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Copyright

Volume 100: debated on Wednesday 25 June 1986

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Motion made, and Question proposed That this House do now adjourn— [Mr. Tony Durant.]

11.30 pm

In addressing the question of ownership of copyright in commissioned works of art, I would like to refer briefly to that great historical figure. William Hogarth's success during his lifetime was such that pirates paid him the compliment of copying his work for money. Indeed, so popular were his engravings that even pirated editions were themselves re-pirated. Hogarth, of course, did not receive a penny for this exploitation of his works.

Hogarth was a man of business acumen as well as an artist. He therefore set about devising a rule which would protect his work and that of fellow artists. He argued that the artists or producer—the person we now refer to as the author — should be allowed to control the reproduction of that work.

In 1735, Parliament enacted a law of copyright known as Hogarth's Act, under which no one was allowed to make copies of a work without the artist's consent. The modern expression of that principle is enshrined in the Copyright Act 1956. Section 4 of that Act, establishes the basic rule with regard to the legal ownership or the copyright in literary, dramatic, musical and artistic works. The rule is that the author of a work shall be entitled to any copyrights subsisting in the work.

Before I consider the special difficulty for visual artists thrown up by an exception in this Act to the general rule, I would like to consider further our international obligations. The United Kingdom is a member of the union established to protect the rights of authors under the Berne copyright convention. Article 9 of the convention expressly states that authors of literary and artistic works protected by the convention shall enjoy the exclusive right of authorising the reproduction of these works.

It is laid down in article 2 of the convention that the protection of literary and artistic works shall operate for the benefit of the author and his successors in title. By "author," is meant the person by whom the work has been produced, a construction which the English courts have adopted for copyright purposes.

The Government have made it plain in the recent White Paper on copyright entitled "Intellectual Property and Innovation" that they intend to ratify the Paris text of the Berne convention. Indeed, it is plain from the welcome inclusion in the White Paper of new moral rights for authors that the Government are fully conscious of their international obligations under the Berne conventionn. No doubt my hon. Friend the Minister recognises that the provisions of the convention are supposed to be enforceable in the countries of the union at the suit of the author or his successors in title. In the United Kingdom, the law of copyright is the vehicle through which the requirements of the Berne convention are carried in to effect.

It follows that anything in our domestic law of copyright which tends towards the involuntary transfer of rights by an author ought to be examined most carefully to ensure that authors are not denied the benefit of the protection contemplated by the Berne convention.

The White Paper has been warmly welcomed as offering much needed simplification in the law relating to industrial patents and designs. It has also been admired for its modernising spirit embracing the new technologies of intellectual property including computer software. It is all the more surprising, therefore, that the White Paper should propose to leave unammended the provision in the Copyright Act 1956 which has the effect of automatically removing from artists the copyright in their work. It is not only a repudiation of the spirit of William Hogarth—it is perhaps fortunate for my hon. Friend the Parliamentary Under-Secretary of State for Trade and Industry, who is to reply to the debate, that William Hogarth is not in position to retaliate with one of his devastating caricatures —but it is wholly contrary to the requirements of the Berne convention.

The provision in question is section 4(3) of the Copyright Act. Although the Act embodies the general rule that the author of a work is the first owner of copyright, there is in a section 4(3) an exception to the rule, which provides that when a person commissions a photograph, a painted or drawn portrait or an engraving, the commissioner and not the artist is entitled to the copyright in the work. In a nutshell, the provision means that the artist has to bargain to get back what should belong to him as of right. That is invidious and insupportable, and in the forthcoming legislation we shall have the opportunity to remedy it.

Not only are the anomalies contrary to our international obligations under the Berne convention, hut, for practical purposes, connected with the economic activity of Britain's artists, they are eccentric and are inconsistent to a degree that has mystified artists for many years. It is indeed timely that, before the Bill that will follow the White Paper is introduced in Parliament, the Arts Council, backed by the Royal Academy, has made a most vigorous and detailed case on the matter to my right hon. Friend the Secretary of State for Trade and Industry. I hope that my hon. Friend the Under-Secretary will be able to tell the House that he has pondered the Arts Council's case—I am sure that he has done so—that he acknowledges the expert legal and artistic opinion that has been placed before him and that he will endorse the striking out of section 4(3). In so doing, he would add not a jot to public expenditure but would ensure conformity with European law and adherence to the requirements of the Berne convention. He would also give a signal to the arts world that, in attending to pressing matters involving industrial copyright, the Government have not overlooked the economic interests of our native artists, who are much admired throughout the world.

It is a mystery why photographs, portraits that are drawn or painted, and engravings, which include etchings, lithographs, woodcuts and other printing processes, were singled out for exceptional treatment earlier in the century. Certainly the list appears arbitrary to modern eyes. Why, for example, are sculpted portraits not included?

It is reasonable to ask what motive there might have been for the statutory exception. It is said that the justification for section 4(3) was a perceived need to preserve the privacy of family archives and personal mementos, but it does not follow that the right way of remedying the supposed deficiencies in the law is to deny copyright protection in the United Kingdom to authors of commissioned photographs, portraits and engravings whose patrons have not specifically agreed that they should have it.

The abolition of section 4(3) would not prevent those whose privacy was flouted from seeking a remedy in actions for breach of trust or confidence. It would be better still if we had a generalised law of privacy in the United Kingdom. Moreover, the protection of privacy is hardly a consistent theme of the subsection. All photographs are included inthe list of commissioned works, whether or not they are of a private and personal nature. That results in the odd circumstance that, if a person commissions both a photographer anda painter to produce pictures of his house, he will automatically own the copyright in the photograph, butnot in the picture on canvas. But if the pictures commissioned were portraits of his mother-in-law, he would automatically own the copyright in both works.

The net effect of the subsection is to muddy waters which should be as clear as the general rule is already—the artist is deemed to own the copyright unless he decides to assign it voluntarily to someone else. It will not do to say that the artist who is commissioned to take a photograph or make a portrait should be required to insist on the express assignment in writing of the copyright every time. It should, rather, be the other way round, as is the case with landscapes and all other classes of commissioned literary and artistic works that are not covered by the subsection.

As Mr. Justice Whitford observed in his report on copyright in 1977:
"the commissioner can protect his position by express agreement."
In other words, the ownership of copyright can be part of the bargain struck between the commissioner and the artist, but where no contract exists the presumption should be, as elsewhere— namely, that ownership of copyright vests in the artist. The House will recognise the justice of that when it considers how weak, generally speaking, is the bargaining power of artists compared with that of their patrons.

The anomalies of this subsection of the current law work directly against the interests of artists in this country. The subsection applies, regardless of whether the commissioning party intends to keep the commissioned work confidential, or to exhibit it publicly, or to exploit it commercially. The subsection often results in the curious situation in which the commisioner owns the copyright in a photograph or an engraving and the artist owns the means by which to exploit it — in other words, the photographic negative or the engraved plate.

The subsection applies, regardless of whether the commissioner is the person whose privacy it may be disirable to protect. The subsection is arbitrary in not applying to other forms of commissioned works, which by their nature may be no less deserving of protection under a proper regime of privacy. I have mentioned sculpted portraits. Why not confidential art work or illustrations that are not portraits? In these cases, the artist is deemed to own the copyright, yet we hear of no grave difficulties for commissioners.

This subsection applies, even though the authors of these types of commissioned works have not voluntarily transferred, or may not have wished, or intended, to transfer their copyright in the United Kingdom to the commissioner. So we have the principle, inconsistently established, of a copyright not enforceable at the suit of the author of the protected work, or anyone who is fairly entitled to be called his successor in title. The Arts Council has argued most strongly — and I believe fairly and reasonably — that such a situation is properly to be regarded as incompatible with the main objects of the Berne convention.

In chapter 16.3 the White Paper says:
"Variations from the simple, fundamental principle that the author owns copyright are justified only where convenience and natural justice clearly point in this direction."
It is very curious, therefore, that the White Paper proposes that the exception that I have been discussing should be retained. I hope that I have been able to persuade my hon. Friend the Minister that it creates considerable confusion and inconvenience, that it carries with it no significant practical benefit and that it embodies a palpable injustice. There is a wealth of reasons for the abolition of this subsection, and I hope that my hon. Friend will be able to tell us that it is no longer the Government's intention to re-enact it, or at least that he will look at it again very carefully.

So pleased was Hogarth with the introduction of the Copyright Act 1735 that he offered thanks to King and Parliament with a special engraving, in which the rays of royal favour emanating from the crown are shown falling upon mitres and coronets and upon Mr. Speaker's hat. The adoption of the reform that I have proposed would result in gratitude, possibly less spectacular but no less warm.

11.43 pm

The Parliamentary Under-Secretary of State for Trade and Industry
(Mr. John Butcher)

I thank my hon. Friend the Member for Stratford-on-Avon (Mr. Howarth) for demonstrating that on this side of the House there is no shortage of affection for the artistic community in the United Kingdom and its products. I think that we are doubly blessed in this debate. My right hon. Friend the Secretary of State for Trade and Industry was, in a past incarnation, Minister with responsibility for the arts. The discussions that may take place after the raising of this issue will benefit from the close relationship between Sir William Rces-Mogg and my right hon. Friend.

The White Paper "Intellectual Property and Innovation" puts forward a number of proposals on the protection of various types of work under copyright law. As stated in this White Paper, the Government's broad aims are to ensure continued protection for those who create copyright works, while at the same time recognising that the public has a substantial interest in the availability of these works. I am pleased to say that the Government's proposals for copyright reform have, in general, been welcomed by both copyright owners and users.

We are dealing with those proposals which affect artists' copyright and I shall deal first with the changes that we propose to make. The most important change affects the so-called moral rights of artists, that is, those rights concerned with the reputation of the artist. Under our proposal, artists will be entitled to claim authorship in their works and also to object to any distortion of their works. This introduction of moral rights has been warmly welcomed by the artistic community and the Arts Council.

A further proposal will help artists who design sets of typeface characters for typewriters, computer printers, printing presses and so on. At present, although individual typeface characters may attract protection. no protection for sets of such characters is available. The GoNernment will give the creators of original sets of type faces the right to control reproduction, importation and commercial distribution of copies. I know that my hon. Friend spoke about this proposal only obliquely, but I am sure that he will agree that this debate is the proper setting in which to clarify that small point about a specific constituency of the artistic community.

Those are the particular changes the Government are proposing. But what, of course, concerns my hon. Friend the Member for Stratford-on-Avon is a change that is not proposed. This is the matter of who should own the copyright in commissioned works. Under the current generality of copyright law, it is the artist who is normally entitled to any copyright subsisting in his work. This is spelt out in section 4(1) of the Copyright Act 1956. There are, however, three exceptions to this general rule. Two of these exceptions, in sections 4(2) and 4(4) of the 1956 Act, are about the ownership of works made by artists in the course of their employment.

Generally, it is the employer who owns the copyright in the absence of any agreement to the contrary. The third exception about which my hon. Friend has spoken generally, concerns certain works made in pursuance of a commission. The relevant provision is in Section 4(3) of the 1956 Act. This provides that where a person commissions a painted or drawn portrait, an engraving or a photograph, then that person and not the artist or photographer is entitled to the copyright in the work, unless there is an agreement to the contrary. These exceptions to the general rule of ownership were not new to the 1956 Act but were carried over from the previous Copyright Act of 1911.

The question of commissioned works was considered by the committee chaired by the Honourable Mr. Justice Whitford in its report on Copyright and Designs Law published in 1977. The committee, although not unanimous in the matter, recommended that copyright in all commissioned works should belong to the author in the absence of any agreement I.o the contrary. To protect the interests of the person who commissioned the work, the committee recommended:
"that the person should have an exclusive licence for all purposes which could reasonably be said to have been within the contemplation of the parties at the time the work was commissioned."
In addition, the committee said that he should have the power to restrain exploitation of the work for any purpose to which he could reasonably object. These proposals were subject to much comment, but the clear consensus of opinion was that considerable practical difficulties would arise in determining what was within the contemplation of the parties at the relevant time.

In response to this criticism, the Government put forward an alternative proposal for public discussion in the 1981 Green Paper "Reform of the law relating to Copyright, Designs and Performers' Protection." This proposal had two aspects. First, the existing exception— giving the copyright to the commissioner — should be retained for painted and drawn portraits, engravings and photographs. For other commissioned works, the copyright should also belong to the person who commissioned the work and not the author. If, however, the commission was for a specific purpose, then the author should have the right to prevent any use of the work for any other purpose. As explained in the White Paper, in the light of the comments received on this alternative proposal, the Government concluded that it was unnecessary and undesirable to amend either the basic ownership provision or the existing specific exemptions.

My hon. Friend the Member for Stratford-on-Avon objects to vesting copyright in anyone other than the artist. This objection is based on the view that it is an unwarranted departure from the basic rule of ownership of copyright. In written answers to questions by my hon. Friend on 16 June and to my hon. Friend the Member for Bolton, North-East (Mr. Thurnham) on 18 June, my hon. Friend the Minister for Information Technology referred to representations received from the Arts Council and the Royal Academy of Arts, and he undertook to look at the matter again in the light of those representations. As part of this exercise, I expect a meeting between my officials and representatives of the Arts Council and the Royal Academy to be arranged in the near future. Such a meeting has already been suggested by the chairman of the Arts Council. I also have a copy of our right hon. Friend's reply to Sir William Rees Mogg in which he rightly agrees to this exchange of views between officials.

I should however, like to make it clear that, in reconsidering this matter, we shall have to take into account the interests of those people who commission works as well as the interests of the artists who are represented by the Arts Council. The reason behind section 4(3) of the 1956 Act is that the artist or photographer ought not to be able to put the portrait, photograph or engraving to uses to which the commissioner may disapprove. This consideration would seem to apply as much today as it did when the provision was enacted in 1956 and 1911. It has to be borne in mind that while a professional artist or photographer might be expected to be aware of his rights under copyright law, it would not be reasonable to expect a person who commissions a protrait or photograph to have a detailed knowledge of the relevant statute. This suggests that the presumption, in the absence of an express agreement, would be in favour of the commissioner, not the artist. We would also need to be satisfied that the privacy of a person who commissions a portrait or photograph is not unreasonably prejudiced as a result of a change in the law. Furthermore, it should be remembered that it is always open to an artist who wishes to own copyright in a portrait which he is commissioned to paint or draw to provide for this in an agreement with the person commissioning the portrait—then the commissioner would know exactly where he stands.

On a more legalistic note, it has been suggested that the provision. on ownership of commissioned works is out of step with the copyright law of most European countries and incompatible with the United Kingdom's obligations under article 2(6) of the Berne convention for the protection of literary and artistic works. On the first point, it has to be borne in mind that there are considerable differences between the copyright laws of European countries. The absence of an equivalent provision elsewhere should not stop us from doing what we decide is right for the United Kingdom. Such comparisons can also be misleading, since it may be necessary to take account of any laws relating to personal privacy or breach of trust and confidence, not just copyright law. On the second point, the Government's legal advice is that it is not correct to construe the Berne convention as overriding national legislation about ownership of property. The purpose of article 2(6) is to ensure that the protection provided for in the convention is enjoyed by authors where national legislation makes no relevant provision. If, therefore, a state chooses to legislate—as we do—to the effect that copyright should initially vest in one person rather than another, that does not constitute a breach of the convention.

As a result of the representations of my hon. Friend and others, we will re-examine the existing provision on the ownership of copyright in commissioned works. We will of course have to take fully into account the wishes of professional artists and the interests of those who commission works and who cannot be expected to have a detailed knowledge of their rights—or lack of rights— under copyright law.

With that undertaking, and with that recording of the agreement between the Secretary of State and the Arts Council to talk about the matter in some detail, I hope that my hon. Friend will be satisfied. He will be more than aware that, in this issue, the arguments are finely balanced.

Question put and agreed to.

Adjourned accordingly at six minutes to Twelve o'clock.