HL Deb 25 February 1988 vol 493 cc1326-50

5.21 p.m.

Consideration of amendments on Report resumed on Clause 71.

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 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 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 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 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 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 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 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 moved Amendment No. 130: Page 29, line 29, leave out ("or").

On Question amendment agreed to.

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 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 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 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 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 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 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 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 moved Amendment No. 139: Page 30, line 29, leave out ("trade or").

On Question, amendment agreed to.

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 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 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 Edmontonmoved 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 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, 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 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 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.
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 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 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 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 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.

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: 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 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 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 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 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 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, 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 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 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 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 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.