COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Young of Graffham

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 123. With the leave of the House, I shall speak also to Amendments Nos. 123A and 123B as amendments to Commons Amendment No. 123, and to Commons Amendment No. 124.

The purpose of Amendments Nos. 123 and 124 is to replace the provision for reference to the Copyright Tribunal of the terms of an existing licence with provision for the reference of the possible extension of the life of the licence beyond its contractual duration.

When Clause 120 was debated in another place the criticism was made that it was wrong to allow a copyright licensee the possibility of going to the tribunal to obtain a variation in a contractual licence once it had been granted. Given the opportunity for the licensee to go to the tribunal under Clause 119 at the negotiating stage, the licensing body ought to have the assurance that, once a contractual agreement between itself and a licensee has been freely entered into, the terms of that agreement will thereafter remain sacrosanct throughout its duration. We are of course talking here about licences and not licensing schemes—in other words, contracts between two parties and not merely statements of the terms on which licences are available.

We accept that these arguments have a good deal of force. We did not consider, however, that we could 299 remove altogether the opportunity for a licensee to apply to the tribunal for an extension of a licence granted by a licensing body, even though that licence might have been freely negotiated. Without such a possibility major long-standing users of copyright material, such as the education sector or broadcasters, might find themselves vulnerable to the withdrawal of a licence to photocopy printed material or to broadcast music without anything else being on offer. Where the material concerned is controlled by collecting societies enjoying a total or near total monopoly, that is not acceptable.

The solution contained in Amendments Nos. 123 and 124 is to amend Clause 120 so that while a contractual licence within the Copyright Tribunal's jurisdiction is in operation no reference may be made to the tribunal until the last three months of its duration (whether it expires by notice or because a fixed period comes to an end), and the point of the reference is to secure an extension of the duration of the licence. Once the licence has been extended, of course, it is no longer contractual, and its terms are as much subject to the tribunal's determination as in any other case.

Amendment No. 123B, standing in the name of the noble Lord, Lord Lloyd of Kilgerran, and the noble Viscount, Lord Falkland, aims to extend from three months to six months the period prior to the expiry of a licence during which a reference seeking an extension may be made. Obviously it is a matter of judgment just how long this period should be, but what is clear is that it should not be so long that a substantial part of a freely negotiated voluntary agreement between two parties should become subject to the jurisdiction of the tribunal and possibly a compulsory extension.

Agreements in the world of copyright can quite often be for a period of, say, one year only. A reference period of six months would be half of that, which in our judgment is too long. I believe that three months should be long enough for a licensee desiring an extension to apply to the tribunal, especially since once the reference has been made the licence will remain in operation until proceedings on the reference are concluded. I therefore hope the noble Lord and the noble Viscount will be willing to withdraw their amendment, because I shall have to resist it.

Amendment No. 123A, in the name of the noble Viscount, Lord Brentford, seeks to go the other way and remove altogether the possibility of applying for an extension of a licence where its term is fixed or where there is an express power for the licensing body to serve notice of termination. This would clearly make Clause 120 a dead letter since most licences will either be for a fixed term or contain provision for termination. We cannot accept that this would be right for the reasons I have already given: it would give licensing bodies the power to deprive particular established users of access to repertoire of which those bodies may have total monopoly control. I must make clear, therefore, that I shall have to resist this amendment also, if the noble Viscount seeks to press it.