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

HL Deb 25 February 1988 vol 493 cc1359-411

Consideration of amendments on Report resumed.

Clause 89 [Right to seize infringing copies, &c.]:

[Amendment No. 157 not moved.]

Lord Beaverbrook moved Amendment No. 158: Page 36, line 27 after ("may") insert (", if the following conditions are complied with,").

The noble Lord said: My Lords, in speaking to Amendment No. 158 in my name, with your Lordships' permission I should like to speak also to Amendments Nos. 159, 161, 162, 273, 274, 275, 293 to 296, 340, 341, 342, and 346. This long series of amendments concerns the seizure provisions in Clauses 89, 177 and 210 of the Bill and stems from the debates in Committee and other discussions we have had on the subject.

I think it was widely recognised in our debates that seizure is a delicate and difficult matter, and I am indebted to all those noble Lords who have contributed helpful and constructive suggestions, both in the Chamber and outside. Those suggestions have certainly been of great assistance to us when we were considering what should be done.

One point that we have had to consider is that since the 1956 Copyright Act was enacted there have been a number of developments in the common law, in particular in relation to Anton Piller orders. It was suggested that such orders provide a perfectly adequate remedy and, in general, I am bound to say that this is probably right. However, this kind of action will be effective only where the identity of the defendant is known and where he has a fixed address where the order can be served. Many itinerant and other street traders are difficult to identify and we believe that a seizure provision is the only realistic way in which action can he taken in such cases. Given that such traders account for a good deal of the copyright piracy which goes on in this country, we believe that appropriate seizure provisions are necessary. However, we have been convinced that they should be limited to cases where a seizure is not from any premises.

Another major objection which has been raised against the seizure provisions is that they are a recipe for violence. To some extent this is met by the provision in the existing clauses prohibiting the use of force and the fact that the right of seizure given by the existing law has not, so far as we are aware, ever led to violence. And as I have indicated, we are proposing that those wishing to seize infringing articles cannot enter any premises to do so. Nevertheless, the issue is an important one and we are therefore proposing a number of procedural changes in order to reduce the risk of violence to the absolute minimum.

First, we are proposing that the local police must be informed of the time and place of a proposed seizure before any action is taken. In this respect I should apologise for changing the amendments that I originally tabled. The change is a small one in that now we are proposing that rights owners must notify a local police station rather than any police station in the police area in question. The reason for this is that police areas are often quite large and it is obviously desirable that it is the local police who are notified. It will then be a matter for the police to decide on the basis of their local knowledge and experience whether or not they should become involved.

Secondly, we are proposing to require the person taking action to hand over a notice stating by whom, or on whose authority, the action is being taken and the grounds on which it is being taken. In order to ensure that this letter sets out the information in the clearest possible terms, we are proposing to take powers allowing us to specify by statutory instrument the form the notice should take.

Finally, we have given some thought to the ease and certainty with which infringing copies can be properly identified as such. Clearly, it is desirable that seizure provisions should apply only where identification is not a problem. In our view this will normally be the case with those items sold by street traders which infringe copyright and the rights in performances such as pirate, prerecorded audio casettes.

However, the same is not true of design right. The exceptions to design right, particularly the must-fit and must-match exceptions, will mean that many articles which involve a certain amount of copying will still be perfectly legitimate. Indeed, in a few cases identical copies would be legitimate, particularly in the spare parts field, which is where street traders are most likely to operate. All of this will inevitably give rise to uncertainty and increase the likelihood of unjustified seizures. As a result, we do not think that seizure provisions should be provided in the case of design right and we are proposing that a power of seizure—limited in the ways I have described—should apply only to copyright and the right in performances.

I accept that a right of seizure is a powerful weapon, but I hope that I have been able to show that in certain limited areas it is a necessary weapon in the fight against piracy. I also hope that the considerable restrictions and limitations proposed in this series of amendments have met all the concerns which have been voiced. I beg to move.

Lord Williams of Elvel

My Lords, the House will be grateful to the noble Lord for setting out in great detail how the Government have arrived at the new series of amendments which the noble Lord has tabled. In general, we on this side of the House are sympathetic to the aims of the noble Lord and the Government and to the amendments. I do not wish to raise matters of principle on these amendments in view of the sensitivity of the subject, but there are one or two rather small points about which I should like to ask the noble Lord.

The first point relates to the introduction of the expression "local police station". I wonder whether the noble Lord could be a little more precise about what a local police station is in law.

The second point is slightly more substantial. I note from subsection (1A)(b) of Amendment No. 159 that the procedure of leaving a notice takes place only after a copy of an article has been seized and the notice is left at the place where the article was seized. The noble Lord quite rightly said that one is dealing largely with street traders. Those street traders are perhaps not licensed to trade or do not have a fixed patch in which they trade; they may trade in one place one hour and in another place in another hour, and tomorrow and the following day they may trade somewhere else.

I wonder whether the provision that a notice is to be left on the pavement, as it were, subsequent to the seizure is sufficient or whether there should be some arrangement whereby at the time of seizure a notice is produced at the place where the offending street trader happens to be committing an offence in the circumstances which the noble Lord described.

I emphasise that these are points of detail and not points of principle and that we would support the point of principle. The third point of detail is that we can approve the idea that the notice should state by whom and on whose authority the seizure was made and the grounds on which it was made. But does the notice have to state explicitly that there was a court order to that effect? If there was no court order to that effect, what are the grounds on which the notice was delivered? In this respect there is an important dividing line between the civil law and the criminal law. It is important to understand exactly how such a notice, which may be left on the pavement or wherever, might be framed—whether it is to be in the form of a notice under a court order or with authority from the court or whether it will simply be a notice stating: "I am acting under the provisions of the Copyright, Designs and Patents Act".

Having put those three questions, which emphasise again concern matters of detail and not of principle, we are happy with the amendments that the noble Lord has brought forward. They could perhaps be improved, in the light of what the noble Lord feels about what I have said, but we certainly will not oppose them.

Lord Lloyd of Kilgerran

My Lords, I welcome the improvements shown by these amendments. In particular I am very pleased to note that the Government have removed altogether the powers of seizure in respect of designs. In those circumstances I do not propose to delay the House any further tonight except to echo the suggestions made by the noble Lord who has just spoken.

Lord Beaverbrook

My Lords, I am grateful to the noble Lords, Lord Williams of Elvel and Lord Lloyd of Kilgerran, for the welcome that they have given to the principle of these amendments. I am not averse to looking at the detail. Indeed, as your Lordships know, I welcome all constructive suggestions.

In reply to the noble Lord, Lord Williams, who raised the question of the meaning of "local police station", in most circumstances it is to be hoped that it would be the police station that covers that area. I think that it is a matter of ordinary language; it is not a specialised question of law but a simple question of fact. In any particular case it will be obvious what is a local police station and in the event of a dispute the courts would have no difficulty. Obviously it would be desirable for the police station in question to be the one that usually covers that area—where the bobby on the beat, if you like, is based. I am not entirely sure how those arrangements are made, particularly in conurbations, but I certainly think that there would be no problem in determining what is a local police station. However, we shall look at that point.

Turning to the noble Lord's second question about the terminology used in respect of leaving a notice after the seizure, I think that he has probably made a very good point. In our earlier discussions I had in mind that the notice should be left at the time of seizure. That point is one which we ought to consider. It is certainly not our intention that there should be any time lag whatever, and the expression "after" does not limit the length of time which could be allowed to elapse before the notice is served. We shall look at that point.

Thirdly, the noble Lord asked whether the notice should state that a court order had been obtained or not obtained or on what grounds the seizure was being carried out. Usually the grounds would not involve a court order because a court order would supersede any need to rely on Clauses 89 and 177. The grounds will be a statement of the infringement in respect of which the seizure is being effected. We attach considerable importance to the way in which this notice is drawn up. The noble Lord may recall that I said that we want to make the drafting absolutely clear.

Lord Williams of Elvel

My Lords, I am most grateful to the noble Lord for his replies to the questions that I asked. Before he sits down I should like to suggest that he may wish to give a certain amount of attention to the last question. It is difficult to present a notice at the point of contact, as it were, rather than "after"—one can leave any sort of notice on the pavement. However, when one is making the seizure it is difficult to present a notice other than one which is drafted in clearly defined terms specifying the powers under which the notice is issued. It seems to me to be important for a street trader—if those are the people with whom we are dealing—to be assured that the notice is in the prescribed form, and the prescribed form should be one which is clearly understood by him. That is my point.

Lord Beaverbrook

Yes, I agree with that, my Lords. Street traders may not be legal experts—probably they are not—and of course the notice should be written in clear language which they can understand; it should not be in language which would require them to employ a lawyer to interpret for them. Clear language is highly desirable. I take the points made in that respect. I hope that I have now answered the points that have been raised on this large group of amendments.

On Question, amendment agreed to.

8.15 p.m.

Lord Beaverbrook moved Amendment No. 159:

Page 36, line 29, leave out subsection (2) and insert—

("(1A) The conditions are—

1. (a) that before any copy or article is seized notice of the time and place of the proposed seizure is given to a local police station, and
2. (b) that after any copy or article has been seized the person by whom it is seized leaves at the place where it was seized a notice in the prescribed form stating by whom or on whose authority the seizure was made and the grounds on which it was made.

(2) A person may not in exercising the right conferred by this section enter any premises or use any force.").

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 160: Page 36, line 37, leave out ("fixed or").

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 161:

Page 36, line 38, at end insert (", and "prescribed" means prescribed by order of the Secretary of State.

(5A) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 162: Page 36, line 40. after ("and") insert ("forfeiture").

On Question, amendment agreed to.

Clause 93 [Remedies for infringement of moral rights]:

Lord Williams of Elvel moved Amendment No. 163: Page 38, line 13, leave out subsection (2).

The noble Lord said: My Lords, this amendment stands in my name and that of my noble friend Lord Morton of Shuna. Clause 93 of the Bill covers remedies for infringement of moral rights and subsection (2) of that clause excludes compensation for injured feelings.

We believe that our obligation under the Berne Convention should not be limited by the exclusion of compensation for injured feelings. We find it difficult to understand why this restriction has been inserted. The only reason that we can identify is the possibility that there may be trivial actions for damages on the infringement. The general machinery of the law—the requirement of consulting a lawyer or barrister and a number of other people—is such as to discourage frivolous actions in the first place. Secondly, we argue that the courts are well able to deal with frivolous actions if they occur in any event.

Thirdly, we would argue that if some kind of specific control is required it should be possible to give the court a discretion. Fourthly, we would argue that if there are cases where injured feelings should give rise to significant compensation, it is wrong to deprive such persons of their entitlement on the ground that other actions may be trivial. Lastly, we would argue that Clause 93(2) is out of line with other statutes where specific provision is made for awards to reflect injured feelings; for instance, in Section 66(4) of the Sex Discrimination Act 1975. In the Race Relations Act 1976, Section 57(4) states: For the avoidance of doubt it is hereby declared that damages in respect of an unlawful act of discrimination may include compensation for injury to feelings whether or not they include compensation under any other head".

If there is to be an amendment, I should have thought that the clause dealing with the remedies for infringement of moral rights should include Clause 87(2) of the Bill. That gives the court a discretion to award "additional" damages in certain circumstances. We do not think that injured feelings are to be taken lightly. This is an important point on which we would like sympathy from the Government. I beg to move.

Lord Lloyd of Hampstead

My Lords, I should like briefly to support this amendment. As I understand it, the right to claim damages for infringement of the moral rights set out in Section 69 will either be a tort, or will certainly he in the nature of a tort. It is the general principle in tort law in contrast to contract law that damages may be obtained for injured feelings. I can find no special reason why it should be excluded in this case.

One is contemplating that this should be awarded only in a proper case. Our courts are very experienced in deciding in tort cases whether there has been satisfactory evidence of injured feelings, and the appropriate sum to award. A judge deals with these matters and not a jury. Accordingly, unless there is some compelling reason that is not apparant to me at the moment why such compensation should be excluded, I should certainly favour leaving the ordinary principles of the law to take their course.

Lord Mottistone

My Lords, on a slightly different point, should my noble friend wish to resist this amendment and to leave in subsection (2) perhaps I may suggest that the description of Clause 69 needs to be amended as in Amendment No. 147. If he is considering that matter he might perhaps note that the same treatment is required in Clause 71(1), Clause 76(1), Clause 78(1), Clause 79(1), Clause 84(1) and subsection (1) (a) of this clause. I expect that there may be other places in the Bill that need such treatment but I thought that I would rub it in a little.

Lord Lloyd of Kilgerran

My Lords, what has moved me to support this amendment is that, as has been indicated by the noble Lord, Lord Williams, so many modern Acts of Parliament contain this phrase. I feel that this amendment should be supported.

Lord Beaverbrook

My Lords, this subsection dealing with damages for the infringement of the moral right to claim authorship was amended in Committee to show that damages could be given for loss of reputation but not for injured feelings. It appears that the noble Lord, Lord Williams of Elvel, and the noble Lord, Lord Morton of Shuna, are not content with that change and would prefer there to be no restriction at all on the damages available for the infringement of moral rights.

It is apparent to me that your Lordships' opinion on balance is strongly in favour of this amendment. I believe that this is the kind of matter where the Government should give full consideration to the views expressed in your Lordships' House, and that we should try to ensure a fair balance between opposing parties. There is no better indication of where that balance should lie than in the views of noble Lords. Given those views as they have just been expressed, I shall be happy to accept the amendment.

Lord Williams of Elvel

My Lords, I am most grateful to the noble Lord. I believe that he has taken the right course of action for the Government. I can only applaud his good sense in accepting the amendment; and his graciousness in admitting that sometimes on this side of the House we have some important points to make.

On Question, amendment agreed to.

[Amendment No. 163A not moved.]

Clause 94 [General presumptions as to subsistence of copyright]:

Lord Beaverbrook moved Amendment No. 164: Leave out Clause 94.

The noble Lord said: My Lords, when we debated in Committee the amendment to Clause 94 moved by the noble Lord, Lord Lloyd of Kilgerran, I said that we should like to reconsider the clause altogether to see whether we could find a better answer. Our reconsideration of the clause has led us to propose leaving it out altogether; and we have found that the better answer already exists in the law, in the way in which cases may be pleaded in court.

As noble Lords are aware, our concern is to ensure that the defendant in copyright proceedings should not be able to put the plaintiff to the difficulty and expense of proving subsistence and ownership of copyright merely by a denial in his pleadings. The present presumption, contained in subsection (1) of Section 20 of the 1956 Act, is too weak, since it lasts only until the defendant puts subsistence and ownership into issue by denying them. He can do this without any evidence; but the plaintiff is then compelled to produce evidence in support of the subsistence and ownership of copyright in the work in question. In some cases this can be expensive and onerous. We thought that the right thing to do was what is provided in Clause 94: the plaintiff does not have to produce any evidence until the defendant does so. We are, however, now persuaded that it would not be right to compel the defendant to produce evidence to contradict something when he does not know what he is contradicting. Until the plaintiff specifies the facts upon which he relies to support his claims of subsistence and ownership, the defendant is entirely in the dark. No party to litigation should be required to demonstrate the negative of something entirely within the knowledge of the other party.

It is therefore easy to say that Clause 94 should not remain as it stands. The more difficult question is what should appear in its place. The answer, we have concluded, is "nothing". We have come to the conclusion that Section 20(1) of the 1956 Act should not have been there in the first place. It would make no difference to the law, either in England or in Scotland, whether or not it was there. This is because in both systems the plaintiff's allegations are treated as established without any need for evidence unless the defendant denies them. Section 20(1) says no more than that, and we now realise that there is no point in saying it in this Bill.

What, however, of the need to protect the plaintiff against the defendant's unsupported denials? In England, the answer already exists in the procedure known as "notice to admit facts". The plaintiff can serve notice upon the defendant requiring him to say whether he admits the plaintiff's allegations, in this case his allegations about the subsistence and ownership of copyright. If the defendant does not admit them, the cost to the plaintiff of successfully proving them must be paid by the defendant whatever the outcome of the proceedings as a whole, even if the plaintiff loses the action and has to pay all the other costs. Noble Lords will appreciate that this is a considerable deterrent against a defendant making unsubstantiated challenges to the plaintiff's claims of subsistence and ownership of copyright.

In Scotland, I understand that it is always open to one party in proceedings to call upon the other party to specify in his pleadings the facts and evidence upon which he proposes to rely in support of any denials of fact. Failure to do so may lead to the court refusing to allow proof on such unspecified denials or even rejecting them. The reason for this is that the parties should always have fair notice of the case against them. It seems to me, and I hope that your Lordships will agree, that this is the same principle which we sought to advance originally in proposing Clause 94, but we are now content that in Scotland, as in England, nothing need be said in the Bill to achieve this result.

With that explanation, I beg to move that Clause 94 be left out.

Lord Williams of Elvel

My Lords, I am pleased that the Government have cut the Gordian knot because it was becoming complicated on presumptions of subsistence of copyright. The only minor complaint I have is that the noble Lord has consistently referred to the law of England as opposed to the law of England and Wales. However, he makes a distinction between England and Wales, and Scotland.

We have thought long and hard about Clause 94. I suspect that had the noble Lord on behalf of the Government not brought forward the amendment, we might have tabled a similar amendment either leaving out the clause or amending it in such a way that it would have been almost nugatory. I am happy to accept what the noble Lord has said. I believe that he has arrived at the right conclusion. We shall not oppose the amendment.

Lord Lloyd of Kilgerran

My Lords, at the Committee stage I moved an amendment and spoke strongly against having presumptions of this kind. In doing so I was trying to have the law returned to its earlier position and I wonder whether the Government have now gone too far. In copyright the general presumptions have been permitted since at least 1911. There is the Copyright Act 1911, Section 6(3). Those provisions were repeated in Section 20 of the 1956 Act. At the Committee stage I indicated the procedures that were available for quick action against pirates, known as the Anton Piller orders. I am now advised by practising members of the Bar that if the clause is abolished entirely it would be difficult to exercise and obtain an Anton Piller order in the court. Therefore, some of the applications— even ex parte orders—will become more difficult in the absence of the presumptions.

I try to remember my position some years ago when I was practising at the Bar. The notice to admit can be exercised only in certain circumstances and it is not therefore such a valuable help in dealing with pirates. I take this opportunity of adding a caveat by questioning whether the Government have not gone too far in abolishing the whole clause. Instead of abolishing the clause, I suggest returning to the amendment which I tabled, reinstating the presumptions as they existed in former law and which worked well.

Lord Lloyd of Hampstead

My Lords, I should like to speak in support of what has been said by the noble Lord, Lord Lloyd of Kilgerran. I believe that he has put his finger on some important weaknesses which may emerge if Clause 94 is simplicita dropped, particularly with regard to ex parte proceedings. In those circumstances there are no pleadings and one has no knowledge of whether the defendant will admit or deny. There is no appropriate procedure for serving notices to admit.

I also believe that, in the course of an action, it may prove to be that the situation of the plaintiff is, to some extent, weakened by reason of the fact that he cannot rely upon a presumption. The presumption has stood in our legislation since the 1911 Act, I believe; it is certainly contained in the 1956 Act. As far as I am aware, no one has suggested that it created inconvenience.

At this stage I should like to ask the Government to reserve the position in order to make sure that by eliminating this clause they do not create an unfortunate lacuna in the law which will emerge only in the course of subsequent litigation. It may well be that on further consideration it is correct that the clause is unnecessary. However, at the moment I am not totally persuaded. I believe that caution is in order.

Lord Beaverbrook

My Lords, our understanding is that there is no practical difference between Section 20(1) of the 1956 Act and having nothing at all. In other words, I believe that the only choice is between Clause 94 as it stands and leaving it out. It was the noble Lord, Lord Lloyd of Kilgerran, among others, who was instrumental in persuading us that the latter course was right. For that reason I seek to have the amendment accepted by your Lordships.

The presumptions in Clauses 95 and 96 will nearly always provide enough to support an Anton Piller order, or other ex parte order. On an application for an ex parte order the plaintiff will be able to swear to the subsistence and ownership of copyright. Unless there is reason to doubt the truth on the face of the affidavit the court will at that stage accept it. I believe that we have got this point right but if our understanding were to change for any reason we shall return to it. However, I believe that we are right.

On Question, amendment agreed to.

Clause 95 [Presumptions relevant to literary, dramatic, musical and artistic works]:

Lord Beaverbrook moved Amendment No. 165: Page 39, line 17, leave out ("is unknown") and insert ("cannot be ascertained by reasonable inquiry").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 166: Page 39, line 23, leave out subsection (6).

On Question, amendment agreed to.

Clause 98 [Criminal liability for making or dealing with infringing articles, &c.]:

Lord Beaverbrook moved Amendment No. 167: Page 40, line 17, leave out ("trade or").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 168 and 169: Page 40, line 19, leave out ("trade or") Page 40, line 24, leave out ("trade or")

On Question, amendments agreed to.

[Amendment No. 170 not moved.]

Lord Beaverbrook moved Amendment No. 171: Page 40, line 34, leave out ("trade or")

On Question, amendment agreed to.

Lord Lloyd of Kilgerran had given notice of his intention to move Amendment No. 172:

Page 40, line 35, at end insert— ("( ) A person commits an offence who—

1. (a) makes any apparatus or device which is designed or adapted, or the publication of any information which is calculated, to enable or assist persons to circumvent technical devices designed to prevent or impede the making of infringing copies of a particular description of copyright work, or
2. (b) has such an article in his custody or under his control, knowing or having reason to believe that it is to be used to make infringing copies.").

The noble Lord said: My Lords, I spoke to this amendment when speaking to Amendment No. 64 with which the Government expressed some sympathy. I shall not move the amendment.

[Amendment No. 172 not moved.]

[Amendments Nos. 173 and 174 not moved.]

Lord Willis had given notice of his intention to move Amendment No. 175: Page 41, line 3, at end insert ("For the purpose of this section the words "in public" should include in any place to which the public are admitted whether by payment for admission or otherwise, and any showing where two or more persons are present other than on a private social occasion and the diffusion of programmes at the same time to a number of persons shall be deemed to be a playing or showing in public.").

The noble Lord said: My Lords, I am grateful to the Minister for writing to me about this matter, which we discussed at great length in Committee. I am satisfied with the arguments he made in his letter to me. a copy of which is in the Library.

[Amendment No. 175 not moved.]

[Amendment No. 176 not moved.]

Clause 99 [Forfeiture of infringing copies, &c.]:

[Amendments Nos. 177 to 180 not moved.]

Clause 100 [Search warrants.]

[Amendments Nos. 181 and 182 not moved.]

Lord Beaverbrook moved Amendment No. 183: Page 42, line 16, leave out ("fixed or")

On Question, amendment agreed to.

Clause 101 [Offence by body corporate: liability of officers]:

Lord Beaverbrook moved Amendment No. 184: Page 42, line 20, alter ("director,") insert ("manager,")

The noble Lord said: My Lords, with the leave of your Lordships, I shall speak also to Amendments Nos. 302, 383, 392, 397 and 401, as the issue is the same in each of these cases. The effect of all the provisions which are the subject of these amendments is that where a body corporate has committed an offence, certain individuals connected with the body who have consented to, or connived at, the offence are also guilty of it. The present amendments will add "managers" to the list of individuals covered.

An amendment to Clause 272 of equivalent effect has already been agreed by your Lordships in Committee. The relevant proceedings are reported in Hansard for 12th January at cols. 1190, 1217 and 1218. At that time my noble friend Lord Dundee undertook to make corresponding amendments to the other party of the Bill which relate to offences by bodies corporate. That is what we are doing now.

Lord Williams of Elvel

My Lords, Clause 101 has given us some trouble as I believe we explained in Committee. The definition of, director, secretary … or a person purporting to act in any such capacity", has given us some trouble but as was explained in Committee by the noble Lord this phraseology is used in other statutes and therefore, we cannot object to it.

While assenting to, and welcoming, the inclusion of the word "manager" in Clause 101, I ask the Minister to give a definition of what a "manager" is. We can understand under the Companies Act what a "director" is. We can understand under the Companies Act what a "secretary" is—that is, a secretary of a company—but I am not sure that in the Companies Act there is a definition of what a "manager" is. If there is no such definition—and I may be wrong about this—1 believe we should have a definition of what a "manager" is so that the law can be entirely clear on the subject.

8.45 p.m.

Lord Beaverbrook

My Lords, the term "manager" is a relic from earlier years when the organisational structure of companies tended to be different from what it is today. It was once common for the board of directors of a company to delegate the running of the business of the company to a "manager" who would not himself have a seat on the board. However, in most modern companies the person or persons responsible for running the business of the company are likely to have been appointed to the board of directors. As a result, in most cases a person who falls within the term "manager" will anyway fall within a provision of the type under discussion by virtue of being a director, I think that the point that the noble Lord raised about "manager" being——

Lord Williams of Elvel

My Lords, I understand everything that the Minister has said which is common ground. I am concerned about the definition of a "manager" who is not a director, a secretary or an official as defined under the Companies Act.

Lord Beaverbrook

My Lords, I understand the point of the noble Lord but I wish to put on record the origins of the word "manager". I believe that the word "manager" is well understood. I am not sure whether or not the term is defined in the Companies Act. If we feel that it is necessary to have a definition in this Bill of the word "manager", we will immediately set about drafting a suitable amendment. However, the expression "manager" has been defined by the courts as referring only to senior management and I believe that we will have to rely on case law here because there will be so many different circumstances and perhaps it will have to he left to the courts to decide.

Lord Williams of Elvel

My Lords, does the Minister realise that by inserting the word "manager"—to which I am sure we will all agree—he has opened up something of a Pandora's Box in the definition which may have implications for future companies legislation?

Lord Beaverbrook

My Lords, I repeat that the courts have no difficulty in deciding who constitutes a manager within a business or company. As I said to the noble Lord, there will be so many different instances and it may well be that it is difficult or impossible to define exactly who constitutes a manager within a certain company. I think that the Pandora's Box to which the noble Lord referred has probably already been opened by many other Acts which are phrased in the same terms.

On Question, amendment agreed to.

Clause 102 [Infringing copies may be treated as prohibited goods:

Lord Lloyd of Hampstead moved Amendment No. 185: Page 42, line 32, leave out ("printed")

The noble Lord said: My Lords, this is a small amendment arising in the context of Clause 102 which is concerned with, The owner of the copyright in a published literary, dramatic or musical work".

who, under the provisions of that clause, is entitled to give notice in writing to the Commissioners of Customs and Excise and in the course of that notice to request the commissioners to treat as prohibited goods printed copies of the work which are infringing copies.

My point is that on the face of it there does not seem any obvious reason why this entitlement should be limited only to printed copies. For example, in the case of musical works one thinks that they may be incorporated in a disc or record or cassette or something of that nature. In those circumstances there does not seem any obvious reason for a distinction to be drawn between the printed copy on the one hand and other kinds of copy on the other. Therefore, I feel that one is justified in seeking to amend the clause in the absence of any good explanation by eliminating the word "printed" and leaving the text to refer to copy simpliciter. I beg to move.

Lord Mottistone

My Lords, so far as I am concerned, this amendment is a follow-on from my Amendment No. 237 discussed in Committee on 10th December and I am returning to the charge on it. At that time the Minister said, at col. 426: The existing provisions have not been used to any great degree and any sudden increase would impose undue burdens on the limited resources of Customs and Excise". I should add that my advisers have been advised by practising Customs officers on what to do here. Perhaps I may suggest that the provision as we would have it has not been used because as far as the import of most infringing works is concerned it has not existed. It is only printed copies of works that currently can be prohibited. My noble friend went on to say: It is relatively easy for a customs official to identify copies of a…film or record. These days, literary, dramatic and musical works are now recorded on the same medium as sound recording and films; that is, laser read compact discs. Presumably my noble friend, in making those earlier remarks, felt that it was relatively easy for a Customs official to identify copies recorded on compact discs.

In addition, I am told that American Customs officials are able to identify infringing copies held on semi-conductor chips, with a little help from the owners of the copyright in the mask work. This would seem to be a task several degrees more difficult than identifying discs or tapes with a label identifying a literary or musical work. I suggest to my noble friend that our Customs officials are probably every bit as expert as their American counterparts.

As to the strain on resources, Clause 103 makes it clear that the copyright owner has to pay the full cost of the service and we are sure that, where necessary, they would provide and give the necessary backup of technical support. A further point is that if the Customs and Excise cannot cope, this is a service that could be put out to tender and privatised.

There is another dimension to the case for copyright owners being able to request prohibition of the import of infringing copies, no matter what form the infringement may take; that is, the Government's commitment to the establishment of minimum standards of intellectual property rights on the current GATT round. We understand that the prohibition of the import of infringing goods of all sorts stands high on that agenda.

I press these points because my noble friend's answer to my earlier amendment centred around whether the Customs could cope. I think that this is sufficiently important not to restrict it just to the infringement of written copy but to all sorts of work in the sense that it would cover all types of computer program, and so on. It is extremely important that "infringing" should cover as widely as possible the modern types of' goods. Therefore, I hope that my noble friend can think again about this matter and give perhaps a rather more encouraging reply than was given on the last occasion.

Lord Beaverbrook

My Lords, an identical amendment was tabled, but not moved, in Committee. The effect would be to allow Customs and Excise to seize infringing copies which are not in printed form; computer programs being the most obvious example.

As I explained to the Committee when discussing other amendments to this clause, Clause 102 makes significant changes to the law in the field of films and sound recordings, but the resource implications for Customs and Excise mean that this is as far as we can go.

When we announced our intention in the White Paper to extend the import prohibition provisions in the 1956 Act to films and records we indicated that such provisions could create difficulties for Customs and Excise.

The existing provisions have not been used to any great degree and any sudden increase would impose undue burdens on the limited resources of Customs and Excise. It was for this reason that we said in the White Paper that, in the case of films and records, the copyright owner would have to give notice of the expected time and place of the infringing importation.

To extend the import provisions even further, as proposed in this amendment, would not be a practical proposition even if resources were not already fully used. It is relatively easy for a Customs official to identify copies of' a book, film or record; usually it is self-evident. It is clearly much more difficult to determine whether a floppy disk carrying a computer program is a copy or not. The benefit to be gained by extension of the provisions to other types of copyright work cannot justify the costs that would be incurred. As I told the Committee, I am afraid that the extension of the present law now provided by Clause 102(3) is as far as we can go.

I am aware that my noble friend Lord Mottistone has already heard the arguments that I have just advanced and he says that he is unlikely to accept them. However, I have to tell him that in our view those arguments remain valid. Given that I believe it would be impractical to try and check computer programs at our ports, even if resources were available, I regret I cannot accept this amendment and if the noble Lord does not feel able to withdraw it, I must resist it.

Lord Mottistone

My Lords, before my noble friend sits down, has he taken the precaution of investigating what is done in the United States in this area? If not, would he care to do that before this subject is completely dropped?

Lord Beaverbrook

My Lords, I have to say that I answer at this Dispatch Box for the Government of the United Kingdom, not the United States. The resources available to our Customs and Excise are what I have to take into account. We shall endeavour to do the best we can within the resources available. Any further burden upon Customs and Excise would not be acceptable to the Government at this time.

Lord Lloyd of Hampstead

My Lords, in view of the strong reliance that the Government place upon the practical consideration, I do not feel that it would be appropriate to do other than ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 105 [Licensing schemes and licensing bodies]:

Lord Beaverbrook moved Amendment No. 186: Page 44, line 35, leave out from ("the") to ("which") and insert ("terms on").

The noble Lord said: My Lords, this is another large group of amendments and I shall speak also to Amendments Nos. 192, 194, 196 to 200, 210, 215 to 218 and 222.

As I acknowledged in our debate on Chapter VII on 14th December, there are certain inconsistencies throughout this chapter in the way in which references to charges, terms and conditions are expressed. I said then that we had some housekeeping to do and these amendments are the result of our efforts to improve matters. I hope that they will not detain us long.

The approach that we have adopted in revising the drafting is to use the word "terms" as the generic expression. The word "charges" is used only when it is necessary to mention them separately and in such a way as to make it clear that they are only a kind of term. The amendments to Clauses 105, 110, 112, 129 and 131, therefore, are intended to bring the terminology of those clauses into line with that already used in Clauses 107 and 114 to 118.

In carrying out these revisions it also became apparent that a similar inconsistency applied to the expression "conditions and qualifications" in Clause 130 and that this was also best replaced by the word "terms". I beg to move.

Lord Williams of Elvel

My Lords, the Government's housekeeping has been extremely effective, if I may say so, and has produced a very large group of amendments which, quite rightly, seek to clear up and clarify the drafting of this particular chapter. We are perfectly happy with their conclusions.

I have a slight doubt about Amendment No. 199 to Clause 112 where we seem to get away slightly from the point. The original drafting of subsection (4) of Clause 112 refers to the order made by the tribunal.

The order remains in force and the person in whose favour the order is made shall if he,

1. "(a) complies with the terms and conditions specified in the order, and
2. "(b) pays to the operator of the scheme any charges required by the order".

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

1. "(a) pays to the operator of the scheme any charges payable in accordance with the order …
2. "(b) complies with the other terms specified in the order".

Having pleaded for consistency in the drafting at Committee stage, I wonder whether the expression "terms" in paragraph (b) gives sufficient importance to the possible qualifications that the tribunal may make in its order. It places the payments in supremacy as the first item. Then it says, "By the way, there are some terms specified in the order". I wonder whether the tribunal in its deliberations in any number of cases which we cannot at present foresee may say, "The most important thing about the order is that the subject of the order has to do certain things and comply with certain norms of behaviour. As a subsidiary item in this order he might have to pay a penny or two".

That is my only problem with the noble Lord's proper housekeeping; namely, whether in this particular case as regards an order of the tribunal it is right to subsume everything under the expression "terms" in paragraph (b) of his Amendment No. 199.

9 p.m.

Lord Beaverbrook

My Lords, as I have said, we have very carefully revised and reviewed the earlier drafting. I believe that in this case the order of events mentioned by the noble Lord is entirely unimportant. They must be the way round now expressed in the amendment so as to give the expression "other terms" some sensible meaning. I do not believe that a tribunal or a court would be influenced by the order. The two paragraphs are of practically equal status.

On Question, amendment agreed to.

[Amendment No. 187 not moved.]

Clause 106 [Scope of general control of licensing schemes]:

Lord Beaverbrook moved Amendment No. 188: Page 45, line 14, leave out ("and")

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 189:

Page 45, line 18, at end insert ("; and (c) all licensing schemes in relation to the copyright in sound recordings, films or computer programs so far as they relate to licences for the hiring of copies to the public;").

On Question, amendment agreed to.

[Amendment No. 189A not moved.]

Lord Beaverbrook moved Amendment No. 190:

Page 45, line 20, at end insert— ("(2) In subsection (1)(c) "hiring" includes any arrangement under which a copy is made available for a consideration in money or money's worth on terms that it will or may be returned.").

On Question, amendment agreed to.

Clause 110 [Application for grant of licence in connection with licensing scheme]:

Lord Beaverbrook moved Amendment No. 191: Page 46, line 38, leave out ("excepted") and insert ("excluded")

The noble Lord said: My Lords, with leave I shall also speak to Amendments Nos. 193 and 195. When we debated Clause 110 in Committee the noble Lord, Lord Morton of Shuna, and the noble and learned Lord, Lord Denning, both criticised subsection (3) on grounds of obscurity. They suggested that it did not seem to make sense to regard something as excepted from a licensing scheme because of its similarity to cases within that scheme. I hope that these amendments will make the meaning clearer.

The point to bear in mind is that the word "cases" does not refer to "works" which may be outside a licensing scheme but types of licensing situations which may not be covered by it. For example, where a scheme covers the use of the licensing body's repertoire in village halls but not in church halls. Substituting the word "excluded" for the word "excepted" should help to bring out the fact that we are dealing with cases where a particular class of potential licensee has been prevented from having access to the works in question under the terms of the scheme. This exclusion is unreasonable.

Thus it might be held that the circumstances in which church halls required a licence to use music or records were sufficiently similar to those in which village halls might do so for it to be unreasonable not to treat them in the same way. I should emphasise that this particular example is for illustration only. I am not suggesting that church halls actually are excluded from using the repertoire of the principal collecting societies such as the Performing Right Society.

I stress again that subsection (2) does not deal with the situation where a work or a group of works is excluded from a scheme or where no scheme exists. As regards the Copyright Tribunal having jurisdiction in such situations—and we must remember that in general it has no power to force an individual author or composer to license use of his work—this is dealt with elsewhere; for example in Clauses 107, 114 and 126. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 192: Page 46, line 44, leave out ("charges, terms or conditions") and insert ("terms")

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 193 to 196: Page 47, line 2, leave out ("excepted") and insert ("excluded"). Page 47, line 4, leave out ("and conditions"). Page 47, line 7, leave out from ("is") to ("dealt") in line 9 and insert ("so similar to those in which licences are granted under the scheme that it is unreasonable that it should not be"). Page 47, line 12, leave out from ("terms") to ("as") in line 13.

On Question, amendments agreed to.

Clause 112 [Effect of order of tribunal as to licensing scheme]:

Lord Beaverbrook moved Amendments Nos. 197 to 200: Page 48, leave out lines 1 to 5 and insert—

1. "(a) pays to the operator of the scheme any charges payable under the scheme in respect of a licence covering the case in question or, if the amount cannot be ascertained, gives an undertaking to the operator to pay them when ascertained. And
2. (b) complies with the other terms applicable to such a licence under the scheme.").

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

1. "(a) pays to the operator of the scheme any charges payable in accordance with the order or, if the amount cannot be ascertained, gives an undertaking to pay the charges when ascertained, and
2. (b) complies with the other terms specified in the order,").

Page 48, line 23, leave out ("and conditions").

On Question, amendments agreed to.

Clause 114 [Reference to tribunal of terms of proposed licence]:

Lord Lloyd of Kilgerran moved Amendment No. 201: Page 49, line 2, leave out ("with the consent of the licensing body").

The noble Lord said: My Lords, we are now entering an area which deals with the general control of licences granted by licensing bodies. This clause deals with reference to the tribunal of terms of the proposed licence. In those circumstances one should have expected that it would be possible to have access to the tribunal if one were the person who was trying to get a licence and that the consent of the licensing body would not be necessary.

Therefore, my amendment is directed to omitting the words, with the consent of the licensing body",

so that the prospective licensee can go to the Copyright Tribunal without the consent of the licensing body. This was the position under Section 27(3) of the 1956 Act. That did not make the consent of the licensing body a precondition of the right to have access to the then Performing Right Tribunal.

Let us suppose that a broadcaster needs to acquire a licence to use music. I am instructed in this matter by ITV. The broadcaster would have to deal with the controller of the rights, the licensing body, which is a monopoly, and so could not appear before the tribunal. The tribunal would then deal with the terms of the licence, and possibly the terms of the licence would be totally unacceptable to the proposed licensee. Therefore, when the tribunal had given its judgment on the matter it would be necessary for the licensee to go back to the tribunal and say that the terms were totally unacceptable.

It seems common sense that at the initial stage the licensing body and the proposed licensee should be allowed to go before the tribunal, or that the matter should be referred to the tribunal, without the consent of the licensing body. I ask that the words, with the consent of the licensing body

should be omitted so that the tribunal can consider the proposed terms of the licence at an early stage. I beg to move.

Lord Morton of Shuna

My Lords, I strongly support the amendment. It seems ludicrous that in a dispute which presumably has been negotiated for some time a right of veto is given to one side of the dispute to go into the tribunal, which is the court to decide the issue. I think there is every aspect of common sense in the amendment.

Lord Beaverbrook

My Lords, in moving the amendment the noble Lord, Lord Lloyd of Kilgerran, has drawn attention to the special needs of broadcasters in the situation where a licence to use, for example, the music controlled by the Performing Right Society has expired without agreement being reached on the terms of a new licence. I understand that such situations have indeed arisen on several occasions in the past and have been dealt with satisfactorily by the Performing Right Tribunal.

It is argued that the PRS is a monopolist and it is simply not reasonable for it to be able totally to deny access by broadcasters to the works it controls when they decline to meet its terms. There must be a means by which the broadcasters can gain access on arbitrated, equitable terms if agreement cannot be reached.

I understand that in the cases I have referred to, the PRS, while not positively consenting to a reference to the tribunal, raised no objection and indeed was quite content for one to take place. The broadcasters, however, say that they should not have to rely on the good will of whatever monopoly licensing body they may be dealing with. On a future occasion consent, tacit or otherwise, may not be forthcoming. The PRS is too powerful, and the need of broadcasters for copyright music too important, for their right of access to the tribunal to he anything less than certain in such a situation.

Although in Committee we questioned whether an amendment on the lines proposed by the noble Lord was necessary, I am happy to say we are persuaded that we should look again at this matter. We accept that the need of broadcasters and anyone else in the situation I have described for a clear right of access to the tribunal must be met. However, although the noble Lord's amendment may seem a simple and complete solution, it is not quite as straightforward as that.

I must point out that if we accept this amendment it will be possible for would-be licensee to take any licensing body to the tribunal, even quite small licensing bodies controlling the works of just two or three authors or composers, and for the tribunal to force on the body a set of terms which the body would not wish to accept. There may be a case for imposing a compulsory licence on monopoly bodies like the PRS but this may not be true for all licensing bodies. The amendment could have a quite sweeping effect and result in fairly small licensing bodies being obliged to grant licences on terms on which refusal to do so would be perfectly reasonable. Compulsory licensing outside the context of monopoly could well be in breach of' our convention obligations.

We therefore need to think further about how the concerns expressed by the noble Lord can be met without introducing an unacceptable degree of compulsory licensing or breaching our convention obligations. It may be that any amendment in this area ought to apply to Clause 107 as well as to Clause 114. We shall also need to look at Clauses 112 and 117 to see that where licensing bodies are unwilling to grant licences at all other than on their own terms, orders made under those clauses do not bear on them unfairly. I hope that in the light of the undertaking I have given the noble Lord will be willing to withdraw the amendment.

Lord Lloyd of Kilgerran

My Lords, I am most grateful to the Minister for his reply; and on that undertaking, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 117 [Effect of order of tribunal as to terms of licence]:

Lord Beaverbrook moved Amendment No. 202: Page 50, line 2, leave out ("in accordance with the licence") and insert ("for the licence in accordance with the order").

The noble Lord said: My Lords, with leave, I shall speak also to Amendments Nos. 202, 203 and 204 which are to remedy an inconsistency of wording as between subsection (2) of Clause 117 and subsections (2) and (4) of Clause 112. These came to light when we were checking for consistency in the use of the words "terms, charges and conditions". The problem is that Clause 117 addresses two different cases: where there is no licence actually granted, and where there is a licence whose terms have been superseded in part but not in whole by an order of the tribunal. The amendments make clear that the word "licence" in subsection (2) means the licence as established, confirmed or varied by the order. I beg to move.

On Question, amendment agreed to.

9.15 p.m.

Lord Beaverbrook moved Amendments Nos. 203 and 204: Page 50, line 6, at end insert ("as confirmed or varied by the order"). Page 50, line 9, leave out ("the terms specified in the order") and insert ("those terms").

On Question, amendments agreed to.

Clause 118 [Licensing schemes: general considerations]:

Lord Beaverbrook moved Amendment No. 205: Page 50, line 12, after ("scheme") insert ("or licence").

The noble Lord said: My Lords, with the leave of the House, I shall also speak to Amendments Nos. 206 and 207. When we debated this clause in Committee, I undertook to consider a similar amendment moved by my noble friend Lord Cullen of Ashbourne. This we have now done, and I am pleased to say that we accept the suggestion made by my noble friend and the noble Lord, Lord Williams of Elvel, that the criteria in Clause 118 should apply when the tribunal considers references relating to licences, as well as when they consider references or applications relating to licensing schemes. I beg to move.

Lord Beaverbrook moved Amendments Nos. 206 and 207: Page 50, line 14, after second ("or) insert ("other") Page 50, line 19, after ("scheme") insert ("or licence")

The noble Lord said: I beg to move.

Lord Mottistone

My Lords, on behalf of my noble friend Lord Cullen of Ashbourne and the CBI I should like to thank my noble friend the Minister for including these amendments.

On Question, amendments agreed to.

[Amendment No. 208 not moved.]

Clause 125 [Implied indemnity in certain schemes and licences for reprographic copying]:

Lord Beaverbrook moved Amendment No. 209:

Page 52, line 6, leave out from ("to") to ("with") in line 12 and insert— ("(a) schemes for licensing reprographic copying of published literary, dramatic, musical or artistic works, of the typographical arrangement of published editions, and (b) licenses granted by licensing bodies for such copying. where the scheme or licence does not specify the works to which it applies")

The noble Lord said: My Lords, it was pointed out in Committee that the expression "general licence" was used inconsistently in Clauses 125 and 129. That defect is easily cured by removing the expression "general scheme" altogether from Clause 125. That is the purpose of Amendment No. 209. I beg to move.

On Question, amendment agreed to.

Clause 129 [Inquiry whether new scheme or general licence required]:

Lord Beaverbrook moved Amendment No. 210: Page 55. leave out lines 21 and 22 and insert ("any terms, other than terms as to charges payable on which authorisation under the new provision should be available.")

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

On Question, amendment agreed to.

Clause 130 [Statutory licence where recommendation not implemented]:

Lord Beaverbrook moved Amendments Nos. 211 and 212: Page 55, line 30, leave out ("for the making of new provision"). Page 55, line 36, at end insert ("in accordance with the recommendation").

The noble Lord said: My Lords, in moving Amendment No. 211, I shall also speak to Amendment No. 212. These are both minor drafting improvements to Clause 130 which make no change in substance. Amendment No. 211 removes some superfluous words. Amendment No. 212 makes clear that if one of the conditions in subsection (2) is met then provision is to be regarded as having been made in accordance with the recommendation of any inquiry held under Clause 129. I beg to move.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 213: Page 55, line 46, at end insert (", and the terms of the scheme or licence accord with the recommendation.").

The noble Lord said: My Lords, this amendment is a little more than a mere drafting point. If an inquiry under Clause 129 recommends that new provisions should be made by way of scheme or general licence authorising the making of reprographic copies for an educational establishment, it must be regarded as having been made if one of the actions mentioned in subsection (2) of Clause 130 has been taken. However, under the Bill as drafted the scheme or general licence in question does not necessarily have to be in accordance with the recommendation of the inquiry. That is of course not right. The new provision should be regarded as made only if the terms of the scheme or general licence accord with the recommendation of the inquiry. That is the effect of Amendment No. 213. I beg to move.

On Question, amendment agreed to.

Lord Lloyd of Hampstead moved Amendment No. 214: Page 56, line 6, leave out ("free of royalty but, as respects other matters").

The noble Lord said: My Lords, this is a small amendment. It arises where there has been a recommendation for a new scheme or general licence under Clause 129, and that recommedation is not implemented. Thereupon, the Secretary of State may make an order. Under Clause 130(4) there is provision that, The order shall provide for the licence to be free of royalty but. as respects other matters, subject to any conditions and qualifications specified

and so on.

My simple objection is to the words "free of royalty". Although in many cases it may be appropriate for the order to provide for a scheme which does not allow for a royalty, there may be cases where a royalty would be appropriate. It does not seem sensible that one should have a provision which absolutely excludes the possibility of a royalty. My proposal is that the words "free of royalty", and those immediately thereafter, should be omitted, thereby allowing the Secretary of State discretion to provide for a royalty in the occasional case where that may he appropriate, rather than totally to deprive him of the power so to do. I beg to move.

Lord Morton of Shuna

My Lords, I should have thought that there is much to be said for the amendment. The words that the noble Lord proposes to remove unnecessarily restrict the terms of the order. If the Secretary of State wishes to have the order free of royalty, it does not need those words to achieve it. Therefore, if he wishes the order to be free of royalty—I see that the noble and learned Lord the Lord Advocate has raised at least one eyebrow [it is possible to do so by making it, subject to any conditions and qualifications specified in the recommendation".

That would seem to cover having the order free of royalty. Therefore, I support the amendment.

Lord Beaverbrook

My Lords, the argument that copyright owners should not be forced to suffer expropriation of their rights is a powerful one, and indeed the whole purpose of this Bill is to prevent that. But it is really going too far to say that an order made by the Secretary of State under Clause 130 would impose expropriation on rights owners. The circumstances in which such an order may he made are circumscribed. It may be made only where an inquiry has taken place under Clause 129 and has resulted in a recommendation for a new licensing scheme or general licence. Even if the order is made, it does not apply once a certified licensing scheme has been established in accordance with the recommendation, or once there is a general licence which has been granted, referred to the tribunal, or offered to educational establishments and refused by them without a reference.

In other words, a royalty-free licence will be available only if the reaction of copyright owners to an order of the Secretary of State, following a recommendation for a new licensing scheme or general licence, is to do nothing. If their response to the recommendation is to set up a scheme and have it certified, or to offer a general licence, educational establishments will not be able to make copies without paying royalties. The purpose of Clauses 129 and 130 is not to expropriate, only to make works available for educational purposes. Copyright owners can always make sure that they will be paid.

The noble Lord, Lord Lloyd of Hampstead, referred to a scheme being ordered free of royalty. I wonder whether there is a misunderstanding here. The Secretary of State's orders would relate to the case where there is no scheme, as I have just explained. However, in the light of the argument which I have just put forward, I hope that the noble Lord will be willing to withdraw his amendment.

Lord Lloyd of Hampstead

My Lords, although I confess that I am not totally persuaded by the eloquent defence which the Minister has put forward for retaining these words, I do not feel that I would be justified in pressing this upon your Lordships. Therefore I beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendments Nos. 215 to 218: Page 56, line 7, leave out ("conditions and qualifications") and insert ("terms"). Page 56, line 8, leave out ("conditions and qualifications") and insert ("terms"). Page 56, line 10, leave out ("condition-) and insert ("term"). Page 56, line 17, leave out ("conditions or qualifications-) and insert ("terms").

The noble Lord said: My Lords, with the leave of the House, I shall move Amendments Nos. 215, 216, 217 and 218 en bloc.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 219: After Clause 130, insert the following new clause:

("Royalty for luring of sound recordings, films and computer programs.

.—(1) An application to settle the rate of royalty payable in pursuance of section (Hiring of sound recordings, films and computer programs) (hiring of sound recordings, films and computer programs) may be made to the Copyright Tribunal by the copyright owner or the person claiming to be treated as licensed by him.

(2) The Tribunal shall consider the matter and make such order as it may determine to be reasonable in the circumstances.

(3) Either party may subsequently apply to the Tribunal to vary the order, and the Tribunal shall consider the matter and make such order confirming or varying the original order as it may determine to be reasonable in the circumstances.

(4) An application under subsection (3) shall not, except with the special leave of the Tribunal, be made within twelve months from the date of the original order or of the order on a previous application under that subsection.

(5) An order under subsection (3) has effect from the date on which it is made or such later date as may he specified by the Tribunal.").

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

On Question, amendment agreed to.

Clause 131: [Certification of licensing schemes]:

[Amendment No. 220 not moved.]

Lord Beaverbrook moved Amendment No. 221:

Page 56, line 29, at end insert— (aa) section (Hiring of sound recordings, films and computer programs) (hiring of sound recordings, films and computer programs)")

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 222: Page 56, line 37, leave out ("terms and conditions subject to") and insert ("other terms on")

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

On Question, amendment agreed to.

[Amendment No. 223 not moved.]

Lord Beaverbrook moved Amendment No. 224: Page 56, line 40, after ("35,") insert ("(Hiring of sound recordings, films and computer programs)'')

The noble Lord said: My Lords, this is a minor amendment consequential on the introduction of the rental right. I should have spoken to it in the grouping dealing with rental rights under Clause 18. I beg to move.

On Question, amendment agreed to.

Clause 132: [The Copyright Tribunal]:

Lord Beaverbrook moved Amendment Nos. 225 to 228:

Page 57, line 17, leave out from ("Tribunal") to end of line 18

Page 57, line 23, leave out ("shall not be appointed") and insert ("is not eligible for appointment as")

Clause 133, page 58, line 3, leave out from ("proceedings,") to end of line 10 and insert— ("a person may be appointed to discharge his duties for a period not exceeding six months at one time or, as the case may be, in relation to those proceedings.

(5) The appointment shall be made—

1. (a) in the case of the chairman or deputy chairman, by the Lord Chancellor, who shall appoint a person who would be eligible for appointment to that office, and
2. (b) in the case of an ordinary member, by the Secretary of State:)

and a person so appointed shall have during the period of his appointment, or in relation to the proceedings in question, the same powers as the person in whose place he is appointed.")

Page 58, line 12, leave out ("subsection (3) or (4)") and insert ("this section")

The noble Lord said: My Lords, with leave I shall move Amendments Nos. 225, 226, 227 and 228 together. These amendments are to meet a criticism made at Committee stage by the noble Lord, Lord Williams of Elvel, which I promised we would look into. We agree that Clause 133 as drafted does not make sufficiently clear who is meant by the term "duly qualified person" in relation to substitute members to be appointed to the tribunal when a member is temporarily unable to perform his duties. We have reorganised subsections (4) and (5) so as to improve matters. It is now provided that in the case of the chairman or deputy chairman, the substitute must be appointed by the Lord Chancellor and must be a person who would be eligible as under Clause 132(3). In case of an ordinary member, the substitute is to be appointed by the Secretary of State and no specific qualifications are required. Amendments Nos. 226 and 228 are consequential. Amendment No. 225 is a minor drafting improvement. I beg to move.

Lord Morton of Shuna

My Lords, I merely intervene to say thank you on behalf of my noble friend Lord Williams of Elvel. These amendments certainly make the position much clearer.

On Question, amendments agreed to.

9.30 p.m.

Clause 135 [Constitution for purposes of proceedings]:

Lord Beaverbrook moved Amendment No. 229:

Page 58, line 29, leave out subsection (2) and insert— ("(2) If the members of the Tribunal dealing with any matter are not unanimous, the decision shall be taken by majority vote; and if, in such a case, the votes are equal the chairman shall have a further, casting vote.").

The noble Lord said: My Lords, this amendment is to make plainer the position regarding votes and casting votes in proceedings of the Copyright Tribunal. I am not saying that the Bill as drafted is necessarily obscure but we felt that there was scope for some improvement. I beg to move.

On Question, amendment agreed to.

Clause 136 [Jurisdiction of the tribunal]:

Lord Beaverbrook moved Amendment No. 230: Page 59, line 9, leave out ("and").

On Question. amendment agreed to.

Lord Beaverbrook moved Amendment No. 231:

Page 59, line 11, at end insert— ("(e) on an application under section (Royalty Or luring of sound recordings. films and computer programs) (royalty for hiring of sound recordings, films or computer programs).").

On Question, amendment agreed to.

[Amendment No. 232 not moved.]

Clause 143 [Qualification by reference to author]:

Lord Beaverbrook moved Amendment No. 233:

Page 62, line 18, leave out from ("; but") to end of line 20 and insert— ("where a work qualifies for copyright protection only under this section, only those authors who satisfy those requirements shall be taken into account for the purposes of— section 11(1) and (2) (first ownership of copyright: entitlement of author or author's employer), section 12(1) and (2) (duration of copyright: dependent on life of author unless work of unknown authorship), and section 9(4) (meaning of "unknown authorship") so far as it applies for the purposes of section 12(2), and section (Anonymous and pseudonymous works of which author reasonably presumed to hare been dead for 50 years) (no infringement of copyright where author's identity cannot be ascertained but he is reasonably presumed to have been dead for 50 years).").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 234: Page 62, line 34, leave out from ("film,") to ("it") in line 35 and insert ("when").

On Question, amendment agreed to.

Clause 144 [Qualification by reference to country of first publication]:

[Amendments Nos. 235 and 236 not moved.]

Clause 148 [Application of this Part to countries to which it does not extend]:

[Amendment No. 237 not moved.]

Lord Beaverbrook moved Amendment No. 238: Page 65, line 1, after ("country") insert ("or another member State of the European Economic Community").

On Question, amendment agreed to.

Lord Lloyd of Kilgerran moved Amendment No. 239: After Clause 149, insert the following new clause:

("Protection for British citizens.

.—(1) If it appears to Her Majesty that the law of a country fails to give adequate protection to British authors or to British directors to whom this section applies, or to one or more classes of such authors or directors, with respect to rights of the kind conferred by Chapter IV (Moral Rights), Her Majesty may make provision by Order in Council in accordance with this section restricting the rights conferred by that Chapter on authors or directors connected with that country.

(2) An Order in Council under this section shall designate the country concerned and provide that, with effect from a date specified in the Order, the authors of copyright literary, dramatic musical or artistic works and the directors of copyright films shall not he entitled to the rights conferred by Chapter IV if the authors or the directors are—

1. (a) citizens or subjects of that country (not domiciled or resident in the United Kingdom or another country to which the relevant provisions of this Part extend), or
2. (b) bodies incorporated under the law of that country;

and the Order may make such provision either generally or in relation to such class of cases as are specified in the Order, having regard to the nature and extent of the failure referred to in subsection (1) and may be subject to such exceptions as the Order may prescribe.

(3) This section applies to authors of copyright literary, dramatic, musical and artistic works and directors of copyright films; "British author" means an author who was a qualifying person at the material time within the meaning of section 143 and "British director" means a director of a film who fulfils the qualification requirements set out in that section.

(4) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

The noble Lord said: My Lords, this rather long amendment after Clause 149 can be dealt with quite briefly. The object is to avoid moral rights being conferred on authors and directors whose countries do not confer similar rights on British authors and directors. That is the main theme of it. However the amendment is somewhat longer than that. I beg to move.

Lord Beaverbrook

My Lords, this amendment standing in the name of the noble Lord, Lord Lloyd of Kilgerran, deals with the question of qualification for moral rights. It would allow Orders in Council to be made disapplying the moral rights provisions from authors or film directors of countries which do not give moral rights to UK authors and directors.

The clause is closely modelled on Clause 149 which does the same thing in respect of copyright. I have to admit that I can see nothing wrong with a corresponding moral rights provision, although whether this needs a separate clause or can be absorbed into Clause 149 is something we can consider. There are also a few drafting points such as the inappropriate reference to the author or director being a body corporate.

I accept the desirability of this amendment along the lines of the noble Lord, Lord Lloyd. However, I should say that were we to go down this exact route, there would be no guarantee that we would seek to exercise these powers. Indeed, I think that as a matter of policy we would choose not to, at least in respect of what would be the most significant country which may fall within the terms of subsection (1), namely the United States.

As your Lordships are probably aware, the United States is not yet a party to the Berne Convention, although I very much hope that tentative moves in that direction will bear fruit in the not too distant future. There is mutual recognition of copyright between the USA and the United Kingdom because we are both members of the Universal Copyright Convention. But since the USA is not party to Berne, it is not obliged to recognise moral rights.

There is some considerable debate as to whether the law in the United States protects moral rights to the standard required by Berne or whether their legislation will have to be amended before they can join the Berne Union. It may be that their law does not protect moral rights of British authors and directors. I make no judgment of that now. If we were persuaded that protection is inadequate, I do not think it would inevitably follow that we would use the powers under this clause. For example, we would wish to consider whether the United States was in fact likely to join the Berne Convention in the near future.

It may be that those advising the noble Lord, Lord Lloyd, see this clause as a means of depriving American authors and directors of moral rights. It would indeed be such a means but, as I have said, our acceptance of the principle of the amendment does not mean it would inevitably follow that an order would be made in due course, disapplying the provisions of Chapter IV from American citizens and subjects. I hope that in the light of what I have said the noble Lord will feel able to withdraw the amendment, given the assurance that I shall return with something appropriate at Third Reading.

Lord Lloyd of Kelgerran

My Lords, I thank the Minister for what he has said at this late hour and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 150 [Territorial waters and the continental shelf]:

Lord Morton of Shuna moved Amendment No. 240:

Page 65, line 38, leave out subsection (2) and insert— ("(2) This part applies to things done—

1. (a) in the United Kingdom sector of the continental shelf on a structure, vessel or aircraft which is present there for purposes directly connected with the exploration of the seabed or subsoil, or the exploitation of their natural resources, and
2. (b) on ships or aircraft registered in the United Kingdom, as it applies to things done in the United Kingdom.").

The noble Lord said: My Lords, this amendment looks rather long but the crucial part of it is that which appears on page 19 of the Marshalled List and starts with (b). The aim is that the restrictions should apply to ships and aircraft registered in the United Kingdom as they apply to other things done in the United Kingdom.

It is my understanding that copyright owners and others involved in copyright material are concerned that the Bill does not extend to the use of copyright material on ships and aircraft which are registered in the United Kingdom. There is an extensive use of music and film on ships and aircraft to provide entertainment on a very considerable scale, and without some restriction on the use so that there is some payment for it, it would appear that an injustice is being done.

I should have said earlier that I intended to speak, in the grouping, to Amendments Nos. 304 and 361, which are similar amendments in different parts of this Bill, as well as move Amendment No. 240. I beg to move.

Lord Airedale

My Lords, I should like to say a word in support of this amendment. When we were discussing this matter in Committee I thought that the Government's reply implied, though it was not intended perhaps to imply, that what followed from their answer was that this country had to keep its end up in the matter of international trade, and if other countries were not prepared to do what was morally right then perhaps this country could not afford to do what was morally right because we had to keep our end up in international trade.

I venture to ask: what are we talking about here? How much is it going to cost per passenger ticket to pay proper copyright fees for copyright material used on the high seas or in the air, on ships or aircraft? If we are talking about something quite trivial —a few pence per passenger ticket—surely it is worth while for this country, which is no longer able to show its place in the world by sheer might, as once it could, to impress itself upon the world by the way that it behaves. Let us not submit to the sort of argument that we cannot afford to do something which we believe to be right just because other nations may choose not to do what is morally right. If we are really only talking about a very small sum of money, for goodness sake it will pay us in the long run to do what is morally right.

Lord Beaverbrook

My Lords, with your Lordships' leave, I shall speak also to Amendments Nos. 304 and 361. As regards Amendments Nos. 240 and 304, we debated this issue extensively at Committee stage both on Clause 150 and on Clause 187. We promised then that despite our reservations we would look further at the possibility of extending at least Parts I and II of the Bill to ships and aircraft registered in the United Kingdom. This we have been doing.

This process has of necessity involved a degree of consultation with those concerned both as rights owners and as operators of the aircraft and vessels who would find themselves liable for copyright and performance rights clearance. I had hoped that these consultations would be complete in time for me to give your Lordships our conclusion on the matter today, but I am sorry to have to say that although the process is very nearly complete it is not entirely so. Regretfully therefore I have to say that I can go no further today than say that we are still considering the issue. I hope to be more forthcoming on Third Reading.

I am sorry if the statement comes as a disappointment, but I hope that the House will not press me on the matter. I am not at present in a position to go beyond what I have said.

On Amendment No. 361, the reasoning is rather different. Design right concerns only the manufacture of articles for the purpose of selling them and trading in such articles in the course of a trade or business. We do not think that it is necessary to deal with the possibility of articles infringing designs being manufactured on a commercial scale on board ships and aircraft; nor do we think it necessary to deal with sales. It is true that articles are sold on board ships and aircraft, but the amount of business involved is likely to be very small. The vast majority of articles sold on board ships and aircraft are not likely to involve design right to any significant extent. As a result, we think that to extend design right to British ships and aircraft would give rise to more trouble than it is worth. For those reasons, I resist Amendment No. 361.

As I have said, on Third Reading I hope to come back to Amendments Nos. 240 and 304.

Lord Morton of Shuna

My Lords, I have learnt never to look a proffered or even potential gift horse in the mouth so I accept what has been said. I beg leave to withdraw the amendment.

It occurs to me that, if all these rights are not to take place on board ships or aircraft, it gives somebody an incentive to do business on ships and aircraft, hut perhaps that is a matter we should consider later.

Amendment, by leave, withdrawn.

Clause 151 [Crown copyright]:

Lord Morton of Shuna moved Amendment No. 241: Page 66, line 5, leave out ("dramatic, musical").

The noble Lord said: My Lords, we come to the rather vexed question of Crown copyright. We on the Opposition Benches made certain representations to the Committee about Clause 151. From our Benches and from those to my right we were clear on one principle: we would support any Crown copyright relating to the defence of the realm or national security. I trust that there was no ambiguity on our side on that. Beyond that, we have serious doubts about how far Crown copyright should persist and made those doubts clear in Committee. I know that the Government have been considering the matter. The Minister will doubtless explain in his reply the Government's current position.

Our current position is that one should omit "dramatic, musical" simply because we cannot conceive of any dramatic, musical work that is relevant to the defence of the realm, although the Minister may persuade me to the contrary. We propose to insert the defence of the realm or national security provision before the provision in the Bill as drafted which reads, which is made by, or in pursuance of a commission or otherwise under the direction or control of, the Crown, either House of Parliament or any other legislative body".

In our view the Government are extending Crown copyright to an unacceptable extent in the Bill.

We have tabled certain other amendments which reflect on the boundaries which we feel are appropriate. I urge the Government to consider very seriously both the thoughts that I and the noble Lord, Lord Tordoff, from the Liberal Benches expressed in Committee and which are encapsulated in Amendments Nos. 241 and 242.

For the convenience of the House I shall also speak to Amendments Nos. 245, 246, 247, 277 and 278, which cover essentially the same point. They all relate to Crown copyright. Amendment No. 277, for instance, refers to introducing: artistic works other than engravings or photographs".

That is the government amendment. I accept the government grouping although, like all groupings, it is rather hazy. I should like to concentrate on the two amendments that I have tabled—Amendments Nos. 241 and 242.

Amendment No. 247 is incidental and I think has been superseded by government Amendment No. 246 in the name of the noble Lord, Lord Beaverbrook.

One could go to and fro on these amendments, but I return to the major point that we on this side accept Crown copyright where the defence of the realm or national security is in question. We do not accept—and I think that this would tend to follow the Whitford Report—Crown copyright in any other respect. We think that the Crown should be treated as any other body which may or may not have copyright, depending on the circumstances. I beg to move.

9.45 p.m.

Lord Lloyd of Kilgerran

My Lords, perhaps I may very briefly echo the major points adumbrated by the noble Lord, Lord Williams of Elvel. He referred to the submissions made by the noble Lord, Lord Tordoff, at an earlier stage. If I may say so the noble Lord was acting for me because I was unable to be present. I support these amendments.

Lord Beaverbrook

My Lords, with leave I shall also speak to the group of amendments as specified by the noble Lord, Lord Williams of Elvel. All of these are concerned with the classes of work that should be covered by Clause 151.

Amendments Nos. 241 and 242 taken together would limit Crown copyright to literary or artistic works which contain information relating to defence or national security. I must reject that proposition. The protection of sensitive information is not a matter for copyright law—that is for the Official Secrets Act. I do not want to get into a debate here tonight about the difficulties of that legislation. As your Lordships are aware, the Government intend to reform the Official Secrets Act and noble Lords opposite will doubtless have every opportunity to express their concerns over the protection of sensitive information when a Bill is debated in your Lordships' House.

There are serious limitations in the effectiveness of copyright law as a means of protecting national security. To give two extreme examples: a spy might be able to avail himself of a defence of fair dealing for research purposes; a newspaper may be able to publish defence secrets under the "reporting of current affairs" exception in Clause 31. I accept that these are extreme, perhaps fatuous, examples but I think that they illustrate the point. If Crown copyright were to be limited, as suggested, to literary and artistic works of sensitive information then, quite frankly, it would be useless and Clause 151 could just as well be deleted. As I have said, copyright cannot protect official secrets adequately, and for such material the benefits of copyright, such as licensing and assignment, cannot, for obvious reasons, be enjoyed by the copyright owner. So I must therefore urge your Lordships to reject Amendment No. 242.

I trust that the noble Lord, Lord Williams of Elvel, would accept that all types of works made by or under the direction or control of the Crown should he given copyright protection. As I understand it, it is the automatic vesting of the copyright in the Crown to which he has objected. It is true that Whitford recommended that the existing Crown copyright provisions in Section 39 of the Copyright Act should be brought to an end, mainly on the grounds that they were too wide and that there seemed little reason why the Crown should be treated differently from other large organisations. Whitford recognised however that safeguards would still be necessary.

We have accepted that the Crown copyright provisions in the 1956 Act are too widely drawn. We are therefore repealing Section 39(2) under which works first published by the Crown attract Crown copyright. But I must resist the noble Lord's suggestion that we should go further and effectively abolish them altogether. Crown copyright provisions, as contained in Section 39(1) of the 1956 Act and subsection (1)(a) of Clause 151 of the Bill, have worked well for over 75 years and have not given rise to any practical problems, as opposed to somewhat theoretical objections. To abolish Crown copyright would necessitate the employment of additional staff to keep track of all the authors concerned in the production of government publications and add to public expenditure with no discernible public benefit. I see no justification whatever for adding to the burden on the taxpayer to no practical advantage.

Although your Lordships are, I hope, persuaded that Crown copyright should not be confined to defence-related works, your Lordships might at first sight see some merit in Amendment No. 241 on its own, since it might not be immediately apparent what business the Crown has with dramatic and musical works. The Crown does however produce such works —the most obvious examples being in the production of videos by the Central Office of Information and the information divisions within departments. The musical and dramatic works incorporated in these films merit protection, just as any other Crown work.

I turn now to Amendments Nos. 245, 246 and 247.

Lord Jenkin of Roding

My Lords, before my noble friend leaves that topic, as a matter of information can he let me know whether a composition by—shall we say?—the pipe major of the pipe band of a Highland regiment that is being commissioned for the purpose of some celebration is a work in which the Crown copyright would subsist? It certainly should. As I understand the matter, the amendment of the noble Lord, Lord Williams, would destroy the Crown's copyright. That does not seem to me to be right.

Lord Beaverbrook

My Lords, my noble friend says that it certainly should, and I say to him that it certainly would. I think that is——

Lord Williams of Elvel

My Lords, would the performance of the Royal Lancers' jazz band, or whatever the noble Lord is referring to, on a private occasion be part of the Crown copyright?

Lord Beaverbrook

My Lords, I find it difficult to answer that question without further notice of the circumstances that the noble Lord, Lord Williams, has in mind. However, as regards the basic principle, yes, such a performance would be protected by Crown copyright. There may be some exceptions in circumstances which we could imagine.

However, as I said, I turn now to Amendments Nos. 245, 246 and 247. At the outset, I have to say that the purpose of Amendment No. 247 in the name of the noble Lords, Lord Williams of Elvel and Lord Morton of Shuna, to delete the reference to the design of a typeface is one that I could accept. It would correct an error on our part. We have, however, dealt with the matter differently in our amendments, Amendments Nos. 245 and 246, which move artistic works into the general grouping of literary, dramatic and musical works in subsection (3); and of course Amendment No. 247 will not be taken if Amendment No. 246 is carried.

The reason for this change flows from one of those made in Clause 12. Your Lordships will recall that the Bill as drafted provided that the duration of copyright in a photograph would be 50 years from the date the photograph was taken. Strong representations were made to us in Committee that photographs should be treated like other literary, dramatic, musical and artistic works, and we amended Clause 12 to accede to those wishes. Now that no distinction is made in Clause 12 between literary, dramatic, musical and artistic works, there seems no justification for a distinction in Clause 151. Amendments Nos. 277 and 278, in Schedule 1, are consequential on the changes made by Amendments Nos. 245 and 246.

Lord Williams of Elvel

My Lords, I am disappointed in the response of the noble Lord. I thought that in Committee we were moving towards some community of interest, if not a meeting of minds. On this side of the House, we shall support whatever needs to be done in Crown copyright to ensure the defence of the realm and national security. Nevertheless, we find that the very broad arrangements that the Bill is proposing for Crown copyright go not only well beyond Whitford but well beyond what we consider reasonable.

The intervention of the noble Lord, Lord Jenkin of Roding—I hope I have used the right pronunciation; we had a discussion about pronunciation at dinner on another evening—serves to point out where Crown copyright becomes rather ridiculous. When we were discussing design rights I mentioned the possibility of the DES or the DTI, or any other department, having some design right over a particular type of word processor or typewriter that was vested in that department. That seemed absurd and contrary to the spirit of enterprise which the Secretary of State for the Department of Trade and Industry has been encouraging.

I believe that Crown copyright should be kept to the minimum necessary for the preservation of the defence of the realm, national security and the necessity of the Crown interest. I cannot understand why the Government seem to think that it should go beyond that. It seems to me, and to the noble Lord, Lord Lloyd of Kilgerran, that Whitford on the whole is right in saying that the Crown should be treated like any other person except in so far as the Crown has special interests that the noble Lord will certainly recognise.

I am therefore disappointed in the response of the noble Lord because I thought that in Committee we had received some sympathy from the Government Front Bench. I do not wish to divide the House at this time because we have to get on. I shall read carefully what the noble Lord has said. However, I am not happy with the situation and may well come back to this matter at Third Reading. Perhaps I may offer a word of advice to the noble Lord. I would advise his officials to consider this problem again because it is a matter on which I shall return. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 242 not moved.]

Lord Mottistone moved Amendment No. 243: Page 66, line 8, leave out ("in pursuance of a commission or otherwise").

The noble Lord said: My Lords, I seek to delete from this subsection the words "in pursuance of a commission or otherwise". These words in effect have been added to the existing provisions giving copyright ownership to the Crown for works made under the direction or control of the Crown. I refer to Section 39(1) of the Copyright Act 1956. In commenting upon the last amendment, my noble friend said that it had worked very well over the past 75 years. It seems therefore strange that it should have to be added to.

The existing provision of the 1956 Act deals adequately with the situation of Crown servants. However, giving a commission is not normally considered equivalent to exercising direction or control, despite the inclusion of the word "otherwise". The Crown would therefore for the first time be given the copyright to the whole class of works; namely, those that it has commissioned but has not hitherto acquired. In the case of all other commissioned works, the author—not the commissioner—takes the ownership. That is the position in Clause 11 as it stands in the Bill. There seems to be no justification for treating the Crown differently. If it desires ownership in any particular instance it should seek it by negotiation. I beg to move.

10 p.m.

Lord Williams of Elvel

My Lords, in speaking to Amendment No. 243, moved by the noble Lord, Lord Mottistone, I should also like to speak to Amendment No. 244 in the name of the noble Lord. Lord Lloyd of Hampstead. The noble Lord is not in his place so I shall be moving that amendment for him.

Having made certain comments in moving the amendment tabled in my name and in the name of my noble friend Lord Morton of Shuna, it will come as no surprise to the Minister to hear that I support what has been said by the noble Lord, Lord Mottistone. Anything that can bring Crown copyright back to reality will receive support from these Benches. I hope that if we have failed in our amendment to provoke a positive response from the Government, the noble Lord, Lord Mottistone, will provoke a positive response from them.

Lord Lloyd of Kilgerran

My Lords, the noble Lord, Lord Mottistone, has handed me most of the amendments with which he is concerned. This is one of the amendments which I strongly support.

Lord Beaverbrook

My Lords, with the leave of the House, I shall speak to Amendments Nos. 243 and 244. Both these amendments were moved in Committee and were withdrawn when I indicated that I could not accept them. I am afraid that the passage of time has not made me any more favourably inclined to them.

Under the 1956 Act, the Crown is entitled to copyright in two groups of works. First, those made by or under the direction or control of Her Majesty or a Government department and, secondly, works first published by the Crown. Under the Bill, works in this second category will no longer attract Crown copyright, and I think that is generally welcomed.

As far as the first category is concerned it is debatable whether a work commissioned by the Crown under the 1956 Act can be said to he made under the direction or control of the Crown and so be a Crown copyright work. We said in the White Paper that we would resolve any doubts by explicit inclusion of works commissioned by the Crown in the Crown copyright provisions.

I accept that, with the repeal of Section 4(3) of the 1956 Act, the Crown and international organisations referred to in Clause 152 are in a different position from other commissioners. But as I said in Committee, the Crown and international organisations are different from other people, otherwise we would not need special provisions in Clauses 151 and 152. We remain of the view that where public money is being spent on the production of a work the Crown should be the first owner of the copyright. The author is not obliged to accept a Crown commission if he is unwilling to see copyright vested in the Crown and, of course there is nothing to stop the Crown assigning the copyright to the author. That can be agreed when the work is commissioned and will happen when this is appropriate.

That brings me conveniently to Amendment No. 244, tabled in the name of the noble Lord, Lord Lloyd of Hampstead, and moved by the noble Lord, Lord Williams. The amendment of the noble Lord, Lord Lloyd of Hampstead, would make the provisions of subsection (2) subject to agreement to the contrary, by which I assume agreement between Her Majesty and the author concerned is intended. As I understand it, the purpose of the amendment is to ensure that, as now, there is the possibility for the author to have the copyright if that is agreeable to the Crown.

As I explained to the Committee, this is quite possible under the terms of Clause 151. All that has changed is the mechanism by which that result is achieved. Under the 1956 Act, agreement could be made with the author that copyright be vested in him. This gave rise to some confusion since HMSO are the guardians of Crown copyright and only the controller of HMSO can authorise assignment and licensing of Crown copyright, and yet agreements could be entered into by other government departments to disapply Crown copyright and vest copyright in the author.

What we want to achieve is the possibility that copyright in works commissioned by the Crown can be vested in the author. That, I am sure, is the wish of my noble friend Lord Mottistone and the noble Lord, Lord Lloyd, although my noble friend would doubtless prefer that the author initially has the copyright which may then be vested in the Crown.

Clause 151 ensures that the copyright in works produced at public expense are initially vested in the Crown. But, of course, the Crown may, and will in appropriate cases, assign the copyright to the author, including assignment of future copyright. I think it is true to say that the only change is that it will no longer be possible for copyright in a work produced for the Crown to be vested in the author as a result of an oral agreement. Given that oral agreements are an unsatisfactory way of dealing with such an important question as who owns copyright, your Lordships may feel that it is no bad thing that that avenue is closed. Given the way in which the Crown operates, oral agreements must be few and far between.

We believe that the taxpayer is entitled to expect that a copyright in works produced at his expense should normally be vested in the Crown. To require the Crown to acquire the copyright it needs contractually would be unnecessarily burdensome and, since it is possible for the Crown to relinquish copyright to the author in cases where this is necessary or desirable, I do not believe that Clause 151 is oppressive in the way suggested. For those reasons I resist Amendments Nos. 243 and 244.

Lord Mottistone

My Lords, that is disappointing, particularly after the long struggle we had last time. I did not hear my noble friend explain why Section 39 of the Copyright Act 1956 had been added to in this form. He did not explain in Committee and I do not think he did so this time. It seems strange that there should be this addition. However, it is late and I shall not press the point any further. I hope to look into this matter more carefully to see if a chink cannot be found in the armour of my noble friend between now and Third Reading. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 244 not moved.]

Lord Beaverbrook moved Amendment No. 245: Page 66, line 15, leave out ("or musical") and insert (", musical or artistic").

On Question, amendment agreed to.

The Lord Chancellor

My Lords, if Amendment No. 246 is agreed to, I cannot call Amendment No. 247.

Lord Beaverbrook moved Amendment No. 246: Page 66, line 22, leave out subsection (4).

On Question, amendment agreed to.

[Amendment No. 247 not moved.]

Clause 152 [Copyright vesting in certain international organizations]:

Lord Beaverbrook moved Amendment No. 248:

Pace 66, line 35, leave out from ("or) to ("section") in line 41 and insert— (", or is published by, an international organisation to which this section applies, and (b) does not qualify for copyright protection under section 143 (qualification by reference to author) or").

The noble Lord said

My Lords, this amendment seeks to clarify the circumstances in which copyright vests in an international organisation. As drafted, subsection (1) of Clause 152 will apply if either paragraph (a) or paragraph (b) is satisfied even though the work may qualify by some other means. The purpose of the amendment is to make clear that copyright vests in the international organisation only when it has commissioned, made or published a work which would not otherwise qualify for protection either by reference to author or to country of first publication. I beg to move.

On Question, amendment agreed to.

Clause 153 [Folklore, &c. anonymous unpublished works]:

Lord Beaverbrook moved Amendment No. 249: Page 67, line 19, leave out from first ("of") to end of line and insert ("unknown authorship").

On Question, amendment agreed to.

Clause 158 [Meaning of "educational establishment" and related expressions]:

Lord Beaverbrook moved Amendment No. 250: Page 69, line 21, leave out ("at the establishment").

The noble Lord said: My Lords, the purpose of this amendment is to ensure that the terms "teacher and pupil" apply to anyone giving or receiving instruction whether or not they are actually in the educational establishment at the time of the instruction. This follows on from the point we debated earlier about providing for Open University students who will be doing their work at home. I beg to move.

On Question, amendment agreed to.

Clause 159 [Meaning of publication and commercial publication]:

Lord Willis moved Amendment No. 251: Page 69, line 29, after ("public") insert ("or in the case of a sound recording or film its authorised public performance or inclusion in a broadcast or cable programme service").

The noble Lord said: My Lords, I hope that the Government will see eye to eye with us on this amendment because it is of some importance and also of some common sense.

The definition of "date and place of first publication" in the 1956 Act is now outdated by modern technology. Surely it is a matter of common sense that if you actually make a film and show it in a cinema—or, as is said, in the theatre—that is the first date of its publication. The law as it stands at the moment, and the Bill as it stands, would mean something quite opposite. One could take a pirate video of that film, sell it and escape prosecution by claiming that there had not been a public showing or publication of that film. It is an important issue and I hope that the Government will consider it very seriously. I beg to move.

Lord Williams of Elvel

My Lords, I support my noble friend on this amendment. It is an important issue because the question of what "publication" means is vital in interpreting the Bill.

I am not entirely happy about the drafting of the amendment because "authorised public performance" is perhaps a slightly ambiguous expression. Nevertheless, the thrust of the amendment is right and I support my noble friend's proposal.

Lord Beaverbrook

My Lords, I should first say to the noble Lord, Lord Willis, that this amendment is grouped with Amendment No. 255. With the leave of the House, and if it is acceptable to the noble Lord, I will speak to both amendments.

I have listened carefully to what the noble Lord, Lord Willis, said in introducing these amendments. But I am afraid that they miss their target, if I have understood correctly. Publication is not a restricted act. Its relevance in this Bill is limited to the two issues of qualification for copyright protection, dealt with in Clause 144, and duration of protection, dealt with in Clause 13. The effect of the amendments would be only marginal. For instance, a film made by a producer from a non-convention country would earn copyright protection by being first shown here, which at present does not count; and a qualifying sound recording which was never issued to the public, or broadcast, could gain lengthened protection by being played in public before the end of 50 years from being made. The amendments would do nothing to meet the concerns of the noble Lord, Lord Willis. The principal beneficiaries would probably be film and record producers in countries which do not protect our own films and records.

On the general issue of what constitutes public performance, we debated this earlier today on Clause 98 and I hope I made clear to your Lordships what is meant by the right to control public performance. I have to say to the noble Lord, Lord Willis, that he is mistaken in suggesting that liability for infringement could be escaped if the film has not been publicised. I am not sure why he believes that, but I can assure him that it is not so. For that reason, I hope the noble Lord will feel able to withdraw his amendment.

Lord Willis

My Lords, I thank the Minister and beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 252:

Page 69, line 33, at end insert—

("(1A) In this Part "commercial publication", in relation to a literary, dramatic, musical or artistic work means—

1. (a) issuing copies of the work to the public at a time when copies made in advance of the receipt of orders are generally available to the public, or
2. (b) making the work available to the public by means of an electronic retrieval system;

and related expressions shall be construed accordingly.

(1B) In the case of a work of architecture in the form of a building, or an artistic work incorporated in a building, construction of the building shall be treated as equivalent to publication of the work.").

The noble Lord said: My Lords, in moving Amendment No. 252 I shall speak also to Amendments Nos. 253, 254 and 256.

It has been brought to our attention that this clause defining publication and commercial publication is not quite right. In particular we have considered whether issuing to the public copies of photographs or graphic works representing a work of architecture, sculpture or work of artistic craftmanship should constitute "commercial publication".

In the Bill as drafted it is not clear whether subsection (4) which defines "commercial publication" should be subject to subsection (2) which limits the definition of "publication". We felt this needed clarification and this is what we are doing here. The amendments make plain that none of the things that do not amount to publication—for example, performance of dramatic work or exhibition of an artistic work—can constitute commercial publication.

A further minor point is dealt with in Amendment No. 254. We were concerned that the expression, a graphic work representing a work of architecture

could in fact relate to the original plans, which should be treated like any other graphic work. This amendment therefore limits the works of architecture in subsection (2)(b) to buildings and to models for buildings.

I should point out that this clause is concerned almost exclusively with criterion for qualification for copyright protection. It does not relate to the nature of that protection. In particular, amendments made earlier to Clauses 69 and 72 will ensure that moral rights continue to apply in the cases being excluded from commercial publication by these amendments. I beg to move.

On Question, amendment agreed to.

10.15 p.m.

Lord Beaverbrook moved Amendments Nos. 253 and 254: Page 69, line 35, at end insert ("and references to commercial publication shall be construed accordingly"). Page 70, line 3, leave out ("sculpture or") and insert ("in the form of a building or a model for a building, a sculpture or a").

On Question, amendments agreed to.

[Amendment No. 255 not moved.]

Lord Beaverbrook moved Amendment No. 256: Page 70, line 13, leave out subsections (3) and (4).

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 257: After Clause 159, insert the following new clause:

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

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

• section 70(3)(b) (assertion by licensor of right to identification of author in case of public exhibition of copy made in pursuance of the licence),
• section 80(3) (assignment of copyright),
• section 81(1) (assignment of future copyright),
• section 82(1) (grant of exclusive licence).

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

• section 70(2)(b) (assertion by instrument in writing of right to have author identified),
• section 77(2) (waiver of moral rights).").

The noble Lord said: My Lords, in moving this amendment I shall speak also to Amendments Nos. 268, 363 and 371, all of which deal with a rather mundane, practical matter. It is the practice of many bodies corporate to execute documents by affixing their corporate seal rather than by having the documents signed. Since legally a seal is not the same thing as a signature it is necessary to make provision to the effect that a requirement that an instrument be signed is met by the affixing of a corporate seal. These amendments do what is necessary to achieve that result. I beg to move.

Lord Williams of Elvel

My Lords, does the thrust of the noble Lord's amendment mean that a board minute of a board properly constituted, produced by the secretary of a company and signed by the chairman and normally conforming to the articles of association but without a seal, is not valid?

Lord Beaverbrook

My Lords, I understand that that is not the case.

Lord Williams of Elvel

My Lords, why does the company seal have to be affixed with any assignment of copyright?

Lord Beaverbrook

My Lords. I believe the noble Lord asked me about a board minute. A board minute would not be invalidated if it had not been sealed. On the other hand, the noble Lord referred to the matter of assignment of copyright and the answer is that the seal may be affixed but it does not have to be.

On Question, amendment agreed to.

Clause 161 [Minor definitions]:

[Amendment No. 257 A not moved.]

Lord Beaverbrook moved Amendment No. 258: Page 71, line 2, at end insert— (" "business" includes a trade or profession;").

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 259: Page 71, leave out lines 3 and 4.

On Question, amendment agreed to.

[Amendment No. 260 not moved.]

Lord Beaverbrook moved Amendment No. 261: Page 71, line 39, lease out ("the identity of the author is unknown") and insert ("it is not possible for a person to ascertain the identity of the author by reasonable inquiry").

On Question, amendment agreed to.

Clause 162 [Index of defined expressions]:

Lord Beaverbrook moved Amendments Nos. 262 to 267:

Page 72, line 23, insert—

("archivist (in sections 37 to 43)

section 37(3A)").

Page 72, line 28, at end insert—

("building	section 4(2)
business	section 161").

Page 72, line 33, second column, leave out ("161") and insert ("159").

Page 72, leave out line 34.

Page 73, line 11, column 2, leave out ("section 27") and insert

("sections 27 and 37(1B)").

Page 73, line 17, at end insert—

("librarian (in sections 37 to 43).

section 37(3A)"

The noble Lord said: My Lords, with leave I shall also speak to Amendment No. 269. I will be brief. The amendments make the necessary changes to the index of defined expressions to take account of the other amendments which have been made to this part of the Bill. I beg to move.

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 268:

Page 73, line 49, at insert—

("signed

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 269 and 270:

Page 74, line 1, leave out ("(4)") and insert ("(5)").

Page 74, line 2, at end insert—

("unknown authorship (work of)

section 9(4)").

On Question, amendments agreed to.

Schedule 1 [Copyright: transitional provisions and savings]:

Lord Beaverbrook moved Amendment No. 271:

Page 128, line 11, leave out paragraph 10 and insert— ("10.—(l) The question who was first owner of copyright in an existing work shall be determined in accordance with the law in force at the time the work was made.

(2) Where before commencement a person commissioned the making of a work in circumstances falling within

1. (a) section 4(3) of the 1956 Act or paragraph (a) of the proviso to section 5(1) of the 1911 Act (photographs, portraits and engravings), or
2. (b) the proviso to section 12(4) of the 1956 Act (sound recordings),

those provisions apply to determine first ownership of copyright in any work made in pursuance of the commission after commencement.").

The noble Lord said: My Lords, the amendment to leave out Clause 11(3) on newspaper employees necessarily led to a consequential amendment to Schedule 1. We found that the rather cumbersome structure of paragraph 10 as it now stands could be concertinaed into the much neater and more elegant paragraph set out in Amendment No. 271. I beg to move.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 272 to 275: Page 129, leave out lines 26 to 29. Page 131, line 37, leave out ("or 210"). Page 131, line 38, leave out ("or 89"). Page 132, line 3, at end insert— ("( ) Section 89 (right to seize infringing copies, &c.) does not apply during the period of ten years referred to in sub-paragraph (1) in relation to anything to which it would not apply if the design in question had been first recorded or embodied in a design document or model after commencement.").

On Question, amendments agreed to.

Lord Beaverbrook moved Amendment No. 276: Page 134, line 37, leave out ("apply after commencement only") and insert ("(conversion damages, &c.) do not apply after commencement except").

The noble Lord said: My Lords, this amendment concerns a matter of presentation rather than of substance. It arises from a request made in Committee by the noble Lord, Lord Lloyd of Kilgerran, who asked me to put into the Bill a clear statement that conversion damages are abolished. In reply to the noble Lord, my noble friend Lord Dundee explained that we were very reluctant to incorporate such an explicit statement into the substantive provisions of the Bill. Our reluctance does not arise out of any meanness of spirit but our legal advisers had real fears that awkward consequences could flow from the presence of explicit wording.

The fear is that the presence of such words might imply that without them conversion damages would be available. The abolition of conversion damages is important and we do not want to get into a position where the courts could look at some other provision in the Bill and, because there were no explicit words, hold that conversion damages apply. I am sure that this is the last thing that the noble Lord would wish to achieve.

Nevertheless, we think that we have found a way round the problem which I hope the noble Lord will find acceptable. As my noble friend Lord Dundee explained in Committee, conversion damages are also dealt with in the transitional provisions in Schedule 1. These provisions do not affect the substantive provisions on remedies in the Bill but merely indicate when and in what circumstances those substantive provisions should apply. As a result, we are confident that putting an explicit reference in Schedule 1 to conversion damages not applying will not have the undesired effects that we fear. I very much hope that the noble Lord, Lord Lloyd of Kilgerran, will accept that our fears are founded in a desire to expunge conversion damages from the copyright map and that he is satisfied with what I am proposing. I beg to move.

Lord Lloyd of Kilgerran

My Lords, I am grateful to the Minister for what he said about conversion damages. We are approaching the year of 1992 and it has been raised quite strongly that the area of conversion damages is not one that agrees with what the EC is developing for harmonisation purposes at the present time. I shall consider what the noble Lord has indicated, and I beg leave to withdraw the amendment at this stage.

The Lord Chancellor

My Lords, Amendment No. 276 was proposed by the noble Lord, Lord Beaverbrook.

On Question, amendment agreed to.

Lord Beaverbrook moved Amendments Nos. 277 and 278:

Page 136, line 23, at end insert— ("(aa) artistic works other than engravings or photographs:").

Page 137, line 3, leave out sub-paragraph (6).

On Question, amendments agreed to.

Clause 165 [Consent required for recording or live transmission of performance]:

Lord Lloyd of Kilgerran moved Amendment No. 279:

Page 75, line 17, at end insert— ("which shall not be unreasonably withheld").

The noble Lord said: My Lords, with the leave of the House, I should like to speak to Amendment No. 281. I apologise for my little mistake on a previous amendment.

This is an important amendment regarding broadcasters. Clause 165 is part of the section dealing with performers' rights. In subsection (1) it says: A performers' rights are infringed by a person who without his consent".

It then continues to state the acts which might constitute infringement. My amendment provides that the performer should not unreasonably withhold his consent.

I am informed that one consent withheld by a performer, no matter how insignificant his role in the broadcast may be, could jeopardise the use of the programme, and the sale of such a programme could not be made. I have been given as an example an expensive production of Anthony and Cleopatra, which may not be sold due to the withholding of the consent by the 10th spear carrier. Furthermore, it is often the case that at the time of receiving such consents, certain types of technology and media were unknown and could not have been anticipated. Thus, when the modern production company of "Super Channel" launched its satellite service to Europe, consent had to be obtained for performances dating back to the 1960s.

It is not the object of broadcasters to override performers' rights, but that where consents are asked for, such consents should not he unreasonably withheld. There is a considerable and active market in secondary sales of British programmes to overseas broadcasters and other users. Unless the "not … unreasonably withheld" amendment is included, programme makers will continue to suffer a restraint upon their abilities to sell their programmes abroad.

As I have already said, broadcasters do not want to run roughshod over performers' rights; they merely want such protection as would provide that consent cannot be unreasonably withheld. I beg to move.

Lord Beaverbrook

My Lords, since we debated in Committee rather similar amendments moved by the noble Lord, Lord Tordoff, we have discussed the issue with the broadcasting organisations. They have explained to us that one of their main concerns is the possibility that performers who have consented to having their performance recorded or filmed might, nonetheless, invoke rights under the Bill to prevent further reproductions of the original fixation from being made without their consent.

Broadcasters point out that the exploitation of a broadcast programme over a period of time often requires further reproductions to be made. Master copies deteriorate and if a programme is repeated it is usual to make a further copy. Such further copies are also needed where programmes are to be marketed abroad. Therefore, as matters stand there is already some degree of freedom for broadcasters to make further reproductions without the performers' consent of an original recording made for broadcasting purposes, which was made with his consent.

That situation flows from the exception in Schedule 2 paragraph 12 which allows such recordings to be made without consent, provided that they are made solely for broadcasting purposes and are destroyed within 28 days of the first broadcast. It appears to us that that exception is as applicable to repeat broadcasts as it is to original broadcasts. We need to explore further with broadcasters the degree to which the exception in Schedule 2 meets their needs. If that exception turns out to be inadequate, we shall consider, without commitment, what else might be done; but our present hope is that it will prove to be sufficient.

The amendments of the noble Lord, Lord Lloyd of Kilgerran, go a lot further than that rather special point raised by the broadcasters. They would subject performers to compulsory licensing, not only with regard to reproductions of the type I have mentioned but also with regard to the first recording of a performance, the live broadcasting of a performance and the inclusion of a performance live in a cable programme. That obligation would even apply to public performance or broadcasting of recordings made without the performers' consent. As I said in Committee, to go that far would be wrong and would undermine the whole basis of performers' protections as it has existed since 1925. Even under present law, which provides criminal remedies only for unauthorised exploitation of a performance, the performer does not have to show reasonable grounds in order to refuse consent to such exploitation.

Surely, if a performer does not want his performance to be recorded or broadcast live, and does not want an illicit recording of his performance imported, sold, rented or distributed, that should be the end of the matter. His right to prevent such exploitation should be an absolute right similar to a copyright owner's right to prevent unauthorised exploitation of his works. He should not have to prove reasonable grounds for refusing consent. I do not see that the performer's right to control the first recording of a performance need be an undue obstacle to broadcasters. Consent can be sorted out in the initial contract.

I hope that the noble Lord will be willing to withdraw his amendment, because it is not acceptable as it stands.

10.30 p.m.

Lord Lloyd of Kilgerran

My Lords, I am obliged to the Minister. I understand that discussions with broadcasters are proceeding on certain aspects of this part of the Bill. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Beaverbrook moved Amendment No. 280: Page 75, line 18, leave out ("private purposes") and insert ("his private and domestic use").

The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 283, 287, 289, 297, 305 and 309.

When we debated Part II in Committee, the noble Lord, Lord Morton of Shuna, objected strongly to Clause 189, which he maintained was obvious and failed to define what was meant by "private performance". Although I made no commitment at the time, we reflected on the point and concluded that some tidying was desirable.

The course that we propose is to use in Part II, instead of the expression "private purposes", the expression "private and domestic use" which is already used in Part I. Thus the phrase: otherwise than for private purposes".

now becomes: otherwise than for private and domestic use".

That change also has the incidental effect of reverting to the terminology of the performers' protection Acts.

We feel that the meaning of "private and domestic use" is sufficiently clear, without further definition, to allow us to delete Clause 189 altogether, as suggested by the noble Lord, Lord Morton. I beg to move.

Lord Morton of Shuna

My Lords, all I can say is, thank you very much. It makes the clause much clearer.

On Question, amendment agreed to.

Clause 166 [Infringement of performer Is rights by use of recording made without consent]:

[Amendments Nos. 281 and 282 not moved.]

Clause 167 [Infringement of performer's rights by importing, possessing or dealing with illicit recording]:

Lord Beaverbrook moved Amendment No. 283: Page 75, line 36, leave out ("private purposes") and insert ("his private and domestic use").

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 284: Page 75, line 38, leave out ("trade or").

The noble Lord said: My Lords, with the leave of the House, I shall speak also to Amendments Nos. 290, 292, 298, 299, 306 and 308.

The amendments will probably seem familiar to your Lordships. I am afraid that due to an oversight they were not included in the group of amendments to which I spoke under Clause 23. As I said then, it is not our intention that the professions should be treated more favourably when it comes to questions of copyright infringement. These amendments, like the earlier ones, ensure that there is no discrimination between the professions and those engaged in trade or business. In the clauses in Part II relating to secondary infringement, we have replaced "trade or business" with the word "business". Business is defined as including a trade or profession, thereby removing any doubt that the professions are caught by the provisions of the Bill. I beg to move.

Lord Williams of Elvel

My Lords, we are grateful to the Minister for introducing the amendments. They correspond to similar amendments that he moved earlier. I too was surprised that they did not occur in the grouping which crossed the frontiers of the Bill, but I assumed that the arrival of the noble Viscount, Lord Long, on the Government Front Bench meant that he would be responding to this particular amendment.

On Question, amendment agreed to.

[Amendments Nos. 285 and 286 not moved.]

Clause 169 [Consent required for recording of performance subject to exclusive contract]:

Lord Beaverbrook moved Amendment No. 287: Page 76, line 36, leave out ("private purposes") and insert ("his private and domestic use").

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

On Question, amendment agreed to.

[Amendment No. 288 not moved.]

Clause 171 [Infringement of recording rights by importing, possessing or dealing with illicit recording]:

Lord Beaverbrook moved Amendment No. 289: Page 77, line 13, leave out ("private purposes") and insert ("his private and domestic use").

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

On Question, amendment agreed to.

Lord Beaverbrook moved Amendment No. 290: Page 77, line 15, leave out ("trade or").

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

On Question, amendment agreed to.

Clause 173: [Transmission of rights]:

Lord Morton of Shuna moved Amendment No. 291: Leave out clause 173 and insert the following new clause:

("Transmission of rights.

173. The rights conferred by this Part are transmissible by assignment, by testamentary disposition or by operation of law, as personal or moveable property").

The noble Lord said: My Lords, this was an amendment which for some reason was not grouped with Amendment No. 148 which would seem to have been its bedfellow. It is virtually the same point. It seems absurd that somebody could specifically direct that his performing right be transferred by will, but if he leaves everything to one person that does not carry the performing right. I hope that the Minister will at least take this away to consider it. In the hope that that will be the answer, I beg to move.

Lord Beaverbrook

My Lords, I am not quite sure why this amendment was not grouped with the previous one.

Lord Morton of Shuna

Perhaps again the noble Viscount——?

Lord Beaverbrook

My Lords, there could be all sorts of explanations, but I am sure that my noble friend is not responsible for groupings at this late hour.

The Bill considerably extends the protection given to performers under the Performers' Protection Act by giving them explicit civil rights for the first time. However the purpose remains as before: to protect performers against the unauthorised exploitation of their performances with the additional protection for those with whom they have exclusive recording contracts. The Bill does not create a new full-blown proprietary right which may be freely traded like a copyright. A performer's rights remain something personal to him or her. The reason for this is that a performance is not like a work. A work is something of permanence, and it accordingly makes sense to treat it as property capable of assignment.

A performance however is purely momentary. Once made it is gone for ever. With one exception, the performer's rights relate solely to the moment of performance; they are the rights not to be recorded or broadcast without consent. If there is no infringement of those rights at the time, there is nothing further that can be the subject of the rights capable of assignment. The right not to suffer further exploitation of recordings not consented to is merely a continuation of the right not to suffer infringing exploitation of the orginal moment of performance.

You cannot have property in the right not to suffer continuing injury. The exception which I mentioned a moment ago is of course the right to control subsequent recording of recordings made with consent. But it would be odd for only that element of the whole bundle of performance rights to be an item of property. For this reason, the rights are not assignable or transmissible during the lifetime of the performer.

We decided however that it would not be right to exclude altogether the possibility of the rights passing to another when the performer dies, but we have stipulated that there must be a specific bequest if this is to happen. We believe this to be the appropriate course. I would point out that without this limitation the difficulties for anyone wanting, for example, to obtain the necessary consent to re-record a recording of a performance by someone who had died would be considerably increased because residuary bequests and property passing on intestacy are often spread far and wide.

I am informed that far from it being for us to blame my noble friend Lord Long for the groupings going wrong in this case, I am told that the groupings were separate because the Opposition, through the usual channels, asked for them to be separate.

I have to say therefore that I am afraid this amendment is not acceptable to the Government and

I hope that the noble Lord will be able to withdraw it.

Lord Morton of Shuna

My Lords, on the question of groupings I tried to separate Amendment No. 291 from Amendment No. 307. No doubt when we come to Amendment No. 307 the Minister will explain why it was to be grouped with Amendment No. 291 with which I could see no relevant connection. But be that as it may. I would have thought that it should be grouped with Amendment No. 148. However, let us leave groupings to others.

The difficulty is that Clause 173(2) suggests that a testamentary disposition can specifically transmit a performing right. I am far from clear, in the ordinary case of somebody who leaves everything he possessed to his widow, whether that is a specific direction or not. It would certainly be very odd if it was not. But it does not seem to come within the phrase. Therefore, I should have thought that the amendment I propose covers the situation more happily and makes clearer what is meant.

The idea that someone, say, a clown, who has a specific way of doing certain acts, should have to instruct a solicitor how to specifically leave to his widow this act, that act and the next act, seems to me quite absurd when all he wants to do is to leave all those rights to his widow so that she is able to obtain whatever money she can from those rights. I should have thought that that is what the Minister and the Government would want to happen if there are any property rights in these performing rights. I hope that the Minister might reconsider his position. However, as it is rather late, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 176 [Right to delivery up of illicit recording]:

Lord Beaverbrook moved Amendment No. 292: Page 78, line 22, leave out ("trade or").

On Question, amendment agreed to.

Clause 177 [Right to seize illicit recordings]:

Lord Beaverbrook moved Amendments Nos. 293 to 296: Page 78, line 33, after ("may") insert (", if the following conditions arc complied with,"). Page 78, line 34, leave out subsection (2) and insert—

("(1A) The conditions are—

1. (a) that before any recording is seized notice of the time and place of the proposed seizure is given to a local police station, and
2. (b) that after any recording has been seized the person by whom it is seized leaves the place where it was seized a notice in the prescribed form stating by whom or on whose authority the seizure was made and the grounds on which it was made.

(2) A person may not in exercising the right conferred by this section enter any premises or use any force.").

Page 78, line 44, after ("hovercraft") insert ("; and

"prescribed" means prescribed by order of the Secretary of State.

(5A) An order of the Secretary of State under this section shall be made by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.").

Page 78, line 46, after ("and") insert ("forfeiture").

On Question, amendments agreed to.

Clause 178 [Criminal liability for making, dealing with or using illicit recording]:

Lord Beaverbrook moved Amendments Nos. 297 to 299: Page 79, line 5, leave out ("private purposes") and insert ("his private and domestic use"). Page 79, line 7, leave out ("trade or"). Page 79, line 10, leave out ("trade or").

On Question, amendments agreed to.

[Amendments Nos. 300 and 301 not moved.]

Clause 182 [Offence by body corporate: liability of officers]:

Lord Beaverbrook moved Amendment No. 302: Page 81, line 20, after ("director,") insert ("manager,")

On Question, amendment agreed to.

Clause 186 [Countries enjoying reciprocal protection]:

Lord Beaverbrook moved Amendment No. 303:

Page 83, line 7, leave out from ("may") to ("is") in line 21 and insert—

("by Order in Council designate as enjoying reciprocal protection under this Part —

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

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

(3) A "British performance" means a performance—

1. (a) given by an individual who is a British citizen or resident in the United Kingdom, or
2. (b) taking place in the United Kingdom.

(4) If the law of a country provides adequate protection only for certain descriptions of British performance, an Order under subsection (1)(b) designating that country shall contain provision limiting to a corresponding extent the protection afforded by this Part in relation to performances connected with that country.

(5) The power conferred by subsection (1)(b)").

The noble Lord said: My Lords, with the leave of your Lordships I shall speak also to Amendments Nos. 359 and 360. In Committee we had a brief debate on Clause 184 when the noble Lord, Lord Morton of Shuna, suggested introducing into Part II a reference to the 1961 Rome Convention for the Protection of Performers. Producers of Phonograms and Broadcasting Organisations. I said that I did not think it would be appropriate to refer to a particular international convention by name. I did, however, say that it might be worth introducing the concept of a convention country in a more general sense, in the same way as Clause 148 does for copyright.

Amendment No. 303 does just this for Part II. A convention country means a country which is a party to a convention relating to performers' rights to which the United Kingdom is also a party. Such a country may be designated under Clause 186 without more, as in the case of a copyright convention country. Only in the case of non-convention countries must Her Majesty be satisfied that there is adequate protection for British performances before making a designation.

Amendments Nos. 359 and 360 to Clause 236 are consequentials to bring the drafting into line with Clause 186 as I am proposing to amend it. I beg to move.

On Question, amendment agreed to.

Clause 187 [Territorial waters and the continental shelf]:

[Amendment No. 304 not moved.]

Clause 189 [Meaning of "for private purposes"]:

Lord Beaverbrook moved Amendment No. 305: Leave out Clause 189

The noble Lord said: My Lords, I beg to move Amendment No. 305 formally.

On Question, amendment agreed to.

Clause 190 [Expressions having same meaning as in copyright provisions]:

Lord Beaverbrook moved Amendment No. 306: Page 84, line 18, at end insert ("business"),

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

On Question, amendment agreed to.

Lord Williams of Elvel moved Amendment No. 307: Page 84, line 32, after ("services)") insert ("and section 80(2) to (4), and sections 81 to 83 (dealings with rights in copyright works)").

The noble Lord said: My Lords, I beg to move Amendment No. 307. I believe that the wording is self-explanatory and no doubt the Government have studied it. I beg to move the amendment formally.

Lord Beaverbrook

My Lords, the amendment standing in the names of the noble Lords. Lord Williams of Elvel and Lord Morton of Shuna, provides that rights and performances may be dealt with in the same way as copyright. It seems to me that the amendment stands of falls with Amendment No. 291 to Clause 173, which we discussed earlier. If there is no assignability of rights in performances (as there will not be without the noble Lord's amendment to Clause 173) there is nothing for Amendment No. 307 to bite on and it is superfluous. Almost everything in Clauses 82 to 84 is inappropriate to rights and performances; and this only serves to confirm my resistance to the earlier amendment. I hope the noble Lord will feel able to withdraw the amendment.

Lord Williams of Elvel

My Lords, I am grateful to the noble Lord, but I do feel there is a certain inconsistency in treatment of different parts of the Bill and it is a matter on which, as the noble Lord knows, we concentrated in our discussions and to sonic extent in Committee. We shall return to some of these amendments at a later stage of the Bill, as may our colleagues in another place. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 191 [Index of defined expression]:

Lord Beaverbrook moved Amendments Nos.308 and 309:

page 85, line 4, at end insert—

("business

page 85, leave out line 15.

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

The noble Lord said: My Lords, with leave, I beg to move Amendments Nos. 308 and 309 en bloc.

On Question, amendments agreed to.

Schedule 2 [Rights in performances: permitted acts]:

Lord Beaverbrook moved Amendments Nos. 310 to 312:

Page 138, line 10, leave out from second ("by") to end of line 12 and insert— ("the copying of a recording of a performance in the course of instruction, or of preparation for instruction, in the making of films or film sound-tracks, provided the copying is done by a person giving or receiving instruction. (1A) The rights conferred by Part II are not infringed—

1. (a) by the copying of a recording of a performance for the purposes of setting or answering the questions in an examination, or
2. (b) by anything done for the purposes of an examination by way of communicating the questions to the candidates.").

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

Page 140, line 17, leave out from ("part)") to end of line 19 and insert— ("—

1. (i) at prices which are substantially attributable to the facilities afforded for seeing or hearing the broadcast or programme, or
2. (ii) [at prices exceeding those usually charged there and which are partly attributable to those facilities.").

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

On Question, amendments agreed to.

Viscount Long

My Lords, I beg to move that further consideration on Report be now adjourned.

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