COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Strathclyde
My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 43. At the same time, with the leave of the House, I shall speak also to Amendments Nos. 67, 68, 79 and 80.
These amendments deal with various points relating to the defence of statutory authority for an act which would otherwise infringe copyright. Amendment No. 43 will ensure that a defendant is not debarred from pleading a statutory authority for an act which infringes copyright merely because there is no specific provision in the Act of Parliament in question. It will be, as under the present law, a matter of construction of the statutory provision in question.
Amendments Nos. 67 and 68 complete a task we began when the Bill was previously before this House 243 to meet certain concerns raised by the broadcasting industry and the Cable Authority. These concerns were that the Bill as then drafted failed fully to protect broadcasters and providers of cable programme services in relation to the making of recordings of their transmissions for the purposes of supervision and control. In response to these concerns the provision that is now Clause 66 was therefore introduced at Third Reading to ensure that, where recordings of programmes are required to be made and used for purposes of maintaining supervision and control over such programme, this may be done without infringing copyright.
Clause 66 as introduced at that time already deals satisfactorily with the position of the IBA and its contractors. Unfortunately, it was not possible before the Bill left your Lordships' House to resolve certain difficulties of drafting in relation to the BBC arising from the fact that it is established under Royal Charter and not by statute, simple though Amendment No. 67 now turns out to be. Further, a defect in Clause 66 in relation to the Cable Authority has subsequently come to light, which needs to be rectified.
These amendments put these matters right. They are, I think, largely self-explanatory though I will, of course, elaborate on them more fully if your Lordships wish me to do so.
Amendments Nos. 79 and 80 make a rather similar exception for the BBC in relation to the right of an author or director not to suffer derogatory treatment. Subsection (5) of Clause 77 permits someone exploiting a copyright work to do something with the work which would otherwise infringe the author's or director's right not to suffer derogatory treatment if what the exploiter does is necessary to avoid commission of a criminal offence or to comply with a statutory duty. An example would be a cut from a play or a film to avoid infringing the laws of obscenity. The author or director might object that this ruined the artistic integrity of his work. Indeed, it might, but in such a case his rights are not infringed. It must, I think, be right that the general law should prevail over a particular author's rights where the two are in conflict.
This works for the IBA and ITV companies, among others, because they are subject to a statutory regime. They will not infringe an author's rights if they alter his work in order to ensure compliance with their statutory obligations. It does not, however, work for the BBC, because the BBC operates under Royal charter, not statute, and its obligations with respect, to put it simply, to sex and violence, are not covered by any Act of Parlaiment. To enable the BBC, therefore, to alter an author's works to comply with those obligations we need a special rule, just for the BBC. And this is what these amendments provide. The wording of Amendment No. 80 is identical to the basic rule governing ITV in the Broadcasting Act 1981, so authors will receive identical treatment in respect of their moral rights on both channels.

§ Lord Peston
My Lords, again, I understand why these amendments have been put forward. However, I am not entirely happy with them. My main concern is that I have never understood why something in bad taste ought to be illegal. I am also aware that what is good or bad taste at one time is not so at another time. Therefore, anything in the nature of Amendment No. 80, even if it brings the BBC into line with the other bodies, I find most unattractive.
Having said that, I go back to the rights of the author and ask again for clarification or education. If I am an author and write a work which is in bad taste—I do not suggest for one moment that I have, or that I am ever likely to—that is up to me. It is no one else's business. I write my work and that is it. What protection do I have from any of these bodies if they propose to broadcast my work and modify it to remove the bad taste? Can I at least say I would rather they did not produce the work at all? Am I fully protected against my work being used in a way that I do not want it to be used? Do I lose that protection? Can those bodies take my work and decide that part of it is in bad taste, and that is it? Do I have to accept my royalty, or whatever payment I receive, while being unable to protect what I believe to be my perfect work of art? How far does this clause go in infringing the rights of an author or artist who says, "You have your view of good taste and decency and I have mine". Have I lost my protection? I ask the Minister to clarify the position.

§ Lord Willis
My Lords, perhaps I can clarify the point for my noble friend. This is a common occurrence for writers and their contracts. What one does after writing a tasteless work—which I am sure my noble friend has never done and never will—and having the good luck to sell it to some idiotic producer is to say in the contract that the producer has no right to alter any part of it without the writer's consent. Even people who write tasteful works, like myself, put a clause into the contract that no part of the work shall be altered without consent, which shall not be unreasonably withheld. That is a common occurrence. I therefore see no difficulty in the wording of the clause.

§ Lord Peston
My Lords, with permission, may I come back on this point as I seek clarification. I understand what my noble friend has said; it is reassuring. However let us suppose that I am a naïve author who does not think of that at the time. All I will be thinking of is that for the first time in my life the BBC or ITV is interested in my work. Having been rather poor and unsuccessful I sign a contract. It might not occur to me that the television company does not want my whole work. I assume that it has bought what I have created. Therefore, I do not include that clause because I love my great work and I am desperate for the money. The question I am asking is whether there is anything in the terms of the rights. Even though the clause mentioned by the noble Lord, Lord Willis, has not been put into my contract, if I then discover that the key part of my work—the obscenities which I believe to be so 245 fundamental—is being butchered, can I pull out? I believe the answer is probably no; but that is partly the question I am asking.

§ Lord Willis
My Lords, I believe that the author would have certain rights. It depends how much was butchered. An obscene line or two might be taken out here and there. But those responsible would have to be stupid to buy the material in the first place. The case the noble Lord quotes is so rare that it is really not worth legislating for. Let us take another case and suppose that a very left-wing author—

§ Lord Mottistone
My Lords, this is not the Committee stage of the Bill. Noble Lords are supposed to speak once, and that is it. Noble Lords can explain this kind of matter to each other outside the Chamber.

§ Lord Strathclyde
My Lords, the noble Lord, Lord Peston, is right in what he said. The answer is no. The effect of Amendments Nos. 79 and 80 is to prevent authors from using their moral rights to stop broadcasters from censuring their work. At this stage I agree with the noble Lord, Lord Willis, in what he said; namely, that that kind of matter can be dealt with by contract.