HL Deb 02 November 1988 vol 501 cc217-24

Lord Williams of Elvel moved Amendment No. 21B: Line II, after ("programs") insert ("and any work included therein").

The noble Lord said: My Lords, in speaking to my Amendment No. 21 B, which is also in the name of the noble Viscount, Lord Brentford, I shall speak to the grouping announced by the noble Lord the Secretary of State in his introduction.

I must say at the outset that we disagree with the position of the noble Lord and the Government in this matter. In our view it is wrong, both conceptually and practically, to confer a rental right on producers of sound recordings and films but not on the authors of the works included therein. We believe this whole move has come out of the difficulties associated with the 1956 Act, when Part I, which dealt with copyright in works, and Part II, which dealt with copyright in subject matter, were merged so that now all are merely called "copyright works". We believe a conceptual problem derives from that change.

In our view it is quite unrealistic to claim that authors should be able to negotiate contractually so as to avoid difficulties. Indeed this could apply to so many situations in copyright law. Again, we have to point out that there is another lack of consistency in the Act, so that in some cases rights are left to be negotiated contractually and in other cases the Act spells out the basic rights.

Your Lordships will be aware that since the Bill left the House and went to another place the European Community have published a Green Paper Copyright and the Challenge of Technology: Copyright Issues Requiring Immediate Action. In Chapter 4 of that Green Paper the Commission announced its intention to submit to the Council a proposal for a directive to introduce a rental right for sound and video recordings in all member states and a rental right for the benefit of the author, the performer and the phonogram producer. In other words, in its Green Paper the Commission is proposing precisely what the noble Viscount and I are proposing in our amendment; and if that directive is approved in the form suggested by the Green Paper, no doubt the noble Lord the Secretary of State, if he is still in his place by then, as I am sure he will be, will come before us proposing a change in this legislation and we shall have to go through the whole rigmarole and turn about-face. We would prefer to avoid this and to conform with the Green Paper at the outset.

If I may deal briefly with the question of public libraries, this matter has been discussed, as the noble Lord said. He assured me that my Amendment No. 173A was superfluous and redundant because it had already been covered by Commons amendments. All I can say is that he not only fooled me but he fooled all my advisers too, and I believe them to be somewhat expert in this matter. It does not seem to me to be damaging or harmful in any way if the position that the noble Lord spelt out and is reflected in terms of the utmost clarity in my amendment, should not be accepted by the Government for the avoidance of doubt.

The noble Lord no doubt read this morning in The Times a letter from Professor Cornish of the London School of Economics and Political Science, in which he claims that this matter is not clear in the Bill and the Commons amendments which are before your Lordships at the moment and indeed is dealt with in Schedule 7, hidden away at the end of the Bill. However, I am glad to inform Professor Cornish that it is not right up-front and we are having a discussion about this at a very early stage in the evening whereas we shall reach Schedule 7 rather later. We can see no reason why the Government should not accept Amendment No. 173A. If the Minister remains of the view that it is redundant and superfluous and that the matter is covered by legislation. I should be grateful if he would say so and explain how and why we are mistaken. We shall then reconsider the matter.

Perhaps I may return to the major principle of rights for authors as opposed to rights for producers and those who are responsible for the confection of a production of an author's work. It seems to us that the Bill is becoming dangerously loaded against the interests of authors and in favour of the interests of producers. This we regret. We very much hope that even at this stage the Government may be able to accept the simple amendment that we now propose to redress the balance in favour of authors. I beg to move.

Viscount Brentford

My Lords, I wish to speak in support of Amendment No. 21B, to which I put my name. As has been said, the object is to provide a protection for authors and composers that is otherwise not available to them. I was disappointed to hear my noble friend say earlier that he was not prepared to accept it.

I endorse what the noble Lord, Lord Williams of Elvel, has said on the subject, and wish to emphasise two points. First, I refer to the Green Paper that has been put forward by the EC since we last debated the question. I am informed that it is likely that these changes will be accepted in the EC. It would surely be sensible therefore for my noble friend to accept Amendment No. 21B ahead of time, thus saving himself and the department a great deal of extra work. I very much hope that he will see his way to accepting this small amendment.

The second point is in response to what my noble friend said about the arrangements that can be made between composers and retailers. I wish to declare an interest on behalf of the Music Copyright Reform Group, which has discussed the issue with the trade. Members of the trade—the retailers in this case—are clear and adamant that the Bill as drafted gives them no liability to provide royalty to composers, and they will not do so. My noble friend Lord Beaverbrook said earlier that this was a matter for agreement. It is clear that the trade will not agree to make these payments. Composers will therefore be excluded. Whatever my noble friend may say about the theory of the matter, that seems clear. I therefore urge my noble friend to accept the amendment.

4.45 p.m.

Lord Lloyd of Kilgerran

My Lords, I support the amendment prima facie because of the passages in Chapter 4 of the Green Paper issued last July. I was in Brussels with D-G III to discuss aspects of the proposed Green Paper last June. Those of us at the patent bar have been expecting the Green Paper for some seven years now. We were rather surprised that it should have come out so soon after this Bill had left your Lordships' House.

The Green Paper comprises suggestions of what should be covered in a future directive. It has no statutory or other influence. It is a matter for future discussion to decide what it should contain. As a good European, if I may say so, when I see anything of this kind in a Green Paper issued by the EC I wish to support it.

In regard to Amendment No. 21 B, as I understand it I can still come back to support the Government in the attitude that they may take to Commons Amendments Nos. 18 to 24.

Lord Willis

My Lords, I wish to support my noble friend's amendment. Whenever any noble Lord speaks of the rights of authors I feel the tribal drums beating in my heart. I therefore warmed to this amendment.

Authors and composers in particular were bitterly disappointed when the Bill came back from the Commons without any real consideration having been given to their rights under the rental legislation. As a result there are a great many anomalies. I wish to mention one in particular. If the Bill goes through as drafted, a person who goes to a library to borrow a book will pay something to the author under the public lending right through taxes but not to the publisher. If someone borrows a video, he or she will pay something to the publisher but not to the author. In an earlier debate it was argued that an author or composer can negotiate contractual terms with a producer to the effect, "If you make this into a video and rent it out, I want a share of the rental right".

As a last ditch attempt, I wish to make the central point that we tried to make earlier. Copyright is supposed to protect eveyone, the weakest as well as the strongest. The strongest can take care of themselves. The Beatles, or what is left of them, can almost dictate their own terms in regard to the publishing of any of their music, just as Frederick Forsyth or Grahame Green can almost dictate their own terms if something of theirs is made into a film. Then there is little Joe Bloggs, who is just beginning and who one day may be as famous as the names that I have mentioned. He needs protection now. He can easily be conned, and often is. A young author will sell his soul simply to get published or produced. Therefore, the law should protect him in terms of rental right as well as in everything else. It does not do so at present. Under the present proposal, the strong will triumph and producers will make money but younger authors—indeed, even moderately successful authors—will not benefit.

As to the point about multiplicity of licences, that really does not work. We have enough collecting societies today to make simple agreements about the share of rental right of authors and composers. There will be no problem in that respect. There would be no burden on the retailer or hirer of the product.

Lord Lloyd of Hampstead

My Lords, I was among those who in an earlier debate strongly supported the concept of rental right. I therefore strongly support Amendment No. 21B for the reasons cogently put forward by the noble Lord. Lord Willis. I shall not repeat them because I could not formulate them with the same degree of cogency. Suffice it to say that the amendment has my strong support.

Lord Howie of Troon

My Lords, I support the amendment of my noble friend, and dissent from only one point that he made, namely, that the Bill is now balanced as between the publishers and authors. I do not believe that. Those who remember the debates earlier in this Session will not be surprised that I say this. We say very often in this House that after a lengthy period of debate we have got it just about right. It is not very often that I say it about the Government but I think that here they have, except that I support my noble friend in his Amendment No. 21B.

What prompted me to rise to my feet is that I do not understand Amendment No. 21A. That is probably my fault, I have not got the hang of it in some way. As I read it, it seems to deal with putting into circulation copies not previously put into circulation and does not apply to any subsequent distribution. Does that mean that if the copy which was first put into distribution is improperly put into distribution, nevertheless later copies are somehow absolved from that impropriety? I am sure that is not what the Government intend. It is quite likely that I have misunderstood the content of the clause, but that is what it seems to me to mean.

It is not unlike the Spycatcher business, when a book was apparently published improperly elsewhere. Because it was published improperly it could then be published properly later on. That is an analogy, it is not an exactly similar case and I am quite sure that the Government do not mean that. It is fairly obvious that I have got the wrong end of the stick in some way but I should like to be relieved of my worries.

Lord Young of Graffham

My Lords, perhaps I may assure the noble Lord that the example he mentioned, the name of which escapes me for the moment, would not be a suitable analogy. As I endeavoured to point out, it concerns the definition of the first issue. Where importation precedes first issue, where copies are imported in bulk by the publisher, that import should not prevent the first issue being restricted. Where copies of a work are first issued abroad and then imported into the United Kingdom, there would be no infringement under Clause 18. I think that is the example at which we were looking under Amendment No. 21A.

I should like to turn to a subject close to my heart, the European Commission proposals. As noble Lords have pointed out, this Green Paper was seven years, if not more, in gestation. It is an interesting document and I have no doubt that it will generate a great deal of discussion over the coming months and years. The Commission has invited comments on the proposition that member states should give rental rights to authors as well as to producers, as the noble Lord said. However, that is a proposition which on close examination leads, I believe, to the practical difficulties that I have already outlined. We intend pointing this out to the Commission in due course. We have every reason to believe that we shall persuade it to change its mind. In those circumstances, I do not think that what my noble friend Lord Brentford suggests would save my department from work. It would cause more work, because we believe that the position as it appears today is the best position for us to be in.

The noble Lord, Lord Williams, has suggested that his proposed Amendment No. 173A is needed in order to put the position of libraries beyond doubt. On the contrary, I do not believe that it would do anything other than cast doubt on Amendments Nos. 393,395 and 401. Those amendments say very clearly indeed and put it beyond doubt that the provisions: apply to any lending by a library authority of copies of such works, whether or not a charge is made for that facility". I think that puts it very clearly indeed. I fear that if Amendment No. 173A is passed, it will confuse the position. In this one instance—I doubt whether there will be any others—I suspect that the noble Lord's advisers may be mistaken.

Perhaps I may raise another matter which my noble friend has mentioned. He is concerned that retailers will not pay the owners of rights for rental. I agree. No one would expect the trade—that is the retailers—to make payments to copyright owners. I do not believe they should ever be put into the position of doing so. If they were, we should have chaos and difficulty in the system. But I would expect producers to make payments in respect of rental if authors make suitable contractual arrangements at the time their work is incorporated in a film or a record. The producers cannot make this film or record with the author's consent. They are the proper people who should pay for that consent.

Lord Lloyd of Kilgerran

My Lords, perhaps I may speak in respect of Amendment No. 21A unless the noble Lord wishes to reply.

Lord Williams of Elvel

My Lords, yes, I wish to reply to the debate on Amendment No. 21B. The noble Lord, the Secretary of State, in his opening remarks on the grouping, in my view produced only one argument against this amendment. That was the multiplicity of units that would he involved and the difficulty of ensuring the practice of giving authors their proper rights. I think my noble friend Lord Willis has dealt with that. There are many other instances and sectors of the copyright business where that problem is overcome.

When he replied, the noble Lord said that the Government were confident—I am not sure that he used that expression, I think he said "expected"—that they could persuade the Community to change its view as expressed in the Green Paper. The noble Lord, Lord Lloyd of Kilgerran, is much more expert and experienced in these sorts of discussions than I am. However I have the impression that if after seven years, or whatever was the gestation period, a Green Paper comes out with a fairly firm statement, the view will be rather difficult to shift. I do not think that the, Government should rely on their expectations of being able to shift the other member states in order to avoid the point at issue. It does not seem to me to be something to which we should pay much attention.

Lord Lloyd of Kilgerran

My Lords, I hesitate to interrupt the noble Lord, but I wish to know on what basis he says that other states are supporting the view. This is a document asking for comments from all the other states. There is no indication in the document what states are supporting it.

Lord Williams of Elvel

My Lords, there is no indication in the document, but, as the noble Lord knows perfectly well, these documents are discussed in pre-Green Paper form with representatives of all sorts of people. My understanding is that this is something which at the lower level—I am not saying it has been approved by the Council of Ministers or anything like that—commands popular support. Such comments are not put into European Green Papers on any subject which I have anything to do with—leaving aside copyright or patent—in competition law unless they have been aired with governments of other countries at the official level. I believe that to be the case.

Lord Broxbourne

My Lords, will the noble Lord allow me to intervene? While I understand that he addresses himself to the expertise of the noble Lord, Lord Lloyd of Kilgerran, other noble Lords are anxious to hear what he says, although not bringing to the matter the same level of expertise and comprehension. In case the noble Lord thinks that my difficulty is merely a reflection of my age, I know that my noble friend shares it. Could the noble Lord please speak louder?

Lord Parry

My Lords, it is his shyness!

Lord Williams of Elvel

My Lords, I am usually accused of speaking too loud in this House. Perhaps it was because I was turning my head towards the Benches on my right, whose identity I cannot quite describe at the moment—Democrat or whatever. It was perhaps for that reason that I was not fully heard by the noble Lord, Lord Broxbourne, and I apologise both to him and to the noble Lord, Lord Mottistone.

It is my view that the Green Paper was the result of fairly extensive consultations at official level. It is certainly true that it has not come up to ministerial level and also that it is in the form of a Green Paper which is put forward by the Commission. Therefore the noble Lord, the Secretary of State, is quite justified in saying that the Government may expect to change this provision. I am equally justified in saying that at official level in other member states there will have been a certain amount of support or the proposal would not have got into the Green Paper in the first place. It is a proposal which the Minister and his colleagues in the United Kingdom Government may in the end change, but I doubt if they will. Those seem to be the only two arguments advanced by the Secretary of State against the amendment that I and the noble Viscount, Lord Brentford, put forward.

There is a multiplicity of arguments, ranging from that of being a good European, put forward by the noble Lord, Lord Lloyd of Kilgerran, to the argument relating to the balance of the Bill, put forward by myself, to the argument about the proper rights of authors put forward by my noble friend Lord Willis. All those arguments militate in favour of the amendment to the Minister's amendment that I and the noble Viscount have tabled. For that reason, I wish to press the amendment.

5.2 p.m.

On Question, That Amendment No. 21B, as an amendment to Amendment No. 21A, be agreed to.

Their Lordships divided: Contents, 87; Not-Contents, 97.

Addington, L. Glenamara, L.
Airedale, L. Graham of Edmonton, L
Amherst, E. Gregson, L.
Ardwick, L. Grey, E.
Attlee, E. Hampton. L.
Banks. L. Hanworth, V.
Birk, B. Howie of Troon, L.
Blease, L. Hughes, L.
Bonham-Carter, L. Hunter of Newington, L.
Brentford, V. [Teller] Hylton-Foster, B.
Broadbridge, L. Ilchester, E.
Brooks of Tremorfa, L. Irving of Dartford, L.
Bruce of Donington, L. Jay, L.
Callaghan of Cardiff, L. Jeger, B.
Carmichael of Kelvingrove, L. John-Mackie, L.
Carter, L. Kilbracken, L.
Chitnis, L. Kilmarnock, L.
Cledwyn of Penrhos, L. Kinloss, Ly.
Craigavon, V. Lawrence, L.
Davies of Penrhys, L. Listowel, E.
Dean of Beswick, L. Lloyd of Hampstead, L.
Donaldson of Kingsbridge, L. Lloyd of Kilgerran, L.
Dormand of Easington, L. Lockwood, B.
Ewart-Biggs, B. Longford, E.
Falkland, V. Lovell-Davis, L.
Fitt, L. McNair, L.
Gallacher, L. Masham of Ilton, B.
Galpern, L. Molloy, L.
Gladwyn, L. Mulley, L.
Nicol, B. [Teller.] Stedman, B.
Ogmore, L. Stoddart of Swindon, L.
Oram, L. Strabolgi, L.
Parry, L. Swann, L.
Peston, L. Taylor of Blackburn, L.
Pitt of Hampstead, L. Taylor of Gryfe, L.
Ponsonby of Shulbrede, L. Tordoff, L.
Prys-Davies, L. Turner of Camden, B.
Ritchie of Dundee, L. Underhill, L.
Rugby, L. Walston, L.
Russell of Liverpool, L. Whaddon, L.
Seear, B. Williams of Elvel, L.
Serota, B. Willis, L.
Shaughnessy, L. Zuckerman, L.
Somers, L.
Airey of Abingdon, B. Johnston of Rockport, L.
Aldington, L. Joseph, L.
Alport, L. Kaberry of Adel, L.
Ampthill, L. Killearn, L.
Arran, E. Kimball, L.
Ashbourne, L. Kimberley, E.
Auckland, L. Lauderdale, E.
Beaverbrook, L. Long, V. [Teller]
Beloff, L. Lyell, L.
Belstead, L. McFadzean of Kelvinside, L.
Bessborough, L. Margadale, L.
Blatch, B. Marley, L.
Borthwick, L. Marsh, L.
Brabazon of Tara, L. Marshall of Leeds, L.
Brougham and Vaux, L. Merrivale, L.
Broxbourne, L. Mersey, V.
Bruce-Gardyne, L. Milverton, L.
Caccia, L. Mottistone, L.
Caithness, E. Mowbray and Stourton, L.
Cameron of Lochbroom, L. Munster, E.
Campbell of Alloway, L. Murton of Lindisfarne, L.
Carnegy of Lour, B. Napier and Ettrick, L.
Carnock, L. Nelson, E.
Chelwood, L. Noel-Buxton, L.
Colville of Culross, V. Nugent of Guildford, L.
Cork and Orrery, E. O'Brien of Lothbury, L.
Cottesloe, L. Orkney, E.
Cullen of Ashbourne, L. Orr-Ewing, L.
Denham, L. [Teller.] Oxfuird, V.
Dundee, E. Pender, L.
Elibank, L. Peyton of Yeovil, L.
Elliot of Harwood, B. Portland, D.
Elliott of Morpeth, L. Rankeillour, L.
Erroll of Hale, L. St. Davids, V.
Faithfull, B. Salisbury, M.
Gardner of Parkes, B. Sanderson of Bowden, L.
Gisborough, L. Stevens of Ludgate, L.
Grimthorpe, L. Strathcarron, L.
Haig, E. Strathclyde, L.
Hailsham of Saint Marylebone, L. Swinfen, L.
Thomas of Gwydir, L.
Halsbury, E. Trefgarne, L.
Hardinge of Penshurst, L. Vaux of Harrowden, L.
Harmar-Nicholls, L. Westbury, L.
Hives, L. Whitelaw, V.
Holderness, L. Windlesham, L.
Home of the Hirsel, L. Wise, L.
Hooper, B. Young, B.
Jenkin of Roding, L. Young of Graffham, L.

Resolved in the negative, and amendment to the amendment disagreed to accordingly.

On Question, Motion (to disagree to Commons amendments 21 to 24 but to propose Amendment No. 21A in lieu) agreed to.

5.11 p.m.