COMMONS AMENDMENTS (Hansard, 2 November 1988)

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 86 and 87.

With leave, I trust that it will be convenient if I speak also to Amendments Nos. 88 and 88A. Amendments Nos. 86, 87 and 88 are drafting amendments and unless any of your Lordships wish me to explain them I shall concentrate my remarks on the amendment to Amendment No. 88 tabled by the noble Lord, Lord Williams, which raises a point of substance as opposed to the niceties of drafting.

The underlying intent of subsection (4) of Clause 91, both as it left this House and as amended in another place, is that any consent or waiver given by the author during his lifetime should continue to be effective when his moral rights are exercised by someone else after his death. What the noble Lord is proposing is that where a moral right has been waived by the author it should be revived post mortem to be exercised by the person to whom the right has passed. That seems to us totally unacceptable.

Where the author has consented to a particular act, or has agreed in writing to waive his right, there is no justification for resurrecting the moral right in favour of someone else after the author's death. The moral rights are very much the author's personal rights for him to do with as he will and it is a curious notion that his successors might know his mind better than he did during his lifetime. If the rights were to revive, the person exercising the right could enforce the right in direct contravention of the expressed wish of the deceased author. This seems to be morally wrong, if I may put it that way. Alternatively, the successor could give fresh consent or waiver. Were he to give this freely, the resurrection of the right has merely been an administrative inconvenience to all concerned. Were he to demand payment, the successor would benefit from acts which the deceased author agreed he should not. That seems wholly unfair.

I know that there are some who believe that moral rights should be inalienable and that the Bill should not allow for consent and waiver in Clause 83. This is a matter which was fully debated, especially in your Lordships' House but also in another place. I do not want to repeat the arguments. Suffice it to say that the practical day-to-day realities of the publishing and film industries in particular require Clause 83. While I accept that we must agree to differ on the basic point, I would hope that even the advocates of inalienable moral rights can see that this attempt at a compromise solution offered by the noble Lord, Lord Williams, gives us the worst of both worlds. It places the author's successors in a position which is in some ways superior to his and allows them to negate his wishes. It reintroduces uncertainty into the minds of publishers and others who are assured of their position only during the author's lifetime. I hope that the noble Lord will feel able to withdraw his amendment.

§ Lord Williams of Elvel

My Lords, I too shall speak to the same group of amendments. Noble Lords will recognise the fact that during the passage of the Bill through this House and another place we on these Benches expressed worry about the question of moral rights and the consent and waiver of such rights. I must once again reiterate the opinion that the new moral rights provisions are now circumscribed by such a host of exceptions as to afford the new protection in only fairly unusual and, in our view, peripheral cases.

Our basic objection is to Clause 83. It is so general an exception on the basis of waiver or consent as to make the moral rights become far less protective than in the European systems which provide moral rights as a guarantee of the author's or director's position as a creative artist. In particular, Clause 83 will enable surrender of rights to be taken from him before the circumstances amounting to an invasion of his moral rights have surfaced. We believe that he ought not to be placed in advance jeopardy by such a general rule.

The amendment which I have tabled would ensure that if for some reason the author were rendered incapable of giving consent or waiver to his moral rights in the appropriate form (whatever that may be), the successors would be able to assert those rights. I accept what the Secretary of State has said about the problems of putting that into practice. However, I wonder whether we should not at least acknowledge that the whole question of the assertion of moral rights and the way in which the arrangements will work will be fraught with great difficulty. It is really for that reason that I have tabled the amendment. It may be the last opportunity I shall have to say that I believe that the moral rights provisions in the Bill are subject to, at the least, enormous controversy. As the Secretary of State has said, we must disagree on the contents but I did not want the Bill or the amendment from the Commons to pass without reasserting our objections to the contents of the Bill as regards moral rights.