§ 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.1296
§ Clause 65 [Reception and re-transmission of broadcast in cable programme service]:
§ 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".1297 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 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.1298
§ 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 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 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 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.1299
§ 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 1300 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 moved Amendment No. 119:
Page 27, leave out lines 23 to 26.
§ On Question, amendment agreed to.
§ 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 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 moved, as an amendment to Amendment No. 121, Amendment No. 122:
In subsection (2)(b), at end insert (", or
(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, 111.1305
|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.|
|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].|
|Gallacher, L.||Prys-Davies, L.|
|Graham of Edmonton, L. [Teller].||Rathcreedan, 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.|
|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.|
|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.|
|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.|
|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.|
§ 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 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 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
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 1311 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.
1312 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 1313 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 1314 assurances which he has given, I am happy to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 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.