HL Deb 14 April 1976 vol 369 cc2247-9WA
Lord HAILSHAM of SAINT MARYLEBONE

asked Her Majesty's Government:

What problems are posed by the Treaty of Rome for the owners of copyright under the law of the United Kingdom; what steps are being taken to clarify points which are not clear; and what solutions the Government intend to propose.

Lord WINTERBOTTOM

Copyright is derived from national laws, and the Berne Convention, to which all Members of the EEC are party, lays the obligation on Member States to give to nationals of other Member States the benefits of their national laws. This has meant that in the past a copyright owner has been able to assign or license his right country by country throughout the Community in the knowledge that each licensee would have sole rights in the country in which his licence ran and would be able to keep out imports from the territory of other licensees. But the mere fact that these rights have been exercisable and may be assigned or licensed country by country raised the possibility of conflict with the provisions of the Treaty of Rome relating to the free movement of goods and the rules of competition. Similar considerations arise in the related fields of patents, trade marks and designs. Interpretation of the Treaty of Rome by the European Court of Justice has clarified some aspects of the problem, but others are at present uncertain.

There has been only one decision so far directly concerning copyright. In that case it was decided that once copyright articles have been sold by the copyright owner or with his consent in another Member State of the Community, the Rome Treaty provisions relating to the free flow of goods preclude that person from exercising copyright to prevent the import of those articles into another Member State. This decision in itself is sufficient to indicate that the rights given under national laws have been modified by the Treaty of Rome.

In the course of time further questions of interpretation of the Treaty will arise, based on the circumstances of individual cases. I do not think it would be possible to identify them in advance, and in any case there is no provision under the Treaty of Rome for the Government of a Member State to refer a question to the European Court of Justice for an opinion purely in order to clarify the law. However, the Court does have power to give an opinion on any matter referred to it on Community law (including the impact of Community law on national legal systems) by any court or tribunal of a Member State which considers that a decision on the question is necessary to enable it to give judgment.

The Government of a Member State is entitled to intervene and submit written observations to the Court on any matter referred to it by a court or tribunal of a Member State for an opinion. At a later stage there is an opportunity for Member States to take part in the oral procedure and to comment on the written observations of the parties, other Member States and the Commission. There is no comparable role under English law. The nearest is probably that of amicus curiae.

Her Majesty's Government maintain a close watch on questions referred to the European Court, and in cases concerning intellectual property seek the views of representative organisations concerned as to whether to intervene and, if so, on what grounds. Their views are taken into account in determining United Kingdom representation to the Court as to what its attitude should be. In particular Her Majesty's Government have regard to the need to preserve copyright and other intellectual property rights in order to foster creative activity.