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. 55. Folk songs are a valuable aspect of our cultural tradition and concern has been expressed that copyright could hinder the collection and preservation of this important part of our social history. Of course there is no difficulty with folk songs which have their roots in the distant past. But folk culture is constantly evolving and many of our modern folk songs consist of new words being fitted to existing tunes. Where the tune is copyright music, there may be problems for those who want to research and collect folk music.
I do not think that these problems are quite as severe as some have suggested. The Bill already allows fair dealing with musical works for the purposes of research, private study, criticism or 253 review. However we accept that there is a difficulty in relation to the making of sound recordings of performances of the folk versions of the copyright music.
Amendment No. 55 provides a way round this difficulty. It is a new exception to copyright which will allow recordings of performances of songs to be made for the purpose of inclusion in an archive maintained by a designated body without infringing the copyright in the words or music. This is however subject to several conditions which will safeguard the interests of composers, lyricists and performers. The practical effect is that only the copyright in the music is overriden and for a very limited purpose.
Subsequently, anyone requiring a copy of the recording for the purposes of research and private study will be able to obtain it from the archivist. I believe that this is a reasonable exception to copyright that will result in an archive providing a useful insight into our social history. Amendment No. 55 and the existing provisions of the Bill ensure that those genuinely involved in folk music research can collect and maintain archives of such music and can report the results of their research without infringing copyright.

§ Lord Williams of Elvel
My Lords, I am grateful to the noble Lord for explaining the amendment in detail because it was one about which I had some doubts, as I think I gave him notice of the other day. My doubts concerned the underlying copyright ownership and, indeed, the subsequent assertion of moral rights by those who may be anonymous or pseudonymous authors of the words, or who may have discovered the words somewhere, in a case where the recording was made and put into an archive and someone somewhere pops up out of the blue and says, "I wrote those words", or, "I wrote that music and I want to assert my moral rights".
In his introduction I think that the noble Lord has gone some way to assuage the problems that I had. He stated that it was for archival purposes only. Therefore I can assume—at least I hope I may—that if such folk songs are used by others for whatever purposes, such as an introduction to a television programme, in a broadcast or whatever, the underlying copyright still subsists. The issue is where the underlying copyright may be and what the position is as regards moral rights which may or may not be asserted by people who feel that they may or may not be entitled to assert those rights. I very much hope that the noble Lord will be able to help me just a little further on the amendment because it seems to be rather important.
As regards the question of the underlying copyright, if I may talk about that for a moment, this is illustrated by Cecil Sharpe, who went around the country collecting a series of folk songs and folk music, some of which he then either arranged or rewrote. From time to time after his compilation people turned up and said, "It was not a folk song at all"—although it may have been a folk song within 254 the definition of the Bill—"In fact, it was something I wrote in my kitchen one day". Of course there is a copyright problem in such a case.
Then there is a moral right problem where the person who may claim authorship or claim to have written or adapted the music that is recorded in the sound recording which is in the archives—which the new clause refers to—suddenly pops up and says, "I am actually the author of this and I do not wish my work to be distorted". It is a most difficult area. Therefore if the noble Lord can go a little further in his explanation, I think that my worries will be satisfied.

§ Lord Strathclyde
My Lords, I am glad that with my earlier remarks I managed to satisfy some of the noble Lord's worries. As regards the question he raised, the fact is that moral rights do not apply to the inclusion of works in archives and using the archives for research or study. But otherwise they apply fully to folk songs. Therefore I feel that his concerns are fully met.

§ Lord Williams of Elvel
My Lords, does this mean that if I go along to an archive and say that I should like to use the folk song which is in the archive for whatever purposes I may wish, there will be an opportunity for someone to assert both copyright and moral right?

§ Lord Strathclyde
Yes, my Lords, that is indeed the case.