COMMONS AMENDMENT (Hansard, 2 November 1988)

§ Lord Strathclyde
My Lords, this amendment fulfils an undertaking we gave when the Bill was previously before your Lordships to try to meet a concern of the broadcasting organisations over what has become known as the "tenth spear-carrier" problem. The issue at stake is whether broadcasters and cable operators should have to have the further consent of performers when they want to make copies of authorised recordings for purposes such as cable distribution, or for marketing to other broadcasters. I should perhaps remind the House that recordings in this context means either films or sound recordings. I beg to move that the House do agree with the Commons in their Amendment No. 188.
The broadcasters do not question in any way that a performer should have an absolute right to authorise or refuse consent to the making of the recording in the first place. Nor do they dispute his right, if based on reasonable grounds, to refuse consent to the making of further copies when these are needed for subsequent exploitation. What they do feel is that once the performer has authorised the first recording he or she should not be entitled to refuse consent without reasonable grounds for doing so.
The potential problem can conveniently be illustrated by the tenth spear-carrier example that I mentioned a moment ago. It is the fear that one recalcitrant performer in a minor role, say the tenth spear-carrier in "I, Claudius", may prevent the subsequent exploitation of a recording of a large-scale television drama or series even though all the other performers have consented to the making of the further copies which such exploitation would clearly involve. Such a refusal would jeopardise not only the financial interests of the television company but also those of the other members of the cast who could otherwise look forward to further remuneration.
322 The new clause to follow Clause 178 will, we believe, provide all that the broadcasters need, while safeguarding the interests of a performer with genuine and reasonable grounds for refusing consent to the making of copies not authorised in his initial contract. The clause is also, I believe, drawn in such a way as to comply with our obligations under the 1961 Rome Convention.

§ Lord Williams of Elvel
My Lords, I wish to return briefly to the point that I was discussing earlier with the noble Lord concerning a performer who unreasonably withholds his consent. If the performer in question is not a resident in the United Kingdom and he may be found—or not found—what is the jurisdiction of the tribunal in determining whether this performer, who may reside in Germany, Italy, France or indeed anywhere, is unreasonably withholding his consent? Is it by his absence, by his failure to attend? Where is the resolution of this problem?

§ Lord Strathclyde
My Lords, perhaps I may go on giving a full explanation. It can of course be argued that it is up to the programme-maker when he signs up the performer for the initial recording to ensure that he acquires all the consents that he needs for possible later exploitation. That would include the situation where the performer went abroad thereafter. No doubt the decision on whether the ground for refusing consent is reasonable is always taken by an independent body and not by the person wanting to make the further recording.
A number of further safeguards are built into the clause, and I want to mention in particular subsection (4). This provides among other things that the tribunal shall not give consent unless satisfied that the performer's reasons for withholding consent do not include the protection of any legitimate interest of his. In other words, if the performer can show that he has a legitimate interest to protect there is no possibility that his refusal can be overridden.

§ Lord Williams of Elvel
My Lords, my question was: what is the jurisdiction of the tribunal?

§ Lord Strathclyde
My Lords, I may not have made myself clear the first time round. The jurisdiction of the tribunal is not affected by where the performer may be found. The question is whether the performer when approached refuses reasonably or unreasonably. What is "reasonable" will be the same wherever the performer may be. As to the performer being abroad, if he cannot be found, as I have said, the tribunal can deal with the case. Therefore, the problem simply does not arise.