Lords Sitting of 25 February 1988

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Truro): The LORD CHANCELLOR on the Woolsack.

Dock Labour Scheme
Lord Boyd-Carpenter: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when they intend to abolish the Dock Labour Board.
The Secretary of State for Trade and Industry (Lord Young of Graffham): My Lords, the Government are well aware of the views of many Members of your Lordships' House about the drawbacks of the dock labour scheme. However, as has been made clear in another place, there are no plans at present to change the operation of the scheme.
Lord Boyd-Carpenter: My Lords, while thanking my noble friend, as I must, for that reply, may I ask whether he is aware of the damage that the scheme has caused to a number of ports including the Port of London, formerly the greatest port in the world? Are the Government happy to see the scheme continue, even though its power of mischief is somewhat reduced by the fact that it has already eliminated so much?
Lord Young of Graffham: My Lords, I am grateful to my noble friend for following the convention of thanking me for my Answer. We are aware of the many drawbacks of the dock labour scheme and some of the harm that it has caused to ports in the past. However, there are no plans at present to change the operation of the scheme.
Lord Mellish: My Lords, can the Minister give more detail about the alleged irregularity of the unions with regard to the implementation of the scheme? Is it not a fact that unions have not made trouble for employers and developers? If that is so, why do we not leave well alone?
Lord Young of Graffham: My Lords, it is true that there has been comparatively little industrial action in the ports, but I believe that that has much more to do with the economics of running the ports themselves than the actions of the unions. However, that is a matter on which those who run the ports are far better qualified to speak than I.
Lord Crickhowell: My Lords, perhaps I may declare an interest as a director of the company which employs the largest number of registered dock workers. Will the Government not prepare legislation to bring an end to this scheme? It distorts trade, blights the ports involved, causes serious
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injustice between workers inside and outside the scheme who are working alongside each other in a port, prevents the recruitment of young workers and is totally in opposition to all the principles for which this Government stand. The average age of workers in the scheme nationally is about 47; but this week I visited a port where the average age is 52. The scheme will not wither on the vine. Will the Government do something about it?
Lord Young of Graffham: My Lords, I am grateful to my noble friend. I am aware of the many defects of the scheme. There are no plans for legislation at the present time. But, of course, I cannot speculate on what view might be taken in the future.
Baroness Turner of Camden: My Lords, I thank the Minister for that response. I am glad to learn that there are no plans at the present time to change the scheme. May I seek an assurance that if at some time in the future there are plans to make changes these will only be embarked upon after full consultation with both sides of the industry?
Lord Young of Graffham: My Lords, I think that we shall have to wait to see what happens should the Government develop plans to deal with the scheme at some time in the future.
Lord Tordoff: My Lords, as it was not an unreasonable request, I should like to reinforce the question which the noble Baroness put to the Minister. Surely, both sides of the industry ought to be consulted. Will the Minister give that assurance?
Lord Young of Graffham: No, my Lords.

Airport Capacity: Development
3.5 p.m.
Baroness Burton of Coventry: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what consideration they have given to the request of the Guild of Air Pilots and Navigators that they take urgent action to provide more airport capacity, including the provision of extra runways to cope with the boom in air traffic.
The Parliamentary Under-Secretary of State, Department of Transport (Lord Brabazon of Tara): My Lords, we have noted the guild's views. The 1985 White Paper Airports Policy, however, set out the pattern of airport development to meet the demand for air travel into the mid-1990s. We naturally keep the adequacy of capacity, including runway capacity, under review, as does the Civil Aviation Authority, which has a statutory duty to make recommendations to my right honourable friend on such matters.
Baroness Burton of Coventry: My Lords, perhaps I may congratulate the Minister on his recent appointment as president of the permanent

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commission set up to administer Eurocontrol. May I wish him well in it and say that the House hopes that his appointment will provide us with opportunities for asking questions and congratulating him on the work accomplished? Reverting to the Answer which he has given this afternoon, in addition to noting what the guild has said, does the Minister feel able to comment on two points which it has made? The first is that every attempt to set up a fresh runway has met with opposition from pressure groups and the best solution has been blocked. The second is that competition for funds from airfields operated by private companies must not be allowed to deny investment in new airfields.
Lord Brabazon of Tara: My Lords, I am most grateful to the noble Baroness for her kind words at the beginning of her statement. I have to say, however, that the presidency of the permanent commission is something which comes up in turn among all the member states so the appointment is not very much to my own personal credit. Regarding pressure and environmental groups in airport development, it is a fact of life that airport developments have environmental implications and the Government have to take those into account. It is also true to say that in arriving at decisions about airport development, we have to have regard to the wider national interest.
So far as concerns investment in new airport capacity, one of the main reasons for privatising the British Airports Authority was to give it access to private finance. While public airport companies remain under local authority control, their external finance is subject to government control. I should mention the example of the new London City Airport which has recently been opened and which was entirely privately financed. Money is available for that kind of development.
Lord Underhill: My Lords, may I put to the Minister the supplementary questions which I raised last Thursday and which his noble friend Lord Davidson said that he would refer to the Minister for a reply this week? Is it not the case that the problem of runway capacity is mainly in the South-East, and that the runway situation elsewhere in the United Kingdom is okay? Is it not also the case that the problem in the South-East could be surmounted if the target of 25 million passengers per annum at Stansted was reached? Is the problem in the South-East not one of lack of runway capacity but of lack of safe air space capacity?
Lord Brabazon of Tara: My Lords, the noble Lord endorses the 1985 White Paper recommendations on capacity in the South-East which take into account the development of Stansted. The first stage would increase capacity to 8 million passengers, and the second stage to 15 million. It does not go beyond that at the moment; but there is a possibility that capacity could go up to 25 million if a second terminal is built. That would of course require planning permission. There is also a good deal of capacity at regional airports. The Government have given a great deal of encouragement to the development of regional
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airports. We have authorised investment of £240 million since 1979 in regional airport development, which is a high figure. We are very encouraged to see the growth which has taken place in recent years, particularly at airports such as Manchester, Birmingham and Glasgow. Turning to air space, the CAA is satisfied that with the use of flow management at peak times it will be able to handle the expansion of traffic level implicit in the 1985 White Paper.
Lord Ferrier: My Lords, can the Minister say whether it is too late to hark back to the scheme which was first mentioned in this House in December 1967; namely, that with the present ideas about the extension of airfields there exists the possibility of reclaiming Maplin or Goodwin Sands as a site for a fourth London airport?
Lord Brabazon of Tara: Yes, my Lords. I think that it is too late to go back to those plans.
Lord Whaddon: My Lords, while the Minister is giving his attention to the vast demands of the airlines, will he bear in mind the cost-effectiveness and convenience of general aviation and make sure that those aircraft are not squeezed out in the rush for extra airline space?
Lord Brabazon of Tara: My Lords, of course we take into account the needs of general aviation. However, we feel that at major airports such as Gatwick and Heathrow the commercial services must take priority and may eventually force out business in general aviation from those airports. We have encouraged the development of a series of airports around London in order to cope with that, and I hope that in conjuction with the Ministry of Defence there will shortly be some development at Northolt.
Lord Boyd-Carpenter: My Lords, in considering this matter will my noble friend have in mind the major contribution that civil aviation makes to the British economy and in particular the aid to the balance of payments for the tourist industry that it facilitiates? In those circumstances will he look very anxiously at the question of whether there will be enough runway capacity available in a few years' time?
Lord Brabazon of Tara: My Lords, we are the first to recognise the immense achievement of civil aviation in this country and the contribution that it makes to our economy. As regards the provision of extra capacity, the Civil Aviation Authority has a statutory duty under the Civil Aviation Act to make recommendations. Up to now it certainly has not done so.
The Earl of Selkirk: My Lords, is it not perfectly clear to the Minister that there is a great deal of unused capacity in this country and, moreover, that its concentration on London is largely in the hands of the commercial interests of the sellers? What action are the Government taking to use the existing capacity in the North of England and Scotland, something which is so necessary for the economic development of both those areas?
Lord Brabazon of Tara: My Lords, I think that I answered that question to some extent when I gave the figures for investment in regional airports. The noble Earl may be aware that traffic at Manchester grew by over a quarter last year and that more or less the same increase was seen at Glasgow and at Birmingham. There are therefore great opportunities for those regional airports.
Lord Mackie of Benshie: My Lords, following the noble Earl's question, does the Minister not agree that a reduction in the landing charges at Prestwick, for example, may make a terrific difference to the willingness of airlines to fly to Scottish and northern provincial airports?
Lord Brabazon of Tara: My Lords, airport charges are a matter for the operator. The Government would not attempt to influence the operators of those airports about how much they charge. In the case of Prestwick, the British Airports Authority will be reviewing the situation at that airport next year.
Lord Mackie of Benshie: My Lords, if I may put a supplementary question, does the Minister not agree that the Government have an interest in the social problems in the South-East and that it may well be their responsibility to help with the airport charges in the North in order to relieve those social problems?
Lord Brabazon of Tara: My Lords, I have not noticed the airport charges at Manchester, though I suppose that I ought to be quite careful about what I say as regards the MMC report having detracted from the growth of that airport. As I said a few minutes ago, it is growing tremendously fast.
Lord Nugent of Guildford: My Lords, is my noble friend aware that in the last two inquiries about the management of airlines coming into this country the point about diverting aircraft to the regions, including Scotland, was very carefully examined and it was found that there is a limit to the extent to which that can he done? If it is overdone, visitors to this country who wish to come to London find that they cannot land here and they go either to Amsterdam or to Paris, with the result that we lose out altogether. It is a matter of balance and I think that my noble friend has that balance right.
Lord Brabazon of Tara: My Lords, I am grateful to my noble friend. There is indeed a danger that if we try to force people to use airports to which they do not wish to go, we may lose traffic to Schiphol, Paris and Frankfurt. The Government do not seek to force people to fly to places to which they do not wish to go.
The Earl of Selkirk: My Lords, when the Minister talks about airports to which people do not want to go, is he aware that that applies also to London?
Lord Brabazon of Tara: My Lords, I do not have the figures with me at the moment, but many million people every year want to go to London.
Baroness Strange: My Lords, does my noble friend agree that a great many people, particularly tourists,
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want to go to Scotland by aeroplane, and that it is very difficult to fly direct at the moment? Does he consider that it would be a good idea to expand Scottish airports before the whole southern part of Great Britain slips into the sea under the weight of aeroplanes?
Lord Brabazon of Tara: My Lords, as I said earlier, there has been a very large growth recently, particularly at Glasgow. As we all know, Prestwick has its difficulties but it offers trans-Atlantic services. There is nothing to stop somebody starting a service to Scotland.

Scotland: Community Charge
3.16 p.m.
Lord Taylor of Gryfe: My Lords, I beg leave to ask the Question standing in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will state the amounts allocated so far to local authorities in Scotland for the implementation of the community service charge and the anticipated total cost involved.
The Minister of State, Scottish Office (Lord Sanderson of Bowden): My Lords, my right honourable friend the Secretary of State has given local authorities additional capital expenditure consent of £6 million in the current year in respect of preparations for the implementation of the community charge, and proposes to allocate a further £15 million next year. The rate support grant settlement for 1988–89 includes a total of £12 million in respect of current expenditure on preparations for implementation. We expect that, when the community charge is in operation, additional administrative expenditure will be in the range of £17 million to £22 million per annum.
Lord Taylor of Gryfe: My Lords, I should like to thank the Minister for that interesting reply. Despite the very substantial figures that he has quoted, is he aware that the Convention of Scottish Local Authorities has indicated that the amounts allocated, particularly on the current expenditure budget, represent only half of the amount that will be required? In that event, will the Government meet the shortfall? Further, will he confirm that the amount expended on the collection of rates under the present system will be doubled under the new arrangements? Does he consider that that represents a sensible allocation of resources for local authority expenditure at a time when social services and other essential services are being severely limited?
Lord Sanderson of Bowden: My Lords, perhaps I may deal first of all with the point raised by the noble Lord in relation to CoSLA. So far as concerns capital expenditure, consent of £21 million compares with local authorities' initial bids of £20 million and will be ample to allow local authorities to make satisfactory preparations for the new system. As regards current expenditure, as I have already indicated, £12 million

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is for the current year, and so far as concerns 1989–90 that will be taken into account when the revenue support grant is fixed for that year.
My answer to the next question the noble Lord put to me is that we estimate the present administrative cost of the domestic rating system to be around £20 million; so the cost of the new system will be roughly double that figure. That is consistent with the fact that there will be twice as many community charge payers as there are domestic ratepayers. That has given the new system the added element of accountability, which we debated in this House during the passage of the Bill.
To put the matter in another context, local authority expenditure in Scotland amounts to £4·2 billion. Forty million pounds, which is estimated to be the current cost of running this system, is 1 per cent. of that sum; or the increase is one-half of 1 per cent.
Lord Carmichael of Kelvingrove: My Lords, I am sure many people will be surprised that the Minister is so confident that there will be a great deal more money raised by the poll tax. He must be aware of the number of people who have refused to register on the electoral roll because they are afraid of being included for the poll tax.
Will he confirm that the capital allocation that he mentioned will consist of new money and not be money taken from some other capital works that could have been undertaken? Will he also confirm that the revenue expenditure, which is any revenue expenditure wholly in count for community charge purposes, will be allowed by the Government as falling within the government guidelines and will not he liable to councils having a clawback because due to the increased charge they have exceeded the limits of the original allowance?
Finally, are the Government learning anything from the passage of the Bill in another place with regard to the remainder of the United Kingdom? Will there be changes in the Scottish legislation because of what is happening in another place? Even at this late date will the Government not give a thought at least to postoning the application of the Scottish Bill until the provisions apply to the whole of the United Kingdom?
Lord Sanderson of Bowden: My Lords, so far as I can recall, there are four questions there. First, are we going to change our mind and hold back the implementation next year? The answer to that is no. Secondly, I gave an assurance to the House on 30th June last year. If there were changes in the English and Welsh Bill which made it necessary to have a look to see whether we should change our own, I gave this assurance:
"If refinements arc made to the proposals we will of course consider whether any parallel changes need to be made to the Abolition of Domestic Rates Etc. (Scotland) Act".—[Official Report, 30/6/87: col. 1191
On capital allocation, we indicated that we would look at that. We now have the figure of £20 million. We feel that is a realistic figure for the capital allocation.
Lord Carmichael of Kelvingrove: My Lords, new money?
Lord Sanderson of Bowden: My Lords, yes, new money. With regard to any extra that will be required, noble Lords will know that my right honourable friend has announced capital expenditure this week of £395 million; and it is of course up to local authorities to decide how to spend that money.
Finally, the noble Lord asked a question about the problem of the revenue for the ongoing implementation of this Act. Total administrative costs will be taken into account in future revenue support grant settlements. We do not envisage that any form of specific grant will be appropriate.
Lord Wilson of Langside: My Lords, is the Minister aware that in Scotland the hostility to this measure—miscalled the Abolition of Domestic Rates Etc. (Scotland) Act—is even greater than that felt by a number of respected former Cabinet Ministers of the Conservative Government? Are the Government aware that as the English counterpart to the Scottish Act—to which my noble friend's question refers—makes progress in another place, this adds evidence to the view advanced from these Benches that the Government's approach to the business of the reform of local government finance was completely misconceived?
Lord Sanderson of Bowden: My Lords, I recall the very strong views expressed by the noble and learned Lord, Lord Wilson of Langside, when the Bill was passing through this House. It comes as no surprise to me that he should ask a question of this kind. However, at that same time, it was very clear from Members on the Benches on which he sits that the present rating system was a totally unacceptable way of carrying on. That is why change was made.
Lord Taylor of Gryfe: My Lords, will the Minister confirm this? Did he state that the cost of collecting rates at the present time is £20 million per annum? Under the new arrangements that will he £40 million per annum. That was justified on the basis that they would be collected from more people. Will he confirm that he is collecting the same amount of money? It is the costs of raising that amount of money that are significant, not the number of people who will have to pay rates.
I asked him—I know that he is a sensitive and civilised person—whether he regarded this as a sensible allocation of public resources. Local authorities are limited in provision of social services and other services, but they are now being asked to double the cost of the collection of rates, while accepting the burden of £12 million for the new register.
Lord Sanderson of Bowden: My Lords, we debated this at great length. We talked a great deal about accountability when the Bill was passing through this House. That is what the new system is about. The noble Lord says that the same amount of money will be collected. We shall have to wait and see whether that is the case. However, being the good

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businessman that he is, I believe that he will not consider that 1 per cent. out of the total expenditure on local government in Scotland is an undue amount to ask for the administrative costs of raising the tax.
Lord Mackie of Benshie: My Lords, perhaps I may congratulate the Minister on making this appalling tax appear almost credible.

Business
Lord Denham: My Lords, at a convenient moment after 3.30 this afternoon my noble friend Lord Davidson will, with the leave of the House, repeat a Statement that is to be made in another place on electricity privatisation.
It may be for the convenience of the House if I announce that the Report stage of the Copyright, Designs and Patents Bill will be adjourned at approximately 7 p.m. for approximately one hour and that during this adjournment the Second Reading of the Matrimonial Proceedings (Transfers) Bill and the Statistics of Trade and Employment (Northern Ireland) Order 1988 will be taken.

Standing Orders (Public Business)
The Chairman of Committees (Lord Aberdare): My Lords. I beg to move the Motion standing in my name on the Order Paper.
The need for these amendments to Standing Order 38 arises from the Procedure Committee report to which your Lordships agreed on Monday. The effect is to permit debates on Select Committee reports to be taken as early business whenever that is desirable. I beg to move.
Moved, That the Standing Orders relating to public business be amended as follows:
Standing Order 38
Paragraph (4), line 3, leave out "and Affirmative Instruments" and insert "Affirmative Instruments and reports from Select Committees of the House".
Paragraph (5), line 3, leave out "and Affirmative Instruments" and insert "Affirmative Instruments and reports from Select Committees of the House".—(The Chairman of Committees.)
On Question, Motion agreed to.

Copyright, Designs and Patents Bill [H.L.]
3.27 p.m.
Lord Beaverbrook: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Beaverbrook.)
On Question, Motion agreed to.
Clause 65 [Reception and re-transmission of broadcast in cable programme service]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 112:
Page 25, line 37, at end insert—
("( ) The making for private and domestic purposes of a recording of a television broadcast or a transmitted cable programme does not infringe any copyright in the broadcast or cable programme, or in any work included in it.").
The noble Lord said: My Lords, the purpose of this amendment is to make legal what is the practice but is apparently not legal in the Bill as published. This amendment allows people to do with a clear conscience what many of us do if we are sufficiently adept at video recording: to tape for private and domestic purposes the recording of a television broadcast. The objective of this amendment is to give effect to the government proposal in the 1986 White Paper. It is a totally different argument from anything to do with the tape levy.
The provision—which I do not imagine the Minister will oppose—is to enable the timeshift that is done by people in almost every house to go ahead without the feeling that when they record any music or speech on a blank tape they are doing something that is totally illegal. It does not appear to offend against the Berne Convention. I commend the amendment to the House and I beg to move.
Lord Beaverbrook: My Lords, this amendment would allow television broadcasts and cable programmes to be recorded for private purposes without infringement of copyright. I find its placing in Clause 65 somewhat odd. Clause 65 is concerned with the reception and retransmission of broadcasts in cable programmes. With respect, I venture to suggest to the noble Lord that the amendment would sit more happily with Clause 63.
Clause 63 already provides some of what is set out in this amendment. Clause 63 re-enacts existing law and provides that the copying of broadcasts and cable programmes does not infringe the copyright of the broadcaster or the operator of the cable programme service. It does not mean that broadcasts can be copied without infringement of copyright in the works included in the broadcast.
Let us take an example. A live broadcast of a sporting event may be recorded for private purposes without infringement. A broadcast of a copyright film may not, since this would infringe the copyright in the film, the screenplay and the music. So also would the broadcast of copyright dramatic or musical work. That is the present law and the Bill does not change it.
The amendment seeks to allow the recording of any television broadcast even when it includes copyright works. The Berne Convention permits exceptions to the right of reproduction—what we refer to in Clause 17 of the Bill as —"copying"—only in very limited circumstances. Article 9(2), to which I referred in our debate on Clause 29, allows member states to permit copying only in:
"certain special cases, provided that such reproduction does not conflict with the normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author".

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We are not constrained by the Berne Convention in respect of the copyright in broadcasts and cable programmes. We can therefore make what exceptions we deem appropriate within the much looser limits of the Rome Convention, which covers broadcasts. We are not however wholly free to make exceptions in respect of works covered by the Berne Convention. Any exception must comply with Article 9(2).
It may well he that some recording of television programmes does not conflict with normal exploitation or unreasonably prejudice the copyright owner. I am inclined to the view that time-shifting falls in this category although I know that views differ on this point. On the other hand, the off-air recording of a feature film which is retained for repeated use does, I believe, damage the copyright owner's interests. Some people build up video libraries by recording films from the television rather than buying or renting them. The amendment would allow this latter practice and is, I suggest, therefore incompatible with our Berne obligations.
I hope the noble Lord feels able to withdraw his amendment rather than press an amendment which runs counter to the convention, which he has been so eloquently urging upon us in other connections.
Lord Morton of Shuna: My Lords, it is interesting to note that the Government have apparently changed their view of the meaning of the Berne Convention since the publication of the White Paper on the subject. I am referring to paragraph 6.26. It does not appear to us that there is a breach of the Berne Convention in private recording for time-shifting purposes, and that is intended. It is strange that the drafting of the amendment has not been criticised but only its positioning. If the Government would accept the amendment if it were placed somewhere else in the Bill, I should be prepared to do that. In the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 113:
After Clause 68, insert the following new clause:
("Public Interest.
Copyright is not infringed by anything done in the public interest.").
The noble Lord said: My Lords, I was asked to table this amendment by the BBC. The noble Lord, Lord Morton of Shuna, tabled a similar amendment, No. 78. When speaking to that I referred to this amendment tabled in my name. However, at the time I omitted certain matters about which I have notified the Minister through Mr. Irving, who is most helpful over such matters behind the scenes. I should like to have recorded the fact that I omitted to refer to the Defamation Act 1952, which in one of its sections includes a reference to the desirability of having due regard to the public benefit.
I thank noble Lords for allowing me to give that explanation and I do not move the amendment.
Lord Williams of Elvel: My Lords, I beg to move Amendment No. 113 in the name of the noble Lord, Lord Lloyd of Kilgerran. I do so in order to correct the procedure of the House. I understand that it is not proper for a noble Lord to say why he is not moving an amendment. An amendment must be moved, a reply must be given and then it can be withdrawn.
Lord Lloyd of Kilgerran: My Lords, the amendment is not moved.
Lord Williams of Elvel: My Lords, in that case I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 69 [Right to be identified as author or director]:
[Amendments Nos. 114 and 115 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 116:
Page 27, line 16, leave out ("or").
The noble Lord said: My Lords, I beg to move Amendment No. 116 and, with the leave of the House, I shall speak to Amendments Nos. 117, 130 and 131. It has been brough to our attention that in certain circumstances designers of buildings, sculptors and artistic craftsmen will not be able to enjoy the paternity and integrity rights. Because of the way in which commercial publication is defined in Clause 159 (which itself I am proposing to amend), moral rights will not apply when, for example, a picture postcard or a book of photographs of buildings is published.
This was certainly not our intention when providing for moral rights. We realise that it is very important for designers of buildings to have the right to be identified when their work is exploited in such a way as a means of earning or perhaps enhancing their reputation, and that sculptors and artistic craftsmen should not suffer from having photographs and similar copies of unreasonably modified versions of their works being issued to the public. I have therefore tabled these amendments to ensure that this is put right.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 117:
Page 27 line 18, at end insert ("; or
(c) in the case of a work of architecture in the form of a building or a model for a building, a sculpture or a work of artistic craftsmanship, copies of a graphic work representing it, or of a photograph of it, are issued to the public.").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 118:
Page 27, line 19, leave out from ("building") to end of line 20 and insert ("also has the right to be identified").
The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 119 and 132.
When we discussed this clause in Committee, the noble Lord, Lord Howie of Troon, made some valid points about moral rights applying to other designers of buildings, notably engineers, as well as architects.
Since agreeing to have a further look at this, other representations have also been received along similar lines from other parts of the construction industry. We accept that the different professions should be afforded equal treatment and we have therefore tabled these amendments.
Amendment No. 118 has the effect that any author of a building, regardless of whether he is called an architect, has the right to be recognised as the author of that building. Similarly Amendment No. 132 provides that any author of a work of architecture may have his name removed from a building which is the subject of unjustified modification. The meaning of the word "author" is of course expressed in very broad terms in Clause 9 and is capable of including engineers and anyone else who creates a work of architecture.
I have taken the opportunity in Amendment No. 119 to remove paragraph (b) of Clause 69(5). It is a totally unnecessary duplication of Clause 69(4), because the author of a work of architecture is as much the author of an artistic work as, say, a painter or a sculptor. No change of substance whatever will flow from this drafting correction.
Lord Howie of Troon: My Lords, I should like to express my gratidude to the Minister for responding to the debate at Committee and attempting to correct in the Bill a matter which I considered to be wrong. He eventually agreed that it was wrong.
I regret to say that, as in the debate on Tuesday, I am not wholly satisfied. I should like to ask the Minister to look again at the situation and see whether he can come closer to the amendment which I tabled at Committee. My reason for saying that is that, as I see the sitution, the Government have endeavoured to meet my point of including engineers and others, in addition to architects, by the use of the word "building" in the Bill.
However, as far as I have been able to discover—and I may be wrong—there is in fact no statutory definition of a building anywhere. The only definition which I have been able to find describes a building as being a constructive edifice—which is certainly correct—designed to stand permanently, covering a space of land usually covered by a roof and enclosed by walls serving as a dwelling, store house, factory or shelter for animals and so on. Of course that defines a building in the commonplace sense but in the sense of the Bill as it now stands, "building" has been extended to include such structures as bridges and the various engineering structures which I referred to in Committee.
I hope that the Minister does not feel that I am carping. I am not trying to carp because I am grateful for the extent to which he has moved in my direction. However, I wonder whether he would consider looking into my remarks and moving a shade further in the direction of the amendments which I tabled in Committee.
Lord Beaverbrook: My Lords, the noble Lord is very difficult to please at times, but it is not our intention to exclude designers or authors, if you like, of bridges and the other examples that he mentions. We have looked at this and I understand that we are
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happy with the terminology as it is in the Bill at the moment. I always look carefully at what he has said and we shall check to see that we are happy. However, I give him an undertaking that it is not our intention to exclude the examples he gave.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 119:
Page 27, leave out lines 23 to 26.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 120:
Page 27, line 43, leave out from ("prominent") to end of line 44 and insert—
("( ) If the author or director in asserting his right to he identified specifies a particular form of identification, that form shall be used; otherwise any reasonable form of identification may be used.").
The noble Lord said: My Lords, I am returning with this amendment to those tabled by my noble friend Lord Cullen of Ashbourne regarding the form an author may require his identification to take. As I indicated in Committee, we consider it a very good idea that the author use his assertion of the paternity right to state exactly how he would like to be identified. This is adopted in the amendment. In cases where the assertion does not specify the required form of identification, the paternity right will be satisfied by any reasonable form of identification. I beg to move.
On Question, amendment agreed to.
Clause 70 [Requirement that right he asserted]:
3.45 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 121:
Page 28, line 7, leave out subsections (2) to (4) and insert—
("(2) The right may be asserted generally, or in relation to any specified act or description of acts—

(a) on an assignment of copyright in the work, by including in the instrument effecting the assignment a statement that the author or director asserts in relation to that work his right to be identified. or

(b) by instrument in writing signed by the author or director.

(3) The right may also he asserted in relation to the public exhibition of an artistic work—

(a) by securing that when the author or other first owner of copyright parts with possession of the original, or of a copy made by him or under his direction or control, the author is identified on the original or copy, or on a frame mount or other thing to which it is attached, or

(b) by including in a licence by which the author or other first owner of copyright authorises the making of copies of the work a statement signed by or on behalf of the person granting the licence that the author asserts his right to be identified in the event of the public exhibition of a copy made in pursuance of the licence.

(4) The persons bound by an assertion of the right under subsection (2) or (3) are—

(a) in the case of an assertion under subsection (2)(a), the assignee and anyone claiming through him, whether or not he has notice of the assertion;

(b) in the case of an assertion under subsection (2)(b), anyone to whose notice the assertion is brought;

(c) in the case of an assertion under subsection (3)(a), anyone into whose hands that original or copy comes, whether or not the identification is still present or visible;

(d) in the case of an assertion under subsection (3)(b), the licensee and anyone into whose hands a copy made in pursuance of the licence comes, whether or not he has notice of the assertion.").

The noble Lord said: My Lords, with the leave of your Lordships I shall speak also to Amendment No. 122 standing in the name of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. Perhaps I may take my own amendment first. This arises from our debate in Committee on Clause 69 when the noble Lord, Lord Hutchinson of Lullington, drew our attention to the problems associated with asserting the paternity right when artistic works are exhibited in public. As I said then, we recognise this difficulty and the amendment seeks to make special provisions for authors of artistic works to ensure that they have the same opportunities as other authors to enjoy the paternity right.
We could see a problem arising where an artist retains copyright in his works. Because public exhibition of artistic works does not constitute a restricted act, the only means available to the artist of asserting the paternity right would he by notice under Clause 70(3). This would be ineffective if the exhibition was by someone not known to the artist and who had not received notice of the assertion.
We have therefore restructured the clause to provide specifically for the public exhibition of artistic works. An assertion will have been made if the work in question or the frame or plinth has been signed at the time when the author or first owner of copyright parts with the original. In the case of exhibiting a copy, the assertion may be made in the licence authorising the making of the copy. The onus will then he on the subsequent owner of the original or copy to ensure that the artist is appropriately identified.
Turning to the amendment tabled by the noble Lords, Lord Williams of Elvel, and Lord Morton of Shuna, this adds to the ways in which the paternity right may be asserted. It provides that the right is asserted if, when the author or first owner of copyright parts with possession of a copy of the work, the author is identified on that copy. I am afraid this goes completely against the purpose of assertion. The paternity right has to be asserted so that users of copyright material know where they stand. This amendment would take away that certainty about assertion. This will mean that the assertion need not be a statement made in writing—just the author's name would be enough. A subsequent exploiter of the work would not know whether the presence of the author's name on a copy of the work was an assertion by the author or a voluntary indication of the name by a publisher.
The case is not at all comparable to that dealt with by my amendment, because that case is limited to exhibition, not to any other form of exploitation, such as the commercial publication of the work by issue of copies not themselves made by the author. I fear this is a recipe for confusion and I must resist the amendment of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna.
Lord Morton of Shuna Lord Morton of Shuna moved, as an amendment to Amendment No. 121, Amendment No. 122:
In subsection (2)(b), at end insert (", or
1302
(c) by securing that when the author or other first owner of copyright parts with possession of a copy made by him or under his direction or control, the author is identified on the copy").
The noble Lord said: My Lords, I believe that there is a basic disagreement in our interpretation. The purpose of our amendment is to make matters clear and to comply with Article 6bis of the Berne Convention. That says that, independent of the author's economic rights and even after the transfer of the said rights, the author shall have the right to claim ownership of a work. First, there is nothing in that, and it is not normal in other countries that this needs to be construed as requiring positive assertion. But we have been through that argument in Committee and do not need to go through it again.
However, I could not disagree more with the Minister when he says that the amendment proposed to his amendment makes matters less clear. In our view it makes things easier. It reduces confusion where confusion undoubtedly now exists as to whether or not assertion has taken place. For example, anybody buying a book—written perhaps by some of the notable authors sitting near to the Minister—would know from looking at the back that authorship had been asserted and that they would have to deal with it in that way and could not modify the work unjustifiably.
There is a strong argument in favour of saying that when the author's name is on the work, that is an assertion. Ipso facto the presence of the name on the work is an assertion by the author of his moral right and I should have thought that that makes the situation clearer. Therefore, I intend to move and insist on this amendment. Having done that and having disagreed with the Minister, I congratulate him on his own amendment, which, so far as it goes, clears up some of the difficulties that we discussed in Committee on Clause 70. For those reasons, I beg to move Amendment No. 122.
Lord Somers: My Lords, perhaps I may ask the Minister a question. The usual procedure when a composer has a piece of music published is that the publisher buys the copyright when publishing it, paying a nominal fee of £5 or something of that nature, and thereafter is the holder of the copyright. Will that cease to be the case? It is a condition that I have always disliked.
Lord Beaverbrook: My Lords, perhaps I may first respond to the points made by the noble Lord, Lord Morton of Shuna. He referred to the Berne Convention. As he told the House, the author has the right to claim authorship and I must emphasise the word "claim". The presence of a name on a book is no indication of a claim, as I have explained. The amendment in the name of the noble Lords, Lord Morton and Lord Williams of Elvel, is not required by the Berne Convention and I believe that it would confuse matters, not help them.
Perhaps I may give another example of, say, a picture that is signed by the artist. Often that signature is there because the person who buys the picture wants it for its future value. As we know, unsigned pictures can be less valuable than those signed by the artist; but that signature is not necessarily going to be an assertion of the author's

1303
rights in this respect. As I said, it could be there for another reason.
Referring to the point made by the noble Lord, Lord Somers, I can assure him that the provisions in Part IV do not affect the assignment of copyright at all.
Lord Morton of Shuna: My Lords, I have great difficulty in seeing why an artist who signs a painting is not claiming or asserting that he painted the picture. If he signs the picture and he did not paint it he is committing something else, but that is a different assertion. If an artist paints a picture and signs it he is saying, "I am the author of that painting". I should have thought, taking the Berne Convention in its English translation, that he is claiming authorship of the painting. In ordinary English, that is what he is doing. I know that lawyers have a bad——
Lord Beaverbrook: My Lords, with apologies to the noble Lord and with the leave of the House, let me say that in many cases the artist may not be claiming his moral rights. Certainly he may be identifying himself as the painter of the picture, but there is absolutely no reason to believe that he is asserting the new moral rights that have been granted to him under this Bill. An artist's signature will be an assertion of paternity right for the purpose of exhibition only and not for any other purpose.
Lord Morton of Shuna: My Lords, I am much obliged to the noble Lord, but my confusion is getting worse and worse. I understand that the Berne Convention says that independent of the author's economic rights—so he is not doing anything to make money or lose money by it—he has the right to claim authorship of the work. In ordinary straightforward English, he is saying, "This is mine, I did it". If an artist signs a painting, or an author puts his name on a book, he is saying, "This is mine, I created it". That is the moral right of authorship; that gives him the right to say he did it and under the Berne Convention the right not to have other people mucking about with the work.
Those are the two moral rights we are speaking about. I should have thought that once you put your name on something you have asserted your authorship, which is not an economic right but a moral right. For the reasons which I have tried to make clear, but obviously I have not succeeded, at least with the Minister, I press this amendment.
3.54 p.m.
On Question, Whether the said amendment (No. 122) to Amendment No. 121 shall be agreed to?
Their Lordships divided: Contents, 100; Not-Contents, 111.

DIVISION NO.1

CONTENTS

Annan, L.

Blyth, L.

Ardwick, L.

Bonham-Carter, L.

Attlee, E.

Brain, L.

Aylestone, L.

Briginshaw, L.

Banks, L.

Bruce of Donington, L.

Barnett, L.

Burton of Coventry, B.

Basnett, L.

Callaghan of Cardiff, L.

Birk, B.

Campbell of Eskan, L.

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Carmichael of Kelvingrove, L.

Mais, L.

Carter, L.

Mayhew, L.

Cledwyn of Penrhos, L.

Mishcon, L.

Cocks of Hartcliffe, L.

Molloy, L.

David, B.

Morris, L.

Dean of Beswick, L.

Morton of Shuna, L.

Diamond, L.

Mulley, L.

Donaldson of Kingsbridge, L.

Nicol, B.

Elwyn-Jones, L.

Oram, L.

Ennals, L.

Parry, L.

Ewart-Biggs, B.

Peston, L.

Ezra, L.

Phillips, B.

Falkland, V.

Ponsonby of Shulbrede, L. [Teller].

Fitt, L.

Gallacher, L.

Prys-Davies, L.

Graham of Edmonton, L. [Teller].

Rathcreedan, L.

Rea, L.

Grantchester, L.

Ritchie of Dundee, L.

Grey, E.

Rugby, L.

Hampton, L.

Seear, B.

Hanworth, V.

Sefton of Garston, L.

Harris of Greenwich, L.

Serota, B.

Hatch of Lusby, L.

Shannon, E.

Hayter, L.

Simon, V.

Houghton of Sowerby, L.

Simon of Glaisdale, L.

Howie of Troon, L.

Somers, L.

Hunt, L.

Stedman, B.

Ilchester, E.

Strabolgi, L.

Irving of Dartford, L.

Taylor of Blackburn, L.

Jeger, B.

Tordoff, L.

John-Mackie, L.

Turner of Camden, B.

Kennet, L.

Underhill, L.

Kilmarnock, L.

Wallace of Coslany, L.

Kirkhill, L.

Wedderburn of Charlton, L.

Leatherland, L.

Wells-Pestell, L.

Listowel, E.

Whaddon, L.

Llewelyn-Davies of Hastoe, B.

White, B.

Lloyd of Hampstead, L.

Wigoder, L.

Lloyd of Kilgerran, L.

Williams of Elvel, L.

Longford, E.

Willis, L.

McCarthy, L.

Winchilsea and Nottingham, E.

McGregor of Durris, L.

Mackie of Benshie, L.

Winstanley, L.

McNair, L.

NOT-CONTENTS

Arran, E.

Gibson, L.

Auckland, L.

Gisborough, L.

Balfour, E.

Gray of Contin, L.

Beaverbrook, L.

Gridley, L.

Belhaven and Stenton, L.

Grimthorpe, L.

Bellwin, L.

Hailsham of Saint Marylebone, L.

Belstead, L.

Bessborough, E.

Halsbury, E.

Blatch, B.

Hardinge of Penshurst, L.

Boyd-Carpenter, L.

Havers, L.

Brabazon of Tara, L.

Hesketh, L.

Brookeborough, V.

Hives, L.

Brougham and Vaux, L.

Holderness, L.

Broxbourne, L.

Hood, V.

Caithness, E.

Hylton-Foster, B.

Cameron of Lochbroom, L.

Ironside, L.

Carnock, L.

Jenkin of Roding, L.

Colnbrook, L.

Johnston of Rockport, L.

Colwyn, L.

Joseph, L.

Cork and Orrery, E.

Kaberry of Adel, L.

Cottesloe, L.

Kinnaird, L.

Crickhowell, L.

Lane-Fox, B.

Cullen of Ashbourne, L.

Lauderdale, E.

Dacre of Glanton, L.

Long, V.

Davidson, V. [Teller.]

Lucas of Chilworth, L.

De Freyne, L.

Mackay of Clashfern, L.

Denham, L. [Teller.]

Macleod of Borve, B.

Dundee, E.

Malmesbury, E.

Eccles, V.

Margadale, L.

Effingham, E.

Marley, L.

Elliott of Morpeth, L.

Massereene and Ferrard, V.

Erroll of Hale, L.

Merrivale, L.

Ferrier, L.

Mersey, V.

Fortescue, E.

Milverton, L.

Fraser of Kilmorack, L.

Mottistone, L.

Gainford, L.

Munster, E.

1305

Murton of Lindisfarne, L.

Sandys, L.

Nelson, E.

Savile, L.

Nugent of Guildford, L.

Selkirk, E.

Orkney, E.

Skelmersdale, L.

Oxfuird, V.

Stockton, E.

Pennock, L.

Strange, B.

Peyton of Yeovil, L.

Strathcarron, L.

Plummer of St. Marylebone, L.

Sudeley, L.

Swansea, L.

Porritt, L.

Terrington, L.

Rankeillour, L.

Teviot, L.

Reay, L.

Thomas of Gwydir, L.

Renton, L.

Thorneycroft, L.

Renwick, L.

Trumpington, B.

Rippon of Hexham, L.

Vaux of Harrowden, L.

Rodney, L.

Ward of Witley, V.

St. Davids, V.

Wedgwood, L.

St. John of Fawsley, L.

Windlesham, L.

Saltoun of Abernethy, Ly.

Wise, L.

Sanderson of Bowden. L.

Wyatt of Weeford, L.

Sandford, L.

Resolved in the negative, and amendment to Amendment No. 121 disagreed to accordingly.
On Question, Amendment No. 121 agreed to.
Clause 71 [Cases in which right does not apply]:
4.3 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 123:
Page 28, line 24, at end insert—
("(c) any computer-generated work.").
The noble Lord said: My Lords, if I may, with leave, I shall speak also to Amendment No. 133. These amendments add to the list of exceptions to moral rights for very obvious reasons. With works generated by a computer there is no identifiable human author to claim a paternity or integrity right. This is the essence of the definition in Clause 161. We do not think that the person identified by Clause 9(3) as the author for copyright purposes should have moral rights. Moral rights are closely concerned with the personal nature of creative effort, and the person by whom the arrangements necessary for the creation of a computer-generated work are undertaken will not himself have made any personal, creative effort. I beg to move.
On Question, amendment agreed to.
The Earl of Stockton The Earl of Stockton moved Amendment No. 124:
Page 28, line 24, at end insert—
("( ) Where the copyright in the work originally vested in a person other than the author by virtue of section 11(2) (works produced in course of employment).").
The noble Earl said: My Lords, for the convenience of your Lordships' House I should like also to speak to Amendments Nos. 128, 137 and 260, which are also in my name, and to Amendments Nos. 127 and 136 in the name of the Minister. In addition I shall speak to Amendment No. 127A in the name of the noble Lord, Lord McGregor of Durris, and Amendment No. 134 in the names of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna. I also speak to Amendment No. 134A in the name of the noble Lord, Lord Graham of Edmonton.
The aim of Amendment No. 124 and of the other amendments in my name is to exempt employee works from the moral right of paternity granted by Clause 69 just as they are exempt from the moral right of integrity granted by Clause 72 under the
1306
terms of Clause 73. The amendments also aim to exclude composite works from the scope both of the moral rights of paternity and of integrity, which are incorporated in the Bill at Clause 69,
"Right to be identified as author or director",
and Clause 72,
"Right not to suffer unjustified modification of work".
After all many employees in publishing houses work every day, for example in writing abstracts, drafting blurbs and compiling indexes, which may well earn copyright protection. Clause 11(2) of the Bill rightly vests ownership of such copyright in the publisher as an employer. Clause 73 already exempts employee works from the moral right of integrity, and it is both logical and practical that such works should also be exempt from the moral right of paternity. It is impractical not only for publishers but for all kinds of employers whose staff undertake reports, technical studies, press releases, and so on, which are in any way "published" for the right of paternity to be attached to such works.
Many of us in the industry also compile encyclopaedias, dictionaries and directories through contributions from both employees and commissioned writers. The list of authors will often run into hundreds and in some cases thousands and their work is subject to heavy editing and rewriting. The aim is to produce finally for the readers' benefit one consolidated style and presentation of facts and views determined by the publisher. As Stephen Williams of the Reader's Digest has put it:
"when so many individual contributions need to be moulded into one consistent view whose integrity, but the publisher's, is it'?".
It is therefore totally impractical in the circumstances in which such works are produced to obtain consent or waiver on each occasion, and exemption from the moral rights of paternity and integrity are the only practical solution.
Amendments Nos. 127 and 136 in the name of the Minister remove from the ambit of the Bill the right to be identified for publication in newspapers, magazines and periodicals. Amendment No. 127A in the name of the noble Lord, Lord McGregor, adds newsagencies to that list. I beg to move.
Lord Brain: My Lords, I find this very confusing because we have here a large group of amendments which in themselves may he fine when one is considering them in relation to authorship and writing. We have a much wider scope than this; namely, artistic works and subjects like that. I wish that the Government had been a little more selective in the grouping of the amendments, which would have made it easier for us to discuss them.
Having made that comment, I do not feel that the same points always apply. I quite accept the noble Earl's point about the need to produce composite works in a good editorial fashion without always having to go back to the author and other questions of that kind. On the artistic side I am concerned very much with the subsequent use of photographs when the photographer has left the employment he was in when he took the photographs. He becomes much more famous. If somebody crops his work subsequently so as to make a thoroughly bad

1307
photograph, it is very discrediting to his reputation. I believe that he still has a moral right.
As regards the identification of photographers, I understand that it is common practice in all newspapers in the United States and in other parts of the world to identify all the photographers. Very often articles have to be edited. Photographs may have to be cropped slightly but the photograph is the whole work of the photographer. If it is a montage or the coming together of two or three photographs, that is a different point. It is not a photograph by the photographer, and the authorship is then that of the person who compiles the montage or the changes. Why should a photographer not be identified? This is the problem we have when we talk about one author with one part of the product. While I support some parts of some of the amendments; on others, I am neutral. I make the point, however, that this is taking a shotgun when we ought perhaps to be taking a rifle.
Lord McGregor of Durris: My Lords, I wish to speak in particular to the Minister's Amendments Nos. 127 and 136, and also to Amendments Nos. 127A and 136A standing in my name. I warmly welcome the Government's Amendments Nos. 127 and 136. The Bill as originally drafted provided that the right to be identified as an author and the right to object to unjustified modification of a work would apply to the publication of works in newspapers. There was a widespread fear—particularly among newspapers such. as The Times and periodicals such as the Economist, a fear which was ventilated at the Committee stage—that the exercise of those rights would severely disrupt the editorial process and in addition create industrial relations difficulties. Indeed, we were told by the editor of the Economist that it would be impossible to publish that periodical in its present form were the Bill to be enacted.
The effect of the Government's amendments is to restrict the application of the moral rights' provisions by providing that they do not apply to the publication of works created for the purpose of being published in a newspaper. That will mean that journalists will have no legal right to insist on a byline on news stories or photographs or to object to the modification or editing of copy. It will also prevent the exercise of moral rights by, for example, readers contributing letters or reports or freelance contributors or advertisers.
The exercise of moral rights in such circumstances would have posed a threat to an editor's right to edit and would have emasculated his responsibility for the form and content of his newspaper. The government amendments provide that some protections are afforded to authors in respect of the subsequent exploitation of works appearing in newspapers. It seems to me that the amendments will result in no injustice whatever and that some of the anxieties of, for example, freelance contributors, can be dealt with in the manner which the noble Lord, Lord Morton of Shuna, urged during the Committee stage; namely, by establishing contractual relationships.
Finally, Amendments Nos. 127A and 136A add to the exceptions in the government amendments news agencies. It is very important that we clarify this point and ensure that there is no ambiguity concerning the
1308
list of exceptions. One of the factors about which editors of newspapers and periodicals were deeply concerned in the moral rights of modification and attribution was the interference with speed, which is essential in the production of newspapers. Time is even more of the essence for a wire service. There is not time to consider whether there should be an attribution or a modification, and to exclude news agencies from the operation of these exceptions could result in anomalies. For example, the Press Association (which in this country supplies most newspapers with a great deal of their domestic news) could be putting out news stories with attributions attached to them in a manner which the statute would forbid to the journalist employed on the newspapers taking the Press Association material. This would clearly be an unacceptable anomaly.
I therefore very much hope that the Government may be prepared to accept my amendment to add news agencies to the list of exceptions. It is an amendment which in no way affects the principle or the substance of the legislation. I beg to move.
4.15 p.m.
Lord Graham of Edmonton: My Lords, I should like to speak briefly to Amendment No. 134A. The Minister will know that this relates to a point I raised earlier on the advice of the Association of Cinematograph Television and Allied Technicians. It has a real concern about the value of the moral rights, although it is pleased to see them in the Bill. The more one looks at it, the more one sees a real danger in Clauses 9 and 73 in relation to film directors that the rights which are given with one hand are taken away in all other normal circumstances.
Clause 73(c) states that the right not to suffer unjustified modification to a work does not apply where copyright is vested in the director's employer, which is the producer. However, this will almost inevitably be the case. The director's moral rights in this respect are held to be rendered almost meaningless. If the Minister acknowledges that or disputes it, there will be those outside the House who will be pleased to hear what he has to say. We can look at this matter in another way. It appears as if the Bill is saying that a director, writer or any other author may not object to an unjustifiable modification if his employer or the producer of the film agrees to that modification. That effectively gives the right to make unjustifiable modifications to the very people who would normally seek to do so.
I know that the Minister is likely to say at some stage during the debate that it will be for the courts to decide what is unjustified in terms of modification. But does the Minister really intend to allow individuals to make unjustified modifications merely because they undertake the arrangements for the film. I know that those outside the House will be interested to hear how the Minister tackles the point.
Lord Morton of Shuna: My Lords, I intend to speak to Amendment No. 134 which seeks to leave out paragraph (b) of Clause 73. From what has happened in Committee, and at the Report stage earlier, it does not appear to us that we can challenge the attitude taken by the Government about the right of

1309
employees to have themselves named necessarily in the work that they create. However, Clause 73 deals with the right of the author not to suffer unjustified modification. Clause 73(b) states:
"where the copyright in the work originally vested in a person other than the author … and the modification is made by or with the authority of the copyright owner",
the author loses the right not to suffer unjustified modification. I can see, and concede, up to the point that your Lordships have decided the debate thus far, that the unemployed author has lost the right, so to speak, to have himself named. But I ask the House to consider what will happen if his name is mentioned? He is being named and his work is being unjustifiably modified. It is being distorted, made a fool of and it is prejudicial to the author's "honour or reputation"—I quote the last few lines of Article 6 of the Berne Convention.
First, is this subsection not a breach of Article 6 of the Berne Convention by phrasing it in that way? If we restricted it to cases where authorship was not shown, then it might be a different matter. But imagine, for example, someone who writes political commentary for a newspaper which does not necessarily agree with his political views. He could find that that newspaper will use his name but change wholly and unjustifiably the nature of what he wrote. Such a person might object strongly to that course of action.
To take a non-political instance, imagine the late Neville Cardus had been writing—as he did for the Manchester Guardian—and suddenly found his work transferred into one of the tabloid newspapers. He might well object to his type of writing being edited down to fit, say, the Sun or some such newspaper.
It appears to me that if there is unjustified modification in the author's published work then that is wholly wrong. That is why the amendment has been tabled. For that reason I shall move Amendment No. 134 when we come to that stage.
Lord Howie of Troon: My Lords, as I see it, the issue in relation to the amendment of the noble Earl, Lord Stockton, regarding "composite works" is a simple and practical one. Like most of your Lordships, I have no objection to authors being identified, journalists having by-lines and photographers being properly identified when their work is reproduced in magazines, newspapers, books or elsewhere. The trouble is that when one deals with "composite works" in relation to magazines and encyclopaedias—the Economist has already been mentioned—one finds that each individual item becomes a team effort. In a sense that situation is provided for because a magazine might well place on its contents page a list of staff including writers, editors, and so on, so that in a general sense their moral right to participation in that magazine has been recognised in a general, if not specific, way. I am talking in this instance about the magazine as a whole and not the individual article.
When one comes to an individual article, one may well find that it has passed through the hands of its author, an editor, a re-writer, a sub-editor, a
1310
typographical write-out man, someone else who might have composed the headlines, and so on and so forth. Therefore unless I am mistaken in my interpretation of the Bill, each of the aforementioned persons would require to be identified at the end of every piece of "composite work". For example, each article in an encyclopaedia or magazine would he almost like the end of a film where the credit titles roll on and on, starting from the highest to the lowest person who has been associated with the work, while we all wait anxiously to see whether we can leave the cinema without offending the film's massive authorship.
The noble Earl, Lord Stockton, has made his case. I hope that the Government, even if they do not accept the amendment this afternoon, will at least look at it carefully with a view to returning on Third Reading with an amendment similar in nature to that which he has moved.
Lord Lloyd of Hampstead: My Lords, I support the amendment put forward by the noble Lord, Lord Graham of Edmonton, in regard to film directors. I ventured to disagree with him at an earlier stage when it was suggested that the copyright should vest jointly with the director. I did so on the grounds, which I think the Government supported, that this was a matter which could be left to contract. However, when one comes to the issue of the director's moral right, he ought prima facie not to be subject to total modifications by the producer which would put him in a very invidious position. Here again, I think that that is a matter which could be adequately dealt with by contract. If the producer requires the right to modify the director's work, as indeed he probably will, then the exact degree to which he can do so should be stated in the contract which is invariably drawn up when arrangements are made for the production of the film.
There does not seem to be any justification in depriving the director of such protection. He does, after all, make a major creative contribution to the content of the film and should not therefore be in a position where he can be totally overridden by the producer, unless the director stipulates precisely the extent to which his rights can be modified. The onus should be on the producer to indicate in the contract the degree the producer can modify the director's work. Therefore to eliminate paragraph (c) of Clause 73 as propounded by the noble Lord, Lord Graham of Edmonton, seems to me to produce a more just and satisfactory result.
Lord Hemingford: My Lords, I should like to support the Government's amendments in regard to allowing newspaper editors in effect to do their job. I ought here to declare an interest as I am an editorial director of the Westminster Press and a member of' the Association of British Editors and the Guild of British Newspaper Editors.
The situation which would have existed before the amendment was brought forward would have created a nightmare for editors and a charter for anyone who wanted to disrupt his ability to control the shape of the newspaper. Few people who have not worked in the newspaper industry realise how speedily a

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newspaper has to be put together and the degree to which an editor is forced to delegate decisions. For example, a chief sub-editor who is putting together scraps of information on a running story of, say, a riot or a natural disaster, has no time to refer his decisions upwards. There may be an inquest afterwards, but, at the time, he has to back his own split-second judgment in compiling a report from several different sources.
Similarly, a news or a picture editor who is briefing a freelance reporter or photographer on some fast-moving drama cannot get down to the minutiae of negotiating the terms and conditions on which any contribution may be published. There is no time to lose if the story is to be be put into the next edition. That is why allowing a reporter the right to insist on being identified or not to suffer alteration to what he has written or possibly dictated over the telephone from notes would he unrealistic and impractical in a newspaper context. I do not believe that newspaper editors wish to curtail the moral rights of writers to enjoy freedom from interference with what we might call literary works. But the Bill, as it stood, would have put editors in an impossible position and would have given undue disruptive power to people who might want to get in their way. Therefore, I welcome the Government's amendments.
I support the amendment tabled by the noble Lord, Lord McGregor of Durris, for the introduction of news agencies into the scene. As a former news agency reporter, I am aware that it is especially relevant to include them.
4.30 p.m
Lord Beaverbrook: My Lords, with the leave of your Lordships, I shall speak also to the amendments spelled out by my noble friend Lord Stockton. We discussed in Committee whether the moral rights provisions should apply to employees and, in particular, whether there should be special provisions for newspapers, magazines, periodicals and composite works. Many representations have been made to us and we have now had the opportunity to consider them and indeed all the arguments put forward in Committee.
I should first like to deal with the general question of employees and the amendments tabled by the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, and, concerning film directors, Amendment No. 134A, tabled by the noble Lord, Lord Graham of Edmonton. We believe that giving employees and employed film directors the integrity right would cause all sorts of practical problems and the Government's views on this point remain as expressed in Committee.
There are so many instances where, in the course of normal working practices, a work will be modified in some way, and we believe that it is only right that the employer should be able to do this. It is worth pointing out that in the case of film directors many will be freelance and so not "employed" as defined in the Bill.
The noble Lord, Lord Graham of Edmonton, suggested that directors of feature films would not normally have any moral right to prevent unjustified modifications because they would be employees.
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Most directors of feature films are not employed by the producers of the film. I accept that in television the situation may be different. In that context, I believe that it is right to safeguard the employer's interests as Clause 73 does.
I should like to turn to two points made by the noble Lord, Lord Morton of Shuna. He raised a fair point about how an author can be made a fool of or have his views modified so that everyone sees the modified work, and, as a result, receives a false impression of the author. I suggest that in that case the author would have been defamed and would be able to sue for libel. There is nothing in the Berne Convention which requires every point in it to be dealt with by a tailor-made provision. Here we have a Berne obligation adequately met by the common law. It is the opinion of the World Intellectual Property Organisation that the law of libel, insofar as it goes, is an entirely adequate means of giving effect to some of our Berne obligations.
I should like to deal with the first of the amendments tabled by my noble friend Lord Stockton. The effect of this amendment would be to disapply the paternity right to employees. In Committee, I explained the Government's view that although the employer should be able to modify what his employees have been paid to create, the employees should at least be identified as the authors of their work. However, we have now had cause to reconsider this. Many employers would be faced with difficulties in identifying authors of works, even the very shortest works; for example, a caption on a television screen. This would be safely dealt with only by renegotiating contracts of employment to waive the right, and employers might be left in a difficult position if employees refused to waive the right. The Government cannot see the justification in that and feel that for much the same reasons as the integrity right is disapplied, so the paternity right should not apply to employees either. I am therefore happy to accept this amendment in principle. I think, however, that some reconstruction of the clause will be needed and film directors will need to be covered. So, if my noble friend would withdraw the amendment, I shall return on Third Reading.
I should now like to speak to my own amendments to Clauses 71 to 73, and the special case of newspapers. The Government have received many representations about the dire effect of moral rights on newspapers. We have been told that the paternity right would cause them problems in two respects; first, that every article would require a by-line, including those only three or four lines long and, secondly, that in many instances it is impossible to identify the author because there are different contributors to a piece, or because a work is heavily edited to match a particular house style. With the integrity right, the problem arises out of the widespread use of freelance journalists and photographers who, unlike employed journalists and photographers, would have the right to object to unjustified modification of work.
There can be no doubt that the nature of the newspaper industry makes it different from other forms of publishing. The deadlines are extremely tight. Newspapers do not have the time to seek

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waivers of moral rights when dealing with freelance reporters or to check whether the paternity right has been asserted. The rights would also be costly and cumbersome to administer. We understand that the relationship between editor and freelance journalist is often an informal one and one that perhaps would not survive with the requirements of moral rights. The fast-moving nature of this industry would make the operation of moral rights very difficult indeed. All this could lead to less use of freelance writers, and at worst restrict the supply of information.
The Government have therefore decided that moral rights should be dissapplied in works created for the purpose of publication in newspapers, magazines and periodicals. In the case of the integrity right, this disapplication extends to any subsequent use of the work elsewhere, to cover such things as the publication of books containing extracts from newspapers. If however a work is written for another purpose—for example, when an extract from a book is published in a newspaper—then moral rights will apply.
I should now like to deal with the point made by the noble Lord, Lord Brain. He referred to the need, as he sees it, to retain the moral right for photographers so that they can object to subsequent modifications of their works. In Clause 71, we are concerned only with the right to be identified as the author of a work. Clause 72 deals with unjustified modifications. Clause 73 also ensures that that right does not apply to employees.
The other amendments tabled by my noble friend Lord Stockton would include "composite works" within that exception. Since reaching their decision on newspapers, the Government have received a number of representations from publishers of composite works. The nature of the work and the pressures of tight deadlines are much the same as those of the newspaper world and we believe that a similar exception should be made. We are not however happy with the proposed definition of "composite works" and if my noble friend is prepared to withdraw his amendments, we shall endeavour to come back at the next stage with our own version.
We are also aware that the newspaper exceptions may not cover news agency services. In reply to Amendments Nos. 127A and 136A, tabled by the noble Lord, Lord McGregor of Durris, I can say that we shall be looking carefully at this point and if necessary will come back with amendments at the next stage.
It may be helpful to say that I am therefore prepared to accept in principle Amendments Nos. 124, 127A, 128, 136A, 137 and 260. I shall obviously be supporting my own Amendments Nos. 127 and 136. I am afraid that I have to resist the amendments in the names of the noble Lords, Lord Graham of Edmonton, Lord Morton of Shuna and Lord Williams of Elvel, Amendments Nos. 134 and 134A.
The Earl of Stockton: My Lords, I should like to congratulate my noble friend the Minister on his wisdom, perspicacity and imagination. With the
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assurances which he has given, I am happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran rose to move Amendment No. 125:
Page 28, line 24, at end insert—
("( ) The right does not apply in relation to the use in a broadcast of a literary, dramatic, musical or artistic work (or a copyright film) made for the purpose of broadcasting.").
The noble Lord said: My Lords, I beg to move the amendment standing in my name and in the names——
Lord Denham: My Lords, I wonder whether the noble Lord will give way. I understand that the Statement is ready, and perhaps the noble Lord will he kind enough to allow us to take it.
Lord Lloyd of Kilgerran: My Lords, your convenience is my convenience.

Electricity Industry: Privatisation
4.41 p.m.
Viscount Davidson: My Lords, with the leave of the House I shall now repeat a Statement on electricity privatisation which is being made in another place by my right honourable friend the Secretary of State for Energy. The Statement is as follows:
"With permission, Mr. Speaker, I should like to make a Statement about the future of the electricity supply industry in England and Wales.
"In our manifesto, we promised to bring forward proposals to privatise the industry. Our purpose is to give the customer and the employees a better deal and a direct stake in the industry. I believe the industry will achieve more if it is moved into the private sector, freed from government interference, and made accountable to its customers and shareholders, including its employees.
"In framing my proposals, I have adopted six principles:
Decisions about the supply of electricity should be driven by the needs of customers.
Competition is the best guarantee of the customers' interests.
Regulation should be designed to promote competition, oversee prices and protect the customers' interests in areas where natural monopoly will remain.
Security and safety of supply must be maintained.
Customers should be given new rights, not just safeguards.
All who work in the industry should be offered a direct stake in their future, new career opportunities and the freedom to manage their commercial affairs without interference from government.
"There is substantial room for competition in the electricity industry. The distribution and

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transmission of electricity are largely natural monopolies, in which it would not be economic to duplicate resources. But there is no natural monopoly in electricity generation, which accounts for some three-quarters of the cost of electricity. Only if competition is introduced will there be real incentives for generators to build power stations efficiently, to have their stations available and to fuel and run them efficiently.
"There are three conditions which must be met if competition in generation is to develop. First, the effective monopoly enjoyed by the Central Electricity Generating Board will have to be ended. It will not be sufficient to leave the CEGB in its dominant position and rely on the growth of competition from Scotland, France and private generators. Secondly, ownership and control of the national grid will have to be transferred to the distribution side of the industry. However well regulated, the CEGB would have little incentive to allow competing generators fair access to a grid it owned and controlled. Private generating companies would have little incentive to enter the market and compete. Finally, the CEGB's obligation to provide bulk supplies of electricity will have to be ended, since it obliges the CEGB to take all the key decisions on power supply.
"I therefore propose to introduce legislation at the earliest opportunity to provide powers to restructure and privatise the industry. These powers will be used to reorganise the CEGB into three new companies. The first will be a new generating company, owning some 30 per cent. of the CEGB's existing capacity, all of it non-nuclear. The second will comprise the remainder of the CEGB's generating capacity, both fossil-fuelled and nuclear. The third will be a national grid company, whose ownership will be transferred to the 12 existing area hoards. The area hoards will in turn be converted into 12 distribution companies, preserving their strong regional identity. The Government will consult the industry about the implications of privatisation for the employees and continuing functions of the Electricity Council, but the council itself will be abolished when the new structure is put in place. Once they have been established, the shares in the 12 distribution companies and two generating companies will be sold to the public and employees.
"In future the distribution companies will be able to look to private generators, Scotland, France, the two large generating companies or their own generation to meet demand. The new structure will introduce competition, which will be the best guarantee of the customer's interests. But the legislation will also provide safeguards and new rights. It will create new opportunities for employees.
"First, it will establish regulatory arrangements to promote competition, to provide incentives for efficiency and to oversee electricity prices to the consumer.
"Secondly, a number of measures will be taken to ensure the security of supply. Because there are no alternatives to electricity in many of its uses, security of supply is of great importance. The
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legislation will therefore place a clear obligation to supply on the 12 distribution companies, which will ensure that they contract for sufficient capacity. But security of supply is not simply a question of having sufficient capacity. Power has to be transmitted through the national grid, and the grid controllers have a central role in planning and directing the use of power stations so as to prevent the failure of the system and to minimise cost. Our proposals will ensure that the national grid company, owned by the distribution companies, retains this central role. The integrity of the grid and the operation of power stations in merit order will be preserved.
"The other principal condition for maintaining secure supply is to ensure that electricity is generated from a diversity of fuels. It would be irresponsible to rely on fossil fuels to meet all our electricity generating requirements. The legislation will therefore provide for a clear obligation to be placed on the distribution companies to contract for a specified proportion of non fossil-fuelled generating capacity.
"The legislation will also incorporate an electricity supply code, consolidating and updating the legislation that currently governs the supply of electricity, dating back to the last century. Above all, we will maintain present standards of safety throughout the industry.
"Finally, the legislation will establish new rights for the consumer. Even after privatisation, the local distribution companies will remain natural monopolies. Although their prices will he regulated, I do not believe this will be sufficient. The consumer will therefore be given the right to financial compensation if the distribution companies fail to provide a guaranteed level of service. They will also be required to provide a range of indicators of standards of service, which will be published.
"Competition and the other measures I have described will benefit the consumer. But the employee will also benefit, and that is just as important. The new structure of the industry will provide wider career opportunities for employees, and there will be attractive provisions to ensure that they can acquire shares. Existing pension obligations will be safeguarded. The legislation will make no changes to the industry's negotiating and consultation machinery.
"Because of the importance of these proposals, I am today publishing them in the form of a White Paper and copies are now available in the Library and in the Vote Office.
"The electricity industry has much to be proud of, but I believe it can achieve more. My proposals will create a modern competitive industry, owned by the public and responsive to the needs of customers and employees. There are real benefits in prospect".
My Lords, that concludes the Statement.
Baroness Nicol: My Lords, we are grateful to the Minister for repeating the Statement made in the other place. However, I am afraid that there are a

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number of questions which I shall have to ask him today. The first question has to be: why? We know about the manifesto commitment, but we have seen with other issues that manifesto commitments arc not always implemented and often the mandate is questionable. So what evidence is there of the need to privatise? At the moment we enjoy security of supply. The Minister gave us six principles to which he is working, but the first five of those are already satisfied.
Security of supply was proved in the recent disasters that we suffered, particularly in October last year. Nothing could have been better than the work which the present supply industry carried out. We are aware too that an efficient integrated system is widely recognised throughout the world as being the best way of organising. There is not a non-integrated electricity supply system anywhere in the world. We wonder what the excuse is for dismantling that in the way which is now being proposed.
We have low prices in spite of the recent increases which have been announced. I shall return to that in a moment. May I ask who has advised the Secretary of State on his proposed structure? Is he not attempting to construct an inappropriate competition model in an industry where it is not in place anywhere in the world? We should like to evaluate the quality of the advice, so I must ask the Minister again where that advice came from. Regarding prices, does the Minister accept that an Electricity Council report shows that our electricity prices are the seventh cheapest of the 20 OECD countries, and that the six countries where prices are cheaper all have state-owned electricity supply industries? That is a point which should not be readily abandoned.
The Statement mentions security; but it is not at all clear from the paragraph on security who will be ultimately responsible for it. Does the Minister appreciate the importance of security of supply in this very sophisticated society where our whole economy can be brought to a halt if there is any long interruption in supply?
We have a debate tomorrow morning on the paving Bill for this legislation and I propose to reserve my other questions until then. However, I must finally say to the Minister that at the end of this exercise which we are now discussing we shall still have a regulated monopoly. The aim of competition will not be achieved, it has been admitted even in the Statement. Is this not just a money raising exercise in order to finance more tax cuts?
Lord Ezra: My Lords, I too should like to welcome the Statement and the opportunity that it gives us of initially having a discussion on this important issue, and asking some questions.
Incidentally I should like to ask the noble Viscount whether he can throw any light on the fact that The Times this morning was able so accurately to forecast what was contained in the Statement that was read to us today. I should also like to remind the noble Viscount of the Question put by the noble Lord, Lord Peyton of Yeovil, on Monday, the burden of which was that a Green Paper would be preferable to a
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White Paper so that we could have a wider debate. However the Government have decided otherwise and we are now faced with the White Paper. I should like to limit myself to five questions which I believe cover the crucial issues which arise from this measure.
First is the question of security of supply. This has already been referred to by the noble Baroness. Lady Nicol. Many of us have been concerned at the debate which has been going on about this in which the noble Lord, Lord Marshall, has pointed out in many statements referred to in the press that he would not feel that the security of the supply of electricity could be guaranteed if the CEGB were broken up. That was a viewpoint expressed by the man who is managing the industry at present. Are the Government satisfied that the question of security of supply can he adequately catered for under the measures which they now propose?
Secondly there is the matter of competition on which the Government set great store. But will this new arrangement induce the maximum degree of competition? We shall have two mammoth concentrations of power of which 70 per cent. will be concentrated in one company and 30 per cent. in another. What chance will the smaller generators have in facing up to those- two great companies? There has been much discussion in the press on the part of economic experts who have taken the view that if there was to be a break up and competition was to be stimulated there should have been many more companies involved.
Thirdly there is the matter of the proportion of non-fossil fuel to be used for the generation of electricity. This was mentioned in the Statement and is presumably to cover nuclear energy. But when the proportion is imposed on the distribution companies (which is apparently intended) will it include other forms of non-fossil fuel energy such as wind power, tidal power, and so on'? Will the companies be able to choose between the different forms of non-fossil fuel energy in the proportions which are allocated to them?
Fourthly there is the regulatory system. It is interesting to note that the Government consider that the regulatory system for electricity should be a good deal tougher than that which was proposed for gas. Many of us felt that that was fairly weak when it was going through the Committee stage. But if there is going to be a tough regulatory system in a situation in which competition is being stimulated, how will this bear down upon the smaller companies? Are they likely to suffer from an excess of regulation which will prevent them from competing with the bigger companies which could take that in their stride?
Finally there is the matter of the consumers. A lot of emphasis was put in the Statement on the rights of consumers. But what was not clear was whether the consumer councils were going to be retained or not. There was a debate on that in this House last night in which we compared the contrasting ways in which the consumers' interests were attempted to be safeguarded in the telecommunications industry and in the gas industry. Which way will it go under electricity? That was not clear.
Viscount Davidson: My Lords, I shall start by warmly congratulating the noble Baroness, Lady Nicol, on her appointment as the official Opposition spokeswoman on energy. I must say that I sympathise with her for having been thrown in at the deep end and in having as her first task to respond to a Statement which is both technical and inevitably politically controversial. But she has shown that she is clearly not out of her depth on the subject. I look forward to facing the noble Baroness across the Dispatch Box, if not always in harmony at least with goodwill on both sides.
I should also like to take this opportunity to express my thanks to the noble Lord, Lord Stoddart of Swindon, for the very amicable relationship which we enjoy outside the Chamber although it may not always have been apparent inside the Chamber. I wish him well in his retirement from the Front Bench.
Before beginning to answer the questions from the noble Baroness and the noble Lord perhaps I may just remind your Lordships on a general point that a White Paper setting out the proposals in detail is being published today. Some of the questions which have been asked already do find an answer in the White Paper. Also, there is to be a general debate on energy in the name of my noble friend Lord Beloff on 9th March which will give your Lordships an opportunity to discuss all aspects of energy generation in detail. This of course does not preclude a debate on the White Paper which if required would be arranged through the usual channels. However I thought it courteous at this stage to remind your Lordships of that debate.
The noble Baroness asked me a number of questions. First she asked why the Government were doing this. The proposals of my right honourable friend are widely supported within the industry. The majority accepts that it is perfectly possible to have the grid and power stations owned by different companies. The Institution of Electrical Engineers takes the same view. These proposals will preserve the current role of the national grid while introducing real competition. We feel that real competition will come about under the proposals.
As regards the overseas experience. I must say that every electricity supply system in the world is different. Nowhere else in the world is there a supply system like the one we have at present. Most systems—as indeed our own system at the beginning of the century—evolved piecemeal. In Germany for example there are over 600 companies supplying electricity to the consumer. Overseas models provide useful lessons for us to learn and we have studied several overseas systems. That has shown that no one country's system is the best and is the one that we should use. As the Government have shown with previous privatisations, they are leading the way and not following other countries.
Regarding prices, there is considerable misunderstanding. The price increase that we are talking about in April is in effect the first electricity price increase since 1985. On average domestic electricity prices have fallen by about 15 per cent. in real terms over the past five years and average industrial prices have fallen by even more than that. The electricity price rise due in April will add only
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between one-fifth and one-eighth of 1 per cent. to industry's costs in England and Wales.
Both the noble Baroness and the noble Lord, Lord Ezra, spoke about security of supply. As I have already indicated, that is covered in detail in the White Paper. I shall quote from the beginning of paragraph 44 where it is stated:
"There are three principal conditions for a secure supply of electricity: Proper control of the generating and transmission systems, to ensure that power can be delivered where it is needed. Sufficient generating capacity to meet demand. Protection against interruptions in fuel supply."
All those matters are covered in that section of the White Paper.
As regards alternative forms of supply, of course all the area boards will be able to take their supply from whatever is available and is offered to them. That is where the choice really comes in. The regulator, about which the noble Lord, Lord Ezra, asked, is based on two of the Secretary of State's six principles: competition is the best guarantee of the customer's interest, and regulation should be designed to promote competition, oversee prices and protect the customer's interest in areas where natural monopoly will remain. Distribution transmission will remain largely a matter for monopolies which will need an effective regulatory regime; and this will be based on price control as for gas, telecommunications and airports. The Director General of Oftel in his recent consultative document concluded that no case appears to exist for changing from a "price-cap" approach to one which is more closely related to the rate of return.
On the last point made by the noble Lord. Lord Ezra, on the consumer interests, I certainly sat in and listened to the Unstarred Question last night put down by the noble Baroness, Lady Ewart-Biggs. I can assure your Lordships that it will be very much in the interests of the area boards to ensure that consumer relations are given the very highest priority. In addition, the benefits of the national grid will be maintained. There will be guarantees of standards and regulation, including technical regulation, as there is at present. There will be penalties for companies which perform badly, and compensation for consumers. We will ensure that power is supplied to consumers in an efficient, reliable and safe manner. I hope that I have answered most, if not all, of the questions put by the noble Baroness and the noble Lord.
5 p.m.
Lord Peyton of Yeovil: My Lords, perhaps I may ask several questions of my noble friend. He referred first to the Government's belief that the industry will achieve more on this new basis. Will he be good enough to give the foundations for that belief, seeing that the competition will be very much more apparent than real so far as most customers are concerned?
My second question is: to whom will the duty to supply, at present on the shoulders of the generating board, he transferred? My next question is this: is my noble friend aware that the suggestion that the responsibility for the grid to be transferred to the area boards is one which causes me at any rate considerable alarm and concern?

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Lastly, does my noble friend appreciate that to propound a policy for electricity which makes no reference to coal is really something very unrealistic: so much so that proposals which do not contain such a reference can hardly be taken very seriously?
Viscount Davidson: My Lords, perhaps I may take the extremely important question of coal first. I must tell my noble friend that coal will continue to be the major source of fuel for electricity generation for years to come. British Coal has increased its productivity by 50 per cent. in the last four or five years and my right honourable friend is confident that it can supply coal reliably and competitively. Her Majesty's Government have shown their commitment to the future of British Coal through an investment of £2 million a day. I stress that reliability will of course be important from the point of view of getting contracts and the geographical position of British Coal will continue to give it an advantage so far as competition is concerned.
I must disagree with my noble friend on one point. I am quite convinced that there will be a very strong element of competition and the transfer of' the grid from the CEGB to the area boards will have a considerable effect on this. The purpose of privatising the industry is to introduce real, visible and effective competition. I would advise my noble friend perhaps to postpone judgment upon these matters until he has read the White Paper.
Lord Graham of Edmonton: My Lords, would the noble Viscount care to tell the House a little more about who will eventually own the industry? Is it not a fact that at the moment the industry is owned by the taxpayers? Would he care to tell us what steps will be taken to ensure that foreign interests will not be enabled by various means to own this industry? Also, will the Minister address himself to the explanation that the industry is all for what he has proposed? For instance, would he tell us the response of those who work in the industry, that is, the employees? What consultation has taken place with them to enable him to make that statement? Would he also care to tell us what consumer bodies he has consulted in order to be able to say that those who are affected by the industry are all for it too?
Viscount Davidson: My Lords, the industry will be owned by the shareholders and I trust that the employees will be very strongly represented among their number. So far as foreign interests are concerned, I have to say to the noble Lord that this is looking much too far into the future at the moment. I am afraid that that is as far as I can go.
The Earl of Halsbury: My Lords, can the noble Viscount say whether the White Paper includes any references to various knotty problems lying behind the scenes, such as the future of the Nuclear Installations Inspectorate, the future of the United Kingdom Atomic Energy Authority, the future of the NNC (that is the Government holding in the subsidiary which designs nuclear plants), the future of Barnwell, which does "trouble-shooting" for the
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conventional plants, the future of the fast reactor at Dounreay and the future of British Nuclear Fuels in relation to what the new set-up is going to be? If the White Paper does not include those items, I think that before we debate it there should be a supplement issued to the White Paper dealing with them.
Viscount Davidson: My Lords, I can tell the noble Earl, Lord Halsbury, that the future status of the NII, the United Kingdom Atomic Energy Authority, and the NNC will not be changed by the proposals announced today. The nuclear safety regime does not depend on the ownership of the power stations. We are determined to maintain the current high standards.
So far as Barwood is concerned—that is the CEGB's generation and transmission research division—it will be up to the industry to propose the best means of continuity in order to make the best use of its important expertise. As regards the fast reactor at Dounreay, in itself privatisation will not mean any change. I can say that the Government remain committed to the future of their nuclear programme.
Lord Gray of Contin: My Lords, will my noble friend accept that there are many in the country tonight who will be greatly relieved that such a Statement has been made, particularly as it affects the nuclear industry? It will be seen as being implicit in the White Paper that the Government confirm their wholehearted support for that industry.
Will my noble friend also accept that the seven-minute Statement which he made contained an enormous amount of information which the House will wish to study with care. Indeed there are many questions which come to mind which it would be wrong to pose without further consideration. However, will he accept that there are two points which I believe to be of vital importance? The first is the commitment in the first of the requirements which the Secretary of State has set out, that the supply of electricity will be governed by the needs of the consumer. One would hope that within this context it will be borne in mind that the domestic consumer in this country has enjoyed cheap electricity for a very long period of time and that it will be necessary, between now and the time that a Bill following upon this White Paper is presented, for a major exercise in communication to be carried out. Is it not the case that the Government are fortunate in having as their Secretary of State for Energy probably the best communicator within the Palace of Westminster.
Finally, will my noble friend accept that the integrity of the grid is essential? We are happy that it is to be maintained and that the merit order within the power station sector is also to be maintained. These are of vital importance to future supply.
Viscount Davidson: My Lords, I am grateful to my noble friend and accept everything that he says. I shall convey his remarks to my right honourable friend.
Lord Peston: My Lords, can the noble Viscount confirm one matter that I understood him to say, namely, that the ordinary consumer of electricity will still be confronted with a monopoly supplier and that

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there will no competition at that level at all? Therefore, the market for electricity at that level will be regulated, subject to price control, and in any meaningful sense of the word there will be no competition or free market in that respect?
Viscount Davidson: My Lords, there will he competition.
Lord Peston: My Lords, where will there be competition?
Lord Grimond: My Lords, some of us at least do not believe that the consumer can be reconciled to increases in electricity prices by a massive public relations exercise, as appears to have been suggested by the noble Lord, Lord Gray of Contin. Can the noble Viscount explain why, when the raw materials— the fuels that generate electricity—are coming down in price, a 10 per cent. increase in price is necessary?
Secondly, can he reply to the question asked by my noble friend Lord Ezra as to how the details of the White Paper appeared this morning in the press? Thirdly, can he say what will be the effects of the proposals upon the coal industry in Scotland?
Viscount Davidson: My Lords, the question of Scotland is a separate one. In due course there will be a Statement on Scottish electricity and a separate White Paper.
I cannot comment on what appeared in the press this morning. I am not the Minister but the spokesman in the House. I do not know about that at all.
Lord Grimond: My Lords, the noble Viscount has not explained why a 10 per cent. increase in electricity prices is necessary when the prices of the fuels that generate electricity are decreasing.
Viscount Davidson: My Lords, I am afraid that I shall have to write to the noble Lord.
The Earl of Lauderdale: My Lords, perhaps my noble friend can help me on several points in the Statement, which leaves me blinded by science. First, is it not the case that, if the grid is to maintain the existing highly successful merit order in which stations are brought into supply under conditions of competition, the generators will all need to have surplus capacity to compete, which in turn must surely raise rather than lower prices?
Secondly, can he say whether the two mammoth companies of the CEGB—one being 30 per cent., and the other, 70 per cent.—will themselves be mainly responsible for providing the new generating capacity valued at £45 billion to provide 13 GW of electricity capacity by the end of the century? Will they provide it all or part and, if the latter, how large a part are the Government looking to other new companies to provide?
Viscount Davidson: My Lords, we are going quite a long way into the future. The Statement says that the existing Central Electricity Generating Board will
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be re-organised into three new companies. It continues:
"The first will be a new generating company, owning sonic 30 per cent. of the CEGB's existing capacity, all of it non-nuclear. The second will comprise the remainder of the CEGB's generating capacity, both fossil-fuelled and nuclear. The third will be a national grid company, whose ownership will be transferred to the 12 existing area boards".
In addition, the area boards will be able to generate electricity themselves so there will be competition.
Lord Jenkin of Roding: My Lords, can my noble friend explain why it is suggested that all the nuclear stations should be grouped in one of the two generating boards? Can he assure me that this will in no way inhibit the transfer of the shares in both generating boards to the general public and that there is no fear that he has not listened to the anxieties of those who said that nuclear power would be safe only in state hands? Is it not a fact that in many of our competitor countries round the world some of the most efficient nuclear stations in operation have been operated by private companies?
Viscount Davidson: My Lords, the Government are confident that investors will be attracted to the prospects of the privatised industry. The private generating companies in other countries have shown that nuclear power can be a successful private sector investment.
Lord Hailsham of Saint Marylebone: My Lords, perhaps my noble friend can answer a question that occurred to me in the course of the Statement. There are of course not simply two great groups of nuclear fossil and non-fossil fuels, but many different types of generator. Who would be responsible for the fundamental and applied research in this field as to the different types of generating capacity that will be employed? Where is the scientific research in the picture?
Viscount Davidson: My Lords, the new companies will have the same motivation to invest in research and development. It is possible that the increased commercial awareness that will result from privatisation will increase useful research and development in consumer-related areas.
The Earl of Lauderdale: My Lords, can my noble friend confirm whether the White Paper refers to the provision of new capacity needed by the end of the century?
Viscount Davidson: My Lords, I regret that I do not have the answer at my fingertips. Perhaps my noble friend would like to read the White Paper first.
Lord Williams of Elvel: My Lords, the noble Viscount, in reply to my noble friend Lord Peston, said that consumers would enjoy a competitive situation as between different sources of supply. The choice in generation and scope for competition is defined in paragraphs 41, 42 and 43 of the White Paper, of which I have a copy. It is perfectly clear from the White Paper that the distribution companies will have to bid for part of their business

1325
in a competitive environment. According to the White Paper:
"Adjacent distribution companies could find themselves competing to supply large users near their common borders".
Is it not the case that this does not apply to small consumers, the matter to which my noble friend Lord Peston referred, so that there will he no competition in that respect?
Viscount Davidson: My Lords, a large number of companies will allow greater scope for competition by emulation and inter-company comparison. It will give the regulator a wider range of information on which to base his judgments. The companies will be able to build on their own local identity and existing customer relationships. Even with 12 companies, each will he one of the largest companies in its area.
The Lord Privy Seal (Lord Belstead): My Lords, on Monday the House accepted a recommendation of the Procedure Committee of this House that Statements should not exceed 20 minutes. I have not intervened— in any case, I am in the hands of the House—but that was accepted by the House only four days ago. We ought at least, I think, pay some cognisance to what we accepted on only Monday.
Perhaps I may suggest that, after we have taken the question of the noble Lord, Lord Sefton of Garston, the House might then consider how we proceed, having taken half an hour already. I realise that this is an important Statement. That is why I have not intervened before.
Lord Sefton of Garston: My Lords, I assume that when the noble Viscount refers to the grid he means the national grid and ignores all the other grids that exist in electricity supply.
In the last severe winter, by common agreement distribution boards moved staff and resources from one area to another to ensure security of supply. That was arranged through the normal working arrangements of the Electricity Counci. Will there be an obligation on any of the new distribution boards or companies to supply that kind of service to other areas? If not, will it he left entirely to their own commercial judgment to decide the cost of providing such services, should they provide them?
Viscount Davidson: My Lords, supplies of electricity will continue to be secure and reliable. The benefits of the national grid will be maintained under privatisation in the same way as they have been maintained when not privatised.
Lord Sefton of Garston: My Lords, with all respect to the noble Lord, the Leader of the House, I did not ask about the national grid. I want specifically to distinguish betwen the national grid and local grids. I must explain because evidently the Minister does not appreciate the difference. There are two kinds of grid: there is the national grid and in rural areas there are grids which supply electricity to outlying farms and dwelling houses. In the last severe winter it was necessary to transfer resources from the Merseyside and North Wales electricity board to the south. Will
1326
there be an obligation on the hoards to carry out that kind of exercise? If there is, will the Minister tell me who will bear the costs of transferring those resources from one board to another?
Viscount Davidson: My Lords, it will be in the interests of the area boards that all electricity supplies are maintained all the time. I am afraid that I cannot answer the last part of the noble Lord's question.

Copyright, Designs and Patents Bill [H.L.]
5.21 p.m.
Consideration of amendments on Report resumed on Clause 71.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 125:
Page 28, line 24, at end insert—
("( ) The right does not apply in relation to the use in a broadcast of a literary, dramatic, musical or artistic work (or a copyright film) made for the purpose of broadcasting.").
The noble Lord said: My Lords, this amendment is of profound importance to broadcasters if they are to give an effective service to the public. It is necessary that I take a few minutes of your Lordships' time to explain the reasons for the amendment being so significant.
Under Clause 69 of the Bill every
"author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right to be identified as the author or director of the work".
Therefore some kind of caption should be added in order to identify them. Under Clause 71, recognising what tremendous difficulty would arise in many circumstances in complying with Clause 69 dealing with the rights of identification, the Government set out a number of descriptions of work to which that right would not apply. However, they have omitted any reference to the situation arising in broadcasting.
Unless a broadcaster can obtain a waiver of moral rights in relation to this copyright, the credits which will have to be given when work is shown in a broadcast programme can be very long indeed. They will clutter up the screen and cause viewers a great deal of annoyance. There are already signs that viewers are irritated by the length of screen credits. The provision that I am suggesting, to exclude
"the use in a broadcast of literary, dramatic, musical or artistic work or a copyright film made for the purposes of broadcasting"
means that credits would not have to be employed. I present the amendment on behalf of both ITV and the BBC but I have no interest other than that of a viewer.
Broadcasters maintain a fine balance between providing information and entertaining their audience, as do newspapers with their readers. Both media require equally an ability to exercise their discretion in order to present an effective service to the public without causing unnecessary irritation through large numbers of captions declaring that certain people have been associated with the production.
As we have heard from the Minister this afternoon, the Government are proposing to exclude

1327
newspapers from having to make that kind of disclosure. That is the substance of Amendment No. 127. I submit that the same exemption should be applied to broadcasters under Clause 69 so that they are not compelled to give credit to so many persons on television screens. I beg to move.
Lord Morton of Shuna: My Lords, I could see the point of this amendment if it were restricted to news broadcasts on television and radio. However, if one is producing a play or some other literary or artistic work, why should the author not have the same rights as in a theatre production or elsewhere? I should have thought that if television companies are upset by the amount of time they have to give to showing credits, they could save a considerable amount of time by taking off the assertion of copyright that they put at the end of a programme—by the BBC, London Weekend Television or whoever—which takes up much more time than the credits.
Lord Beaverbrook: My Lords, this amendment seeks to disapply the right of an author or director to be identified when a literary, dramatic, musical or artistic work is broadcast and that work has been,
"made for the purpose of broadcasting".
I have to say that we have considerable difficulties with this amendment. I can understand the difficulties broadcasters might have if they always had to identify the composer of a musical work which was broadcast. This would create considerable difficulties in respect of programmes featuring records of popular music, for example, or of advertisements with a musical content. But for this very reason the Bill already omits any right for an author or composer to be identified when a musical work or its accompanying lyrics are broadcast. The element of the amendment which relates to music is thus unnecessary.
As to the rest, we do not believe that the right to be identified, as we are amending it, need create any undue problems for broadcasters. We are, as I have said. agreeing to disapply the paternity right to employees, and this includes the employees of broadcasting organisations. As to freelances, the author of a featured literary or dramatic work would, I believe, normally he identified anyway when his work is broadcast. In the case of films, only the director has the right to be identified and that right is surely a reasonable one.
Further, I would remind your Lordships that the right to be identified does not arise in cases where certain copyright exceptions apply. The important ones for this purpose are the fair dealing exception for reporting of current events, and the exception which allows incidental inclusion of a work in another work without infringement of copyright. One consequence of that last exception is that broadcasters need have no fear of inadvertently infringing an artist's right to be identified when a picture or advertisement is included incidentally in a television programme as background or scene-setting.
Finally, I find it hard to see the justification for a distinction between works "made for broadcasting" and other works. The circumstances are not the same
1328
as in the newspaper industry, and the tight deadlines to which that industry is subject do not usually apply to broadcasts. Therefore the arguments for an exception regarding works created for publication in newspapers do not have the same relevance here. To apply the distinction in the broadcasting field would be difficult in practice, but even if it were workable, why should the author of, say, a major radio play, or the director of a substantial television documentary, he deprived of the right to be identified, when other authors and directors whose works or films are broadcast are not? In this case the distinction seems unfair, and to serve no practical need.
For those reasons, I have to resist the noble Lord's amendment.
Lord Somers: My Lords, am I right in thinking that the words "made for broadcasting" are the key words? They imply something like a signature tune or background music which, as a rule, is identified. Certainly, music which was not made for broadcasting but for ordinary concert purposes should be identified. I should not allow a work of mine to be broadcast if it were not identified.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the Minister. He has put forward an interesting analysis of the reasons why the Government cannot accept this amendment. I find it difficult to understand why he should exclude broadcasters from being relieved from cluttering the screen with a number of credits when newspapers have been excluded from having to put forward credits in this way. I am also grateful to the noble Lord. Lord Somers, for raising an interpretation of the amendment and I am equally grateful to the noble Lord, Lord Morton of Shuna, for his advice as to what should he put on the screens, which I shall communicate to my ITV clients.
In those circumstances I do not propose to detain your Lordships further by analysing in detail the proposals of the Minister. I shall withdraw the amendment on the understanding that the matter will he brought up at Third Reading.
Amendment. by leave, withdrawn.
5.30 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 126:
Page 28. line 33, leave out ("(1)").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 127:
Page 28. line 36. at end insert—
("( ) The right does not apply in relation to the publication in a newspaper, magazine or similar periodical of a literary, dramatic. musical or artistic work made for the purposes of publication in such a periodical.").
The noble Lord said: My Lords, I beg to move.
The Deputy Speaker (Lord Aylestone): My Lords, I call Amendment No. 127A, in the name of the noble Lord, Lord McGregor of Durris, as an amendment to Amendment No. 127.
Lord McGregor of Durris Lord McGregor of Durris moved, as an amendment to Amendment No. 127, Amendment No. 127A:
Line 1, after ("apply") insert ("to a newsagency service or").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg leave to withdraw it.
Amendment to the amendment, by leave, withdrawn.
On Question, Amendment No. 127 agreed to.
[Amendment No. 128 not moved.]
Clause 72 [Right not to suffer unjustified modification of work]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 129:
Page 29, leave out lines 12 to 14 and insert—
("(b) a modification is unjustified if it is a distortion, mutilation or similar modification of, or other derogatory action in relation to, the work, which would he prejudical to the honour or reputation of the author or directors; and
("(c) a modification shall always he justified if it is done in pursuance of a statutory enactment or any other contractual duty flowing therefrom:").
The noble Lord said: My Lords, this amendment is to Clause 72, which covers the right not to suffer unjustified modification of a work. My amendment would leave out lines 12 to 14 of that clause, subsection (1) of which reads:
"The author of a copyright literary, dramatic, musical or artistic work, and the director of a copyright film, has the right in the circumstances mentioned in this section not to have his work subjected to unjustified modification".
My amendment would delete subsection (2)(b), which reads:
"For the purposes of this section—
(b) modification is justified only if it is reasonable in the circumstances and is not prejudicial to the honour or reputation of the author or director".
It is in order to delete those three lines of the clause that I submit to your Lordships the amendment in my name and that of the noble Lord, Lord Buxton of Alsa.
In their place we wish to insert something that is more understandable, somewhat more comprehensive but nevertheless realistic; namely:
"(b) a modification is unjustified if it is a distortion, mutilation or similar modification of, or other derogatory action in relation to, the work"—
so far those words are quite simple to understand—
"which would be prejudicial to the honour or reputation of the author or director".
This amendment also seeks to add a new paragraph:
"(c) a modification shall always he justified if it is done in pursuance of a statutory enactment or any other contractual duty flowing therefrom".
The amendment clarifies the words as they now stand in Clause 72; namely, that the modification:
"is justified only if it is reasonable"
etc. The provision is made far more precise as to the circumstances in which a modification is unjustified. First, the modification should not be:
"a distortion, mutilation or similar modification"
and it should not be:
"other derogatory action in relation to the work".
The amended paragraph (b) then continues with pretty well the same words as those in the present clause:
"which would be prejudicial to the honour or reputation of the author or director".
Those words are already in the Bill. Another couple of lines are then added in order to clarify a situation which will often arise in broadcasting. The new paragraph (c) ensures that:
"a modification shall always he justified"—
so far as I can see, that provision is not to be found in the Bill as it stands and in my view this modification would be helpful for the Government's purposes—
"if it is done in pursuance of a statutory enactment or any other contractual duty flowing therefrom".
The right not to suffer unjustified modification of a work is a very important right to enshrine in a statute in these circumstances, and therefore I beg to move.
Lord Morton of Shuna: My Lords, I hope that the Government are prepared to accept this amendment, which is a considerable improvement on Clause 72(2)(b). We are interested in fitting the Bill to the Berne Convention. That and the first five lines of Clause 72 deal with unjustified modification, and therefore one is not really interested in what may be justified modification. Unjustified modification is defined in fairly clear terms in Article 6 of the convention. Those words are repeated virtually in their entirety in the amendment. The amendment then goes on to make a very necessary provision to deal with actions that would be against other laws in this country. I strongly support this amendment.
Lord Beaverbrook: My Lords, I have listened very carefully to the noble Lord explaining this amendment, which reflects two concerns of broadcasters. The first concern is that the right not to suffer unjustified modification is subject to a double test which goes beyond the requirements of the Berne Convention. The second concern is that it is unreasonable to allow authors or directors to invoke the right to prevent modifications to broadcasts when these have been required by a regulatory authority in pursuance of its statutory duties.
Since Committee stage we have considered these issues with both broadcasters and the authority set up to supervise their activities. With regard to the first point, we are prepared to accept that the right in Clause 72 goes rather unnecessarily wide of the Berne Convention in subjecting modifications both to a test of reasonableness and to a test of avoidance of prejudice to honour and reputation. Only the second test is strictly required by the convention, and we therefore agree in principle that the test of reasonableness should be dropped.
In retaining the test of prejudice to honour and reputation the amendment proposes to follow closely the actual words of Article 6bis of the convention. We should like to reflect further on that suggestion.
Turning to modifications which are made in pursuance of statutory requirements, once again an exception to the right seems reasonable on consideration. We are prepared to agree that the

1331
rights should not apply to modifications made to broadcasts in consequence of regulatory requirements; for example, in regard to the showing of obscenity or acts of violence. As to the wording and precise extent of the exception, we should like to reflect a little further. The amendment proposes an exception not just for broadcasting but for all regulatory purposes and we should need to consider the implications. Nor am I convinced that the exceptions should necessarily apply to modifications made voluntarily in anticipation of possible requirements by a regulatory body as opposed to those specifically required.
It may also be desirable to allow the author or director to dissociate himself from the modifications. In the light of what I have said and the undertakings that I have given to come back with proposals of our own, perhaps the noble Lord may feel able to withdraw his amendment at this stage.
Lord Lloyd of Kilgerran: My Lords, I am very grateful to the noble Lord, Lord Morton of Shuna, for emphasising the way in which the amendment in my name and that of the noble Lord, Lord Buxton, conforms so closely with the Berne Convention. It appears that the Minister is drifting towards maintenance of their position under the Berne Convention, but perhaps that is a little unkind at this stage of the evening.
We shall arrange to look at the Minister's speech when it is published in Hansard and return to this matter later. Is the noble Lord proposing to put forward a government amendment of his own? The Minister is nodding. I understand that he will be prepared to put down a government amendment dealing with this point. I should be very grateful if such an amendment could be given to me at a fairly early stage. The timetable for the future progress of this Bill has already been curtailed to some extent. That has made it a little more difficult for some of us to make arrangements to meet people who were interested in improving the Bill. Nevertheless, I am grateful to the Minister for his undertaking. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 130:
Page 29, line 29, leave out ("or").
On Question amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 131:
Page 29, line 31, at end insert (".or
(c) in the case of a work of architecture in the form of a model for a building, a sculpture or a work or artistic craftsmanship, issues to the public copies of a graphic work representing, or of a photograph of, a modified version of the work.").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 132:
Page 29, line 33, leave out ("architect is identified on a building which") and insert ("author of such a work is identified on the building and it").
On Question, amendment agreed to.
Clause 73 [Cases in which modification need not be justified]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 133:
Page 30, line 8, leave out from ("apply") to end of line 9 and insert ("in the following cases.
(2) The right does not apply to a computer program or to any computer-generated work.
(3) The right does not apply—")
On Question, amendment agreed to.
5.45 p.m.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 134:
Page 30, leave out lines 10 to 13.
The noble Lord said: My Lords, this amendment was in the group that could be regarded as forming a natural break in discussion during Report stage. We intend to press this amendment. Perhaps I may remind noble Lords that this amendment deletes the provision of Clause 73(b) as printed in the Bill. An employee who is an author loses any right not to suffer unjustified modification. Even if he is named in the article he has no remedy. It is entirely wrong that an employer can print an article, produce something that is a gross distortion of what the author has created, and get away with it without any remedy.
I am aware that in the debate before the Statement the Minister said that the law of libel perhaps gave some remedy. He will be aware that there is no legal aid for actions of libel. They are rather costly. The ordinary author is in no position to sue for libel. It is a completely meaningless remedy for anyone who is not among the 2,000 or 3,000 top income earners in this country. It is necessary that people who have their work named and suffer this unjustifiable modification should have some remedy. I beg to move.
Lord Brain: My Lords, when the Minister replied he said that I was wrong to say that modification was not covered. He will find that under Clause 72(4)(a) photographers will have a right. It is being given, or excluded, by this amendment, according to the way that one looks at it.
Lord McGregor of Durris: My Lords, under the amendment what would be the position of a newspaper that had contracted to supply a news programme to a cable company, was therefore précising material, and was then tackled on the ground of unjustified modification?
Lord Morton of Shuna: My Lords, with the leave of the House, perhaps I may try to answer that question. At the moment the writer's name is put in, it is unjustifiably modified, and he has no remedy under the Bill. The Minister says that he has a remedy under common law on libel. If the amendment is agreed to he would have the right not to suffer unjustified modification. If some Member of your Lordships' House, or the Government, were to come back with an amendment restricting this to authors who were named, it would be difficult to oppose such an amendment.
Lord Lloyd of Kilgerran: My Lords, I am always in sympathy with amendments which safeguard the rights of employees in relation to intellectual property rights. My experience on nationalisation, or on denationalisation, has been that quite often the rights of employees are forgotten. While I am trying to be sympathetic to the noble Lord, Lord Morton of Shuna, I cannot see what right the employee has lost in these circumstances. Where is the employee being damaged? No doubt when the Minister has replied I shall be able to make up my mind, with the advice of the noble Lord, Lord McGregor.
Lord Beaverbrook: My Lords, I spoke to this amendment, as did other noble Lords, earlier. We are therefore having a re-run and a slight re-hash of the amendment this afternoon, after what the noble Lord, Lord Morton of Shuna, described as a natural break. We believe that giving employees and employed film directors the integrity right would cause practical problems. The views of the Government remain as expressed in Committee on this point. There are many instances where, in the course of normal working practices, work will be modified in some way. We believe that it is only right the employer should be able to do this.
Perhaps I may turn to the point made by the noble Lord, Lord Brain. He is quite right in saying that photographers have moral rights. The point that I sought to make earlier is that employed photographers do not have the integrity right under Clause 73(b).
I was going to resist the noble Lord's case. However, I should like to reconsider his point about named authors. I believe that the issue has enough merit for us to reconsider it. Perhaps he will be willing to withdraw the amendment at this stage. I cannot give an undertaking, but it is a novel idea that is worthy of consideration.
Lord Morton of Shuna: My Lords, I am very much obliged to the Minister. I should have thought that the idea was not novel to him and to those advising him. He is being too kind to me. However, if the Minister wishes to consider this matter again, I actively encourage that. I ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 134A not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 135:
Page 30, line 18, at end insert—
("( ) in relation to the use in a broadcast of literary, dramatic, musical or artistic work made for the purpose of broadcasting save where the work is a spoken literary work in which the copyright therein would have been infringed but for section 3 of this Act").
The noble Lord said: My Lords, this amendment has been tabled in my name and in the name of the noble Lord, Lord Buxton of Alsa. I believe that I spoke to this amendment when speaking to Amendment No. 7. In those circumstances, I shall not move it.
[Amendment No. 135 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 136:
Page 30, line 18, at end insert—
("(4) The right does not apply in relation to the publication in a newspaper, magazine or similar periodical of a literary, dramatic, musical or artistic work made for the purposes of publication in such a periodical, or in relation to any subsequent exploitation elsewhere of the work without any modification of the published version.
(5) The right does not apply in relation").
The noble Lord said: My Lords, I beg to move.
Lord McGregor of Durris Lord McGregor of Durris had given notice of his intention to move, as an amendment to Amendment No. 136, Amendment No. 136A:
Line 1, after ("apply") insert ("to a news agency service or").
The noble Lord said: My Lords, in the light of what the Minister said when speaking to the amendment earlier, I do not wish to move it.
[Amendment No. 136A not moved.]
On Question, Amendment No. 136 agreed to.
[Amendment No. 137 not moved.]
Clause 74 [Infringement of right by possessing or dealing with modified work or copy]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 138:
Page 30, line 27, leave out ("trade or").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 139:
Page 30, line 29, leave out ("trade or").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 140:
Page 30. line 31, leave out ("trade or").
On Question, amendment agreed to.
Clause 75 [False attribution of work]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 141:
Page 31, line 24, leave out ("trade or").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 142:
Page 31, line 34, leave out ("trade or").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 77 [Consent and waiver of rights]:
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 142A:
Page 32, line 17, at end insert ("in writing").
The noble Lord said: My Lords, I beg to move Amendment No. 142A, and with the leave of the House I shall speak to Amendments Nos. 143 and 144. Clause 77 deals with the waiver of rights, and Amendment No. 142A adds the words "in writing" at the end of subsection (1).
The realities of the film and TV industry are such that there will always be immense pressure on writers and directors, and writer/directors, to consent to waive their rights. The Minister has already referred to pressure, pace, and the need to move quickly. This is not a simple matter. The ACTT, which has been in touch with the Minister, understands that he appreciates the point it is making.
There is also a tendency to work on the basis of verbal agreements which are not formulated until later, if at all. They can be the subject of different interpretations by the various parties concerned. In these circumstances, it is a minimum protection for writers and directors to require that consent must be in writing. The amendment merely reinforces what is said in Clause 77(2), which reads:
"Any of those rights may be waived by instrument in writing signed by the person giving up the right".
We believe this to be a modest amendment and it is consistent with the integrity of this clause. It would be appreciated by many people who consider that it would be helpful to them in their daily work. I beg to move.
Lord Morton of Shuna: My Lords, as my noble friend Lord Graham has said, also in the group are Amendments Nos. 143 and 144 tabled in my name and in the names of my noble friends Lord Williams and Lady Birk. Amendment No. 143 has the same intention and is to the same effect as Amendment No. 142A by inserting the words "but only" after the word "waived". However, Amendment No. 144 gives point to that because it removes the possibility of waiving accidentally and informally, provided for in Clause 77(4).
The object of the amendments is to ensure that people who have moral rights do not waive them when they do not appreciate what they are doing. If the moral rights are to be taken seriously, clear evidence must be available to show a readiness to give them up. Thus it is sufficiently important for the waiver to be in writing. For example, as regards moral rights the Government have taken the view, as we have discussed, that if one is to assert one's moral right to paternity it must be in writing. It therefore seems reasonable that if one is to waive that one should also have it in writing.
I imagine that the purpose of Clause 77(4) is to deal with a situation where the author could, by his conduct, lead somebody else to act on the assumption that the right had been waived. However, we suggest that the subsection is defective because in most cases estoppel relates to consent to a specific situation and not to a permanent waiver. The general law of contract could operate to permit informal waivers without giving the author due opportunity of reflecting on the right that he is giving up. Therefore it would seem to be better that if the right is to be waived it should be made clear by having it in writing what is being waived and for what purpose.
As subsection (3) makes clear, the waiver may relate to the whole work, to one performance, to a description or to something else. If in that situation one has some form of informal waiver, one is entering a long court case which may be lucrative to the
1336
lawyers involved but which does not achieve much for anybody else. If we are to have this clause—and I see the point of having a waiver—let us have the waiver clearly understood so that everyone knows where they stand.
Lord Lloyd of Kilgerran: My Lords, consents and waivers of rights always cause a great deal of trouble if they are merely oral and not in writing. I support the amendment as a practical and realistic way of dealing with the matter.
Lord Howie of Troon: My Lords, the Bill deals with the protection of intellectual property and this part is about the protection of moral rights. We strongly support such matters. My noble friend Lord Graham is right in essence in saying that such waivers should be made in writing so as to preserve the utmost clarity in order that everyone knows exactly what is happening and that matters are permanently on the record.
I have one slight hesitation, but it may well be that my noble friend will remove it when he replies. In the everyday rough and tumble of newspaper and periodical publications, decisions must often be taken rapidly against deadlines. It is not always the case that the author is immediately available in the office to provide a waiver in writing. He may well be on an assignment, or at his home or somewhere else. It is foreseeable to me that to insist that all waivers should be in writing, though desirable, may be impractical.
If my noble friend can remove my doubts about that matter I shall support him, because I support the intention of his amendment. However, if he cannot remove my doubts I shall be unable to do so.
6 p.m.
Lord Beaverbrook: My Lords, in speaking to Amendment No. 142A I shall speak also to Amendments Nos 143 and 144. The noble Lord, Lord Graham of Edmonton, seeks to prevent consent from being given except in writing. I cannot accept such a proposition. Let us suppose an author writes a play. Shortly before its performance, the producer telephones the author and asks if he can make certain cuts. The author agrees. There is no time to obtain consent in writing. I believe that is the point made by the noble Lord, Lord Howie. Is the author then to be able to sue the producer for damages for breach of his integrity right? It is an elementary proposition of law that a person cannot sue for damages in respect of anything to which he has consented whether the consent is signified in writing, orally or by conduct. This applies in contract law, personal injury litigation, the law of trespass and, indeed, copyright, and I believe that moral rights should be no different.
As to Amendments Nos. 143 and 144, my remarks will in fact be confined almost entirely to Amendment No. 144. I take Amendment No. 143 to be no more than an underlining, as it were, of the requirement that to he effective a waiver must be in writing. I do not dispute that, but I do not think that we need the amendment to emphasise the point.
The real question is whether moral rights can be lost by giving them up in a contract, or by the effect of the law of estoppel or, in Scotland, personal bar,

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without there being a consent within subsection (1) of the clause or a waiver in writing within subsections (2) and (3). I should mention that Clause 160 provides the translation of "estoppel" into "personal bar" for Scotland. I must say that I am not sure that leaving out subsection (4) would be enough by itself to cut out the effect of contract or estoppel—it might be necessary to say something positive—but for the purposes of this debate I shall assume that it would be enough.
I think that the inclusion of subsection (4) can be explained simply as a matter of justice—justice, in this case, for the person exploiting the work. We must not overlook that that person is as much entitled to justice as the author, composer or artist whose work he is exploiting.
Let us take, first, the case of a contract. If an author gives up his rights in a contract, he will normally have received something in return, usually money; otherwise there would have been no contract. Immediately we have the point that if he received something for giving up his rights, he ought not to be able to change his mind and insist on them. Let us take an example. The contract in the example cannot be in writing; otherwise there would be a waiver in writing and no further problem. Nor can it amount to consent by the author to the doing of a particular act; otherwise there would be a consent within subsection (1) of the clause, and again there would be no problem.
Suppose that an impresario, wishing to encourage new talent, advertises in the press for the submission of songs for performance in a show devoted to new songwriters. The writer of any song that is performed is paid £50; and the advertisement says that it is a condition of submitting a song for performance that all moral rights are waived. There is no consent to doing any particular act; there is no signed, written waiver. But there is a contract, and it would not be right, subject to anything contained in the general law of contract, for the song-writer to be able to turn around afterwards and complain about an infringement of his moral rights.
I now turn to estoppel. Suppose, for example, that an author who has assigned his copyright tells the assignee orally that he has no intention of enforcing his moral rights. This is not a contract nor is it consent or written waiver, but it creates a promissory estoppel. If the assignee relies on it to his detriment, such as by making cuts in a published edition or public performance of the work, the author ought not to be allowed to change his mind without giving reasonable notice in accordance with the principles of promissory estoppel. The author is not prevented for all time from reclaiming his rights, but he must give reasonable notice. I understand that the law on personal bar has much the same effect. If the law on estoppel and personal bar were not permitted to operate, the author could sue the assignee for any unjustified cuts which the assignee had already made in reliance on the author's apparent abandonment of his rights, and that would simply not be right.
The noble Lord, Lord Morton of Shuna, spoke of the relationship between consent and waiver and suggested that Amendments Nos. 142A and 143 are
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essentially on the same point. I do not believe that that is so. Consent means consent to the doing of an act; there must be an act in contemplation. Waiver means giving up the right completely or to a limited extent without any particular act necessarily being in view. It is that distinction which underlines the difference between subsection (1) under which consent needs no writing and subsection (3) under which waiver needs writing. For those reasons, I must resist these amendments.
Lord Graham of Edmonton: My Lords, I am grateful to the Minister for the care he has taken. But he has not satisfied me. Perhaps I may deal with the point made by my noble friend Lord Howie. I appreciate, as I said in my opening remarks, that there may be circumstances of great speed and pressure. My noble friend quite fairly questions the practicality of this. I acknowledge that there are, and are likely to be, practical difficulties. However, by virtue of proxy and power of attorney in the absence of the right which is being infringed, I can see practical people coming to practical solutions. I am talking here in terms of little people as opposed to big people and it is their interests I wish to protect as much as possible. The Minister has failed to distinguish——
Lord Howie of Troon: If an editor is at one end of a telephone and the author is at the other, what kind of proxy or other intermediary can assist?
Lord Graham of Edmonton: If there is good faith and integrity between the two of them, I believe this matter could be resolved by virtue of the trust that one has in the other.
Lord Willis: My Lords, the flaw in this argument is that there is no proof of a telephone call. The Minister gave the example of a play where the producer rings up and says, "I want to make cuts". What proof is there of that telephone call? To me, that is the big problem. I accept that perhaps this amendment goes a little too far in demanding that everything should be written. However, I have been in circumstances personally where phone calls have been made. I could not prove the phone call; it was my word against the producer's word.
I have a friend who wrote a saga about an East End family and without any consultation it finished up under the title, "Rabbi on Mars". I am not joking. He was not consulted in any way. I do not believe that this amendment would have protected him in those circumstances, but I do not think that to rely on telephone calls, as my noble friend Lord Howie has indicated, is enough, not in the jungle of the film world, at least.
Lord Graham of Edmonton: My Lords, my noble friend Lord Willis speaks with far more authority, experience and candour than I can about the nature of the world in which he has been an eminent practitioner for a great length of time. We are being invited not to put into the Bill that which is seen by those outside as likely to afford them some minimum protection. I acknowledge that in practice it may prove to be difficult and irksome and it may very well

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need to be reflected upon in practice. However, I am satisfied that this is a worthy amendment and I intend to seek the view of the House.
6.10 p.m.
On Question, Whether the said amendment (No. 142A) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 109.

DIVISION NO. 2

CONTENTS

Airedale, L.

Lloyd of Kilgerran, L.

Ardwick, L.

McNair, L.

Attlee, E.

Mayhew, L.

Aylestone, L.

Morton of Shuna, L.

Birk, B.

Mulley, L.

Broadbridge, L.

Nicol, B.

Carmichael of Kelvingrove, L.

Peston, L.

Carter, L.

Pitt of Hampstead, L.

Cocks of Hartcliffe, L.

Ponsonby of Shulbrede, L. [Teller].

David, B.

Diamond, L.

Prys-Davies, L.

Donoughue, L.

Ritchie of Dundee, L.

Elwyn-Joncs, L.

Seear, B.

Ennals, L.

Serota, B.

Ewart-Biggs, B.

Stedman, B.

Graham of Edmonton, L. [Teller].

Strabolgi, L.

Tordoff, L.

Grey, E.

Underhill, L.

Houghton of Sowerby, L.

Wells-Pestell, L.

Irving of Dartford, L.

Williams of Elvel, L.

Jeger, B.

Willis, L.

Jenkins of Putney. L.

Winchilsea and Nottingham, E.

Kilmarnock, L.

Kirkhill, L.

Winterbottom, L.

NOT-CONTENTS

Ailesbury, M.

Gisborough, L.

Arran, E.

Grantchester, L.

Auckland, L.

Greenway, L.

Balfour, E.

Gridley, L.

Bauer, L.

Hailsham of Saint Marylebone, L.

Beaverbrook, L.

Belstead, L.

Halsbury, E.

Bessborough, E.

Havers, L.

Bethell, L.

Hemingford, L.

Birdwood, L.

Hesketh, L.

Blatch, B.

Holderness, L.

Blyth, L.

Hylton-Foster, B.

Boyd-Carpenter, L.

Jenkin of Roding, L.

Brabazon of Tara, L.

Johnston of Rockport, L.

Brain, L.

Joseph, L.

Bramall, L.

Lane-Fox, B.

Brougham and Vaux, L.

Lauderdale, E.

Broxbourne, L.

Lawrence, L.

Bruce-Gardyne, L.

Lindsay and Abingdon, E.

Caithness, E.

Lloyd of Hampstead, L.

Cameron of Lochbroom, L.

Long, V.

Campbell of Croy, L.

Lucas of Chilworth, L.

Carlisle of Bucklow, L.

Lyell, L.

Carnock, L.

McGregor of Durris, L.

Colwyn, L.

Macleod of Borve, B.

Cork and Orrery, E.

Margadale, L.

Cottesloe, L.

Marley, L.

Craigavon, V.

Massereene and Ferrard, V.

Dacre of Glanton, L.

Merrivale, L.

Davidson. V. [Teller.]

Mersey, V.

Deedes, L.

Milverton, L.

Denham, L. [Teller.]

Monk Bretton, L.

Dilhorne, V.

Montgomery of Alamein, V.

Dundee, E.

Morris, L.

Eden of Winton, L.

Mottistone, L.

Elliott of Morpeth, L.

Mowbray and Stourton, L.

Ferrier, L.

Munster, E.

Fortescue, E.

Murton of Lindisfarne, L.

Fraser of Kilmorack, L.

Nelson, E.

1340

Orkney, E.

Somers, L.

Oxfuird, V.

Stevens of Ludgate, L.

Pender, L.

Stockton, E.

Peyton of Yeovil, L.

Strange, B.

Quinton, L.

Strathcarron, L.

Rankeillour, L.

Sudeley, L.

Reay, L.

Swinfen, L.

Rees, L.

Swinton, E.

Renton, L.

Thomas of Gwydir, L.

Russell of Liverpool, L.

Thorneycroft, L.

St. Davids, V.

Trumpington, B.

Sanderson of Bowden, L.

Vaux of Harrowden, L.

Sandford, L.

Ward of Witley, V.

Savile, L.

Windlesham, L.

Shannon, E.

Wise, L.

Skelmersdale, L.

Wyatt of Weeford, L.

Resolved in the negative, and amendment disagreed to accordingly.
6.18 p.m.
Lord Graham of Edmonton Lord Graham of Edmonton moved Amendment No. 142B:
Page 32, line 18, at beginning insert ("Subject to the proviso in subsection (3A) below")
The noble Lord said: My Lords, this amendment deals with directors and in particular seeks to distinguish between the staff directors employed permanently by TV companies and those self-employed directors working on a freelance basis.
In earlier debates the Minister recognised what I call the different class of workers—those who have greater status, greater permanence and those who perhaps have bigger names in the industry. Then there are others who work on a freelance basis. I take the point that the Minister has already made that it is appropriate that staff directors with a position within the organisation and with the security of permanent employment would waive their rights in favour of the employer who otherwise would find it difficult to operate. I can certainly understand that. Yet I maintain that it is inappropriate that self-employed directors, with none of the rights and obligations of permanent employment, should have to waive such rights in the way proposed.
The situation is well understood in the industry. Some of those who are freelance for legitimate, legal purposes find that some of the work they do is looked upon by the authorities as "employment"—I enclose that word in inverted commas. It is not a clear, simple situation. I maintain that if subsection (3)(a) remains unamended, in the overwhelming majority of cases the people affected will be forced to waive their moral rights in order to obtain work in the first place. In other words, it could almost become a precondition. A new or unknown director in a weak bargaining position could easily be forced to waive all of his or her moral rights for any possible future work as a condition of employment on his or her first engagement with such a company.
I am not privy to or knowledgeable about the conditions inside the industry, but we all understand from what we read and hear and from the comments I have made, that it is not the easiest of industries in which to work. The amendment which I am seeking to move—Amendment No. 143A—is one which I believe will be helpful. I beg to move.
Lord Beaverbrook: My Lords, it may be helpful if I clarify that we are speaking to Amendments Nos. 142B, 143A and 143B. With the leave of your Lordships I shall do the same.
Lord Graham of Edmonton: My Lords, that is correct.
Lord Beaverbrook: My Lords, these amendments are identical to those tabled by the noble Lord, Lord Graham, in Committee and would make general waiver of moral rights applicable only in the context of the employer-employee relationship provided for in Clause 11(2). Thus a freelance author or director would in effect have inalienable moral rights subject only to consent for particular acts. Given that the integrity right does not apply to employed authors and directors and the acceptance in principle of the amendment in the name of my noble friend Lord Stockton, that will mean that the paternity right will not apply and these amendments will have nothing to kite on since there are no moral rights for the employee to waive.
However, I cannot accept the underlying intent of these amendments, which is to ensure that the author or director cannot waive his moral rights. Amendment No. 143B preserves the concept of consent, but that is unnecessary because of what is already in subsection (1) of the clause. It would otherwise mean that waiver was not possible. Every change made to a work would have to be cleared with the author or the director if he were not able to waive his moral rights in advance. That may well be acceptable to both sides: the author and publisher, the director and film producer. But we cannot rule out the possibility that the publisher or the film producer may want to be free of constraints. He should therefore he free to negotiate with the author or director for waiver of the moral rights. It is also possible that the author or director will not be interested in his moral rights, and will be only too happy to avoid being pestered about every proposed modification. Of course, there is no obligation on the author or director to waive, as there is no obligation on the publisher to seek waiver or to publish a book when waiver has been refused. I believe that it is essential to retain a degree of flexibility for authors and their publishers, directors and their film producers to reach mutually satisfactory arrangements. The great difference now is that authors and directors will have moral rights and so can negotiate on the basis of a clear legal right.
For those reasons, I say to the noble Lord, Lord Graham, that I resist these amendments.
Lord Graham of Edmonton: My Lords, I am grateful, as always, to the Minister for the care that he has taken to answer the argument. He places much greater faith in the value of the moral rights held by certain individuals in certain circumstances. Amendment No. 143B simply seeks to establish that the person affected—the director or any other individual in that position—will have seen and have had put to him in writing information so that he can then make an informed and meaningful decision on the waiver. That is all that Amendment No. 143B is
1342
saying. My information is that economic pressures and what one might call the private relationship—however one wants to dress it up—is likely to mean that to a number of people the so-called moral rights will not be worth a great deal. I am saddened by the response of the Minister but I respect the fact that he has dealt with the argument. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos 143, I43A, 143B and 144 not moved.]
Clause 78 [Application of provisions to joint works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 145:
Page 33, line 10, leave out ("separate from the contribution'') and insert ("distinct from that.).
The noble Lord said: My Lords, I have already spoken to this amendment and I beg to move.
On Question, amendment agreed to.
Clause 80 [Assignment and licences]:
The Earl of Stockton The Earl of Stockton moved Amendment No. 146:
Page 33, line 26, at end insert ("(including any one or more classes of acts not separately designated in this Act as being restricted by copyright, but falling within any of the classes of acts so designated)").
The noble Earl said: My Lords, we are now looking at dealing with rights in copyright works, and in this particular case that of subsidiary publishing rights in subsection (2)(a) of Clause 80. The aim of this amendment is to restore the wording of the 1956 Act which I believe is not covered in the Bill.
It is very important for publishers to establish beyond peradventure that such classes of book volume rights, such as paperback rights, book-club rights, etc., are rights in copyright to be found not only in remedies for breach of contract, but also in remedies for the infringement of copyright. I beg to move.
Lord Morton of Shuna: My Lords, in order to encourage the noble Earl may I say that I support him on this amendment.
Lord Beaverbrook: My Lords, my noble friend Lord Stockton has pointed out that, although Clause 80(2)(a) purports to be a re-statement of Section 36(2)(a) of the 1956 Act, it omits the words set out in Amendment No. 146 in the name of my noble friend. The meaning of "acts" in Clause 80(2)(a) is no more than things which can be done. There is nothing in the word to limit it to whole classes of acts corresponding to the five paragrapahs (a) to (e) in Clause 16(1). Thus the explanatory wording required in the 1956 Act, which speaks of "classes of acts", not merely of "Acts", would be superfluous.
The right to print a book in hardback and the right to print it in paperback are both reproduction rights. The printing of each type of book is an act. Both are types of copying within Clause 16(1)(a) of the Bill. There is nothing in Clause 80 as it stands which would prevent an assignment of the hardback rights from being made separately from the paperback rights.

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Therefore, I do not think that anything is necessary here. However, as my noble friend will know, I am never averse to considering drafting points if they appear to have merit. I do not believe that to be the case here, but I always carefully consider what your Lordships have said and I shall look at the point made by my noble friend without giving any undertaking. I hope that at this stage he will feel able to withdraw the amendment.
The Earl of Stockton: My Lords, I thank my noble friend for that explanation and, in the circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6.30 p.m.
Clause 85 [Transmission or moral rights on death]:
Lord Beaverbrook Lord Beaverbrook: moved Amendment No. 147:
Page 34, line 39, leave out ("be identified as") and insert ("identification on.
The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendment No. 149. With these amendments I return to the point made by my noble friend Lord Mottistone in his amendments in Committee about the transmission of moral rights on death.
There was concern that the clause might be interpreted as giving somone the right to be identified as the author of his dead father's work. While we do not think the courts would have construed the clause in this way, these amendments make it clear that what passes is the right for the author to be identified, not for the inheritor to be named as author. I trust that this improvement will meet the concerns of my noble friend. I beg to move.
Lord Mottistone: My Lords, I am grateful to my noble friend for the amendments and I am impressed that they are so simple. I am puzzled by the fact that what he has done is to alter the marginal descriptions of Clause 69. I am interested that marginal descriptions have a substance in law. I should have thought that only the text has such substance, but obviously that must be so because I am advised by my expert advisers that that is right.
Perhaps I may draw my noble friend's attention to one small point. Amendment No. 147 says,
"leave out ('be identified as')",
which makes sense, while Amendment No. 149 says "be identified" and does not have the "as". Perhaps I may suggest that Amendment No. 149 should have the "as" as in Amendment No. 147 because they are both the description of Clause 69. However, I am grateful for what is being done.
On Question, amendment agreed to.
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 148:
Page 35, line 2, leave out ("expires") and insert ("passes to the personal representatives of the owner of the moral right").
The noble Lord said: My Lords, this amendment to Clause 85(1)(c) seeks to delete the word "expires" and insert:
"passes to the personal representatives of the owner of the moral right".
Clause 85(1)(a) says that the moral rights may:
"pass to such person as he may by testamentary disposition specifically direct".
That would appear to mean that wills will now say, "I leave my moral rights in this painting, that article and the next book to A, B, C or whoever it may be". That is the only way I can understand "specifically direct" in that context. It does not include someone who says, as quite a few people do, that he will leave all that he dies possessed of to his wife, his son or whoever it may be. If you take "specifically" in that frame it does not cover a total disposition of everything that the person has. To say that the moral right is just to expire may be covered by a strict view of what meaning one can force out of Article 6bis(2) but it does not meet the main wording of Article 6bis(2), which says specifically that,
"The rights granted to the author in accordance with the preceding paragraph",
which is the moral right,
"shall after his death he maintained".
I should have thought that the normal sense of that type of provision is that the moral rights go to the people who inherit the author's property. That is what I have attempted to achieve. I beg to move.
Lord Beaverbrook: My Lords, we return now to a matter that we discussed in Committee concerning the transmission of moral rights on death. This amendment tabled by the noble Lords, Lord Morton of Shuna and Lord Williams of Elvel, seeks to ensure that the moral rights of paternity and integrity do not lapse in cases where copyright does not form part of an estate and the moral rights themselves are not the subject of a specific bequest. They will at least pass to the personal representatives of the deceased, as the false attribution right already does under subsection (5) of the clause.
Upon further reflection we would agree that it would he unreasonable not to give the paternity and integrity rights at least the same treatment as the false attribution right. We cannot, however, accept the amendment as drafted, because it ought to be consistent with subsection (5). We shall therefore come back on Third Reading. We shall also at that time do the same in respect of Clause 173(2), on performers' rights, unless of course Amendment No. 291 were to be carried. We shall be coming to that later. With that undertaking, perhaps the noble Lord will be willing to withdraw the amendment.
Lord Morton of Shuna: My Lords, if I ever manage to draft an amendment that is acceptable to those on the Government Benches I shall probably die of fright. However, because of the friendly way in which my amendment has been received, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 149:
Page 35, line lb, leave out ("be identified") and insert ("identification or).
The noble Lord said: My Lords, perhaps I may say to my noble friend Lord Mottistone that the omission of the word "as" was an error by the Public Bill Office. If the error cannot be put right in reprinting

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the Bill at the end of this stage we shall move an appropriate amendment at Third Reading. I beg to move.
Lord Mottistone: My Lords, if my noble friend is doing that perhaps I may suggest that he give thought to saying in both cases "identification of the". I think that it would be better English.
On Question, amendment agreed to.
Clause 87 [Provisions as to damages in infringement action]:
[Amendment No. 150 not moved.]
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 151:
Page 36, line 5, at end insert—
("( ) In an action for infringement of any copyright in a periodical for purposes other than publication, the extent to which the plaintiff may have indicated licensing arrangements on each issue, and whether a licensing scheme covers the periodical shall be taken into consideration.").
The noble Lord said: My Lords, with the leave of the House I should like to speak also to Amendment No. 187. I have been asked by the Library Association to put forward these points. We are now entering a very legalistic field dealing with procedures that arise from remedies for infringement. Under Clause 86 one of the remedies in acts of infringement is damages. Clause 87, at which my amendment is directed, is headed:
"Provisions as to damages in infringement action".
It provides that:
"in an action for infringement … the defendant did not know, and had no reason to believe that, copyright subsisted in the work to which the action relates, the plaintiff is not entitled to damages against him".
It is difficult to prove in practice whether anyone did or did not know whether any such right subsisted. Consequently, my amendment suggests that it would help considerably to reduce expenses in an action for infringement,
("( ) In an action for infringement of any copyright in a periodical for purposes other than publication, the extent to which the plaintiff may have indicated licensing arrangements on each issue, and whether a licensing scheme covers the periodical shall be taken into consideration.").
Therefore one serves notice on the periodical about one's rights. That seems to be reasonable action to take.
With the leave of the House, I shall refer to Amendment No. 187. The amendment lists circumstances under which licences are obtainable. Clause 105, to which the amendment applies, relates to "licensing schemes and licensing bodies". Therefore the Bill encourages licensing schemes and licensing bodies under copyright. It also sets out certain licensing arrangements which I need not read out to your Lordships at this stage.
The amendment is directed to impose notice upon the owners, authors, or whoever it is that is associated with the periodical, that there are certain licences in relation to the copyright. That would ensure that anyone who sees the periodical and wishes to do something with it would know of the restrictions in
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relation to its use, and that failure to comply with such restrictions would render them liable to infringement. Then, when the case comes to court the question that the judge or tribunal has to decide is the amount of damages which should be awarded. If the defendant has infringed the copyright, after having been given notice of those terms, then that will affect the amount of damages which could be assessed by the court. I beg to move.
Lord Beaverbrook: My Lords, with these amendments tabled in the name of the noble Lord, Lord Lloyd of Kilgerran, I shall also speak, with leave, to Amendment No. 187. They concern licensing arrangements for copyright works. I believe that they spring from the particular concerns of the users of printed material who wish to make photocopies from hooks and periodicals and wish to do so on reasonable and clear terms.
Amendment No. 151 appears to be intended to encourage the practice of indicating on individual issues of periodicals what copying may be done of its contents and whether a licensing scheme allowing such copying is available. However specifying that, in an an infringement action, it is to be taken into consideration to what extent the issue provides such information leaves it completely uncertain what the court is to do having considered the matter. Nor does the amendment make clear what the court is to make of the absence of such information when the reason for this may be that the rights owner does not wish to allow any copying or to belong to any licensing scheme.
I should also point out that subsection (2) of Clause 87 allows the court to award additional damages having regard, among other things, to the flagrancy of the infringement. I am sure that a court would regard an infringement as flagrant if the terms of a licensing scheme were printed on the work and the infringer chose to ignore them. That in itself must provide an incentive to publishers to make this information available to users. I do not find this amendment clear, nor do I think that it achieves its intended purpose.
Amendment No. 187 concerns point of sale licensing. As defined in the second paragraph of the amendment, this appears to include any arrangement under which the sale of copyright material is conditional on the purchaser agreeing to licence provisions about copying or use of the material. We believe that the purpose of the amendment is to encourage publishers to offer this kind of arrangement and to print the conditions of the licence on the material itself. I have to say however that I do not believe the amendment achieves those objectives; if anything, it does the reverse.
I say this because, first, the amendment merely says that such licensing may be part of a licensing scheme. Publishers are free to offer such licences now, whether within or outside a licensing scheme, and will continue to be able to do so under the Bill. The provision therefore achieves nothing. Secondly, the amendment states that point of sale licensing conditions may not prevent acts permitted by this part of the Bill. Leaving aside the point that the Bill does not permit acts to be done but simply says that they may be done without infringement of copyright,

1347
the fact that copyright owners can avoid this provision merely by not offering point of sale licences, must be a discouragement to such licensing.
I do not find this a clear or workable provision, and I do not think it achieves its purpose. For those reasons I must therefore resist the amendments tabled in the name of the noble Lord.
6.45 p.m.
Lord Lloyd of Kilgerran: My Lords, I must express my surprise and some mystification at the answers given by the Minister, especially as earlier on in his speech he said that the amendment does not indicate to the court what it should do in the circumstances where those notices are put in writing. I should have thought that that approach to the amendment was a naive one.
I am also surprised that the Minister should take the line that he has because I am instructed that the amendment has been approved by many library associations and also the Committee of Vice-Chancellors and Principals of the universities in this country. I can understand that they may be wrong but in view of the fact that the Minister has been good enough to analyse the objections that the Government have to the amendments, I have no alternative at this stage than to withdraw the amendment. However, I shall draw the attention of my advisers to the Government's views and I may raise the matter again on Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 88 [Right to delivery up of infringing copies, &c.]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 152:
Page 36, line 14. leave out ("trade or").
The noble Lord said: My Lords, I have already spoken to this amendment and therefore I beg leave to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 153:
Page 36, line 17, after ("it") insert ("has been or").
The noble Lord said: My Lords, in speaking to this amendment, I shall also speak to Amendment No. 154, tabled in the name of the noble Lord, Lord Willis. The noble Lord pointed out in Committee that the Bill as drafted provided for the delivery up of articles which were to be used in the future to make infringing copies but not articles which had already been used to make infringing copies. My noble friend Lord Dundee promised that we would come back with an appropriate amendment.
I hope that the noble Lord, Lord Willis, is able to accept that the amendment standing in my name deals with his point. I do not claim that the drafting is any better than that in his amendment but since mine was put down first I think that I should claim some slight measure of priority. I beg to move.
Lord Willis: My Lords, I am grateful to the Minister for what he has said. I am happy to take second place behind him.
On Question, amendment agreed to.
[Amendment No. 154 not moved.]
Lord Jenkin of Roding Lord Jenkin of Roding moved Amendment No. 155:
Page 36, line 18, at end insert—
(" (c) has in his possession, custody or control a copy of a work, knowing or having reason to believe that it is to be broadcast or transmitted in a cable programme service, or is to be performed, played or shown in public or hired to the public. without the licence of the copyright owner.").
The noble Lord said: My Lords, with the leave of the House I shall speak also to Amendments Nos. 156, 157, 173, 174, 179, 181 and 182. Your Lordships will be relieved to know that my speech will not be commensurate with the list of amendments. All raise the same point which can be briefly stated. Under the Bill, the remedies to which we have now turned apply to what are called infringing copies and articles; for instance, equipment for making copies. If one applies that principle to records and tapes, the clauses and remedies apply only if the tapes or records are themselves unlawful copies. However, that is not the only circumstance in which the copyright owner may need to exercise the remedies that the Bill gives him.
What is the position if the records are perfectly legitimate copies which have been made entirely lawfully but the use which the user intends to make of them is unlawful'? The obvious example is that of the pirate radio station. The station may have legitimately acquired copied records or tapes but uses them unlawfully. The remedies available to the copyright owner should apply equally to that circumstance. Amendments Nos. 155, 156 and 157 would give the copyright owner in those circumstances the remedy under Clause 88 of having those records delivered up. He might in certain circumstances—we shall come to this point on the next amendment to be moved by my noble friend the Minister—under Clause 89 be entitled to seize them.
Under Clause 98, the criminal liability which would apply to an unlawful copy would apply equally to a lawful copy to be used unlawfully. The forfeiture provisions under Clause 99 and the search warrant provisions under Clause 100 would apply similarly. If all those provisions apply to unlawful copies, they should apply equally where a lawful copy is to be used unlawfully.
I am advised that those extensions are necessary to strengthen the courts' ability to prevent infringements of copyright. Perhaps, what is more important, they would make it a good deal more difficult for unlawful operators such as pirate radio stations to continue with repeated infringements until the ordinary provisions of the law catch up with them.
If the Government believe, and I am sure that they are right, that remedies should be available to copyright owners in the case of illegal copies, I submit that the remedy should be equally available where a lawful copy is to be used unlawfully.
In Amendment No. 173, paragraph (d) refers to hiring, following the amendments to Clause 18 moved by my noble friend the Minister which we debated on Tuesday. I beg to move.
Lord Colwyn: My Lords, I support my noble friend in what he has advanced. I am hesitant to become involved in the legal intricacies of the amendment; but as a semi-professional musician, a member of the Musicians' Union for over 25 year, and a regular employer of musicians, it seems illogical to have the making of an illegal copy of a work an infringement of the law but legally to allow broadcasting of the copy.
The amendments would provide a much-needed extra string to the bow of the copyright owner who sees copies of his work being used wilfully to infringe his rights. I hope that the Minister will accept the amendment.
Lord Williams of Elvel: My Lords, I have some little difficulty over this amendment. I hope that the noble Lord. Lord Jenkin, will be able to explain away my difficulty. I can understand what he and the amendment are getting at. Nevertheless, I suspect that the thrust of what he is trying to do may be covered by Clause 88(1)(a) in the Bill as drafted, that is to say,
"has an infringing copy … in the course of a trade or business".
I believe that that would cover the pirate radio station which presumably is a trade or business.
I have a further difficulty in that it seems to me that the amendment might well catch innocent people who have in their possession copies of works which arc made, as the noble Lord says, legally and legitimately but which, for some reason, they know or have reason to believe will be broadcast or transmitted by a cable programme service. If I were an innocent individual who happened to have a legitimately made copy, and I had access to informaton that it was to be broadcast on a certain date at a certain time, I cannot see that the copyright owner should have any right of action against me. I wonder whether the noble Lord has not drawn his amendment a little too wide and whether its whole thrust is not covered by Clause 88(1)(a).
Lord Beaverbrook: My Lords, the amendments in this grouping seek to extend the various provisions relating to delivery up and forfeiture of infringing copies to cover the delivery up of legitimate copies used for infringing purposes. Amendment Nos.173 and 174 would create a new criminal offence in respect of broadcasting or cable diffusion without the copyright owners' consent as well as a criminal sanction in respect of the new rental right. Again, orders for delivery up of legitimate copies may be made.
I have to say at the outset that the concept of delivery up of legitimate copies except when that follows a conviction is totally new in our law and not one that fills me with enthusiasm. I accept that an infringing broadcast may damage the copyright owner as much as a market in infringing copies, but I do not see that that is sufficient justification for
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forfeiture provisions of the kind envisaged by these amendments. In the case of infringing copies, the copyright owner can be regarded as recovering his own property. Indeed, Section 18 of the 1956 Act treats an infringing copy as the property of the copyright owner.
It is quite a leap to say that the copyright owner should be able to get an order for the delivery up of someone else's property because he has used it in infringement of his copyright. In any event, as your Lordships may well know, there is already provision for forfeiture of articles used in the commission of criminal offences, and that is being strengthened in the Criminal Justice Bill.
As my noble friend has explained the motivation behind these amendments is, I believe, to provide powers against pirate radio stations. That is a laudable objective but if the objective is to control illegal radio stations, surely that should be tackled by radio regulation legislation rather than by the back door of copyright legislation. What might sound attractive in the context of fly-by-night pirate radios would, of course, also bite on the use of legitimate copies for an unlicensed broadcast by a lawful radio station and starts to sound draconian in the context of the amateur choral society which would be liable for delivery up of its scores in respect of infringing performances.
Amendment No. 173 would introduce two new offences into copyright law. We are always reluctant to add to the body of criminal law unless there is a serious mischief which cannot be adequately dealt with in any other way. I am not persuaded anything is needed here, particularly in respect of rental. Therefore I have to resist the amendments standing in my noble friend's name.
Lord Jenkin of Boding: My Lords, with the leave of the House, I am not sure where that leaves me. The noble Lord, Lord Williams of Elvel, seemed to think that there was not much point in the provision and that the matter was already covered, while my noble friend seems to think that the amendments are far too sweeping and go too far. Obviously my only remedy in these circumstances is that we need to think again. Whatever is true, it cannot be that both Front Benches are right. I take comfort from the fact that my noble friend the Minister has said that this is a perfectly laudable aim. I take his point about creating additional criminal offences and maybe that pair of amendments will be looked at again. However, in the circumstances, if we have a laudable objective, perhaps we could see whether there is some other way in which it can be achieved. In this case I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 156 not moved.]
The Earl of Dundee: My Lords, in suggesting to your Lordships that we now break and return to the subject in an hour's time, at 8 o'clock, I beg leave to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Matrimonial Proceedings (Transfers) Bill [H.L.]
7.1 p.m.
The Lord Chancellor (Lord Mackay of Clashfern): My Lords, I rise to move that this Bill be now read a second time.
The Bill before you fulfils an undertaking which I gave to this House last December to introduce retrospective legislation to deal with a lacuna in the Matrimonial and Family Proceedings Act 1984 which has caused certain transfers of matrimonial proceedings from the High Court to county courts to be declared invalid by the Court of Appeal in the case of Nissim v. Nissim. The result of that judgment is that the decrees and orders of county courts following such transfers are also invalid.
The problem arose in this way. Part V of the 1984 Act deals with the distribution and transfer of family business. Before the coming into force of this part on 28th April 1986, the county courts had various duties and powers under the Matrimonial Causes Rules 1977 to transfer matrimonial causes and matters up to the High Court for determination and there were provisions in those rules allowing the High Court to transfer such causes or matters back to a county court. Part V of the 1984 Act was intended to provide a complete regime for such transfers up and down. Accordingly, the 1977 rules governing those transfers were revoked when Part V came into force. By omission, however, the part did not contain a provision which would allow proceedings already transferred up to the High Court before the part came into force to be transferred back to the county court once it had come into force. Nonetheless, the courts continued to order the transfer of such proceedings back to county courts which in turn continued to dispose of them.
I shall deal first with the Bill's retrospective effect before turning finally to the arrangements it provides for the future transfer of matrimonial proceedings. Subsections (2) and (3) of Clause 1 of the Bill, subject to one exception, will validate the purported transfers to county courts. All logical consequences of such transfers will then follow automatically. Not only will the decrees and orders of county courts be validated, but so will dependent transactions. Thus remarriages will be validated and, for example, the children of those remarriages will be legitimate. Further, any property transferred on the basis that a county court decree or order was valid, for example, on an intestacy, will be validated.
It is possible, but highly improbable, that someone may have acted on the basis that the transfer of proceedings to a county court and any decree or orders made there were invalid. They might, for example, have distributed property on an intestacy to a first wife on the basis that a decree was invalidly granted and the purported marriage to a second wife void. If such a case exists, the distribution will have to be unpicked. The Bill enables that to happen. However, such cases are likely to be very rare. The Government's announcement immediately after the Court of Appeal's decision in Nissim that the position would be rectified retrospectively was widely publicised, particularly in the legal journals. The Law
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Society was told of the Government's intentions to legislate retrospectively and has been advising its members accordingly. Further, as this problem came to light only in December last year there has been little time for such transactions to be carried through. I should say, however, even if such an improbable case has arisen, the Government's view is that the rights and duties of those affected should in justice be decided on the basis that decrees and orders of the county courts were valid, as, indeed, everybody expected and intended they should be; and, accordingly, no advantage or disadvantage should accrue from a legislative slip of this kind.
I mentioned at the outset an exception to the otherwise general principle of retrospection in the Bill. It is contained in subsections (4) and (5) of Clause 1 and relates to orders of the High Court. In some cases, having realised that the decrees and orders of a county court were invalid, some parties may have sought decrees and orders in the High Court where, in law, their case still was. In those circumstances the High Court may have granted a decree and then made orders about such things as financial provision, property rights and the custody and education of any children involved. In preparing this Bill we had to decide how those later decrees and orders should he treated. Our conclusion, which is reflected in the Bill, is that the earliest decree, namely, that of the county court, should stand, thus validating all transactions based on it, including remarriages after its grant. Accordingly, any later High Court decree, having served its purpose meantime, will cease to have effect because the parties will already have been divorced by the earlier county court decree.
As regards orders—for example, those about children's custody, maintenance and property rights—we concluded that those of the High Court should, in general, stand. Our reasons are that if the High Court orders are the same as those made earlier by a county court there is no reason to choose between them. If, however, they are different, it would cause the least disturbance to people's lives and arrangements to leave matters where they stand on the coming into force of this Bill rather than requiring the parties to readjust their arrangements yet again to comply with a revived county court order. Further, so far as orders for maintenance or those relating to the custody of children are concerned, those of the High Court will reflect the most up-to-date position and it would be undesirable to substitute for them any earlier and hence perhaps inappropriate county court orders.
Finally, the Bill deals with the future handling of the cases concerned. First, subsection (4) of Clause 1 provides that where the parties have returned to the High Court and obtained a decree, but there are proceedings still pending in that court when the Act comes into force, that court will retain jurisdiction over the case. In some cases, no doubt, it will decide any outstanding matters itself. However, in others it may use the new power in subsection (1) of Clause 1 to transfer the case back to a county court. Turning to that new power itself, subsection (1) of Clause 1 of the Bill amends Section 38 of the Matrimonial and Family Proceedings Act 1984 by adding a new power which will allow the High Court to transfer down any

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matrimonial cases which have been transfered up to it from a county court at any time and which are not otherwise transferable down under that section. In other words, subsection (1) is the provision which ought to have been in the 1984 Act from the outset.
My Lords, this short Bill will put those involved in the matrimonial cases mistakenly transferred to county courts in the position which they thought they were in and will remove the lacuna in the 1984 Act which has given rise to invalid proceedings. As such it is an uncontroversial but very necessary measure and accordingly I ask this House to give it a second reading. I beg to move.
Moved, That the Bill be now read a second time.—(The Lord Chancellor.)
Lord Elwyn-Jones: My Lords, the House will be grateful to the noble and learned Lord the Lord Chancellor for that lucid explanation of the inexplicable. We are having to cope in this matter not only with transfers up and transfers down but transfers back down, a truly verbally gymnastic exercise which we are called upon to perform. What I am puzzled about is how many cases are involved in this matter. I am most grateful for the Notes on Clauses for otherwise the lacuna in my mind would be almost as great as those which created the original confusion in this Bill. It states in the Notes on Clauses that in an unknown number of cases the proceedings were purportedly transferred back down to the County Court after 28th April 1986.
Are we therefore in this fascinating piece of legislation dealing with an unknown number of cases? Can the news be bruited abroad that all is well, that those concerned do not have bastard children and that they are properly married? Perhaps the Law Society will see that due publicity and due reassurance will be given by all the relevant means.
One conclusion that I have reached about all this is whether this is a pointer to the crying need for a family court? Could this confusion conceivably have arisen within the existence and context of a family court? I ask that question as I am not absolutely certain about that. However, it is a thought to which we should give consideration. This is a very unhappy lapse. Nobody is criminally responsible. There is no firing squad lined up for this, but it is undoubtedly a regrettable error. It is reassuring that the ingenuity of mind of the noble and learned Lord the Lord Chancellor, assisted by parliamentary draftsmen, enables him to give this positive assurance that if we pass this Bill the shambles will be cleared and happy marriages will once more be remade.
The Lord Chancellor: My Lords, I am extremely grateful to the noble and learned Lord for his felicitous welcome to this Bill. I fear that he is right and that we are dealing with what is to me an unknown number of cases. The noble and learned Lord was kind enough to ask me some little time ago how many cases there were. I have made inquiries but the fact is that it is very difficult to say because one would have to look at all the possible cases back to 1986 to find that out. I cannot say how many there are, but obviously it is a finite number which could be
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found out but, in the ordinary phrase, "at disproportionate expense".
Perhaps the noble and learned Lord will be content with the assurance which I have given that the classes of case which can occur have been properly dealt with by the provisions in the Bill and that the happy result of which he has spoken will accrue.
The noble and learned Lord has taken the opportunity to mention the family court. There is a tendency in some quarters to think of the family court as a panacea for all possible problems connected with the family. That is perhaps reflected in the fact that if one asks people about their ideas on what a family court is one finds that those ideas are apt to vary considerably from one person to another as they envisage the problems with which a family court might have to deal.
I have certainly inherited a great interest in family courts from my noble and learned friend Lord Havers who preceded me in this appointment. He showed that interest in his speech to your Lordships on that matter some time ago. The work that he referred to is still going on and has not yet been completed. The costing of the various options is quite a difficult matter. I am sure that your Lordships would wish these to be fully examined before proposals were made.
However, to seek to answer the question about the family court to which the noble and learned Lord referred, perhaps the lesson to be drawn is that great care is required in any legislation which might be proposed to introduce a family court. There are many cases which would have to be dealt with. The lesson is that there may be cases that somebody has not perhaps thought about at the time the legislation was going through which may cause unfortunate consequences.
While I hope that if legislation comes foward at any time about family courts it will have no such difficulties in it, I cannot claim any kind of infallibility in that matter. We should do our best not to avoid infallibility but to avoid any such mistake. Accordingly, I think the answer is that this kind of mistake can arise in relation to legislation but we shall do our best to avoid it for the future.
On Question, Bill read a second time, and committed to a Committee of the Whole House.

Statistics of Trade and Employment (Northern Ireland) Order 1988
7.14 p.m.
The Parliamentary Under-Secretary of State, Northern Ireland Office (Lord Lyell)rose to move, That the draft order laid before the House on 28th January be approved.
The noble Lord said: My Lords, the purpose of this order is to re-enact with some amendments the Statistics of Trade (Northern Ireland) Act 1949. The 1949 Act gives to Northern Ireland departments the statutory authority to conduct most of their statistical inquiries with the business community. Perhaps your Lordships will allow me just to describe some of the amendments to the current legislation in a few moments.

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However, first, and most importantly, I wish to make it clear that the order will not result in any increase in the burden of form-filling—what we might call outside your Lordships' House red tape—on businesses in Northern Ireland. Rather, the purpose of the order is to improve the administration of the legislation to relate it more closely to the circumstances of the present day and also to allow a degree of flexibility in the use of statistical information which has already been obtained.
The proposal for an order was published in January 1985. We have given very careful consideration to the comments that we have received, including those from the Northern Ireland Assembly. The changes to earlier legislation fall into four groups. The main disclosure revision is that the order would permit Northern Ireland departments to disclose information from individual statistical returns obtained either under the Statistics of Trade (Northern Ireland) Act 1949 or under the order to public bodies and to consultants working for departments or public bodies. We see this as a valuable change which would maximise the benefit from expenditure on statistical activity.
It is not generally cost-effective for public bodies to duplicate the gathering of information already in the possession of departments, and access to information from individual returns would enhance their research role.
Where public bodies have previously had to collect their own information, that was an unnecessary burden on business. Until now departments have also been unable to disclose information to consultants employed to advise departments or public bodies. This is an impediment to the effective use of consultants.
The order would permit such disclosure. To complement this greater scope for disclosure, the order contains a number of safeguards which is I think what your Lordships would expect. Information may only be released, for example, to a public body, subject to a direction by the head of a Northern Ireland department. The direction would specify the purposes for which the disclosed information may be used. The order would create a new offence for the misuse of any information disclosed. Further, the order would require public bodies or consultants to ensure that in any published report or summary, information relating to an individual return could not be identified or, as we put it tactfully in the order, deduced. The offence of unlawful disclosure would be widened by the order to cover disclosure by any person, regardless of whether he or she is a civil servant. There would no longer he a need for civil servants to make a declaration that they will not disclose information from individual returns, and this requirement is omitted from the order.
The order would also permit disclosure to computer personnel. Noble Lords will see that Article 7 paragraph (4) on page 6 covers this particular point. Disclosure is permitted to computer personnel who service or maintain government computers on which information from individual returns is stored. Furthermore, the safeguards on
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misuse and unlawful disclosure of information would apply in this particular case.
One element of the original proposal for a draft order had been to permit disclosure to the general public of basic information on the name, the address, the nature of the business and the employment of any individual undertaking. This was viewed with concern particularly by the business community, and this aspect has been omitted from the order now before us.
I turn to the question of fines on summary conviction. The maximum fines in these cases of summary conviction for offences under the 1949 Act require updating. Although the Fines and Penalties (Northern Ireland) Order 1984 increased the maximum fines set in 1949, this served only to bring them into the standard scale and did not take account of the extended period since 1949. The new maximum fines which the order will achieve match those for comparable offences under other legislation and those for the same offences under corresponding legislation for Great Britain.
The Statistics of Trade Act (Northern Ireland) 1949 provided for the establishment and advisory functions of a trade statistics consultative committee. That is something of a mouthful, I think your Lordships will agree, even early in the evening. It was recommended in the Report on Non-Departmental Public Bodies (Cmnd. 7797), popularly known to your Lordships and others as the "quangos report". The report was published in January 1980. One of its recommendations was that the committee should be abolished. That recommendation formed part of the proposal for a draft order which was published in January 1985.
However, we have noted the concern of industry, of the users of statistics and also of the Northern Ireland Assembly about this proposal. The order before us this evening would replace the consultative committee with an advisory committee. Your Lordships will see this item referred to in Article 6 of the order on pages 4 and 5. The new committee will have broadly similar functions but it will also have an expanded remit to consider issues referred to it by the Department of Economic Development.
Lastly, the order contains three other changes to current legislation. The definition of undertakings which may be required to make returns is clarified in the order; your Lordships will find that in paragraph (2) of Article 2. We hope that the definition will ensure that all employers are covered.
The order omits the requirement for a report on each census of production to be laid before the Northern Ireland Assembly. This will free the Department of Economic Development to publish results more speedily and, we hope, more effectively.
The schedule to the 1949 Act specified three lists of matters about which returns might be required. These lists applied respectively to production industry, to wholesale distribution, to retail distribution and to other services. Subsequent changes to the schedule made by the Statistics of Trade (Amendment) Act (Northern Ireland) 1971 and by sundry subordinate legislation removed many of the differences between these lists. The order

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specifies one list, which your Lordships will find in the schedule on page 9 of the order.
During the period of consultation, we received one suggestion about the proposal for a draft order. It was that there should be a code of practice similar to that operated by the Department of Trade and Industry in Great Britain. Such a code would guide the use for administrative purposes within departments of information collected initially for statistical purposes. However, we do not think it is appropriate to provide for a code within the order. Not all statistical information is collected using statutory powers, and we think it would be desirable for any code to cover information obtained on a voluntary basis. We therefore intend that the Department of Economic Development should produce and publish a code of practice which would cover all these particular factors.
In conclusion, I would say that the order before us incorporates worthwhile changes to earlier legislation without, as I hope I have made clear, imposing further on the goodwill of business and employers. Certainly, we hope that the order will allow greater use to be made of information which is already obtained without damaging the interests of the suppliers of information. Having given that safeguard, I beg to move.
Moved, That the draft order laid before the House on 28th January be approved. —(Lord Lyell.)
7.27 p.m.
Lord Prys-Davies: My Lords, long gestation has produced a very short order but I am glad to say that it is as uncontroversial as the Bill which the House has just been discussing. We welcome the order.
The noble Lord, Lord Lyell, has explained that the order, as its title suggests, is all about the collection of information by government departments in the Province. However, perhaps the Minister will tell us who is to analyse the mountain of information which will be collected and where this will be done. Are the specialised research and intelligence skills which are necessary and the expensive equipment which is also necessary to be found in the Northern Ireland Office or will this vital work be farmed out in a consumer-contractor relationship?
As we have been told, the order requires the head of the Department of Economic Development to appoint an advisory committee to advise on such matters as may be referred to it by the department. We were told in the explanatory document and indeed by the Minister this evening that this new provision replaces the earlier proposal to establish a trades statistics consultative committee. I must confess that I am still a little puzzled about this change in terminology. I shall obviously have to read the Minister's words very carefully, but perhaps he can confirm whether the difference in title really represents a difference in function.
We note with satisfaction that the order contains a number of important safeguards against the unlawful disclosure of information, supported by criminal sanctions. These have been fully spelt out by the Minister. We are glad that the widespread and proper
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concern about the unlawful disclosure of information collected by government departments is appreciated and understood by the department. We hope that this short order will prove to be a valuable instrument, which will not be abused.
7.29 p.m.
Lord Lyell: My Lords, typically, the noble Lord, Lord Prys-Davies, has done his homework, and for my part I should like to congratulate him. The Government are very grateful to him and indeed to all your Lordships who have shown interest in this order.
The noble Lord quite rightly raised the question of disclosure and the reasons why this information might be required and indeed who would make use of it. I think I ought to take your Lordships back to Article 7 of the order, covering the disclosure of information. This gives what I might perhaps call the defensive posture and the safeguards. Article 7 states in paragraph (1) that no individual estimate or return and, above all, no information related to any individual undertaking could be disclosed by any person except in accordance with directions given by the head of that Northern Ireland department. In most cases this would be the Department of Economic Development. Your Lordships will find that. as interpreted under Article 2, "Department" means the Department of Economic Development.
There are further inquiries and surveys undertaken under current legislation. I am given to understand that the Department of the Environment in Northern Ireland undertakes a quarterly instruction inquiry; and the Department of Economic Development undertakes an annual census of production, a quarterly production inquiry, the annual new earnings survey, a quarterly coal import inquiry and the annual October earnings survey. Every five years there is a labour costs survey and every three years there is a census of employment.
I am advised that the Department of Agriculture—my own department—undertakes an annual wine stocks inquiry. Until this point came up under the order, I was unaware of this hidden aspect of the department for which I have had responsibility for close on four years. I have somewhere a figure for the amount of wine stocks resident in Northern Ireland.
I hope that this confirms that any information requested under the order will be put to good use and carefully safeguarded from those who should not have it and who have no right to require it.
For the reasons that I explained in introducing the order, we believe that statistics can be of use and can assist business development in Northern Ireland. We hope that the order brings up to date all the matters that have been governed mainly by an Act that is nearly 40 years old, It may have been superseded and amended slightly in 1971 by subsequent legislation, but it is a major step. I commend this order to the House.
On Question, Motion agreed to.
The Earl of Dundee: My Lords, I beg to move that the House do now adjourn during pleasure until 8 p.m.
Moved according, and, on Question, Motion agreed to.
[The Sitting was suspended from 7.32 to 8 p.m.]

Copyright, Designs and Patents Bill [H.L.]
Consideration of amendments on Report resumed.
Clause 89 [Right to seize infringing copies, &c.]:
[Amendment No. 157 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 158:
Page 36, line 27 after ("may") insert (", if the following conditions are complied with,").
The noble Lord said: My Lords, in speaking to Amendment No. 158 in my name, with your Lordships' permission I should like to speak also to Amendments Nos. 159, 161, 162, 273, 274, 275, 293 to 296, 340, 341, 342, and 346. This long series of amendments concerns the seizure provisions in Clauses 89, 177 and 210 of the Bill and stems from the debates in Committee and other discussions we have had on the subject.
I think it was widely recognised in our debates that seizure is a delicate and difficult matter, and I am indebted to all those noble Lords who have contributed helpful and constructive suggestions, both in the Chamber and outside. Those suggestions have certainly been of great assistance to us when we were considering what should be done.
One point that we have had to consider is that since the 1956 Copyright Act was enacted there have been a number of developments in the common law, in particular in relation to Anton Piller orders. It was suggested that such orders provide a perfectly adequate remedy and, in general, I am bound to say that this is probably right. However, this kind of action will be effective only where the identity of the defendant is known and where he has a fixed address where the order can be served. Many itinerant and other street traders are difficult to identify and we believe that a seizure provision is the only realistic way in which action can he taken in such cases. Given that such traders account for a good deal of the copyright piracy which goes on in this country, we believe that appropriate seizure provisions are necessary. However, we have been convinced that they should be limited to cases where a seizure is not from any premises.
Another major objection which has been raised against the seizure provisions is that they are a recipe for violence. To some extent this is met by the provision in the existing clauses prohibiting the use of force and the fact that the right of seizure given by the existing law has not, so far as we are aware, ever led to violence. And as I have indicated, we are proposing that those wishing to seize infringing articles cannot enter any premises to do so. Nevertheless, the issue is an important one and we are therefore proposing a number of procedural changes in order to reduce the risk of violence to the absolute minimum.
First, we are proposing that the local police must be informed of the time and place of a proposed seizure before any action is taken. In this respect I should apologise for changing the amendments that I originally tabled. The change is a small one in that now we are proposing that rights owners must notify a local police station rather than any police station in the police area in question. The reason for this is that police areas are often quite large and it is obviously desirable that it is the local police who are notified. It will then be a matter for the police to decide on the basis of their local knowledge and experience whether or not they should become involved.
Secondly, we are proposing to require the person taking action to hand over a notice stating by whom, or on whose authority, the action is being taken and the grounds on which it is being taken. In order to ensure that this letter sets out the information in the clearest possible terms, we are proposing to take powers allowing us to specify by statutory instrument the form the notice should take.
Finally, we have given some thought to the ease and certainty with which infringing copies can be properly identified as such. Clearly, it is desirable that seizure provisions should apply only where identification is not a problem. In our view this will normally be the case with those items sold by street traders which infringe copyright and the rights in performances such as pirate, prerecorded audio casettes.
However, the same is not true of design right. The exceptions to design right, particularly the must-fit and must-match exceptions, will mean that many articles which involve a certain amount of copying will still be perfectly legitimate. Indeed, in a few cases identical copies would be legitimate, particularly in the spare parts field, which is where street traders are most likely to operate. All of this will inevitably give rise to uncertainty and increase the likelihood of unjustified seizures. As a result, we do not think that seizure provisions should be provided in the case of design right and we are proposing that a power of seizure—limited in the ways I have described—should apply only to copyright and the right in performances.
I accept that a right of seizure is a powerful weapon, but I hope that I have been able to show that in certain limited areas it is a necessary weapon in the fight against piracy. I also hope that the considerable restrictions and limitations proposed in this series of amendments have met all the concerns which have been voiced. I beg to move.
Lord Williams of Elvel: My Lords, the House will be grateful to the noble Lord for setting out in great detail how the Government have arrived at the new series of amendments which the noble Lord has tabled. In general, we on this side of the House are sympathetic to the aims of the noble Lord and the Government and to the amendments. I do not wish to raise matters of principle on these amendments in view of the sensitivity of the subject, but there are one or two rather small points about which I should like to ask the noble Lord.
The first point relates to the introduction of the expression "local police station". I wonder whether

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the noble Lord could be a little more precise about what a local police station is in law.
The second point is slightly more substantial. I note from subsection (1A)(b) of Amendment No. 159 that the procedure of leaving a notice takes place only after a copy of an article has been seized and the notice is left at the place where the article was seized. The noble Lord quite rightly said that one is dealing largely with street traders. Those street traders are perhaps not licensed to trade or do not have a fixed patch in which they trade; they may trade in one place one hour and in another place in another hour, and tomorrow and the following day they may trade somewhere else.
I wonder whether the provision that a notice is to be left on the pavement, as it were, subsequent to the seizure is sufficient or whether there should be some arrangement whereby at the time of seizure a notice is produced at the place where the offending street trader happens to be committing an offence in the circumstances which the noble Lord described.
I emphasise that these are points of detail and not points of principle and that we would support the point of principle. The third point of detail is that we can approve the idea that the notice should state by whom and on whose authority the seizure was made and the grounds on which it was made. But does the notice have to state explicitly that there was a court order to that effect? If there was no court order to that effect, what are the grounds on which the notice was delivered? In this respect there is an important dividing line between the civil law and the criminal law. It is important to understand exactly how such a notice, which may be left on the pavement or wherever, might be framed—whether it is to be in the form of a notice under a court order or with authority from the court or whether it will simply be a notice stating: "I am acting under the provisions of the Copyright, Designs and Patents Act".
Having put those three questions, which emphasise again concern matters of detail and not of principle, we are happy with the amendments that the noble Lord has brought forward. They could perhaps be improved, in the light of what the noble Lord feels about what I have said, but we certainly will not oppose them.
Lord Lloyd of Kilgerran: My Lords, I welcome the improvements shown by these amendments. In particular I am very pleased to note that the Government have removed altogether the powers of seizure in respect of designs. In those circumstances I do not propose to delay the House any further tonight except to echo the suggestions made by the noble Lord who has just spoken.
Lord Beaverbrook: My Lords, I am grateful to the noble Lords, Lord Williams of Elvel and Lord Lloyd of Kilgerran, for the welcome that they have given to the principle of these amendments. I am not averse to looking at the detail. Indeed, as your Lordships know, I welcome all constructive suggestions.
In reply to the noble Lord, Lord Williams, who raised the question of the meaning of "local police station", in most circumstances it is to be hoped that
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it would be the police station that covers that area. I think that it is a matter of ordinary language; it is not a specialised question of law but a simple question of fact. In any particular case it will be obvious what is a local police station and in the event of a dispute the courts would have no difficulty. Obviously it would be desirable for the police station in question to be the one that usually covers that area—where the bobby on the beat, if you like, is based. I am not entirely sure how those arrangements are made, particularly in conurbations, but I certainly think that there would be no problem in determining what is a local police station. However, we shall look at that point.
Turning to the noble Lord's second question about the terminology used in respect of leaving a notice after the seizure, I think that he has probably made a very good point. In our earlier discussions I had in mind that the notice should be left at the time of seizure. That point is one which we ought to consider. It is certainly not our intention that there should be any time lag whatever, and the expression "after" does not limit the length of time which could be allowed to elapse before the notice is served. We shall look at that point.
Thirdly, the noble Lord asked whether the notice should state that a court order had been obtained or not obtained or on what grounds the seizure was being carried out. Usually the grounds would not involve a court order because a court order would supersede any need to rely on Clauses 89 and 177. The grounds will be a statement of the infringement in respect of which the seizure is being effected. We attach considerable importance to the way in which this notice is drawn up. The noble Lord may recall that I said that we want to make the drafting absolutely clear.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord for his replies to the questions that I asked. Before he sits down I should like to suggest that he may wish to give a certain amount of attention to the last question. It is difficult to present a notice at the point of contact, as it were, rather than "after"—one can leave any sort of notice on the pavement. However, when one is making the seizure it is difficult to present a notice other than one which is drafted in clearly defined terms specifying the powers under which the notice is issued. It seems to me to be important for a street trader—if those are the people with whom we are dealing—to be assured that the notice is in the prescribed form, and the prescribed form should be one which is clearly understood by him. That is my point.
Lord Beaverbrook: Yes, I agree with that, my Lords. Street traders may not be legal experts—probably they are not—and of course the notice should be written in clear language which they can understand; it should not be in language which would require them to employ a lawyer to interpret for them. Clear language is highly desirable. I take the points made in that respect. I hope that I have now answered the points that have been raised on this large group of amendments.
On Question, amendment agreed to.
8.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 159:
Page 36, line 29, leave out subsection (2) and insert—
("(1A) The conditions are—

(a) that before any copy or article is seized notice of the time and place of the proposed seizure is given to a local police station, and

(b) that after any copy or article has been seized the person by whom it is seized leaves at the place where it was seized a notice in the prescribed form stating by whom or on whose authority the seizure was made and the grounds on which it was made.

(2) A person may not in exercising the right conferred by this section enter any premises or use any force.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 160:
Page 36, line 37, leave out ("fixed or").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 161:
Page 36, line 38, at end insert (", and "prescribed" means prescribed by order of the Secretary of State.
(5A) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 162:
Page 36, line 40. after ("and") insert ("forfeiture").
On Question, amendment agreed to.
Clause 93 [Remedies for infringement of moral rights]:
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 163:
Page 38, line 13, leave out subsection (2).
The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Morton of Shuna. Clause 93 of the Bill covers remedies for infringement of moral rights and subsection (2) of that clause excludes compensation for injured feelings.
We believe that our obligation under the Berne Convention should not be limited by the exclusion of compensation for injured feelings. We find it difficult to understand why this restriction has been inserted. The only reason that we can identify is the possibility that there may be trivial actions for damages on the infringement. The general machinery of the law—the requirement of consulting a lawyer or barrister and a number of other people—is such as to discourage frivolous actions in the first place. Secondly, we argue that the courts are well able to deal with frivolous actions if they occur in any event.
Thirdly, we would argue that if some kind of specific control is required it should be possible to give the court a discretion. Fourthly, we would argue that if there are cases where injured feelings should give rise to significant compensation, it is wrong to deprive such persons of their entitlement on the ground that other actions may be trivial. Lastly, we
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would argue that Clause 93(2) is out of line with other statutes where specific provision is made for awards to reflect injured feelings; for instance, in Section 66(4) of the Sex Discrimination Act 1975. In the Race Relations Act 1976, Section 57(4) states:
"For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head".
If there is to be an amendment, I should have thought that the clause dealing with the remedies for infringement of moral rights should include Clause 87(2) of the Bill. That gives the court a discretion to award "additional" damages in certain circumstances. We do not think that injured feelings are to be taken lightly. This is an important point on which we would like sympathy from the Government. I beg to move.
Lord Lloyd of Hampstead: My Lords, I should like briefly to support this amendment. As I understand it, the right to claim damages for infringement of the moral rights set out in Section 69 will either be a tort, or will certainly he in the nature of a tort. It is the general principle in tort law in contrast to contract law that damages may be obtained for injured feelings. I can find no special reason why it should be excluded in this case.
One is contemplating that this should be awarded only in a proper case. Our courts are very experienced in deciding in tort cases whether there has been satisfactory evidence of injured feelings, and the appropriate sum to award. A judge deals with these matters and not a jury. Accordingly, unless there is some compelling reason that is not apparant to me at the moment why such compensation should be excluded, I should certainly favour leaving the ordinary principles of the law to take their course.
Lord Mottistone: My Lords, on a slightly different point, should my noble friend wish to resist this amendment and to leave in subsection (2) perhaps I may suggest that the description of Clause 69 needs to be amended as in Amendment No. 147. If he is considering that matter he might perhaps note that the same treatment is required in Clause 71(1), Clause 76(1), Clause 78(1), Clause 79(1), Clause 84(1) and subsection (1) (a) of this clause. I expect that there may be other places in the Bill that need such treatment but I thought that I would rub it in a little.
Lord Lloyd of Kilgerran: My Lords, what has moved me to support this amendment is that, as has been indicated by the noble Lord, Lord Williams, so many modern Acts of Parliament contain this phrase. I feel that this amendment should be supported.
Lord Beaverbrook: My Lords, this subsection dealing with damages for the infringement of the moral right to claim authorship was amended in Committee to show that damages could be given for loss of reputation but not for injured feelings. It appears that the noble Lord, Lord Williams of Elvel, and the noble Lord, Lord Morton of Shuna, are not content with that change and would prefer there to be no restriction at all on the damages available for the infringement of moral rights.

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It is apparent to me that your Lordships' opinion on balance is strongly in favour of this amendment. I believe that this is the kind of matter where the Government should give full consideration to the views expressed in your Lordships' House, and that we should try to ensure a fair balance between opposing parties. There is no better indication of where that balance should lie than in the views of noble Lords. Given those views as they have just been expressed, I shall be happy to accept the amendment.
Lord Williams of Elvel: My Lords, I am most grateful to the noble Lord. I believe that he has taken the right course of action for the Government. I can only applaud his good sense in accepting the amendment; and his graciousness in admitting that sometimes on this side of the House we have some important points to make.
On Question, amendment agreed to.
[Amendment No. 163A not moved.]
Clause 94 [General presumptions as to subsistence of copyright]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 164:
Leave out Clause 94.
The noble Lord said: My Lords, when we debated in Committee the amendment to Clause 94 moved by the noble Lord, Lord Lloyd of Kilgerran, I said that we should like to reconsider the clause altogether to see whether we could find a better answer. Our reconsideration of the clause has led us to propose leaving it out altogether; and we have found that the better answer already exists in the law, in the way in which cases may be pleaded in court.
As noble Lords are aware, our concern is to ensure that the defendant in copyright proceedings should not be able to put the plaintiff to the difficulty and expense of proving subsistence and ownership of copyright merely by a denial in his pleadings. The present presumption, contained in subsection (1) of Section 20 of the 1956 Act, is too weak, since it lasts only until the defendant puts subsistence and ownership into issue by denying them. He can do this without any evidence; but the plaintiff is then compelled to produce evidence in support of the subsistence and ownership of copyright in the work in question. In some cases this can be expensive and onerous. We thought that the right thing to do was what is provided in Clause 94: the plaintiff does not have to produce any evidence until the defendant does so. We are, however, now persuaded that it would not be right to compel the defendant to produce evidence to contradict something when he does not know what he is contradicting. Until the plaintiff specifies the facts upon which he relies to support his claims of subsistence and ownership, the defendant is entirely in the dark. No party to litigation should be required to demonstrate the negative of something entirely within the knowledge of the other party.
It is therefore easy to say that Clause 94 should not remain as it stands. The more difficult question is what should appear in its place. The answer, we have concluded, is "nothing". We have come to the
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conclusion that Section 20(1) of the 1956 Act should not have been there in the first place. It would make no difference to the law, either in England or in Scotland, whether or not it was there. This is because in both systems the plaintiff's allegations are treated as established without any need for evidence unless the defendant denies them. Section 20(1) says no more than that, and we now realise that there is no point in saying it in this Bill.
What, however, of the need to protect the plaintiff against the defendant's unsupported denials? In England, the answer already exists in the procedure known as "notice to admit facts". The plaintiff can serve notice upon the defendant requiring him to say whether he admits the plaintiff's allegations, in this case his allegations about the subsistence and ownership of copyright. If the defendant does not admit them, the cost to the plaintiff of successfully proving them must be paid by the defendant whatever the outcome of the proceedings as a whole, even if the plaintiff loses the action and has to pay all the other costs. Noble Lords will appreciate that this is a considerable deterrent against a defendant making unsubstantiated challenges to the plaintiff's claims of subsistence and ownership of copyright.
In Scotland, I understand that it is always open to one party in proceedings to call upon the other party to specify in his pleadings the facts and evidence upon which he proposes to rely in support of any denials of fact. Failure to do so may lead to the court refusing to allow proof on such unspecified denials or even rejecting them. The reason for this is that the parties should always have fair notice of the case against them. It seems to me, and I hope that your Lordships will agree, that this is the same principle which we sought to advance originally in proposing Clause 94, but we are now content that in Scotland, as in England, nothing need be said in the Bill to achieve this result.
With that explanation, I beg to move that Clause 94 be left out.
Lord Williams of Elvel: My Lords, I am pleased that the Government have cut the Gordian knot because it was becoming complicated on presumptions of subsistence of copyright. The only minor complaint I have is that the noble Lord has consistently referred to the law of England as opposed to the law of England and Wales. However, he makes a distinction between England and Wales, and Scotland.
We have thought long and hard about Clause 94. I suspect that had the noble Lord on behalf of the Government not brought forward the amendment, we might have tabled a similar amendment either leaving out the clause or amending it in such a way that it would have been almost nugatory. I am happy to accept what the noble Lord has said. I believe that he has arrived at the right conclusion. We shall not oppose the amendment.
Lord Lloyd of Kilgerran: My Lords, at the Committee stage I moved an amendment and spoke strongly against having presumptions of this kind. In doing so I was trying to have the law returned to its earlier position and I wonder whether the

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Government have now gone too far. In copyright the general presumptions have been permitted since at least 1911. There is the Copyright Act 1911, Section 6(3). Those provisions were repeated in Section 20 of the 1956 Act. At the Committee stage I indicated the procedures that were available for quick action against pirates, known as the Anton Piller orders. I am now advised by practising members of the Bar that if the clause is abolished entirely it would be difficult to exercise and obtain an Anton Piller order in the court. Therefore, some of the applications— even ex parte orders—will become more difficult in the absence of the presumptions.
I try to remember my position some years ago when I was practising at the Bar. The notice to admit can be exercised only in certain circumstances and it is not therefore such a valuable help in dealing with pirates. I take this opportunity of adding a caveat by questioning whether the Government have not gone too far in abolishing the whole clause. Instead of abolishing the clause, I suggest returning to the amendment which I tabled, reinstating the presumptions as they existed in former law and which worked well.
Lord Lloyd of Hampstead: My Lords, I should like to speak in support of what has been said by the noble Lord, Lord Lloyd of Kilgerran. I believe that he has put his finger on some important weaknesses which may emerge if Clause 94 is simplicita dropped, particularly with regard to ex parte proceedings. In those circumstances there are no pleadings and one has no knowledge of whether the defendant will admit or deny. There is no appropriate procedure for serving notices to admit.
I also believe that, in the course of an action, it may prove to be that the situation of the plaintiff is, to some extent, weakened by reason of the fact that he cannot rely upon a presumption. The presumption has stood in our legislation since the 1911 Act, I believe; it is certainly contained in the 1956 Act. As far as I am aware, no one has suggested that it created inconvenience.
At this stage I should like to ask the Government to reserve the position in order to make sure that by eliminating this clause they do not create an unfortunate lacuna in the law which will emerge only in the course of subsequent litigation. It may well be that on further consideration it is correct that the clause is unnecessary. However, at the moment I am not totally persuaded. I believe that caution is in order.
Lord Beaverbrook: My Lords, our understanding is that there is no practical difference between Section 20(1) of the 1956 Act and having nothing at all. In other words, I believe that the only choice is between Clause 94 as it stands and leaving it out. It was the noble Lord, Lord Lloyd of Kilgerran, among others, who was instrumental in persuading us that the latter course was right. For that reason I seek to have the amendment accepted by your Lordships.
The presumptions in Clauses 95 and 96 will nearly always provide enough to support an Anton Piller order, or other ex parte order. On an application for an ex parte order the plaintiff will be able to swear to
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the subsistence and ownership of copyright. Unless there is reason to doubt the truth on the face of the affidavit the court will at that stage accept it. I believe that we have got this point right but if our understanding were to change for any reason we shall return to it. However, I believe that we are right.
On Question, amendment agreed to.
Clause 95 [Presumptions relevant to literary, dramatic, musical and artistic works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 165:
Page 39, line 17, leave out ("is unknown") and insert ("cannot be ascertained by reasonable inquiry").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 166:
Page 39, line 23, leave out subsection (6).
On Question, amendment agreed to.
Clause 98 [Criminal liability for making or dealing with infringing articles, &c.]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 167:
Page 40, line 17, leave out ("trade or").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 168 and 169:
Page 40, line 19, leave out ("trade or")
Page 40, line 24, leave out ("trade or")
On Question, amendments agreed to.
[Amendment No. 170 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 171:
Page 40, line 34, leave out ("trade or")
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 172:
Page 40, line 35, at end insert—
("( ) A person commits an offence who—

(a) makes any apparatus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to circumvent technical devices designed to prevent or impede the making of infringing copies of a particular description of copyright work, or

(b) has such an article in his custody or under his control, knowing or having reason to believe that it is to be used to make infringing copies.").

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 64 with which the Government expressed some sympathy. I shall not move the amendment.
[Amendment No. 172 not moved.]
[Amendments Nos. 173 and 174 not moved.]
Lord Willis Lord Willis had given notice of his intention to move Amendment No. 175:
Page 41, line 3, at end insert ("For the purpose of this section the words "in public" should include in any place to which the public are admitted whether by payment for admission or otherwise, and any showing where two or more persons are present other than on a private social occasion and the diffusion of programmes at the same time to a number of persons shall be deemed to be a playing or showing in public.").
The noble Lord said: My Lords, I am grateful to the Minister for writing to me about this matter, which we discussed at great length in Committee. I am satisfied with the arguments he made in his letter to me. a copy of which is in the Library.
[Amendment No. 175 not moved.]
[Amendment No. 176 not moved.]
Clause 99 [Forfeiture of infringing copies, &c.]:
[Amendments Nos. 177 to 180 not moved.]
Clause 100 [Search warrants.]
[Amendments Nos. 181 and 182 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 183:
Page 42, line 16, leave out ("fixed or")
On Question, amendment agreed to.
Clause 101 [Offence by body corporate: liability of officers]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 184:
Page 42, line 20, alter ("director,") insert ("manager,")
The noble Lord said: My Lords, with the leave of your Lordships, I shall speak also to Amendments Nos. 302, 383, 392, 397 and 401, as the issue is the same in each of these cases. The effect of all the provisions which are the subject of these amendments is that where a body corporate has committed an offence, certain individuals connected with the body who have consented to, or connived at, the offence are also guilty of it. The present amendments will add "managers" to the list of individuals covered.
An amendment to Clause 272 of equivalent effect has already been agreed by your Lordships in Committee. The relevant proceedings are reported in Hansard for 12th January at cols. 1190, 1217 and 1218. At that time my noble friend Lord Dundee undertook to make corresponding amendments to the other party of the Bill which relate to offences by bodies corporate. That is what we are doing now.
Lord Williams of Elvel: My Lords, Clause 101 has given us some trouble as I believe we explained in Committee. The definition of,
"director, secretary … or a person purporting to act in any such capacity",
has given us some trouble but as was explained in Committee by the noble Lord this phraseology is used in other statutes and therefore, we cannot object to it.
While assenting to, and welcoming, the inclusion of the word "manager" in Clause 101, I ask the Minister to give a definition of what a "manager" is. We can understand under the Companies Act what a "director" is. We can understand under the Companies Act what a "secretary" is—that is, a secretary of a company—but I am not sure that in the Companies Act there is a definition of what a "manager" is. If there is no such definition—and I may be wrong about this—1 believe we should have a definition of what a "manager" is so that the law can be entirely clear on the subject.
8.45 p.m.
Lord Beaverbrook: My Lords, the term "manager" is a relic from earlier years when the organisational structure of companies tended to be different from what it is today. It was once common for the board of directors of a company to delegate the running of the business of the company to a "manager" who would not himself have a seat on the board. However, in most modern companies the person or persons responsible for running the business of the company are likely to have been appointed to the board of directors. As a result, in most cases a person who falls within the term "manager" will anyway fall within a provision of the type under discussion by virtue of being a director, I think that the point that the noble Lord raised about "manager" being——
Lord Williams of Elvel: My Lords, I understand everything that the Minister has said which is common ground. I am concerned about the definition of a "manager" who is not a director, a secretary or an official as defined under the Companies Act.
Lord Beaverbrook: My Lords, I understand the point of the noble Lord but I wish to put on record the origins of the word "manager". I believe that the word "manager" is well understood. I am not sure whether or not the term is defined in the Companies Act. If we feel that it is necessary to have a definition in this Bill of the word "manager", we will immediately set about drafting a suitable amendment. However, the expression "manager" has been defined by the courts as referring only to senior management and I believe that we will have to rely on case law here because there will be so many different circumstances and perhaps it will have to he left to the courts to decide.
Lord Williams of Elvel: My Lords, does the Minister realise that by inserting the word "manager"—to which I am sure we will all agree—he has opened up something of a Pandora's Box in the definition which may have implications for future companies legislation?
Lord Beaverbrook: My Lords, I repeat that the courts have no difficulty in deciding who constitutes a manager within a business or company. As I said to the noble Lord, there will be so many different instances and it may well be that it is difficult or impossible to define exactly who constitutes a manager within a certain company. I think that the Pandora's Box to which the noble Lord referred has probably already been opened by many other Acts which are phrased in the same terms.
On Question, amendment agreed to.
Clause 102 [Infringing copies may be treated as prohibited goods:
Lord Lloyd of Hampstead Lord Lloyd of Hampstead moved Amendment No. 185:
Page 42, line 32, leave out ("printed")
The noble Lord said: My Lords, this is a small amendment arising in the context of Clause 102 which is concerned with,

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"The owner of the copyright in a published literary, dramatic or musical work".
who, under the provisions of that clause, is entitled to give notice in writing to the Commissioners of Customs and Excise and in the course of that notice to request the commissioners to treat as prohibited goods printed copies of the work which are infringing copies.
My point is that on the face of it there does not seem any obvious reason why this entitlement should be limited only to printed copies. For example, in the case of musical works one thinks that they may be incorporated in a disc or record or cassette or something of that nature. In those circumstances there does not seem any obvious reason for a distinction to be drawn between the printed copy on the one hand and other kinds of copy on the other. Therefore, I feel that one is justified in seeking to amend the clause in the absence of any good explanation by eliminating the word "printed" and leaving the text to refer to copy simpliciter. I beg to move.
Lord Mottistone: My Lords, so far as I am concerned, this amendment is a follow-on from my Amendment No. 237 discussed in Committee on 10th December and I am returning to the charge on it. At that time the Minister said, at col. 426:
"The existing provisions have not been used to any great degree and any sudden increase would impose undue burdens on the limited resources of Customs and Excise".
I should add that my advisers have been advised by practising Customs officers on what to do here. Perhaps I may suggest that the provision as we would have it has not been used because as far as the import of most infringing works is concerned it has not existed. It is only printed copies of works that currently can be prohibited. My noble friend went on to say:
"It is relatively easy for a customs official to identify copies of a…film or record."
These days, literary, dramatic and musical works are now recorded on the same medium as sound recording and films; that is, laser read compact discs. Presumably my noble friend, in making those earlier remarks, felt that it was relatively easy for a Customs official to identify copies recorded on compact discs.
In addition, I am told that American Customs officials are able to identify infringing copies held on semi-conductor chips, with a little help from the owners of the copyright in the mask work. This would seem to be a task several degrees more difficult than identifying discs or tapes with a label identifying a literary or musical work. I suggest to my noble friend that our Customs officials are probably every bit as expert as their American counterparts.
As to the strain on resources, Clause 103 makes it clear that the copyright owner has to pay the full cost of the service and we are sure that, where necessary, they would provide and give the necessary backup of technical support. A further point is that if the Customs and Excise cannot cope, this is a service that could be put out to tender and privatised.
There is another dimension to the case for copyright owners being able to request prohibition of the import of infringing copies, no matter what form
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the infringement may take; that is, the Government's commitment to the establishment of minimum standards of intellectual property rights on the current GATT round. We understand that the prohibition of the import of infringing goods of all sorts stands high on that agenda.
I press these points because my noble friend's answer to my earlier amendment centred around whether the Customs could cope. I think that this is sufficiently important not to restrict it just to the infringement of written copy but to all sorts of work in the sense that it would cover all types of computer program, and so on. It is extremely important that "infringing" should cover as widely as possible the modern types of' goods. Therefore, I hope that my noble friend can think again about this matter and give perhaps a rather more encouraging reply than was given on the last occasion.
Lord Beaverbrook: My Lords, an identical amendment was tabled, but not moved, in Committee. The effect would be to allow Customs and Excise to seize infringing copies which are not in printed form; computer programs being the most obvious example.
As I explained to the Committee when discussing other amendments to this clause, Clause 102 makes significant changes to the law in the field of films and sound recordings, but the resource implications for Customs and Excise mean that this is as far as we can go.
When we announced our intention in the White Paper to extend the import prohibition provisions in the 1956 Act to films and records we indicated that such provisions could create difficulties for Customs and Excise.
The existing provisions have not been used to any great degree and any sudden increase would impose undue burdens on the limited resources of Customs and Excise. It was for this reason that we said in the White Paper that, in the case of films and records, the copyright owner would have to give notice of the expected time and place of the infringing importation.
To extend the import provisions even further, as proposed in this amendment, would not be a practical proposition even if resources were not already fully used. It is relatively easy for a Customs official to identify copies of' a book, film or record; usually it is self-evident. It is clearly much more difficult to determine whether a floppy disk carrying a computer program is a copy or not. The benefit to be gained by extension of the provisions to other types of copyright work cannot justify the costs that would be incurred. As I told the Committee, I am afraid that the extension of the present law now provided by Clause 102(3) is as far as we can go.
I am aware that my noble friend Lord Mottistone has already heard the arguments that I have just advanced and he says that he is unlikely to accept them. However, I have to tell him that in our view those arguments remain valid. Given that I believe it would be impractical to try and check computer programs at our ports, even if resources were available, I regret I cannot accept this amendment and if the noble Lord does not feel able to withdraw it, I must resist it.
Lord Mottistone: My Lords, before my noble friend sits down, has he taken the precaution of investigating what is done in the United States in this area? If not, would he care to do that before this subject is completely dropped?
Lord Beaverbrook: My Lords, I have to say that I answer at this Dispatch Box for the Government of the United Kingdom, not the United States. The resources available to our Customs and Excise are what I have to take into account. We shall endeavour to do the best we can within the resources available. Any further burden upon Customs and Excise would not be acceptable to the Government at this time.
Lord Lloyd of Hampstead: My Lords, in view of the strong reliance that the Government place upon the practical consideration, I do not feel that it would be appropriate to do other than ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 105 [Licensing schemes and licensing bodies]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 186:
Page 44, line 35, leave out from ("the") to ("which") and insert ("terms on").
The noble Lord said: My Lords, this is another large group of amendments and I shall speak also to Amendments Nos. 192, 194, 196 to 200, 210, 215 to 218 and 222.
As I acknowledged in our debate on Chapter VII on 14th December, there are certain inconsistencies throughout this chapter in the way in which references to charges, terms and conditions are expressed. I said then that we had some housekeeping to do and these amendments are the result of our efforts to improve matters. I hope that they will not detain us long.
The approach that we have adopted in revising the drafting is to use the word "terms" as the generic expression. The word "charges" is used only when it is necessary to mention them separately and in such a way as to make it clear that they are only a kind of term. The amendments to Clauses 105, 110, 112, 129 and 131, therefore, are intended to bring the terminology of those clauses into line with that already used in Clauses 107 and 114 to 118.
In carrying out these revisions it also became apparent that a similar inconsistency applied to the expression "conditions and qualifications" in Clause 130 and that this was also best replaced by the word "terms". I beg to move.
Lord Williams of Elvel: My Lords, the Government's housekeeping has been extremely effective, if I may say so, and has produced a very large group of amendments which, quite rightly, seek to clear up and clarify the drafting of this particular chapter. We are perfectly happy with their conclusions.
I have a slight doubt about Amendment No. 199 to Clause 112 where we seem to get away slightly from the point. The original drafting of subsection (4) of Clause 112 refers to the order made by the tribunal.
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The order remains in force and the person in whose favour the order is made shall if he,

"(a) complies with the terms and conditions specified in the order, and

"(b) pays to the operator of the scheme any charges required by the order".

and so on. The noble Lord's Amendment No. 199 reverses the order and says,

"(a) pays to the operator of the scheme any charges payable in accordance with the order …

"(b) complies with the other terms specified in the order".

Having pleaded for consistency in the drafting at Committee stage, I wonder whether the expression "terms" in paragraph (b) gives sufficient importance to the possible qualifications that the tribunal may make in its order. It places the payments in supremacy as the first item. Then it says, "By the way, there are some terms specified in the order". I wonder whether the tribunal in its deliberations in any number of cases which we cannot at present foresee may say, "The most important thing about the order is that the subject of the order has to do certain things and comply with certain norms of behaviour. As a subsidiary item in this order he might have to pay a penny or two".
That is my only problem with the noble Lord's proper housekeeping; namely, whether in this particular case as regards an order of the tribunal it is right to subsume everything under the expression "terms" in paragraph (b) of his Amendment No. 199.
9 p.m.
Lord Beaverbrook: My Lords, as I have said, we have very carefully revised and reviewed the earlier drafting. I believe that in this case the order of events mentioned by the noble Lord is entirely unimportant. They must be the way round now expressed in the amendment so as to give the expression "other terms" some sensible meaning. I do not believe that a tribunal or a court would be influenced by the order. The two paragraphs are of practically equal status.
On Question, amendment agreed to.
[Amendment No. 187 not moved.]
Clause 106 [Scope of general control of licensing schemes]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 188:
Page 45, line 14, leave out ("and")
The noble Lord said: My Lords, I have spoken to this amendment and I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 189:
Page 45, line 18, at end insert ("; and
(c) all licensing schemes in relation to the copyright in sound recordings, films or computer programs so far as they relate to licences for the hiring of copies to the public;").
On Question, amendment agreed to.
[Amendment No. 189A not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 190:
Page 45, line 20, at end insert—
("(2) In subsection (1)(c) "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.").
On Question, amendment agreed to.
Clause 110 [Application for grant of licence in connection with licensing scheme]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 191:
Page 46, line 38, leave out ("excepted") and insert ("excluded")
The noble Lord said: My Lords, with leave I shall also speak to Amendments Nos. 193 and 195. When we debated Clause 110 in Committee the noble Lord, Lord Morton of Shuna, and the noble and learned Lord, Lord Denning, both criticised subsection (3) on grounds of obscurity. They suggested that it did not seem to make sense to regard something as excepted from a licensing scheme because of its similarity to cases within that scheme. I hope that these amendments will make the meaning clearer.
The point to bear in mind is that the word "cases" does not refer to "works" which may be outside a licensing scheme but types of licensing situations which may not be covered by it. For example, where a scheme covers the use of the licensing body's repertoire in village halls but not in church halls. Substituting the word "excluded" for the word "excepted" should help to bring out the fact that we are dealing with cases where a particular class of potential licensee has been prevented from having access to the works in question under the terms of the scheme. This exclusion is unreasonable.
Thus it might be held that the circumstances in which church halls required a licence to use music or records were sufficiently similar to those in which village halls might do so for it to be unreasonable not to treat them in the same way. I should emphasise that this particular example is for illustration only. I am not suggesting that church halls actually are excluded from using the repertoire of the principal collecting societies such as the Performing Right Society.
I stress again that subsection (2) does not deal with the situation where a work or a group of works is excluded from a scheme or where no scheme exists. As regards the Copyright Tribunal having jurisdiction in such situations—and we must remember that in general it has no power to force an individual author or composer to license use of his work—this is dealt with elsewhere; for example in Clauses 107, 114 and 126. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 192:
Page 46, line 44, leave out ("charges, terms or conditions") and insert ("terms")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 193 to 196:
Page 47, line 2, leave out ("excepted") and insert ("excluded").
Page 47, line 4, leave out ("and conditions").
Page 47, line 7, leave out from ("is") to ("dealt") in line 9 and insert ("so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be").
Page 47, line 12, leave out from ("terms") to ("as") in line 13.
On Question, amendments agreed to.
Clause 112 [Effect of order of tribunal as to licensing scheme]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 197 to 200:
Page 48, leave out lines 1 to 5 and insert—

"(a) pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained. And

(b) complies with the other terms applicable to such a licence under the scheme.").

Page 48, line 11, leave out ("fees") and insert ("charges").
Page 48, leave out lines 16 to 20 and insert—

"(a) pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and

(b) complies with the other terms specified in the order,").

Page 48, line 23, leave out ("and conditions").
On Question, amendments agreed to.
Clause 114 [Reference to tribunal of terms of proposed licence]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 201:
Page 49, line 2, leave out ("with the consent of the licensing body").
The noble Lord said: My Lords, we are now entering an area which deals with the general control of licences granted by licensing bodies. This clause deals with reference to the tribunal of terms of the proposed licence. In those circumstances one should have expected that it would be possible to have access to the tribunal if one were the person who was trying to get a licence and that the consent of the licensing body would not be necessary.
Therefore, my amendment is directed to omitting the words,
"with the consent of the licensing body",
so that the prospective licensee can go to the Copyright Tribunal without the consent of the licensing body. This was the position under Section 27(3) of the 1956 Act. That did not make the consent of the licensing body a precondition of the right to have access to the then Performing Right Tribunal.
Let us suppose that a broadcaster needs to acquire a licence to use music. I am instructed in this matter by ITV. The broadcaster would have to deal with the controller of the rights, the licensing body, which is a monopoly, and so could not appear before the tribunal. The tribunal would then deal with the terms of the licence, and possibly the terms of the licence would be totally unacceptable to the proposed licensee. Therefore, when the tribunal had given its judgment on the matter it would be necessary for the licensee to go back to the tribunal and say that the terms were totally unacceptable.
It seems common sense that at the initial stage the licensing body and the proposed licensee should be allowed to go before the tribunal, or that the matter should be referred to the tribunal, without the consent of the licensing body. I ask that the words,
"with the consent of the licensing body"
should be omitted so that the tribunal can consider the proposed terms of the licence at an early stage. I beg to move.
Lord Morton of Shuna: My Lords, I strongly support the amendment. It seems ludicrous that in a dispute which presumably has been negotiated for some time a right of veto is given to one side of the dispute to go into the tribunal, which is the court to decide the issue. I think there is every aspect of common sense in the amendment.
Lord Beaverbrook: My Lords, in moving the amendment the noble Lord, Lord Lloyd of Kilgerran, has drawn attention to the special needs of broadcasters in the situation where a licence to use, for example, the music controlled by the Performing Right Society has expired without agreement being reached on the terms of a new licence. I understand that such situations have indeed arisen on several occasions in the past and have been dealt with satisfactorily by the Performing Right Tribunal.
It is argued that the PRS is a monopolist and it is simply not reasonable for it to be able totally to deny access by broadcasters to the works it controls when they decline to meet its terms. There must be a means by which the broadcasters can gain access on arbitrated, equitable terms if agreement cannot be reached.
I understand that in the cases I have referred to, the PRS, while not positively consenting to a reference to the tribunal, raised no objection and indeed was quite content for one to take place. The broadcasters, however, say that they should not have to rely on the good will of whatever monopoly licensing body they may be dealing with. On a future occasion consent, tacit or otherwise, may not be forthcoming. The PRS is too powerful, and the need of broadcasters for copyright music too important, for their right of access to the tribunal to he anything less than certain in such a situation.
Although in Committee we questioned whether an amendment on the lines proposed by the noble Lord was necessary, I am happy to say we are persuaded that we should look again at this matter. We accept that the need of broadcasters and anyone else in the situation I have described for a clear right of access to the tribunal must be met. However, although the noble Lord's amendment may seem a simple and complete solution, it is not quite as straightforward as that.
I must point out that if we accept this amendment it will be possible for would-be licensee to take any licensing body to the tribunal, even quite small licensing bodies controlling the works of just two or three authors or composers, and for the tribunal to force on the body a set of terms which the body would not wish to accept. There may be a case for imposing a compulsory licence on monopoly bodies like the PRS but this may not be true for all licensing bodies. The amendment could have a quite sweeping effect and result in fairly small licensing bodies being obliged to grant licences on terms on which refusal to do so would be perfectly reasonable. Compulsory licensing outside the context of monopoly could well be in breach of' our convention obligations.
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We therefore need to think further about how the concerns expressed by the noble Lord can be met without introducing an unacceptable degree of compulsory licensing or breaching our convention obligations. It may be that any amendment in this area ought to apply to Clause 107 as well as to Clause 114. We shall also need to look at Clauses 112 and 117 to see that where licensing bodies are unwilling to grant licences at all other than on their own terms, orders made under those clauses do not bear on them unfairly. I hope that in the light of the undertaking I have given the noble Lord will be willing to withdraw the amendment.
Lord Lloyd of Kilgerran: My Lords, I am most grateful to the Minister for his reply; and on that undertaking, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 117 [Effect of order of tribunal as to terms of licence]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 202:
Page 50, line 2, leave out ("in accordance with the licence") and insert ("for the licence in accordance with the order").
The noble Lord said: My Lords, with leave, I shall speak also to Amendments Nos. 202, 203 and 204 which are to remedy an inconsistency of wording as between subsection (2) of Clause 117 and subsections (2) and (4) of Clause 112. These came to light when we were checking for consistency in the use of the words "terms, charges and conditions". The problem is that Clause 117 addresses two different cases: where there is no licence actually granted, and where there is a licence whose terms have been superseded in part but not in whole by an order of the tribunal. The amendments make clear that the word "licence" in subsection (2) means the licence as established, confirmed or varied by the order. I beg to move.
On Question, amendment agreed to.
9.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 203 and 204:
Page 50, line 6, at end insert ("as confirmed or varied by the order").
Page 50, line 9, leave out ("the terms specified in the order") and insert ("those terms").
On Question, amendments agreed to.
Clause 118 [Licensing schemes: general considerations]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 205:
Page 50, line 12, after ("scheme") insert ("or licence").
The noble Lord said: My Lords, with the leave of the House, I shall also speak to Amendments Nos. 206 and 207. When we debated this clause in Committee, I undertook to consider a similar amendment moved by my noble friend Lord Cullen of Ashbourne. This we have now done, and I am pleased to say that we accept the suggestion made by my noble friend and the noble Lord, Lord Williams of Elvel, that the criteria in Clause 118 should apply when the tribunal considers references relating to

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licences, as well as when they consider references or applications relating to licensing schemes. I beg to move.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 206 and 207:
Page 50, line 14, after second ("or) insert ("other")
Page 50, line 19, after ("scheme") insert ("or licence")
The noble Lord said: I beg to move.
Lord Mottistone: My Lords, on behalf of my noble friend Lord Cullen of Ashbourne and the CBI I should like to thank my noble friend the Minister for including these amendments.
On Question, amendments agreed to.
[Amendment No. 208 not moved.]
Clause 125 [Implied indemnity in certain schemes and licences for reprographic copying]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 209:
Page 52, line 6, leave out from ("to") to ("with") in line 12 and insert—
("(a) schemes for licensing reprographic copying of published literary, dramatic, musical or artistic works, of the typographical arrangement of published editions, and
(b) licenses granted by licensing bodies for such copying.
where the scheme or licence does not specify the works to which it applies")
The noble Lord said: My Lords, it was pointed out in Committee that the expression "general licence" was used inconsistently in Clauses 125 and 129. That defect is easily cured by removing the expression "general scheme" altogether from Clause 125. That is the purpose of Amendment No. 209. I beg to move.
On Question, amendment agreed to.
Clause 129 [Inquiry whether new scheme or general licence required]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 210:
Page 55. leave out lines 21 and 22 and insert ("any terms, other than terms as to charges payable on which authorisation under the new provision should be available.")
The noble Lord said: My Lords, I have already spoken to this amendment and therefore I beg leave to move.
On Question, amendment agreed to.
Clause 130 [Statutory licence where recommendation not implemented]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 211 and 212:
Page 55, line 30, leave out ("for the making of new provision").
Page 55, line 36, at end insert ("in accordance with the recommendation").
The noble Lord said: My Lords, in moving Amendment No. 211, I shall also speak to Amendment No. 212. These are both minor drafting improvements to Clause 130 which make no change in substance. Amendment No. 211 removes some superfluous words. Amendment No. 212 makes clear that if one of the conditions in subsection (2) is met
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then provision is to be regarded as having been made in accordance with the recommendation of any inquiry held under Clause 129. I beg to move.
On Question, amendments agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 213:
Page 55, line 46, at end insert (", and the terms of the scheme or licence accord with the recommendation.").
The noble Lord said: My Lords, this amendment is a little more than a mere drafting point. If an inquiry under Clause 129 recommends that new provisions should be made by way of scheme or general licence authorising the making of reprographic copies for an educational establishment, it must be regarded as having been made if one of the actions mentioned in subsection (2) of Clause 130 has been taken. However, under the Bill as drafted the scheme or general licence in question does not necessarily have to be in accordance with the recommendation of the inquiry. That is of course not right. The new provision should be regarded as made only if the terms of the scheme or general licence accord with the recommendation of the inquiry. That is the effect of Amendment No. 213. I beg to move.
On Question, amendment agreed to.
Lord Lloyd of Hampstead Lord Lloyd of Hampstead moved Amendment No. 214:
Page 56, line 6, leave out ("free of royalty but, as respects other matters").
The noble Lord said: My Lords, this is a small amendment. It arises where there has been a recommendation for a new scheme or general licence under Clause 129, and that recommedation is not implemented. Thereupon, the Secretary of State may make an order. Under Clause 130(4) there is provision that,
"The order shall provide for the licence to be free of royalty but. as respects other matters, subject to any conditions and qualifications specified"
and so on.
My simple objection is to the words "free of royalty". Although in many cases it may be appropriate for the order to provide for a scheme which does not allow for a royalty, there may be cases where a royalty would be appropriate. It does not seem sensible that one should have a provision which absolutely excludes the possibility of a royalty. My proposal is that the words "free of royalty", and those immediately thereafter, should be omitted, thereby allowing the Secretary of State discretion to provide for a royalty in the occasional case where that may he appropriate, rather than totally to deprive him of the power so to do. I beg to move.
Lord Morton of Shuna: My Lords, I should have thought that there is much to be said for the amendment. The words that the noble Lord proposes to remove unnecessarily restrict the terms of the order. If the Secretary of State wishes to have the order free of royalty, it does not need those words to achieve it. Therefore, if he wishes the order to be free of royalty—I see that the noble and learned Lord the

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Lord Advocate has raised at least one eyebrow [it is possible to do so by making it,
"subject to any conditions and qualifications specified in the recommendation".
That would seem to cover having the order free of royalty. Therefore, I support the amendment.
Lord Beaverbrook: My Lords, the argument that copyright owners should not be forced to suffer expropriation of their rights is a powerful one, and indeed the whole purpose of this Bill is to prevent that. But it is really going too far to say that an order made by the Secretary of State under Clause 130 would impose expropriation on rights owners. The circumstances in which such an order may he made are circumscribed. It may be made only where an inquiry has taken place under Clause 129 and has resulted in a recommendation for a new licensing scheme or general licence. Even if the order is made, it does not apply once a certified licensing scheme has been established in accordance with the recommendation, or once there is a general licence which has been granted, referred to the tribunal, or offered to educational establishments and refused by them without a reference.
In other words, a royalty-free licence will be available only if the reaction of copyright owners to an order of the Secretary of State, following a recommendation for a new licensing scheme or general licence, is to do nothing. If their response to the recommendation is to set up a scheme and have it certified, or to offer a general licence, educational establishments will not be able to make copies without paying royalties. The purpose of Clauses 129 and 130 is not to expropriate, only to make works available for educational purposes. Copyright owners can always make sure that they will be paid.
The noble Lord, Lord Lloyd of Hampstead, referred to a scheme being ordered free of royalty. I wonder whether there is a misunderstanding here. The Secretary of State's orders would relate to the case where there is no scheme, as I have just explained. However, in the light of the argument which I have just put forward, I hope that the noble Lord will be willing to withdraw his amendment.
Lord Lloyd of Hampstead: My Lords, although I confess that I am not totally persuaded by the eloquent defence which the Minister has put forward for retaining these words, I do not feel that I would be justified in pressing this upon your Lordships. Therefore I beg leave to withdraw my amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 215 to 218:
Page 56, line 7, leave out ("conditions and qualifications") and insert ("terms").
Page 56, line 8, leave out ("conditions and qualifications") and insert ("terms").
Page 56, line 10, leave out ("condition-) and insert ("term").
Page 56, line 17, leave out ("conditions or qualifications-) and insert ("terms").
The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 215, 216, 217 and 218 en bloc.
On Question, amendments agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 219:
After Clause 130, insert the following new clause:
("Royalty for luring of sound recordings, films and computer programs.
.—(1) An application to settle the rate of royalty payable in pursuance of section (Hiring of sound recordings, films and computer programs) (hiring of sound recordings, films and computer programs) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.
(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.
(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.
(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.
(5) An order under subsection (3) has effect from the date on which it is made or such later date as may he specified by the Tribunal.").
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Clause 131: [Certification of licensing schemes]:
[Amendment No. 220 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 221:
Page 56, line 29, at end insert—
"(aa) section (Hiring of sound recordings, films and computer programs) (hiring of sound recordings, films and computer programs)")
The noble Lord said: My Lords, I have already spoken to this amendment. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 222:
Page 56, line 37, leave out ("terms and conditions subject to") and insert ("other terms on")
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
[Amendment No. 223 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 224:
Page 56, line 40, after ("35,") insert ("(Hiring of sound recordings, films and computer programs)'')
The noble Lord said: My Lords, this is a minor amendment consequential on the introduction of the rental right. I should have spoken to it in the grouping dealing with rental rights under Clause 18. I beg to move.
On Question, amendment agreed to.
Clause 132: [The Copyright Tribunal]:
Lord Beaverbrook Lord Beaverbrook moved Amendment Nos. 225 to 228:
Page 57, line 17, leave out from ("Tribunal") to end of line 18
Page 57, line 23, leave out ("shall not be appointed") and insert ("is not eligible for appointment as")
Clause 133, page 58, line 3, leave out from ("proceedings,") to end of line 10 and insert—
("a person may be appointed to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.
(5) The appointment shall be made—

(a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who shall appoint a person who would be eligible for appointment to that office, and

(b) in the case of an ordinary member, by the Secretary of State:)

and a person so appointed shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.")
Page 58, line 12, leave out ("subsection (3) or (4)") and insert ("this section")
The noble Lord said: My Lords, with leave I shall move Amendments Nos. 225, 226, 227 and 228 together. These amendments are to meet a criticism
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made at Committee stage by the noble Lord, Lord Williams of Elvel, which I promised we would look into. We agree that Clause 133 as drafted does not make sufficiently clear who is meant by the term "duly qualified person" in relation to substitute members to be appointed to the tribunal when a member is temporarily unable to perform his duties. We have reorganised subsections (4) and (5) so as to improve matters. It is now provided that in the case of the chairman or deputy chairman, the substitute must be appointed by the Lord Chancellor and must be a person who would be eligible as under Clause 132(3). In case of an ordinary member, the substitute is to be appointed by the Secretary of State and no specific qualifications are required. Amendments Nos. 226 and 228 are consequential. Amendment No. 225 is a minor drafting improvement. I beg to move.
Lord Morton of Shuna: My Lords, I merely intervene to say thank you on behalf of my noble friend Lord Williams of Elvel. These amendments certainly make the position much clearer.
On Question, amendments agreed to.
9.30 p.m.
Clause 135 [Constitution for purposes of proceedings]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 229:
Page 58, line 29, leave out subsection (2) and insert—
("(2) If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.").
The noble Lord said: My Lords, this amendment is to make plainer the position regarding votes and casting votes in proceedings of the Copyright Tribunal. I am not saying that the Bill as drafted is necessarily obscure but we felt that there was scope for some improvement. I beg to move.
On Question, amendment agreed to.
Clause 136 [Jurisdiction of the tribunal]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 230:
Page 59, line 9, leave out ("and").
On Question. amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 231:
Page 59, line 11, at end insert—
("(e) on an application under section (Royalty Or luring of sound recordings. films and computer programs) (royalty for hiring of sound recordings, films or computer programs).").
On Question, amendment agreed to.
[Amendment No. 232 not moved.]
Clause 143 [Qualification by reference to author]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 233:
Page 62, line 18, leave out from ("; but") to end of line 20 and insert—
("where a work qualifies for copyright protection only under this section, only those authors who satisfy those requirements shall be taken into account for the purposes of—
section 11(1) and (2) (first ownership of copyright: entitlement of author or author's employer),
section 12(1) and (2) (duration of copyright: dependent on life of author unless work of unknown authorship), and section 9(4) (meaning of "unknown authorship") so far as it applies for the purposes of section 12(2), and
section (Anonymous and pseudonymous works of which author reasonably presumed to hare been dead for 50 years) (no infringement of copyright where author's identity cannot be ascertained but he is reasonably presumed to have been dead for 50 years).").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 234:
Page 62, line 34, leave out from ("film,") to ("it") in line 35 and insert ("when").
On Question, amendment agreed to.
Clause 144 [Qualification by reference to country of first publication]:
[Amendments Nos. 235 and 236 not moved.]
Clause 148 [Application of this Part to countries to which it does not extend]:
[Amendment No. 237 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 238:
Page 65, line 1, after ("country") insert ("or another member State of the European Economic Community").
On Question, amendment agreed to.
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 239:
After Clause 149, insert the following new clause:
("Protection for British citizens.
.—(1) If it appears to Her Majesty that the law of a country fails to give adequate protection to British authors or to British directors to whom this section applies, or to one or more classes of such authors or directors, with respect to rights of the kind conferred by Chapter IV (Moral Rights), Her Majesty may make provision by Order in Council in accordance with this section restricting the rights conferred by that Chapter on authors or directors connected with that country.
(2) An Order in Council under this section shall designate the country concerned and provide that, with effect from a date specified in the Order, the authors of copyright literary, dramatic musical or artistic works and the directors of copyright films shall not he entitled to the rights conferred by Chapter IV if the authors or the directors are—

(a) citizens or subjects of that country (not domiciled or resident in the United Kingdom or another country to which the relevant provisions of this Part extend), or

(b) bodies incorporated under the law of that country;

and the Order may make such provision either generally or in relation to such class of cases as are specified in the Order, having regard to the nature and extent of the failure referred to in subsection (1) and may be subject to such exceptions as the Order may prescribe.
(3) This section applies to authors of copyright literary, dramatic, musical and artistic works and directors of copyright films; "British author" means an author who was a qualifying person at the material time within the meaning of section 143 and "British director" means a director of a film who fulfils the qualification requirements set out in that section.
(4) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
The noble Lord said: My Lords, this rather long amendment after Clause 149 can be dealt with quite briefly. The object is to avoid moral rights being conferred on authors and directors whose countries do not confer similar rights on British authors and directors. That is the main theme of it. However the amendment is somewhat longer than that. I beg to move.
Lord Beaverbrook: My Lords, this amendment standing in the name of the noble Lord, Lord Lloyd of Kilgerran, deals with the question of qualification for moral rights. It would allow Orders in Council to be made disapplying the moral rights provisions from authors or film directors of countries which do not give moral rights to UK authors and directors.
The clause is closely modelled on Clause 149 which does the same thing in respect of copyright. I have to admit that I can see nothing wrong with a corresponding moral rights provision, although whether this needs a separate clause or can be absorbed into Clause 149 is something we can consider. There are also a few drafting points such as the inappropriate reference to the author or director being a body corporate.
I accept the desirability of this amendment along the lines of the noble Lord, Lord Lloyd. However, I

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should say that were we to go down this exact route, there would be no guarantee that we would seek to exercise these powers. Indeed, I think that as a matter of policy we would choose not to, at least in respect of what would be the most significant country which may fall within the terms of subsection (1), namely the United States.
As your Lordships are probably aware, the United States is not yet a party to the Berne Convention, although I very much hope that tentative moves in that direction will bear fruit in the not too distant future. There is mutual recognition of copyright between the USA and the United Kingdom because we are both members of the Universal Copyright Convention. But since the USA is not party to Berne, it is not obliged to recognise moral rights.
There is some considerable debate as to whether the law in the United States protects moral rights to the standard required by Berne or whether their legislation will have to be amended before they can join the Berne Union. It may be that their law does not protect moral rights of British authors and directors. I make no judgment of that now. If we were persuaded that protection is inadequate, I do not think it would inevitably follow that we would use the powers under this clause. For example, we would wish to consider whether the United States was in fact likely to join the Berne Convention in the near future.
It may be that those advising the noble Lord, Lord Lloyd, see this clause as a means of depriving American authors and directors of moral rights. It would indeed be such a means but, as I have said, our acceptance of the principle of the amendment does not mean it would inevitably follow that an order would be made in due course, disapplying the provisions of Chapter IV from American citizens and subjects. I hope that in the light of what I have said the noble Lord will feel able to withdraw the amendment, given the assurance that I shall return with something appropriate at Third Reading.
Lord Lloyd of Kelgerran: My Lords, I thank the Minister for what he has said at this late hour and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 150 [Territorial waters and the continental shelf]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 240:
Page 65, line 38, leave out subsection (2) and insert—
("(2) This part applies to things done—

(a) in the United Kingdom sector of the continental shelf on a structure, vessel or aircraft which is present there for purposes directly connected with the exploration of the seabed or subsoil, or the exploitation of their natural resources, and

(b) on ships or aircraft registered in the United Kingdom, as it applies to things done in the United Kingdom.").

The noble Lord said: My Lords, this amendment looks rather long but the crucial part of it is that which appears on page 19 of the Marshalled List and starts with (b). The aim is that the restrictions should apply to ships and aircraft registered in the United Kingdom as they apply to other things done in the United Kingdom.
It is my understanding that copyright owners and others involved in copyright material are concerned that the Bill does not extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom. There is an extensive use of music and film on ships and aircraft to provide entertainment on a very considerable scale, and without some restriction on the use so that there is some payment for it, it would appear that an injustice is being done.
I should have said earlier that I intended to speak, in the grouping, to Amendments Nos. 304 and 361, which are similar amendments in different parts of this Bill, as well as move Amendment No. 240. I beg to move.
Lord Airedale: My Lords, I should like to say a word in support of this amendment. When we were discussing this matter in Committee I thought that the Government's reply implied, though it was not intended perhaps to imply, that what followed from their answer was that this country had to keep its end up in the matter of international trade, and if other countries were not prepared to do what was morally right then perhaps this country could not afford to do what was morally right because we had to keep our end up in international trade.
I venture to ask: what are we talking about here? How much is it going to cost per passenger ticket to pay proper copyright fees for copyright material used on the high seas or in the air, on ships or aircraft? If we are talking about something quite trivial —a few pence per passenger ticket—surely it is worth while for this country, which is no longer able to show its place in the world by sheer might, as once it could, to impress itself upon the world by the way that it behaves. Let us not submit to the sort of argument that we cannot afford to do something which we believe to be right just because other nations may choose not to do what is morally right. If we are really only talking about a very small sum of money, for goodness sake it will pay us in the long run to do what is morally right.
Lord Beaverbrook: My Lords, with your Lordships' leave, I shall speak also to Amendments Nos. 304 and 361. As regards Amendments Nos. 240 and 304, we debated this issue extensively at Committee stage both on Clause 150 and on Clause 187. We promised then that despite our reservations we would look further at the possibility of extending at least Parts I and II of the Bill to ships and aircraft registered in the United Kingdom. This we have been doing.
This process has of necessity involved a degree of consultation with those concerned both as rights owners and as operators of the aircraft and vessels who would find themselves liable for copyright and performance rights clearance. I had hoped that these consultations would be complete in time for me to give your Lordships our conclusion on the matter today, but I am sorry to have to say that although the process is very nearly complete it is not entirely so. Regretfully therefore I have to say that I can go no further today than say that we are still considering the issue. I hope to be more forthcoming on Third Reading.

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I am sorry if the statement comes as a disappointment, but I hope that the House will not press me on the matter. I am not at present in a position to go beyond what I have said.
On Amendment No. 361, the reasoning is rather different. Design right concerns only the manufacture of articles for the purpose of selling them and trading in such articles in the course of a trade or business. We do not think that it is necessary to deal with the possibility of articles infringing designs being manufactured on a commercial scale on board ships and aircraft; nor do we think it necessary to deal with sales. It is true that articles are sold on board ships and aircraft, but the amount of business involved is likely to be very small. The vast majority of articles sold on board ships and aircraft are not likely to involve design right to any significant extent. As a result, we think that to extend design right to British ships and aircraft would give rise to more trouble than it is worth. For those reasons, I resist Amendment No. 361.
As I have said, on Third Reading I hope to come back to Amendments Nos. 240 and 304.
Lord Morton of Shuna: My Lords, I have learnt never to look a proffered or even potential gift horse in the mouth so I accept what has been said. I beg leave to withdraw the amendment.
It occurs to me that, if all these rights are not to take place on board ships or aircraft, it gives somebody an incentive to do business on ships and aircraft, hut perhaps that is a matter we should consider later.
Amendment, by leave, withdrawn.
Clause 151 [Crown copyright]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 241:
Page 66, line 5, leave out ("dramatic, musical").
The noble Lord said: My Lords, we come to the rather vexed question of Crown copyright. We on the Opposition Benches made certain representations to the Committee about Clause 151. From our Benches and from those to my right we were clear on one principle: we would support any Crown copyright relating to the defence of the realm or national security. I trust that there was no ambiguity on our side on that. Beyond that, we have serious doubts about how far Crown copyright should persist and made those doubts clear in Committee. I know that the Government have been considering the matter. The Minister will doubtless explain in his reply the Government's current position.
Our current position is that one should omit "dramatic, musical" simply because we cannot conceive of any dramatic, musical work that is relevant to the defence of the realm, although the Minister may persuade me to the contrary. We propose to insert the defence of the realm or national security provision before the provision in the Bill as drafted which reads,
"which is made by, or in pursuance of a commission or otherwise under the direction or control of, the Crown, either House of Parliament or any other legislative body".
In our view the Government are extending Crown copyright to an unacceptable extent in the Bill.
We have tabled certain other amendments which reflect on the boundaries which we feel are appropriate. I urge the Government to consider very seriously both the thoughts that I and the noble Lord, Lord Tordoff, from the Liberal Benches expressed in Committee and which are encapsulated in Amendments Nos. 241 and 242.
For the convenience of the House I shall also speak to Amendments Nos. 245, 246, 247, 277 and 278, which cover essentially the same point. They all relate to Crown copyright. Amendment No. 277, for instance, refers to introducing:
"artistic works other than engravings or photographs".
That is the government amendment. I accept the government grouping although, like all groupings, it is rather hazy. I should like to concentrate on the two amendments that I have tabled—Amendments Nos. 241 and 242.
Amendment No. 247 is incidental and I think has been superseded by government Amendment No. 246 in the name of the noble Lord, Lord Beaverbrook.
One could go to and fro on these amendments, but I return to the major point that we on this side accept Crown copyright where the defence of the realm or national security is in question. We do not accept—and I think that this would tend to follow the Whitford Report—Crown copyright in any other respect. We think that the Crown should be treated as any other body which may or may not have copyright, depending on the circumstances. I beg to move.
9.45 p.m.
Lord Lloyd of Kilgerran: My Lords, perhaps I may very briefly echo the major points adumbrated by the noble Lord, Lord Williams of Elvel. He referred to the submissions made by the noble Lord, Lord Tordoff, at an earlier stage. If I may say so the noble Lord was acting for me because I was unable to be present. I support these amendments.
Lord Beaverbrook: My Lords, with leave I shall also speak to the group of amendments as specified by the noble Lord, Lord Williams of Elvel. All of these are concerned with the classes of work that should be covered by Clause 151.
Amendments Nos. 241 and 242 taken together would limit Crown copyright to literary or artistic works which contain information relating to defence or national security. I must reject that proposition. The protection of sensitive information is not a matter for copyright law—that is for the Official Secrets Act. I do not want to get into a debate here tonight about the difficulties of that legislation. As your Lordships are aware, the Government intend to reform the Official Secrets Act and noble Lords opposite will doubtless have every opportunity to express their concerns over the protection of sensitive information when a Bill is debated in your Lordships' House.
There are serious limitations in the effectiveness of copyright law as a means of protecting national security. To give two extreme examples: a spy might

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be able to avail himself of a defence of fair dealing for research purposes; a newspaper may be able to publish defence secrets under the "reporting of current affairs" exception in Clause 31. I accept that these are extreme, perhaps fatuous, examples but I think that they illustrate the point. If Crown copyright were to be limited, as suggested, to literary and artistic works of sensitive information then, quite frankly, it would be useless and Clause 151 could just as well be deleted. As I have said, copyright cannot protect official secrets adequately, and for such material the benefits of copyright, such as licensing and assignment, cannot, for obvious reasons, be enjoyed by the copyright owner. So I must therefore urge your Lordships to reject Amendment No. 242.
I trust that the noble Lord, Lord Williams of Elvel, would accept that all types of works made by or under the direction or control of the Crown should he given copyright protection. As I understand it, it is the automatic vesting of the copyright in the Crown to which he has objected. It is true that Whitford recommended that the existing Crown copyright provisions in Section 39 of the Copyright Act should be brought to an end, mainly on the grounds that they were too wide and that there seemed little reason why the Crown should be treated differently from other large organisations. Whitford recognised however that safeguards would still be necessary.
We have accepted that the Crown copyright provisions in the 1956 Act are too widely drawn. We are therefore repealing Section 39(2) under which works first published by the Crown attract Crown copyright. But I must resist the noble Lord's suggestion that we should go further and effectively abolish them altogether. Crown copyright provisions, as contained in Section 39(1) of the 1956 Act and subsection (1)(a) of Clause 151 of the Bill, have worked well for over 75 years and have not given rise to any practical problems, as opposed to somewhat theoretical objections. To abolish Crown copyright would necessitate the employment of additional staff to keep track of all the authors concerned in the production of government publications and add to public expenditure with no discernible public benefit. I see no justification whatever for adding to the burden on the taxpayer to no practical advantage.
Although your Lordships are, I hope, persuaded that Crown copyright should not be confined to defence-related works, your Lordships might at first sight see some merit in Amendment No. 241 on its own, since it might not be immediately apparent what business the Crown has with dramatic and musical works. The Crown does however produce such works —the most obvious examples being in the production of videos by the Central Office of Information and the information divisions within departments. The musical and dramatic works incorporated in these films merit protection, just as any other Crown work.
I turn now to Amendments Nos. 245, 246 and 247.
Lord Jenkin of Roding: My Lords, before my noble friend leaves that topic, as a matter of information can he let me know whether a composition by—shall we say?—the pipe major of the pipe band of a
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Highland regiment that is being commissioned for the purpose of some celebration is a work in which the Crown copyright would subsist? It certainly should. As I understand the matter, the amendment of the noble Lord, Lord Williams, would destroy the Crown's copyright. That does not seem to me to be right.
Lord Beaverbrook: My Lords, my noble friend says that it certainly should, and I say to him that it certainly would. I think that is——
Lord Williams of Elvel: My Lords, would the performance of the Royal Lancers' jazz band, or whatever the noble Lord is referring to, on a private occasion be part of the Crown copyright?
Lord Beaverbrook: My Lords, I find it difficult to answer that question without further notice of the circumstances that the noble Lord, Lord Williams, has in mind. However, as regards the basic principle, yes, such a performance would be protected by Crown copyright. There may be some exceptions in circumstances which we could imagine.
However, as I said, I turn now to Amendments Nos. 245, 246 and 247. At the outset, I have to say that the purpose of Amendment No. 247 in the name of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, to delete the reference to the design of a typeface is one that I could accept. It would correct an error on our part. We have, however, dealt with the matter differently in our amendments, Amendments Nos. 245 and 246, which move artistic works into the general grouping of literary, dramatic and musical works in subsection (3); and of course Amendment No. 247 will not be taken if Amendment No. 246 is carried.
The reason for this change flows from one of those made in Clause 12. Your Lordships will recall that the Bill as drafted provided that the duration of copyright in a photograph would be 50 years from the date the photograph was taken. Strong representations were made to us in Committee that photographs should be treated like other literary, dramatic, musical and artistic works, and we amended Clause 12 to accede to those wishes. Now that no distinction is made in Clause 12 between literary, dramatic, musical and artistic works, there seems no justification for a distinction in Clause 151. Amendments Nos. 277 and 278, in Schedule 1, are consequential on the changes made by Amendments Nos. 245 and 246.
Lord Williams of Elvel: My Lords, I am disappointed in the response of the noble Lord. I thought that in Committee we were moving towards some community of interest, if not a meeting of minds. On this side of the House, we shall support whatever needs to be done in Crown copyright to ensure the defence of the realm and national security. Nevertheless, we find that the very broad arrangements that the Bill is proposing for Crown copyright go not only well beyond Whitford but well beyond what we consider reasonable.
The intervention of the noble Lord, Lord Jenkin of Roding—I hope I have used the right pronunciation;

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we had a discussion about pronunciation at dinner on another evening—serves to point out where Crown copyright becomes rather ridiculous. When we were discussing design rights I mentioned the possibility of the DES or the DTI, or any other department, having some design right over a particular type of word processor or typewriter that was vested in that department. That seemed absurd and contrary to the spirit of enterprise which the Secretary of State for the Department of Trade and Industry has been encouraging.
I believe that Crown copyright should be kept to the minimum necessary for the preservation of the defence of the realm, national security and the necessity of the Crown interest. I cannot understand why the Government seem to think that it should go beyond that. It seems to me, and to the noble Lord, Lord Lloyd of Kilgerran, that Whitford on the whole is right in saying that the Crown should be treated like any other person except in so far as the Crown has special interests that the noble Lord will certainly recognise.
I am therefore disappointed in the response of the noble Lord because I thought that in Committee we had received some sympathy from the Government Front Bench. I do not wish to divide the House at this time because we have to get on. I shall read carefully what the noble Lord has said. However, I am not happy with the situation and may well come back to this matter at Third Reading. Perhaps I may offer a word of advice to the noble Lord. I would advise his officials to consider this problem again because it is a matter on which I shall return. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 242 not moved.]
Lord Mottistone Lord Mottistone moved Amendment No. 243:
Page 66, line 8, leave out ("in pursuance of a commission or otherwise").
The noble Lord said: My Lords, I seek to delete from this subsection the words "in pursuance of a commission or otherwise". These words in effect have been added to the existing provisions giving copyright ownership to the Crown for works made under the direction or control of the Crown. I refer to Section 39(1) of the Copyright Act 1956. In commenting upon the last amendment, my noble friend said that it had worked very well over the past 75 years. It seems therefore strange that it should have to be added to.
The existing provision of the 1956 Act deals adequately with the situation of Crown servants. However, giving a commission is not normally considered equivalent to exercising direction or control, despite the inclusion of the word "otherwise". The Crown would therefore for the first time be given the copyright to the whole class of works; namely, those that it has commissioned but has not hitherto acquired. In the case of all other commissioned works, the author—not the commissioner—takes the ownership. That is the position in Clause 11 as it stands in the Bill. There seems to be no justification for treating the Crown differently. If it desires ownership in any particular
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instance it should seek it by negotiation. I beg to move.
10 p.m.
Lord Williams of Elvel: My Lords, in speaking to Amendment No. 243, moved by the noble Lord, Lord Mottistone, I should also like to speak to Amendment No. 244 in the name of the noble Lord. Lord Lloyd of Hampstead. The noble Lord is not in his place so I shall be moving that amendment for him.
Having made certain comments in moving the amendment tabled in my name and in the name of my noble friend Lord Morton of Shuna, it will come as no surprise to the Minister to hear that I support what has been said by the noble Lord, Lord Mottistone. Anything that can bring Crown copyright back to reality will receive support from these Benches. I hope that if we have failed in our amendment to provoke a positive response from the Government, the noble Lord, Lord Mottistone, will provoke a positive response from them.
Lord Lloyd of Kilgerran: My Lords, the noble Lord, Lord Mottistone, has handed me most of the amendments with which he is concerned. This is one of the amendments which I strongly support.
Lord Beaverbrook: My Lords, with the leave of the House, I shall speak to Amendments Nos. 243 and 244. Both these amendments were moved in Committee and were withdrawn when I indicated that I could not accept them. I am afraid that the passage of time has not made me any more favourably inclined to them.
Under the 1956 Act, the Crown is entitled to copyright in two groups of works. First, those made by or under the direction or control of Her Majesty or a Government department and, secondly, works first published by the Crown. Under the Bill, works in this second category will no longer attract Crown copyright, and I think that is generally welcomed.
As far as the first category is concerned it is debatable whether a work commissioned by the Crown under the 1956 Act can be said to he made under the direction or control of the Crown and so be a Crown copyright work. We said in the White Paper that we would resolve any doubts by explicit inclusion of works commissioned by the Crown in the Crown copyright provisions.
I accept that, with the repeal of Section 4(3) of the 1956 Act, the Crown and international organisations referred to in Clause 152 are in a different position from other commissioners. But as I said in Committee, the Crown and international organisations are different from other people, otherwise we would not need special provisions in Clauses 151 and 152. We remain of the view that where public money is being spent on the production of a work the Crown should be the first owner of the copyright. The author is not obliged to accept a Crown commission if he is unwilling to see copyright vested in the Crown and, of course there is nothing to stop the Crown assigning the copyright to the author. That can be agreed when the work is commissioned and will happen when this is appropriate.

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That brings me conveniently to Amendment No. 244, tabled in the name of the noble Lord, Lord Lloyd of Hampstead, and moved by the noble Lord, Lord Williams. The amendment of the noble Lord, Lord Lloyd of Hampstead, would make the provisions of subsection (2) subject to agreement to the contrary, by which I assume agreement between Her Majesty and the author concerned is intended. As I understand it, the purpose of the amendment is to ensure that, as now, there is the possibility for the author to have the copyright if that is agreeable to the Crown.
As I explained to the Committee, this is quite possible under the terms of Clause 151. All that has changed is the mechanism by which that result is achieved. Under the 1956 Act, agreement could be made with the author that copyright be vested in him. This gave rise to some confusion since HMSO are the guardians of Crown copyright and only the controller of HMSO can authorise assignment and licensing of Crown copyright, and yet agreements could be entered into by other government departments to disapply Crown copyright and vest copyright in the author.
What we want to achieve is the possibility that copyright in works commissioned by the Crown can be vested in the author. That, I am sure, is the wish of my noble friend Lord Mottistone and the noble Lord, Lord Lloyd, although my noble friend would doubtless prefer that the author initially has the copyright which may then be vested in the Crown.
Clause 151 ensures that the copyright in works produced at public expense are initially vested in the Crown. But, of course, the Crown may, and will in appropriate cases, assign the copyright to the author, including assignment of future copyright. I think it is true to say that the only change is that it will no longer be possible for copyright in a work produced for the Crown to be vested in the author as a result of an oral agreement. Given that oral agreements are an unsatisfactory way of dealing with such an important question as who owns copyright, your Lordships may feel that it is no bad thing that that avenue is closed. Given the way in which the Crown operates, oral agreements must be few and far between.
We believe that the taxpayer is entitled to expect that a copyright in works produced at his expense should normally be vested in the Crown. To require the Crown to acquire the copyright it needs contractually would be unnecessarily burdensome and, since it is possible for the Crown to relinquish copyright to the author in cases where this is necessary or desirable, I do not believe that Clause 151 is oppressive in the way suggested. For those reasons I resist Amendments Nos. 243 and 244.
Lord Mottistone: My Lords, that is disappointing, particularly after the long struggle we had last time. I did not hear my noble friend explain why Section 39 of the Copyright Act 1956 had been added to in this form. He did not explain in Committee and I do not think he did so this time. It seems strange that there should be this addition. However, it is late and I shall not press the point any further. I hope to look into
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this matter more carefully to see if a chink cannot be found in the armour of my noble friend between now and Third Reading. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 244 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 245:
Page 66, line 15, leave out ("or musical") and insert (", musical or artistic").
On Question, amendment agreed to.
The Lord Chancellor: My Lords, if Amendment No. 246 is agreed to, I cannot call Amendment No. 247.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 246:
Page 66, line 22, leave out subsection (4).
On Question, amendment agreed to.
[Amendment No. 247 not moved.]
Clause 152 [Copyright vesting in certain international organizations]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 248:
Pace 66, line 35, leave out from ("or) to ("section") in line 41 and insert—
(", or is published by, an international organisation to which this section applies, and
(b) does not qualify for copyright protection under section 143 (qualification by reference to author) or").
The noble Lord said: My Lords, this amendment seeks to clarify the circumstances in which copyright vests in an international organisation. As drafted, subsection (1) of Clause 152 will apply if either paragraph (a) or paragraph (b) is satisfied even though the work may qualify by some other means. The purpose of the amendment is to make clear that copyright vests in the international organisation only when it has commissioned, made or published a work which would not otherwise qualify for protection either by reference to author or to country of first publication. I beg to move.
On Question, amendment agreed to.
Clause 153 [Folklore, &c. anonymous unpublished works]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 249:
Page 67, line 19, leave out from first ("of") to end of line and insert ("unknown authorship").
On Question, amendment agreed to.
Clause 158 [Meaning of "educational establishment" and related expressions]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 250:
Page 69, line 21, leave out ("at the establishment").
The noble Lord said: My Lords, the purpose of this amendment is to ensure that the terms "teacher and pupil" apply to anyone giving or receiving instruction whether or not they are actually in the educational establishment at the time of the instruction. This follows on from the point we debated earlier about providing for Open University

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students who will be doing their work at home. I beg to move.
On Question, amendment agreed to.
Clause 159 [Meaning of publication and commercial publication]:
Lord Willis Lord Willis moved Amendment No. 251:
Page 69, line 29, after ("public") insert ("or in the case of a sound recording or film its authorised public performance or inclusion in a broadcast or cable programme service").
The noble Lord said: My Lords, I hope that the Government will see eye to eye with us on this amendment because it is of some importance and also of some common sense.
The definition of "date and place of first publication" in the 1956 Act is now outdated by modern technology. Surely it is a matter of common sense that if you actually make a film and show it in a cinema—or, as is said, in the theatre—that is the first date of its publication. The law as it stands at the moment, and the Bill as it stands, would mean something quite opposite. One could take a pirate video of that film, sell it and escape prosecution by claiming that there had not been a public showing or publication of that film. It is an important issue and I hope that the Government will consider it very seriously. I beg to move.
Lord Williams of Elvel: My Lords, I support my noble friend on this amendment. It is an important issue because the question of what "publication" means is vital in interpreting the Bill.
I am not entirely happy about the drafting of the amendment because "authorised public performance" is perhaps a slightly ambiguous expression. Nevertheless, the thrust of the amendment is right and I support my noble friend's proposal.
Lord Beaverbrook: My Lords, I should first say to the noble Lord, Lord Willis, that this amendment is grouped with Amendment No. 255. With the leave of the House, and if it is acceptable to the noble Lord, I will speak to both amendments.
I have listened carefully to what the noble Lord, Lord Willis, said in introducing these amendments. But I am afraid that they miss their target, if I have understood correctly. Publication is not a restricted act. Its relevance in this Bill is limited to the two issues of qualification for copyright protection, dealt with in Clause 144, and duration of protection, dealt with in Clause 13. The effect of the amendments would be only marginal. For instance, a film made by a producer from a non-convention country would earn copyright protection by being first shown here, which at present does not count; and a qualifying sound recording which was never issued to the public, or broadcast, could gain lengthened protection by being played in public before the end of 50 years from being made. The amendments would do nothing to meet the concerns of the noble Lord, Lord Willis. The principal beneficiaries would probably be film and record producers in countries which do not protect our own films and records.
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On the general issue of what constitutes public performance, we debated this earlier today on Clause 98 and I hope I made clear to your Lordships what is meant by the right to control public performance. I have to say to the noble Lord, Lord Willis, that he is mistaken in suggesting that liability for infringement could be escaped if the film has not been publicised. I am not sure why he believes that, but I can assure him that it is not so. For that reason, I hope the noble Lord will feel able to withdraw his amendment.
Lord Willis: My Lords, I thank the Minister and beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 252:
Page 69, line 33, at end insert—
("(1A) In this Part "commercial publication", in relation to a literary, dramatic, musical or artistic work means—

(a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or

(b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.
(1B) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.").
The noble Lord said: My Lords, in moving Amendment No. 252 I shall speak also to Amendments Nos. 253, 254 and 256.
It has been brought to our attention that this clause defining publication and commercial publication is not quite right. In particular we have considered whether issuing to the public copies of photographs or graphic works representing a work of architecture, sculpture or work of artistic craftmanship should constitute "commercial publication".
In the Bill as drafted it is not clear whether subsection (4) which defines "commercial publication" should be subject to subsection (2) which limits the definition of "publication". We felt this needed clarification and this is what we are doing here. The amendments make plain that none of the things that do not amount to publication—for example, performance of dramatic work or exhibition of an artistic work—can constitute commercial publication.
A further minor point is dealt with in Amendment No. 254. We were concerned that the expression,
"a graphic work representing a work of architecture"
could in fact relate to the original plans, which should be treated like any other graphic work. This amendment therefore limits the works of architecture in subsection (2)(b) to buildings and to models for buildings.
I should point out that this clause is concerned almost exclusively with criterion for qualification for copyright protection. It does not relate to the nature of that protection. In particular, amendments made earlier to Clauses 69 and 72 will ensure that moral rights continue to apply in the cases being excluded from commercial publication by these amendments. I beg to move.
On Question, amendment agreed to.
10.15 p.m.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 253 and 254: Page 69, line 35, at end insert ("and references to commercial publication shall be construed accordingly").
Page 70, line 3, leave out ("sculpture or") and insert ("in the form of a building or a model for a building, a sculpture or a").
On Question, amendments agreed to.
[Amendment No. 255 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 256:
Page 70, line 13, leave out subsections (3) and (4).
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 257:
After Clause 159, insert the following new clause:
("Requirement of signature in Part I: application in relation to body corporate.
.—(1) The requirement in the following provisions that an instrument be signed by or on behalf of a person is also satisfied in the case of a body corporate by the affixing of its seal—

section 70(3)(b) (assertion by licensor of right to identification of author in case of public exhibition of copy made in pursuance of the licence),

section 80(3) (assignment of copyright),

section 81(1) (assignment of future copyright),

section 82(1) (grant of exclusive licence).

(2) The requirement in the following provisions that an instrument be signed by a person is satisfied in the case of a body corporate by signature on behalf of the body or by the affixing of its seal—

section 70(2)(b) (assertion by instrument in writing of right to have author identified),

section 77(2) (waiver of moral rights).").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 268, 363 and 371, all of which deal with a rather mundane, practical matter. It is the practice of many bodies corporate to execute documents by affixing their corporate seal rather than by having the documents signed. Since legally a seal is not the same thing as a signature it is necessary to make provision to the effect that a requirement that an instrument be signed is met by the affixing of a corporate seal. These amendments do what is necessary to achieve that result. I beg to move.
Lord Williams of Elvel: My Lords, does the thrust of the noble Lord's amendment mean that a board minute of a board properly constituted, produced by the secretary of a company and signed by the chairman and normally conforming to the articles of association but without a seal, is not valid?
Lord Beaverbrook: My Lords, I understand that that is not the case.
Lord Williams of Elvel: My Lords, why does the company seal have to be affixed with any assignment of copyright?
Lord Beaverbrook: My Lords. I believe the noble Lord asked me about a board minute. A board minute would not be invalidated if it had not been sealed. On the other hand, the noble Lord referred to the matter of assignment of copyright and the answer is that the seal may be affixed but it does not have to be.
On Question, amendment agreed to.
Clause 161 [Minor definitions]:
[Amendment No. 257 A not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 258:
Page 71, line 2, at end insert—
(" "business" includes a trade or profession;").
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 259:
Page 71, leave out lines 3 and 4.
On Question, amendment agreed to.
[Amendment No. 260 not moved.]
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 261:
Page 71, line 39, lease out ("the identity of the author is unknown") and insert ("it is not possible for a person to ascertain the identity of the author by reasonable inquiry").
On Question, amendment agreed to.
Clause 162 [Index of defined expressions]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 262 to 267:
Page 72, line 23, insert—

("archivist (in sections 37 to 43)

section 37(3A)").

Page 72, line 28, at end insert—

("building

section 4(2)

business

section 161").

Page 72, line 33, second column, leave out ("161") and insert ("159").
Page 72, leave out line 34.
Page 73, line 11, column 2, leave out ("section 27") and insert
("sections 27 and 37(1B)").
Page 73, line 17, at end insert—

("librarian (in sections 37 to 43).

section 37(3A)"

The noble Lord said: My Lords, with leave I shall also speak to Amendment No. 269. I will be brief. The amendments make the necessary changes to the index of defined expressions to take account of the other amendments which have been made to this part of the Bill. I beg to move.
On Question, amendments agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 268:
Page 73, line 49, at insert—

("signed

section (Requirement of signature in Part I. application in relation to body corporate")).

On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 269 and 270:
Page 74, line 1, leave out ("(4)") and insert ("(5)").
Page 74, line 2, at end insert—

("unknown authorship (work of)

section 9(4)").

On Question, amendments agreed to.
Schedule 1 [Copyright: transitional provisions and savings]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 271:
Page 128, line 11, leave out paragraph 10 and insert—
("10.—(l) The question who was first owner of copyright in an existing work shall be determined in accordance with the law in force at the time the work was made.
(2) Where before commencement a person commissioned the making of a work in circumstances falling within

(a) section 4(3) of the 1956 Act or paragraph (a) of the proviso to section 5(1) of the 1911 Act (photographs, portraits and engravings), or

(b) the proviso to section 12(4) of the 1956 Act (sound recordings),

those provisions apply to determine first ownership of copyright in any work made in pursuance of the commission after commencement.").
The noble Lord said: My Lords, the amendment to leave out Clause 11(3) on newspaper employees necessarily led to a consequential amendment to Schedule 1. We found that the rather cumbersome structure of paragraph 10 as it now stands could be concertinaed into the much neater and more elegant paragraph set out in Amendment No. 271. I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 272 to 275:
Page 129, leave out lines 26 to 29.
Page 131, line 37, leave out ("or 210").
Page 131, line 38, leave out ("or 89").
Page 132, line 3, at end insert—
("( ) Section 89 (right to seize infringing copies, &c.) does not apply during the period of ten years referred to in sub-paragraph (1) in relation to anything to which it would not apply if the design in question had been first recorded or embodied in a design document or model after commencement.").
On Question, amendments agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 276:
Page 134, line 37, leave out ("apply after commencement only") and insert ("(conversion damages, &c.) do not apply after commencement except").
The noble Lord said: My Lords, this amendment concerns a matter of presentation rather than of substance. It arises from a request made in Committee by the noble Lord, Lord Lloyd of Kilgerran, who asked me to put into the Bill a clear statement that conversion damages are abolished. In reply to the noble Lord, my noble friend Lord Dundee explained that we were very reluctant to incorporate such an explicit statement into the substantive provisions of the Bill. Our reluctance does not arise out of any meanness of spirit but our legal advisers had real fears that awkward consequences could flow from the presence of explicit wording.
The fear is that the presence of such words might imply that without them conversion damages would be available. The abolition of conversion damages is important and we do not want to get into a position where the courts could look at some other provision in the Bill and, because there were no explicit words, hold that conversion damages apply. I am sure that this is the last thing that the noble Lord would wish to achieve.
Nevertheless, we think that we have found a way round the problem which I hope the noble Lord will find acceptable. As my noble friend Lord Dundee explained in Committee, conversion damages are also dealt with in the transitional provisions in Schedule 1. These provisions do not affect the substantive provisions on remedies in the Bill but merely indicate when and in what circumstances
1402
those substantive provisions should apply. As a result, we are confident that putting an explicit reference in Schedule 1 to conversion damages not applying will not have the undesired effects that we fear. I very much hope that the noble Lord, Lord Lloyd of Kilgerran, will accept that our fears are founded in a desire to expunge conversion damages from the copyright map and that he is satisfied with what I am proposing. I beg to move.
Lord Lloyd of Kilgerran: My Lords, I am grateful to the Minister for what he said about conversion damages. We are approaching the year of 1992 and it has been raised quite strongly that the area of conversion damages is not one that agrees with what the EC is developing for harmonisation purposes at the present time. I shall consider what the noble Lord has indicated, and I beg leave to withdraw the amendment at this stage.
The Lord Chancellor: My Lords, Amendment No. 276 was proposed by the noble Lord, Lord Beaverbrook.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 277 and 278:
Page 136, line 23, at end insert—
("(aa) artistic works other than engravings or photographs:").
Page 137, line 3, leave out sub-paragraph (6).
On Question, amendments agreed to.
Clause 165 [Consent required for recording or live transmission of performance]:
Lord Lloyd of Kilgerran Lord Lloyd of Kilgerran moved Amendment No. 279:
Page 75, line 17, at end insert—
("which shall not be unreasonably withheld").
The noble Lord said: My Lords, with the leave of the House, I should like to speak to Amendment No. 281. I apologise for my little mistake on a previous amendment.
This is an important amendment regarding broadcasters. Clause 165 is part of the section dealing with performers' rights. In subsection (1) it says:
"A performers' rights are infringed by a person who without his consent".
It then continues to state the acts which might constitute infringement. My amendment provides that the performer should not unreasonably withhold his consent.
I am informed that one consent withheld by a performer, no matter how insignificant his role in the broadcast may be, could jeopardise the use of the programme, and the sale of such a programme could not be made. I have been given as an example an expensive production of Anthony and Cleopatra, which may not be sold due to the withholding of the consent by the 10th spear carrier. Furthermore, it is often the case that at the time of receiving such consents, certain types of technology and media were unknown and could not have been anticipated. Thus, when the modern production company of "Super Channel" launched its satellite service to Europe,

1403
consent had to be obtained for performances dating back to the 1960s.
It is not the object of broadcasters to override performers' rights, but that where consents are asked for, such consents should not he unreasonably withheld. There is a considerable and active market in secondary sales of British programmes to overseas broadcasters and other users. Unless the "not … unreasonably withheld" amendment is included, programme makers will continue to suffer a restraint upon their abilities to sell their programmes abroad.
As I have already said, broadcasters do not want to run roughshod over performers' rights; they merely want such protection as would provide that consent cannot be unreasonably withheld. I beg to move.
Lord Beaverbrook: My Lords, since we debated in Committee rather similar amendments moved by the noble Lord, Lord Tordoff, we have discussed the issue with the broadcasting organisations. They have explained to us that one of their main concerns is the possibility that performers who have consented to having their performance recorded or filmed might, nonetheless, invoke rights under the Bill to prevent further reproductions of the original fixation from being made without their consent.
Broadcasters point out that the exploitation of a broadcast programme over a period of time often requires further reproductions to be made. Master copies deteriorate and if a programme is repeated it is usual to make a further copy. Such further copies are also needed where programmes are to be marketed abroad. Therefore, as matters stand there is already some degree of freedom for broadcasters to make further reproductions without the performers' consent of an original recording made for broadcasting purposes, which was made with his consent.
That situation flows from the exception in Schedule 2 paragraph 12 which allows such recordings to be made without consent, provided that they are made solely for broadcasting purposes and are destroyed within 28 days of the first broadcast. It appears to us that that exception is as applicable to repeat broadcasts as it is to original broadcasts. We need to explore further with broadcasters the degree to which the exception in Schedule 2 meets their needs. If that exception turns out to be inadequate, we shall consider, without commitment, what else might be done; but our present hope is that it will prove to be sufficient.
The amendments of the noble Lord, Lord Lloyd of Kilgerran, go a lot further than that rather special point raised by the broadcasters. They would subject performers to compulsory licensing, not only with regard to reproductions of the type I have mentioned but also with regard to the first recording of a performance, the live broadcasting of a performance and the inclusion of a performance live in a cable programme. That obligation would even apply to public performance or broadcasting of recordings made without the performers' consent. As I said in Committee, to go that far would be wrong and would undermine the whole basis of performers' protections as it has existed since 1925. Even under present law,
1404
which provides criminal remedies only for unauthorised exploitation of a performance, the performer does not have to show reasonable grounds in order to refuse consent to such exploitation.
Surely, if a performer does not want his performance to be recorded or broadcast live, and does not want an illicit recording of his performance imported, sold, rented or distributed, that should be the end of the matter. His right to prevent such exploitation should be an absolute right similar to a copyright owner's right to prevent unauthorised exploitation of his works. He should not have to prove reasonable grounds for refusing consent. I do not see that the performer's right to control the first recording of a performance need be an undue obstacle to broadcasters. Consent can be sorted out in the initial contract.
I hope that the noble Lord will be willing to withdraw his amendment, because it is not acceptable as it stands.
10.30 p.m.
Lord Lloyd of Kilgerran: My Lords, I am obliged to the Minister. I understand that discussions with broadcasters are proceeding on certain aspects of this part of the Bill. In those circumstances, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 280:
Page 75, line 18, leave out ("private purposes") and insert ("his private and domestic use").
The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 283, 287, 289, 297, 305 and 309.
When we debated Part II in Committee, the noble Lord, Lord Morton of Shuna, objected strongly to Clause 189, which he maintained was obvious and failed to define what was meant by "private performance". Although I made no commitment at the time, we reflected on the point and concluded that some tidying was desirable.
The course that we propose is to use in Part II, instead of the expression "private purposes", the expression "private and domestic use" which is already used in Part I. Thus the phrase:
"otherwise than for private purposes".
now becomes:
"otherwise than for private and domestic use".
That change also has the incidental effect of reverting to the terminology of the performers' protection Acts.
We feel that the meaning of "private and domestic use" is sufficiently clear, without further definition, to allow us to delete Clause 189 altogether, as suggested by the noble Lord, Lord Morton. I beg to move.
Lord Morton of Shuna: My Lords, all I can say is, thank you very much. It makes the clause much clearer.
On Question, amendment agreed to.
Clause 166 [Infringement of performer Is rights by use of recording made without consent]:
[Amendments Nos. 281 and 282 not moved.]
Clause 167 [Infringement of performer's rights by importing, possessing or dealing with illicit recording]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 283:
Page 75, line 36, leave out ("private purposes") and insert ("his private and domestic use").
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 284:
Page 75, line 38, leave out ("trade or").
The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 290, 292, 298, 299, 306 and 308.
The amendments will probably seem familiar to your Lordships. I am afraid that due to an oversight they were not included in the group of amendments to which I spoke under Clause 23. As I said then, it is not our intention that the professions should be treated more favourably when it comes to questions of copyright infringement. These amendments, like the earlier ones, ensure that there is no discrimination between the professions and those engaged in trade or business. In the clauses in Part II relating to secondary infringement, we have replaced "trade or business" with the word "business". Business is defined as including a trade or profession, thereby removing any doubt that the professions are caught by the provisions of the Bill. I beg to move.
Lord Williams of Elvel: My Lords, we are grateful to the Minister for introducing the amendments. They correspond to similar amendments that he moved earlier. I too was surprised that they did not occur in the grouping which crossed the frontiers of the Bill, but I assumed that the arrival of the noble Viscount, Lord Long, on the Government Front Bench meant that he would be responding to this particular amendment.
On Question, amendment agreed to.
[Amendments Nos. 285 and 286 not moved.]
Clause 169 [Consent required for recording of performance subject to exclusive contract]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 287:
Page 76, line 36, leave out ("private purposes") and insert ("his private and domestic use").
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
[Amendment No. 288 not moved.]
Clause 171 [Infringement of recording rights by importing, possessing or dealing with illicit recording]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 289:
Page 77, line 13, leave out ("private purposes") and insert ("his private and domestic use").
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 290:
Page 77, line 15, leave out ("trade or").
The noble Lord said: My Lords, I beg to move.
On Question, amendment agreed to.
Clause 173: [Transmission of rights]:
Lord Morton of Shuna Lord Morton of Shuna moved Amendment No. 291:
Leave out clause 173 and insert the following new clause:
("Transmission of rights.
173. The rights conferred by this Part are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property").
The noble Lord said: My Lords, this was an amendment which for some reason was not grouped with Amendment No. 148 which would seem to have been its bedfellow. It is virtually the same point. It seems absurd that somebody could specifically direct that his performing right be transferred by will, but if he leaves everything to one person that does not carry the performing right. I hope that the Minister will at least take this away to consider it. In the hope that that will be the answer, I beg to move.
Lord Beaverbrook: My Lords, I am not quite sure why this amendment was not grouped with the previous one.
Lord Morton of Shuna: Perhaps again the noble Viscount——?
Lord Beaverbrook: My Lords, there could be all sorts of explanations, but I am sure that my noble friend is not responsible for groupings at this late hour.
The Bill considerably extends the protection given to performers under the Performers' Protection Act by giving them explicit civil rights for the first time. However the purpose remains as before: to protect performers against the unauthorised exploitation of their performances with the additional protection for those with whom they have exclusive recording contracts. The Bill does not create a new full-blown proprietary right which may be freely traded like a copyright. A performer's rights remain something personal to him or her. The reason for this is that a performance is not like a work. A work is something of permanence, and it accordingly makes sense to treat it as property capable of assignment.
A performance however is purely momentary. Once made it is gone for ever. With one exception, the performer's rights relate solely to the moment of performance; they are the rights not to be recorded or broadcast without consent. If there is no infringement of those rights at the time, there is nothing further that can be the subject of the rights capable of assignment. The right not to suffer further exploitation of recordings not consented to is merely a continuation of the right not to suffer infringing exploitation of the orginal moment of performance.
You cannot have property in the right not to suffer continuing injury. The exception which I mentioned a moment ago is of course the right to control subsequent recording of recordings made with

1407
consent. But it would be odd for only that element of the whole bundle of performance rights to be an item of property. For this reason, the rights are not assignable or transmissible during the lifetime of the performer.
We decided however that it would not be right to exclude altogether the possibility of the rights passing to another when the performer dies, but we have stipulated that there must be a specific bequest if this is to happen. We believe this to be the appropriate course. I would point out that without this limitation the difficulties for anyone wanting, for example, to obtain the necessary consent to re-record a recording of a performance by someone who had died would be considerably increased because residuary bequests and property passing on intestacy are often spread far and wide.
I am informed that far from it being for us to blame my noble friend Lord Long for the groupings going wrong in this case, I am told that the groupings were separate because the Opposition, through the usual channels, asked for them to be separate.
I have to say therefore that I am afraid this amendment is not acceptable to the Government and
I hope that the noble Lord will be able to withdraw it.
Lord Morton of Shuna: My Lords, on the question of groupings I tried to separate Amendment No. 291 from Amendment No. 307. No doubt when we come to Amendment No. 307 the Minister will explain why it was to be grouped with Amendment No. 291 with which I could see no relevant connection. But be that as it may. I would have thought that it should be grouped with Amendment No. 148. However, let us leave groupings to others.
The difficulty is that Clause 173(2) suggests that a testamentary disposition can specifically transmit a performing right. I am far from clear, in the ordinary case of somebody who leaves everything he possessed to his widow, whether that is a specific direction or not. It would certainly be very odd if it was not. But it does not seem to come within the phrase. Therefore, I should have thought that the amendment I propose covers the situation more happily and makes clearer what is meant.
The idea that someone, say, a clown, who has a specific way of doing certain acts, should have to instruct a solicitor how to specifically leave to his widow this act, that act and the next act, seems to me quite absurd when all he wants to do is to leave all those rights to his widow so that she is able to obtain whatever money she can from those rights. I should have thought that that is what the Minister and the Government would want to happen if there are any property rights in these performing rights. I hope that the Minister might reconsider his position. However, as it is rather late, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 176 [Right to delivery up of illicit recording]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 292:
Page 78, line 22, leave out ("trade or").
On Question, amendment agreed to.
Clause 177 [Right to seize illicit recordings]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 293 to 296:
Page 78, line 33, after ("may") insert (", if the following conditions arc complied with,").
Page 78, line 34, leave out subsection (2) and insert—
("(1A) The conditions are—

(a) that before any recording is seized notice of the time and place of the proposed seizure is given to a local police station, and

(b) that after any recording has been seized the person by whom it is seized leaves the place where it was seized a notice in the prescribed form stating by whom or on whose authority the seizure was made and the grounds on which it was made.

(2) A person may not in exercising the right conferred by this section enter any premises or use any force.").
Page 78, line 44, after ("hovercraft") insert ("; and
"prescribed" means prescribed by order of the Secretary of State.
(5A) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").
Page 78, line 46, after ("and") insert ("forfeiture").
On Question, amendments agreed to.
Clause 178 [Criminal liability for making, dealing with or using illicit recording]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 297 to 299:
Page 79, line 5, leave out ("private purposes") and insert ("his private and domestic use").
Page 79, line 7, leave out ("trade or").
Page 79, line 10, leave out ("trade or").
On Question, amendments agreed to.
[Amendments Nos. 300 and 301 not moved.]
Clause 182 [Offence by body corporate: liability of officers]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 302:
Page 81, line 20, after ("director,") insert ("manager,")
On Question, amendment agreed to.
Clause 186 [Countries enjoying reciprocal protection]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 303:
Page 83, line 7, leave out from ("may") to ("is") in line 21 and insert—
("by Order in Council designate as enjoying reciprocal protection under this Part —

(a) a Convention country, or

(b) a country as to which Her Majesty is satisfied that provision has been or will be made under its law giving adequate protection for British performances.

(2) A "Convention country" means a country which is a party to a Convention relating to performers' rights to which the United Kingdom is also a party.
(3) A "British performance" means a performance—

(a) given by an individual who is a British citizen or resident in the United Kingdom, or

(b) taking place in the United Kingdom.

(4) If the law of a country provides adequate protection only for certain descriptions of British performance, an Order under subsection (1)(b) designating that country shall contain provision limiting to a corresponding extent the protection afforded by this Part in relation to performances connected with that country.
(5) The power conferred by subsection (1)(b)").
The noble Lord said: My Lords, with the leave of your Lordships I shall speak also to Amendments Nos. 359 and 360. In Committee we had a brief debate on Clause 184 when the noble Lord, Lord Morton of Shuna, suggested introducing into Part II a reference to the 1961 Rome Convention for the Protection of Performers. Producers of Phonograms and Broadcasting Organisations. I said that I did not think it would be appropriate to refer to a particular international convention by name. I did, however, say that it might be worth introducing the concept of a convention country in a more general sense, in the same way as Clause 148 does for copyright.
Amendment No. 303 does just this for Part II. A convention country means a country which is a party to a convention relating to performers' rights to which the United Kingdom is also a party. Such a country may be designated under Clause 186 without more, as in the case of a copyright convention country. Only in the case of non-convention countries must Her Majesty be satisfied that there is adequate protection for British performances before making a designation.
Amendments Nos. 359 and 360 to Clause 236 are consequentials to bring the drafting into line with Clause 186 as I am proposing to amend it. I beg to move.
On Question, amendment agreed to.
Clause 187 [Territorial waters and the continental shelf]:
[Amendment No. 304 not moved.]
Clause 189 [Meaning of "for private purposes"]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 305:
Leave out Clause 189
The noble Lord said: My Lords, I beg to move Amendment No. 305 formally.
On Question, amendment agreed to.
Clause 190 [Expressions having same meaning as in copyright provisions]:
Lord Beaverbrook Lord Beaverbrook moved Amendment No. 306:
Page 84, line 18, at end insert ("business"),
The noble Lord said: My Lords, I beg to move this amendment formally.
On Question, amendment agreed to.
Lord Williams of Elvel Lord Williams of Elvel moved Amendment No. 307:
Page 84, line 32, after ("services)") insert ("and section 80(2) to (4), and sections 81 to 83 (dealings with rights in copyright works)").
The noble Lord said: My Lords, I beg to move Amendment No. 307. I believe that the wording is self-explanatory and no doubt the Government have studied it. I beg to move the amendment formally.
Lord Beaverbrook: My Lords, the amendment standing in the names of the noble Lords. Lord Williams of Elvel and Lord Morton of Shuna, provides that rights and performances may be dealt with in the same way as copyright. It seems to me that the amendment stands of falls with Amendment No. 291 to Clause 173, which we discussed earlier. If there is no assignability of rights in performances (as there will not be without the noble Lord's amendment to Clause 173) there is nothing for Amendment No. 307 to bite on and it is superfluous. Almost everything in Clauses 82 to 84 is inappropriate to rights and performances; and this only serves to confirm my resistance to the earlier amendment. I hope the noble Lord will feel able to withdraw the amendment.
Lord Williams of Elvel: My Lords, I am grateful to the noble Lord, but I do feel there is a certain inconsistency in treatment of different parts of the Bill and it is a matter on which, as the noble Lord knows, we concentrated in our discussions and to sonic extent in Committee. We shall return to some of these amendments at a later stage of the Bill, as may our colleagues in another place. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 191 [Index of defined expression]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos.308 and 309:
page 85, line 4, at end insert—

("business

page 85, leave out line 15.

section 190(1) and section 161)").

The noble Lord said: My Lords, with leave, I beg to move Amendments Nos. 308 and 309 en bloc.
On Question, amendments agreed to.
Schedule 2 [Rights in performances: permitted acts]:
Lord Beaverbrook Lord Beaverbrook moved Amendments Nos. 310 to 312:
Page 138, line 10, leave out from second ("by") to end of line 12 and insert—
("the copying of a recording of a performance in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying is done by a person giving or receiving instruction.
(1A) The rights conferred by Part II are not infringed—

(a) by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination, or

(b) by anything done for the purposes of an examination by way of communicating the questions to the candidates.").

Page 138, line 16, leave out from beginning to ("a") in line 22 and insert—
("(1) The playing or showing of a sound recording, film, broadcast or cable programme at an educational establishment for the purposes of instruction before an audience consisting of teachers and pupils at the establishment and other persons directly connected with the activities of the establishment is not a playing or showing of a performance in public for the purposes of infringement of the rights conferred by Part II.
(2)").
Page 140, line 17, leave out from ("part)") to end of line 19 and insert—
("—

(i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast or programme, or

(ii) [at prices exceeding those usually charged there and which are partly attributable to those facilities.").

The noble Lord said: My Lords, these amendments are all consequential amendments, to bring the exceptions to rights and performances in Schedule 2 into line with the exceptions to copyright in Chapter III, as we amended them a few days ago. They flow respectively from the changes made to Clause 32 by Amendment No. 79, to Clause 34 by Amendment No. 82 and to Clause 64 by Amendment No. 110. There is no change of substance other than that required to meet the earlier amendment that I have mentioned. Obviously, it is desirable that the exceptions in Part II should parallel those in Part I. I beg to move.
On Question, amendments agreed to.
Viscount Long: My Lords, I beg to move that further consideration on Report be now adjourned.
Moved accordingly, and, on Question, Motion agreed to.

Keble College Oxford Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments were considered and agreed to.

Selwyn College Cambridge Bill [H.L.]
Returned from the Commons agreed to with amendments; the amendments were considered and agreed to.
House adjourned at eleven minutes before eleven o'clock.