argument that that would not meet the case. The fact remains that a compact disc is the answer to the rental shops' prayer. It is a perfect reproduction of the artist. It lasts indefinitely and can be played more or less indefinitely without any loss of its reproduction. It is therefore an ideal master for copying.

Of course home taping is a breach of copyright and is illegal but, as I think the entire House recognises, the law is quite unenforceable. Therefore the owner of the copyright has no protection unless he is given some rental right; that is to say a control over the rights of the renting of his work. The correct remedy is to ensure that hiring for rent can only be done with the express consent of the owner of the copyright.

There was some argument in Committee about the analogy with films. But I must tell noble Lords that films are quite different. Films are made primarily with the express purpose of being exhibited in public in cinemas. Film producers are extremely careful not to release their films in the form of videos which are rented until they have made the most that they can from their market in cinemas. Indeed before they release the films as videos they enter into comprehensive rental rights so as to protect their right in the copyright of the film. We have been discussing some of the problems connected with that in the amendments which we have just been debating.

The compact disc is freely available for sale to the public from the moment that it is issued. Indeed a great deal of revenue for the producers comes because the discs are sold in record shops. We are fortunate in this country in having a wide spread of shops which sell records, tapes and discs of all kinds. That is the primary market for the compact disc. Therefore the compact disc is freely available for someone opening a rental shop to buy and then hire it out at however small a cost per time, knowing or strongly suspecting that the whole purpose of the transaction is that the man renting the compact disc may take it home, copy it and get a very faithful reproduction on his tape because he is copying from a compact disc. Having bought and rented, which he can do over and over again, he opens the door to a widespread breach of the owner's copyright.

That was the case which the noble Lord, Lord Lloyd of Hampstead, made very powerfully with others in Committee. Had the Government's amendments stopped with the amendments to Clause 18 we should have been very happy. But Amendment No. 106 confines the protection to 12 months or the end of the calendar year following the year in which the compact disc is first published.

What will happen if the proposal made by the Government is unchanged? At that point the proposed renter can go out with his record and start renting it in turn. It is then up to the owner of the copyright to catch him, find out the extent to which his copyright is being breached and then either secure an agreement on royalites or go through the Copyright Tribunal to obtain his licence fee. That proposal does not advert in any way to the question of how comprehensive the royalty would be and to what extent it would provide recompense for the cost of the record.

The copyright holder of a record must catch up with the person breaching the copyright ex post facto, in total contrast with the position as regards films, where the copyright holder can negotiate the licence before the film is released in the form of a video, for rental or while it is being shown in cinemas. By that time, the damage may well have been done. There may have been a number of copies rented out through rental shops and a large number of copies made illegally by home tapers.

The damage occurs because the home tapers are people who might well have gone out and bought a record, tape or CD. Instead, they have obtained a copy at the cost of renting a compact disc from a renter. I therefore welcome the fact that the Government have recognised that they will provide protection. However, I have to tell them that the protection that they have proposed has been largely nullified by the one-year limit.

Perhaps I may anticipate my noble friends' case. He wishes to see a market for the rental of recorded works in sound. I understand that. The consumer should have the choice of buying or renting. The question is therefore how to reconcile the desire of the consumer to rent—CDs are still quite expensive articles and renting may be one of the ways of exploiting them—with the protection of an owners copyright against illegal copying.

I believe that we need a balance. Perhaps I may say to the Minister that I am persuaded that a time limit of one year tilts the balance too far in favour of the renter and the illegal home copier. It has been suggested, by contrast, that a rental right should last for the entire 50-year life of a copyright. From the point of view of the Government—I have some sympathy with their view—I am sure that, if that proposal were accepted, the balance would be tilted too far in favour of the copyright owner and against the consumer who wishes to rent. I therefore suggest that some point in between is the right answer.

At the outset, I gave some figures as regards the likely period before a return is received on records made by a typical high quality group of music makers. I mentioned a period of seven, 10 or 12 years. The pop record will earn its keep in a year. A real top of the pops record will earn its keep much more quickly. Where is the balance to be drawn? I suggest that seven years is the right compromise. With great respect to my noble friend. I believe that he would do well to consider that suggestion between now and Third Reading. I believe that the right answer for the protection of the rental right is to give an exclusive right for seven years and thereafter to allow the provisions of Clause 106 to operate.

Much will depend on schemes drawn up for royalty agreements between copyright owners and renters. But seven years of exclusive right would go a long way to meet the case of those who feel that their copyright is being pirated by home copiers. I commend that course to my noble friend as the best way out of what we must regard as a very unsatisfactory position.

Lord Mottistone

My Lords, I should like to thank my noble friend for Amendments Nos. 46, 49 and 51, stemming directly from our discussion of the matter at Committee stage. Like my noble friend Lord Jenkin, I have slight reservations about Amendments Nos. 106 and 189, to which I have put down further amendments. Perhaps I may speak briefly to those amendments and explain them to my noble friend and your Lordships.

Before I do so, I should explain that the software industry can be identified as an entertainment sector which represents a turnover of approximately £100 million and a personal computer business software sector representing a turnover of approximately £400 million. The software industry as a whole, most of whose products are licensed, has a turnover of about £2 billion per annum. That part of the industry is of great concern to us.

In general terms, we do not object to Amendments Nos. 106 and 189. The right to control rentals would be limited to the end of the year in which copies are first issued to the public. After that time, rentals would be allowable subject to the payment of a reasonable royalty which may be determined by the Copyright Tribunal. In other words, there is a remunerative right after one year, rather than a prohibitive right. Furthermore, all licensing schemes are subject to review by the Copyright Tribunal.

Generally, the entertainment sector of the software industry is pleased with the amendments. The additional changes are probably a necessary compromise. However, the question is whether the extra provisions cover only the entertainment sector or software licensing as a whole. If the former is true, that is probably acceptable for entertainment software; if the latter is true, that would cause great concern to the industry, in that all types of software licensing arrangements would be subject to what are effectively compulsory licensing arrangements with review by the Copyright Tribunal. That would be cumbersome, bureaucratic and unnecessary.

It is the view of industry experts that the extra clauses as drafted cover the whole of the industry. It is likely that the Government, however, do not intend that. To put the matter right would not be straightforward and it has not been attempted. Bearing on that matter is what my noble friend intends to do in further amending Clause 17 following the statement in which he happily accepted the removal of subsection (7). That intention will affect that side of the industry.

In the meantime, I propose with my Amendments Nos 106A and 189A specifically to remove computers from subsection (1) of Amendment No. 106 and paragraph (c) of Amendment No. 189. Those amendments would remove all aspects of review by the Copyright Tribunal for all computer programs and make the rental right prohibitative rather than remunerative. However, one would leave computers in the rest of the amendments because that is the reasonable course. I hope that my noble friend will be able to take account of what I have said in any further amendments which he puts forward at a later stage.

Lord Willis

My Lords, I should like to thank the Government for bringing forward as promised an amendment concerning rental right. They will not be surprised if I say that I feel that there are certain defects, some of which have been pointed out by the noble Lord, Lord Jenkin. I am in 100 per cent. agreement with his criticism of the one-year period. I follow his instinct that the time limit should be for the entire copyright period. If you own a copyright, you own a copyright; the law says that a copyright is in existence until 50 years after your death. However, if the Government do not go along with that idea, the suggestion of seven years is reasonable.

My other criticism is that Amendment No. 106 in particular will bring considerable profit in terms of rentals to the person who actually makes the cassette or record but not to the composer, or perhaps to the publisher and not to the author. That worries me.

It may be argued that what is hired out is an artefact—a cassette, a record, a disc or whatever— that that is the item for which one can charge and that the people who composed the record or made the video can guarantee their position by contract. But that is not always the case, as we discussed in Committee.

It is suggested that to have too many people controlling rights would be difficult. Of course there are difficulties in this Bill all the way through. However, there would be no problem if one included the composers, authors and other creative elements in the right outlined in Amendment No. 106. There are collecting societies in existence that can reach an agreement.

The point that I want to press on the Government is that if the owners of a musical copyright—the people who compose and create it—are given the right, they can negotiate with the people who rent out the products, the makers of the recordings. But if the Act does not grant that right they cannot demand their royalties or share by contract. If they are very powerful and influential people and have achieved the status of the Beatles they can; but if they are ordinary people who are just beginning or in the middle of their career they cannot. They would have to rely on ex gratia payment.

Therefore, I hope that the Government will look again at Amendment No. 106 at Third Reading and widen it so that it is made quite clear that the owners and creators, and not just the people who make the artefacts, are included in the rental right. Given that right, there is no problem in negotiating through the various organisations and societies how it should be split up. I hope that the Government will accept that point.

Viscount Brentford

My Lords, following the noble Lord, Lord Willis, perhaps I may speak to the amendment in my name, Amendment No. 52, which forms part of this group. I ought to remind your Lordships that I am a solicitor and that my firm acts for the Music Copyright Reform Group among others.

I hope that my proposed amendment, Amendment No. 52, meets the point which the noble Lord, Lord Willis, has just been making. He has said much of what I was proposing to say. The difference between my amendment and that of the Minister, Amendment No. 51, is very small. Just a few words are added at the outset: musical works and any literary works associated with them". I should like to express my gratitude to my noble friend for the steps that have been taken towards a rental right following the debate in Committee. Like the noble Lord, Lord Willis, I am very concerned at the exclusion of composers and owners of musical works from participating in this right.

In Amendment No. 51 there is a proposal which goes quite a long way but it will deny composers the right by law to benefit from rental. As the noble Lord, Lord Willis, said, if they do not have a right in law they are unlikely to be able to obtain one by contract. There are two reasons for that. The first is that if they have no right in law there is nothing on which to base a contract. Everyone else is granted his right under the law but not the composer and the publisher.

I have been advised by various sources that unless that right is incorporated in this Bill, if the publisher tries to insist on it, the producer may be able to take him to the Copyright Tribunal and have the publisher's request struck out. This is a serious point that I put to the Minister. It is only a small extension to his amendment.

To back up what I am saying, I should like to read out two letters written to me, one of which is from Lady Bliss, the widow of Sir Arthur Bliss. Referring to the rental right she writes: I am troubled to learn that there is no intention to extend these provisions to cover the musical works and any associated words which will be included in the records and films. Not only will composers and their publishers be deprived of this source of income but if the trend of hiring out records and films continues to grow—as I would expect it to with the encouragement of the Bill—this is almost certainly bound to reduce the sale of records and films which will, in turn, result in a reduction of income for composers". The second letter is from Mrs. Vaughan Williams, the widow also of a very illustrious composer whose name I am sure will be very well known to your Lordships. She writes: This seems to me entirely unfair. If one of my husband's symphonies is recorded by one of the record companies, it seems to me obvious that the music is more important, being the reason for the existence of the record—and I cannot, therefore, understand why it is 'fair' or logical that only the record company and not the composer, and the publisher representing the composer, should be entitled to rental rights". In conclusion, I should just like to reiterate my remarks that in order to get the benefit of contract the composer and publisher need to have the right incorporated in the Bill. I therefore very much hope that my noble friend will agree to extend his amendment to include my additional words.

7.15 p.m.

The Earl of Winchilsea and Nottingham

My Lords, as prime mover of Amendment No. 47 with the noble Lord, Lord Jenkin of Roding, I should like to say how eloquently he has put the case for this rental right which the Government, I am pleased to say, have recognised as being a potential danger to the record industry. I should also like to thank the noble Lord, Lord Willis, for what he said when he last rose to his feet.

I recognise that the Government have acknowledged that a potential problem exists which is likely to get worse as time goes by. However, perhaps I may say how utterly astonished I am, and somewhat dismayed, that the Government have based their proposals, including the period of one year, on the existing Japanese situation, which is perhaps the very worst situation that exists anywhere in the world.

I should like to refer the Government to my speech on this very subject on 12th November 1987 at Second Reading as reported in Hansard at col. 1508. On that occasion I did not exaggerate the situation in Japan; if anything I understated it. Perhaps I may urge the Minister to rethink this so-called concession and come back with proposals at Third Reading.

It might be a timely reminder to the Minister that in line 29 of that same column in Hansard I mentioned that the Japanese Government were busy working on their own White Paper which would give full copyright protection to all foreign musical works in both retail and rental shops. It is also fair to say that the situation in Japan is that 95 per cent. of those who rent, copy the rented music at home. Retail outlets in areas with rental shops have seen sales decline by up to 60 per cent. That represents a real threat to the British music industry, which, as many noble Lords will appreciate, is second to none in the world.

If the Japanese are introducing legislation—which I understand is their serious intent—would it not be prudent for the UK to do likewise in view of the Japanese experience and their government's determination to try to solve the problem? Perhaps I may ask the Minister for correction on this point, of which I am not altogether certain. If he grants only one year, or one year-plus, exclusive protection, would that not be in direct breach of the Berne Convention of which the UK is a signatory?

Lord Beaverbrook

My Lords, we are returning now to a matter that we discussed at length during Committee and I am pleased to tell your Lordships that the Government have reached some firm conclusions on the question of rental.

The Government are of course aware of the attraction of renting out copyright material in various forms. Rental is undoubtedly already a large-scale method of exploiting films, through video rental, and is showing signs of also becoming significant in relation to sound-recordings, particularly compact discs. We accept that exploitation of this kind should benefit copyright owners as well as retailers and consumers, and if we have hesitated to introduce a rental right it has been on two main grounds. First, can copyright owners ensure proper remuneration through contract without the need for a new right? Secondly, how can we ensure that the consumer is able to exercise a choice between renting and buying relatively expensive products such as videos and compact discs?

We are now persuaded that contractual arrangements are not sufficient to assure copyright owners of proper levels of remuneration in all circumstances. A rental right is therefore needed. However, in the Government's view it cannot be a full-blown exclusive right giving rights' owners the power to prevent any rental at all. Otherwise consumers might not be able to exercise the choice to which I referred earlier.

The Government are therefore proposing a right tailored to the needs of the situation. We propose that copyright owners should have an exclusive right to control rental in the first year after first issue to the public of films, sound recordings and computer programs. After that first year, rental will be permitted, but copyright owners will have the statutory right to receive reasonable royalties in respect of rental. The right will last for fifty years and the Copyright Tribunal will arbitrate in cases of dispute. This system is very similar to the rental right operated in Japan.

Noble Lords should note that under the Government's proposal the right belongs to the owners of rights in the sound recording or film and not to those whose works are embodied in the recording or film. This is to avoid putting on retailers the burden of having to obtain authorisations from, and make payments to, more than one category of rights' owners. The amendment of my noble friend Lord Brentford would impose such a burden in respect of musical works and lyrics and I must resist that. Composers and others whose contributions are used will be able to negotiate a share of the new revenue when the arrangements for making the sound recording or film are made.

There is no doubt that copyright owners feel that the Government proposals do not go far enough. The record industry in particular seek a wholly exclusive right mainly because they see the right as a weapon to prevent private copying of rented compact discs. In other works they would, in general, be reluctant to authorise rental at all. I am aware of the private copying concerns that underlie part of the case for this new right but the proposal that we have put forward seems a sensible way of dealing with that matter. Copying of records is most damaging in the first year after release of a record when the demand for sales is highest. Thereafter it may be expected that consumers wishing to rent a compact disc are much more likely to be doing so in order to widen their range of listening rather than to add to their permanent stock of recordings. The bureaucracy and policing necessary to operate the statutory licence has also been the subject of some concern. The copyright owners claim that it will be very difficult to keep track of the small one man and his dog rental shops. They would prefer to license only the larger retail chains. This would, I am afraid, go completely against the policy of this Government to encourage the entrepreneur and to give consumers choice right across the country—not just when there happens to be a large branch of a well-known record shop nearby. Certainly many video outlets keep detailed records for security reasons and there is no reason why computer software and compact discs should not be handled in the same way.

My noble friend Lord Jenkin of Roding has pointed to the need for record companies to identify and negotiate with retailers who rent out sound recordings. If rental is to take place at all then this is inevitable, even if the basis for the negotiations is an exclusive right. The problems of identification are the same under his solution as under ours.

Lord Jenkin of Roding

My Lords, I am extremely grateful to my noble friend; I apologise for interrupting. However, perhaps I did not make my point as clear as I ought.

The problem is that if one still has a great deal of valuable copyright left in a record and one has to give a compulsory licence after one year, then the obligation to catch absolutely everybody imposes a very great burden. If my suggestion of seven years were agreed to, I suspect that my noble friend's argument would be entirely valid. However, I must press him again to consider between now and Third Reading the arguments for a somewhat longer period.

Lord Beaverbrook

My Lords, the Government do not believe that a longer period would be appropriate. At the moment no rental right whatever exists and therefore copyright owners are without protection. The Government are tryng to find the right formula here. We believe that the formula of one year is the right one, followed by a period of licensing for the rest of the copyright period with recourse to the Copyright Tribunal.

At the end of the day, the Government, while concerned to help copyright owners, do not wish rental to be stopped altogether. We believe that consumers should have the option to rent and that shops should be able to satisfy market demand. Our proposals ensure that copyright owners can be assured of a proportion of the money generated by rental. We believe our amendments provide a fair and sensible way to protect the interests of copyright owners and consumers alike. I would add that I have not specifically addressed the substance of the manuscript amendments of my noble friend Lord Mottistone, since it is regrettable that we have been given so little time to consider them.

Lord Mottistone

My Lords, did my noble friend mention my amendments?

Lord Beaverbrook

My Lords, they may now have appeared in printed form but my noble friend had two very late amendments that we had to consider in manuscript form earlier on. It is clear that they seek to put computer programs in a more favourable position than films or sound recordings and I can see no reason for that.

I emphasise to my noble friend Lord Jenkin of Roding that he is incorrect in saying that the new clause introduced by Amendment No. 106 limits rental right to one year. It limits the exclusive right—the right to prevent others from renting—to one year but the right to receive rental is the full length of copyright in a film or sound recording. That is 50 years from the making, or first release.

My noble friend Lord Mottistone has suggested that the wording of my amendment has the result that all types of software licensing would be caught by these provisions and be subject to review by the Copyright Tribunal. We do not believe that this is the case. Software licensing as between the supplier and user of the software is not caught. It is only the licensing of dealers in order that they may hire out software to their customers that will be subject to tribunal jurisdiction. The Government believe that the balance that we are striking with our proposals for a rental right is the correct one. I hope that noble Lords will feel able to withdraw their amendments.

For the sake of clarity, I should like to repeat the amendment numbers that I have been addressing because, although they cover the same point, the grouping is considerable. In addition to Amendment No. 45, tabled by the noble Lord, Lord Lloyd of Hampstead, I have also been speaking to Amendments Nos. 46, 47, 49, 51, 52, 106, 106A, 188, 189, 189A, 190, 219, 221, 222, 225, 230, 231 and 238.

Lord Lloyd of Hampstead

My Lords, I agree with the view expressed by several noble Lords that when we deal with Amendment No. 106 serious consideration must be given to the restriction of one year contained in the amendment. However, it seems to me that at this stage of the debate the only

appropriate action is for me to withdraw my Amendment No. 45. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 46: Page 9, line 37, after ("are") insert (", except as mentioned in subsection (3).")

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

On Question, amendment agreed to.

[Amendment No. 47 not moved.]

[Amendment No. 48 had been withdrawn from the Marshalled List.]

Lord Beaverbrook moved Amendment No. 49: Page 9, line 38, after ("sale") insert (", hiring")

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

On Question, amendment agreed to.

[Amendment No. 50 not moved.]

Lord Beaverbrook moved Amendment No. 51:

Page 9. line 39, at end insert— ("(3) In relation to sound recordings, films and computer programs, the restricted act of issuing copies to the public includes any hiring of copies to the public. (4) In subsection (3) "hiring" includes any arrangement under which a copy is made available for a consideration in money or money's worth on terms that it will or may be returned.").

The noble Lord said: My Lords. I beg to move.

On Question amendment agreed to.

[Amendment No. 52 not moved.]

Lord Denham

My Lords, in moving that further consideration on Report be adjourned, it will be useful for your Lordships to know that we shall not return to the Bill before 8.30 p.m. I beg to move.

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